Terms and Conditions

1. Applicability.

• These general terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by IQSAY, LLC d/b/a The HCP Team, UMedia Pro, Web Express (“Service Provider”) to the person or entity identified as “Customer” (“Customer”) in the service quote that incorporates these terms by reference (“Quote”).
• The Quote shall be deemed accepted by the Customer and, together with these Terms, shall constitute the entire agreement and understanding of the parties, on the earlier to occur of the following events: (i) Customer signs the Quote; (ii) Customer pays any sums towards the Quote, including if less than the amounts required under the Quote; or (iii) Customer accepts any of the Services (defined below) identified in the Quote. If not accepted by the Customer within ten (10) days after the date of the Quote, the Quote will expire and become void.
• The Quote and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Quote, these Terms shall govern, unless the Quote expressly states that a particular term of the Quote shall control.
• These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

2. Services.

• Provision of Services. Service Provider shall perform the services identified in the Quote (“Services”), in accordance with these Terms.
• Exclusions. Service Provider is not responsible for performing any services except only for the specific Services identified in the Quote. The foregoing limitation applies regardless of the proximity or relatedness of any other services to the Services identified in the Quote.
• Subcontractors. Service Provider may subcontract all or any portion of the Services. Service Provider is not responsible for the actions or omissions of any subcontractors. If any of Service Provider’s subcontractors imposes any terms or conditions upon their provisions of the subcontracted Services, such subcontracted Services shall, to the extent not inconsistent with these Terms, also be subject to the terms and conditions imposed by the applicable subcontractor.

3. Service Dates.
Service Provider shall use reasonable efforts to meet any Service Dates specified in the Quote, if any, but any such dates shall be estimates only.

4. Customer’s Obligations.
Customer shall:

• cooperate with Service Provider in all matters relating to the Services and provide access to Customer’s premises, systems, software, online accounts, cloud storage, hardware, IT systems, domains, social media accounts, and such other access as may reasonably be requested by Service Provider, for the purposes of performing the Services;
• respond promptly to any Service Provider request to provide direction, information, approvals, access, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
• provide such Customer materials or information as Service Provider may  request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
• obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the Service Dates.

5. Non-Solicitation.
Customer shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee, contractor, or supplier of Service Provider, or induce the termination of the employment or contractual relationship of any employee or contractor of Service Provider for a period of two (2) years following the termination of this Agreement.  Because the damages Service Provider would sustain as a result of a breach by Customer of the Non-Solicitation provisions set forth in this Section 5 are not readily ascertainable, for each breach of this Section, Customer will be liable to, and shall pay Service Provider the sum of $10,000.00 as liquidated damages (the “Liquidated Damages”).  The Parties intend that the Liquidated Damages constitute compensation and not a penalty.  The Parties acknowledge that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Customer breach of this Section 5.  The Customer’s payment of the Liquidated Damages is the Customer’s sole liability and entire obligation, and Service Provider’s exclusive remedy, for any Customer breach of Section 5.  For the avoidance of doubt, the Liquidated Damages set forth in this Section are only applicable in the case of breach of Customer’s Non-Solicitation obligations set forth in Section 5 of this Agreement, and not to the breach of any other obligation or provision of this Agreement.

6. Customer’s Acts or Omissions.
If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case.

7. Changes to Services.
Once a Quote is accepted by the Customer, Service Provider shall not be obligated to comply with any requests for modifications, substitutions, replacements, or any other deviation from the Services identified in the Quote (each, a “Change Request”), unless and until: (a) the Change Request is specifically accepted by the Service Provider and incorporated in a new Quote; and (b) the new Quote is accepted by the Customer pursuant to Section ‎1(b) above. Service Provider may charge for the time it spends assessing and documenting a Change Request from Customer at Service Provider’s then-current hourly rate or Development Unit rate. As used in this Agreement, a “Development Unit” is a fictitious unit of measure of efforts employed by Service Provider in connection with its work and/or the provision of Services. The calculation of a Development Unit is determined in Service provider’s reasonable discretion and is influenced by such factors as Service provider deems appropriate, including, without limitation, the efforts involved, the number of employees or contractors used by Service provider, the experience of the personnel involved in the project, etc.

8. Fees and Expenses; Payment Terms; Interest on Late Payments.

• As a condition precedent to the provision of Services by Service Provider, Customer shall fully and timely pay the fees set forth in the Quote (“Fees”). Service Provider may itemize Fees and costs in invoices to the Customer. Fees do not include applicable taxes and any other costs incurred by Service Provider, which may be billed separately to Customer. Customer shall reimburse all reasonable out-of-pocket costs incurred by the Service Provider in performing the Services. Service Provider will attempt to obtain Customer’s consent in writing in advance of incurring any costs in excess of $500.  Service Provider’s failure to submit invoices or to obtain prior approval of any costs does not constitute a waiver of any amounts due to Service Provider. Client’s failure to object to an invoice by the Service Provider within ten (10) days of delivery shall be deemed a conclusive acceptance thereof. Customer shall pay all Fees set forth in the Quote, in U.S. Dollars, without deduction or setoff whatsoever. All Fees are non-refundable.
• All sums due to Service Provider are due within ten (10) days after delivery of an invoice by Service Provider.
• If any sums due to Service Provider are not received timely when due, Service Provider may, at its option, and in addition to any other remedies available to Service Provider, exercise any or all of the following remedies:
  • charge interest on any such unpaid amounts at a rate of 18% per year or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid, whether before or after judgment; and
  • suspend performance for all Services until payment has been made in full, discontinuing any Services provided, disconnecting any systems relating to the Services provided, refusing to transfer any products, software, documents, or any other items associated with the Services provided, and/or terminating Customer’s access to any of the foregoing. In connection with the remedy identified in this paragraph, Customer grants to Service Provider an irrevocable power of attorney, coupled with an interest, to execute and deliver documents on behalf of the Customer, and to do such other acts, deeds, and things as may be reasonably necessary in order to effectuate the purpose of this Section, including, without limitation, to allow Service Provider to deliver notices of transfer of any or all of Customer’s domains to Service Provider.
• As security for the performance of Customer’s payment obligations hereunder, Customer hereby grants to Service Provider a first priority lien and security interest in and to the following collateral (“Collateral”):
  • All of materials provided by Service Provider that have become the property of Customer, including any websites, domains, software, code, trademarks, copyrights; and
  • All of Customer’s “Accounts” and “General Intangibles” (as those terms are defined under Section 9-102 of the Uniform Commercial Code).

In connection with the grant of the security interest in the Collateral identified in this Section, Customer also grants to Service Provider an irrevocable power of attorney, coupled with an interest, to execute and deliver documents on behalf of the Customer, and to do such other acts, deeds, and things as may be reasonably necessary in order to perfect Service Provider’s security interest in the Collateral, including, without limitation, to allow Service Provider to execute, deliver, and file, any financing statements in any applicable jurisdiction; and to allow Service Provider to directly collect payments on any Accounts otherwise due to Customer.

9. Customer Portfolio and Publicity.
By accepting the Services, Customer grants to Service Provider a worldwide, irrevocable, sublicensable, assignable, royalty-free, fully paid-up license and right to use Customer’s name, logo, and a description of the services provided to Customer in connection with commercial purposes of Service Provider, including for publication on Service Provider’s website, marketing materials, and proposals to prospective clients.  In addition, Customer hereby grants the Service Provider the right to place the Service Provider’s logo on the footer of the Customer’s website.  The placement and design of the Service Provider’s logo will be determined by the Service Provider, ensuring it is in a position that is both prominent and harmonious with the Customer’s website design, as determined by Service Provider.  If the Customer requests the removal of the Service Provider’s logo from the website or web application developed by Service Provider, a one-time charge equivalent to 15% of total Fees due to Service Provider under this Agreement (the “Logo Removal Fee”) will be applied to Customer’s balance.  Customer agrees the Logo Removal Fee compensates Service Provider for the loss of brand recognition typically associated with such logo placement.  The Customer agrees that the Logo Removal Fee will become a part of the Fees due under this Agreement in the case of removal.

10. Intellectual Property.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Quote (collectively, the “Deliverables”) shall be and remain owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Service Provider’s license and Customer’s right to use the Deliverables shall immediately terminate if Customer fails to pay any amounts due to Service Provider timely when due or otherwise breaches this Agreement. In addition to any other remedies of Service Provider in case of breach of this Agreement by Customer, Service Provider reserves the right to remove or take down any posts, images, designs, text, or otherwise any Intellectual Property Rights or Deliverables previously delivered to Customer.

11. Confidential Information.

• All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Customer’s pricing, and marketing (collectively, “Confidential Information”), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. This Agreement constitutes a confidential document.
• Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
• Service Provider shall be entitled to injunctive relief for any violation of this Section.

12. Representation and Warranty.

• Service Provider represents and warrants to Customer that it shall perform the Services using its reasonable efforts and shall devote such resources that Service Provider deems reasonable to meet its obligations under this Agreement.
• The Service Provider shall not be liable for a breach of the warranty set forth in Section ‎12(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within 30 days of the time when Customer discovers or ought to have discovered that the Services were defective.
• Subject to Section 12(b), Service Provider shall, in its sole discretion, either:
  • re-perform such Services (or the defective part); or
  • credit or refund the price of such Services at the pro rata contract rate.
• THE REMEDIES SET FORTH IN SECTION ‎12(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a).
  
• Customer represents and warrants that any and all elements of text, graphics, photos, designs, trademarks, and/or other artwork (collectively, the “Customer Materials”) provided to Service Provider for inclusion in the related projects are either (i) owned by Customer, or (ii) used with explicit permission from the rightful owner(s).  Upon Service Provider’s request, Customer shall provide written evidence of ownership or proper license to use any Customer Materials.  Service Provider reserves the right to refuse, in their sole discretion, to use any Customer Materials if Service Provider has reason to believe such materials violate any third-party rights.

13. Disclaimer of Warranties.
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION ‎12(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

14. Limitation of Liability.

• IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  
• IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE HIGHER OF EITHER (i) THE AGGREGATE AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM; OR (ii) $1,000.
  

15.Termination.

• In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
  • fails to pay any amount when due under this Agreement;
  • has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
  • becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
• Service Provider may terminate this Agreement with thirty (30) days advance written notice to Customer.
• Customer may terminate this Agreement with thirty (30) days advance written notice to Service Provider.
• The termination of this Agreement shall not relieve Customer of any liability incurred prior to the date of termination.

16. Indemnification.
Regardless of fault, the Customer will indemnify, defend, and hold harmless Service Provider, its affiliates, and each of their respective officers, directors, and personnel, including any subcontractors of Service Provider (collectively, “Indemnified Parties”) on written demand against all damages, fines, penalties, costs, expenses, taxes, settlements, liabilities, and any other expenses whatsoever (including reasonable attorneys’ fees and court costs at trial and all appeals, the costs incurred in connection with pursuing any insurers, costs of investigation, and the cost incurred in obtaining indemnification hereunder) (“Losses”) incurred or awarded against any Indemnified Parties in connection with any claim, action, demand, suit, or proceeding (“Claim”) arising out of or in connection with: (i) the use of the Services by Customer or any person or entity; (ii) a breach or threatened breach of any of the terms of this Agreement; (iii) infringement or misappropriation of a third-party’s intellectual property rights; (iv) violation of applicable laws, including applicable data protection laws; (v) any loss of data resulting from Customer’s transition from Service Provider’s Services; or (vi) negligent or more culpable (including criminal) acts or omissions.

17. Waiver.
No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18.Force Majeure.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (each a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 90 consecutive days following written notice given by it under this Section ‎18, either party may thereafter terminate this Agreement upon 30 days’ written notice.

19. Assignment.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Service Provider may assign any or all of its rights and/or delegate any or all of its obligations to subcontractors. Service Provider is not responsible for the negligent or more culpable acts or omissions of any subcontractors.

20. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

21. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms, except solely for the Indemnified Parties, which are intended third-party beneficiaries of Section ‎16 and (b).

22. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “notice”) shall be in writing and addressed to the parties at the addresses set forth in the Quote or to such other address that may be designated by the receiving party in writing, by notice. All notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid) (FEDEX, DHL, UPS), certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective on the earlier of: (a) upon actual receipt of by the receiving party, or (b) regardless of receipt, 3 business days after being sent in accordance with this Section. Service of judicial process and any court documents may be effected in the same manner as delivery of notices, in addition to all other means of service permitted by law. Service Provider may also provide notice (but not service of process) to Customer via email.

23. Severability.
An adjudication of invalidity or unenforceability of any provision hereof shall not affect the balance of this Agreement, and such invalid or unenforceable provision shall be reformed and interpreted so as to conform to the original intent of the parties to the fullest extent permitted by law.

24. Survival.
Provisions of these Terms, which by their nature should apply beyond the termination or expiration of this Agreement, shall survive such expiration or termination.

25. Amendment and Modification.
Service Provider may change these Terms from time to time, by sending notice to the Customer. If Customer accepts any Services after the date of such changes, Customer shall be deemed to have accepted the updated Terms. Customer may not change these Terms unless Service Provider agrees to the amendment in a writing which specifically states that it amends these Terms and is signed by an authorized representative of Service Provider.

26. Interpretation.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any Exhibits or Annexes referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

27. Governing Law.
This Agreement, and any dispute, claim, or controversy (whether in contract, tort, statute, or otherwise) arising out of or related to this Agreement, the Services, any transactions contemplated hereunder, or the relationship of the parties, (collectively “Disputes”) shall be governed by, construed, and resolved in accordance with, the laws of the state of Florida, without regard to any conflicts of laws and principles. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.

28. Submission to Jurisdiction; Venue.
All Disputes shall be instituted exclusively in the courts sitting in Miami-Dade County, and each party irrevocably submits to the exclusive jurisdiction of such courts. Each party waives any objection to personal jurisdiction or to the laying of venue in such courts.

29. Attorney’s Fees.
In any Dispute, the prevailing party shall be entitled to recover from the other party all fees incurred in bringing, defending, or investigating the Dispute (including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs), including, without limitation, all attorneys’ fees and costs incident to appellate, bankruptcy and post-judgment proceedings. The costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees and mediator fees, regardless of whether such costs are otherwise taxable.

30. Cumulative Remedies.
All rights, remedies, and powers of Service Provider hereunder are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers given hereby or any laws, now existing or hereafter acquired.

31. WAIVER OF JURY TRIAL.
EACH PARTY HERETO KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE.

32. Counterparts.
This Agreement may be executed in two or more counterparts (including by combination of electronic and non-electronic signatures), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

33. Personal Guaranty.
The person signing the Quote on behalf of the Customer agrees to personally guarantee all of Customer’s obligations under this Agreement. This is an unconditional guaranty of performance and not merely of collection, such that the guarantor shall be jointly and severally liable with the Customer.