This Maintenance Agreement (the “Agreement”) is entered into as of the date agreed through the online sign up (the “Effective Date”) by and between HBTI, a Washington State corporation (the “Provider”), and Customer or End User, (the “Company”)as applicable. This Agreement governs access and use of the HBTI Mobile APP and supporting HBTI Website and any customer software.
RECITALS
WHEREAS, the Company is engaged in HVAC Contracting business and
WHEREAS, the Provider is engaged in the business of maintaining and updating the HBTI Mobile App & The HBTI Websites to keep them current; and
WHEREAS, the Company wishes to engage the Provider as an independent contractor for the Company for the purpose of providing HBTI’s Mobile services, which include the Field Mobile App (HBTI Mobile/JS ServiceStar), the Website and the Data storage needed to maintain and backup provided information, as well as continued maintenance throughout the agreed upon contract term.
WHEREAS, the provider agrees to keep the Mobile App, the Website and the backup storage up to date and functional on the terms and conditions set forth below; and
WHEREAS, the Provider wishes to provide these maintenance services and agrees to do so under the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:
- 1. PURPOSE.
The Company hereby engages the Provider, and the Provider hereby accepts such engagement, to perform the services described in Exhibit A attached hereto and made a part hereof, in connection with the agreed upon maintenance services.
- 2. COMPENSATION.
The total compensation for the Services shall be as set forth in Exhibit A hereto. Payments shall be made according to the payment schedule set forth in Exhibit A hereto.
- 3. TERM.
This Agreement is effective as of the Effective Date and shall continue in force, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, The Agreement is perpetual and will stay intact on a month to month basis thereafter unless either Party provides 30 days written notice of its intent to cancel.
- 4. TERMINATION.
(a) Types of Termination. This Agreement may be terminated:
(i) By either Party on provision of 30 days’ written notice to the other Party.
(ii) By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within 30 days of receipt of written notice thereof.
(iii) By the Company at any time and without prior notice, if the Provider is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Company, or is guilty of serious misconduct in connection with performance under this Agreement.
(b) Responsibilities after Termination. Following the termination of this Agreement for any reason, the Company shall promptly pay the Provider according to the terms of Exhibit A for Services rendered before the effective date of the termination (the “Termination Date”). The Provider acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement. .
- 5. RESPONSIBILITIES.
(a) Of the Provider. The Provider agrees to do each of the following:
(i) Monitor the overall performance of the App, Website and Storage Servers for functionality, and maintain these systems as detailed in Exhibit A to this Agreement.
(ii) Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
(iii) Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
(iv) Provide Services that are satisfactory and acceptable to the Company and take every step to ensure the Mobile App, Website and Storage Servers remains functional and operating.
(v) Maintain password secrecy and notify the Company immediately of any loss or theft of passwords or if the confidentiality of any password has been compromised.
(b) Of the Company. The Company agrees to do each of the following:
(i) Engage the Provider to maintain the Mobile App, its Website and its storage servers, further detailed in Exhibit A to this Agreement.
(ii) Provide all assistance and cooperation to the Provider in order to enable the Provider to ensure the services remain functional and up to date.
(iii) Monitor the content of the Services for items that need to be corrected or updated and provide such updates or corrections to the Provider as detailed in Section 8.
(iv) Maintain password secrecy and notify the Provider immediately of any loss or theft of passwords or if the confidentiality of any password has been compromised.
- 6. CONFIDENTIAL INFORMATION.
The Provider agrees, during and after the Term, to hold in strictest confidence and not to use, except for the benefit of the Company or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Provider by the Company either directly or indirectly. The Provider may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the Company’s personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing. At the request of the Company, the Provider must promptly return all copies of Confidential Information received from the Company, and must promptly destroy all other Confidential Information prepared by the Provider, including, without limitation, any notes, reports, or other documents.
- 7. PARTIES’ REPRESENTATIONS AND WARRANTIES.
(a) The Parties each represent and warrant as follows:
(i) Each Party has the full power, authority, and right to perform its obligations under the Agreement.
(ii) This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
(iii) Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
(b) The Provider hereby represents and warrants as follows:
(i) The Provider has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
(ii) The Provider has the experience and ability to perform the Services required by this Agreement.
(iii) The Provider has the right to perform the Services required by this Agreement at any place or location, and at such times as the Provider shall determine.
(iv) The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Provider shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
(v) The Services required by this Agreement shall be performed by the Provider, the Provider’s staff, and the Providers third party software development Company as well as the Company’s distributor.
(vi) The Provider is responsible for paying all ordinary and necessary expenses of its staff third party developers.
(c) The Company hereby represents and warrants as follows:
(i) The Company will make timely payments of amounts earned by the Provider under this Agreement and as detailed in Exhibit A hereto.
(ii) The Company shall notify the Provider of any changes to its procedures affecting the Provider’s obligations under this Agreement at least 30 days prior to implementing such changes.
(iii) The Company shall provide such other assistance to the Provider as it deems reasonable and appropriate.
- 8. MAINTENANCE REQUESTS.
(a) Procedure for Request. The Company must submit all requests for maintenance to the Provider via the “Change Request” access on HBTI’s website, www.hvacinstitute.com. A Company Maintenance Request must (i) provide the Provider with clear and specific instructions, (ii) be reasonable in nature, and (iii) be within the scope of the Services. All materials transferred to the Provider in connection with a Company Maintenance Request must be in acceptable format.
(b) Request limitations. Under this Monthly Maintenance Agreement, The Company shall be limited to no more than 20 individual line item request for service repair additions or deletions and parts replenishment additions or deletions per month.
(c) Time to Complete. The Provider will post new Service repairs and Service parts requested by The Company on the 15th and 30th of each month. Request posted on or before the 10th will be posted by the 15th. Requests posted on or after the 10th will be posted on the 30th. New employee enrolment or new employee removal will be posted within 48 hours of request. This may be expedited by contacting HBTI @ 253-638-7797
(d) Review and Inspection. The Provider will promptly notify the Company when the work required under a Company Maintenance Request is complete so that the Company can review and inspect such work to ensure its accuracy. The Company will notify the Provider of any errors, omissions, and other issues via email or telephone as soon as practicable following discovery. The Provider will use best efforts to resolve any such errors, omissions, and issues as quickly as possible.
- 9. WEBSITE PROBLEMS; SECURITY.
The Provider must use commercially reasonable efforts to minimize disruption of the Website and to schedule Website maintenance in accordance with Exhibit A hereto.
(a) In the event of a problem with the Website, the Provider agrees to provide the following levels of support:
(i) Urgent Problem. If the Website suffers from an urgent problem, including, but not limited to, the Website becoming unusable, the Provider understands that time is of the essence and will use best efforts to correct the problem as soon as possible. The Provider will continue to update the Company of the status of the problem until the problem is resolved, at which time, the Provider will immediately notify the Company that the problem has been corrected.
If the Provider becomes aware of an urgent problem before the Company becomes aware of it, the Provider will immediately notify the Company of such problem.
(ii) Non-Urgent Problem. If the Website suffers from a non-urgent problem, the Provider understands that time is of the essence and will use best efforts to correct the problem as soon as possible. The Provider will continue to update the Company of the status of the problem until the problem is resolved, at which time, the Provider will promptly notify the Company during normal business hours that the problem has been corrected.
If the Provider becomes aware of a non-urgent problem before the Company becomes aware of it, the Provider will promptly notify the Company during normal business hours of such problem.
(b) Website Back-up. The Provider must back-up the Website as set forth on Exhibit A hereto.
(c) Security. The Provider must take commercially reasonable steps to prevent unauthorized access to the Website and any of the Company’s Confidential Information, including, but not limited to, any data collected on the Website.
- 10. NATURE OF RELATIONSHIP.
(a) Independent Contractor Status. The Provider agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Provider is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Provider’s compensation hereunder. The Provider shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party or a third party.
(b) Indemnification of Company by Provider. The Company has entered into this Agreement in reliance on information provided by the Provider, including the Provider’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that the Provider is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on the Provider’s own actions, the Provider shall assume full responsibility and liability for all taxes, assessments, and penalties imposed on or against the Provider and/or the Company resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from the Provider’s earnings had the Provider been on the Company’s payroll and employed as an employee of the Company.
- 11. NO CONFLICT OF INTEREST; OTHER ACTIVITIES
The Provider hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, the Provider is free to engage in other software and website development maintenance activities; provided, however, the Provider shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Provider’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement.
- 12. INDEMNIFICATION.
(a) Of Company by Provider. The Provider shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sub licensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Provider arising from or connected with the Provider’s carrying out of its duties under this Agreement, or (ii) the Provider’s breach of any of its obligations, agreements, or duties under this Agreement.
(b) Of Provider by Company. The Company shall indemnify and hold harmless the Provider from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) its maintenance or usage of the Company’s Website in connection with the carrying out of its duties under this Agreement or (ii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Provider.
- 13. INTELLECTUAL PROPERTY.
(a) No Intellectual Property Infringement by Provider. The Provider hereby represents and warrants that the use and proposed use of any software, programs, or applications to maintain, repair, or update the Website does not and shall not infringe, and the Provider has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, or other rights of any third party. To the extent the software, programs, or applications used to maintain, repair or update the Website infringe on the rights of any such third party, the Provider shall obtain a license or consent from such third party permitting the use of such items.
(b) No Intellectual Property Infringement by Company. The Company represents to the Provider and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Provider and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Company. The Company further represents to the Provider that its domain names or URL listing does not infringe, dilute, or otherwise violate third party rights or trademarks.
(c) Company Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the Company and the Provider has no ownership rights or other intellectual property rights to such items.
- 14. LAWS AFFECTING ELECTRONIC COMMERCE.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Company agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the Provider and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Company’s exercise of Internet electronic commerce.
- 15. AMENDMENTS.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
- 16. ASSIGNMENT.
The Company may assign this Agreement freely, in whole or in part. The Provider may not, without the written consent of the Company, assign, subcontract, or delegate its obligations under this Agreement, except that the Provider may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer.
- 17. SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
- 18. FORCE MAJEURE.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
- 19. NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
- 20. NOTICE.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows:
If to the Company: (Customer or End User, as applicable)
If to the Provider:
HVAC Business & Technical Institute
22641 83RD Avenue S
Kent WA 90832
- 21. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of Washington. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
- 22. COUNTERPARTS/ELECTRONIC SIGNATURES.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, other electronic medium or if you are ordering the service on line, then by clicking, “I Agree” Signing your contract for the Services or using HBTI Mobile, you agree to this Agreement as a “Customer” If you are agreeing to this Agreement for use by an organization, you are authorizing this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services. Clicking “I Agree” shall have the same force and effect as an original signature
- 23. SEVERABILITY.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
- 24. ENTIRE AGREEMENT.
This Agreement, together with Exhibit A hereto, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
- 25. HEADINGS.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
EXHIBIT A
DUTIES, COMPENSATION, AND SERVICES
- 1. SERVICES.
In exchange for the Monthly Maintenance Service Fee, as defined in Section 2 below, the Provider will provide the following services:
(a) Monitor the overall performance of the Mobile App, Website and Storage servers for functionality on a regular basis.
(b) Perform any corrective maintenance services or repairs reasonably necessary to maintain the operation of the services. All routine corrective maintenance must be scheduled between the hours of 7:00 pm PST to 3:00 am PST in order to minimize disruption of the Website during peak times (the “Maintenance Time”). If any extra maintenance is required outside of the Maintenance Time, the Provider will give the Company at least 24 hours advance notice.
(c) As directed by the Company pursuant to a Company Maintenance Request, revise, edit, add, remove, or otherwise update their Services content, including, the addition or removal of Users, the addition or deletion of Service repair adjustments in order to keep their Mobile field experience up to date. After obtaining the prior consent of the Company, updates to the Website must be made no later than 5 working days from the date such Company Maintenance Request is received; provided, however, that any Company Maintenance Request submitted by the Company after 5p.m. Pacific time or on Saturday, Sunday, or federal holidays will be deemed received on the next business day. If the work to be performed under any Company Maintenance Request cannot be performed within the Company Maintenance Time, the Provider will obtain the prior consent of the Company and give the Company at least 24 hours’ advance notice.
(d) Procure any equipment, products, or third-party services required to maintain, repair, and update the Services. The Company will reimburse the Provider for its actual out-of-pocket cost, without any mark-up thereon, for the purchase of such equipment, products, or third-party services as detailed in Section 5 below; provided, however, that the Provider will obtain the prior consent of the Company for any purchase to be made by the Provider. And provided, further, that the Company will not be obligated to reimburse the Provider for any portion of services purchased by the Provider that extend beyond the termination or expiration of this Agreement.
(e) Maintain a current back-up copy of the Website DATA at least one time(s) each day in a commercially reasonable manner and archive any files submitted by the Company in secure locations suitable for such materials.
(f) Provide daily technical support Monday through Friday 7:00 am PST to 5:00 pm PST, relating to the Website’s maintenance and the Mobile App’s functionality.
(g) [OTHER AGREED-ON SPECIFICATIONS.]
The Provider is not responsible for the individual creation, design, development, or hosting of the Company’s existing Website. Accordingly, the Company and the Provider agree that the following work is expressly excluded from the Services: Personalization of the HBTI Website for the Company. Personalization of the HBTI Mobile App for the company, (other than the agreed upon changes listed in section1-C
- 2. COMPENSATION.
As compensation for the Services, the Company agrees to pay the Provider, $ 400 per month (the “Maintenance Fee”). The Maintenance Fee will not increase for a period of 12 months from the date of this Agreement. In the event of a Maintenance Fee increase the provider shall notify the Company 30 days prior to the necessary increase. The “Maintenance Fee” may also be increased at any time, if the Company should decide to add additional products or services to their Monthly Maintenance Fee.
- 3. PAYMENT SCHEDULE.
The Provider will invoice the Company the Maintenance Fee on a monthly basis. The Company will be set up on a monthly auto pay and the monthly Fees will be debited on the agreed date. Each invoice will include any Additional Maintenance Fee(s), as defined in Section 4 below, if applicable. In the event there are approved Additional Maintenance Fee’s, the amount approved will be debited on the next scheduled transaction date.
- 4. ADDITIONAL MAINTENANCE FEES.
Additional maintenance work requested or authorized by the Company that falls outside the scope of the Services will be billed to the Company at the Provider’s standard rates for such work
THE AGREEMENT
This Business Agreement (the “Agreement”) is between HBTI, a Washington State corporation and Customer or End User, as applicable. This Agreement governs access to and use of the HBTI Mobile App and supporting HBTI Website and any client software.
The Customer ordering the Services: If you are ordering the Services, then by clicking “I Agree,” signing your contract for the Services or using HBTI Mobile, you agree to this Agreement as a “Customer.” If you are agreeing to this Agreement for use by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
End Users: If you are using the Services as an “End User“, then by clicking “I Agree” or using HBTI Mobile for your Business you agree to this Agreement. To the extent this Agreement conflicts with the HBTI Mobile Terms of Service, this Agreement controls. Please take note that in this Agreement, you are agreeing that your Administrator may be able to control account information and access to your HBTI Mobile account.
