MacMountain - Create, Communicate, Maccelerate

Terms & Conditions

Introduction
These Terms and Conditions and the Proposal (and any attachments) (the “Proposal”), and any subsequent amendments or addenda thereto, to which these Terms and Conditions are attached (collectively, the “Agreement”) constitute the entire agreement between the client to which such Proposal is addressed (“Client”) and MacMountain, a corporation organized under the laws of the Netherlands (MacMountain), regarding the engagement described in the Proposal. Capitalized terms not otherwise defined herein, shall have the meaning ascribed to them in the Proposal.

Changes to Services
MacMountain will not undertake work that is beyond the scope of Services set forth in this Agreement. Either party may request changes to the Services. To be effective, a change in scope must be in writing and signed by both parties.

Duration of the Agreement
To be effective, a change in the duration of the Agreement must be in writing and signed by both parties. After the ending-date as set in the Agreement, the duration will be automatically pending and can be end with respect of a term of notice of one month. Unless otherwise agreed the contract shall be continued with same Terms and Conditions. Any termination shall require a notice sent one month prior to the termination date. The termination shall be affected upon the completion as needed.

Confidentiality
All data relating specifically to the Client’s business, and other information identified as confidential by the Client, are confidential information of Client. MacMountain’ proprietary software tools, methodologies, techniques, ideas, discoveries, inventions, know-how and any other oral or written information identified as confidential by MacMountain, are confidential information of MacMountain. MacMountain’ confidential information includes MacMountain confidential information owned prior to the beginning of the engagement to which this letter relates as well as MacMountain confidential information developed during the course of this engagement. Client confidential information and MacMountain confidential information are collectively referred to as “Confidential Information.” Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party’s prior written consent. Each party agrees to take reasonable measures to protect the confidentiality of the other party’s Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein.

Notwithstanding anything to the contrary contained in this Agreement, neither party shall be obligated to treat as confidential any information disclosed by the other party (the “Disclosing party”) which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitle to disclose Confidential Information of the other to a third party as may be required by law, statue, rule or regulation, including any subpoena or other similar form of process, provided that (and without breaching any legal or regulatory requirement) the party to which the request is made provides the other party with prompt written notice and allows the other party to seek a restraining order or other appropriate relief.

Subject to MacMountain’ confidentiality obligations in this Agreement, nothing herein shall preclude or limit MacMountain from providing similar services for other clients.

Deliverables
The passage of ten working days from the date when a project deliverable or output (each a “Deliverable”) is provided to Client without receipt by MacMountain of notice of non-acceptance by Client, or use by Client of a Deliverable will constitute final acceptance by Client. Client will own all written material originally prepared for Client and delivered under this Agreement. MacMountain’ working papers and MacMountain confidential information belong exclusively to MacMountain. Client will have a non-exclusive, non-transferable license to use MacMountain Confidential Information for Client’s own internal use and only for the purposes for which they are delivered to the extent that they form part of the deliverables.

Electronic Mail (e-mail) Communications
During the provision of the Services the parties may wish to communicate electronically with each other at a business e-mail address. However, the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. Accordingly, each party agrees to use commercially reasonable procedures to check for the then most commonly known viruses and to check the integrity of data before sending information to the other electronically, but each party recognizes that such procedures cannot be a guarantee that transmissions will be virus free. It remains the responsibility of the party receiving an electronic communication from the other to carry out a virus check on any attachments before launching any documents whether received on disk or otherwise.

Client Responsibilities
Client agrees to perform the tasks and provide the assistance agreed to by the parties. Client also agrees to provide additional support necessary for MacMountain to perform the Services, and to ensure that it has appropriate back up, security and virus-checking procedures in place for any computer facilities, information or materials it provides. Any timing or fee estimate we have provided for this engagement takes into account the agreed-upon level of assistance from Client and commitment of Client resources. MacMountain shall not be responsible for any delay or other consequences resulting from Client’s failure to perform any of its obligations under the Agreement. Client’s failure to satisfy its responsibilities under this letter may lead to an increase in MacMountain fees, depending on the extent to which MacMountain has to perform more services or reschedule its commitments to deliver the Services, or MacMountain inability to provide the Services.

Fees and Payment
Client shall pay MacMountain the fees set forth in the Proposal. Client shall be responsible for paying any taxes (such as applicable sales taxes, duties or goods and services taxes) for which it is legally liable arising from this Agreement at the rate in force at the date the liability arises. All invoices will be due upon receipt. MacMountain reserves the right to charge a commercial rate of interest on accounts that are overdue by more than one month.

Warranties and Liabilities
MacMountain will perform the Services in accordance with the consulting standards established by the AICPA and in accordance with the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, MACMOUNTAIN MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, AND INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, MACMOUNTAIN DOES NOT WARRANT THAT THE SERVICES OR THE CLIENT’S IMPLEMENTATION OF ANY DELIVERABLE OR RECOMMENDATION WILL SATISFY CLIENT’S REQUIREMENTS. CLIENT ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT MACMOUNTAIN DOES NOT GUARANTEE OR WARRANTY THAT IN PERFORMANCE OF THIS AGREEMENT IT SHALL FIND, LOCATE OR DISCOVER ALL OF THE CLIENT’S SYSTEM VULNERABILITIES AND WILL NOT HOLD MACMOUNTAIN RESPONSIBLE TO DO SO.

MacMountain agrees to indemnify, defend and hold harmless Client from and against any and all amounts payable under any judgment, verdict, court order or settlement for (i) death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the MacMountain’ negligence or willful acts in the performance of this Agreement, and (ii) claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from deliverables provided by MacMountain to Client in connection with this engagement. Should the Client’s use of the deliverable prepared by MacMountain be determined to have infringed, or if, in MacMountain’ judgment, such use is likely to be infringing, MacMountain may, at its option: (1) procure for the Client the right to continue to use the deliverable; or (2) replace or modify the deliverable to make its use non-infringing while yielding substantially equivalent results. If neither of such options are or would be available on a basis that MacMountain finds commercially reasonable, MacMountain may terminate this Agreement, the Client shall return the deliverable and MacMountain shall refund the fees paid for the associated services, less a reasonable allowance for use. This indemnity does not cover alleged infringements caused by modifications to the deliverable that are not made by MacMountain or that result from the Client provided designs, specifications or other information or from combination of such work with products or services not provided by MacMountain.

In no event will MacMountain be liable for any loss, damage, cost or expense attributable to any act, omission or misrepresentations by Client, its directors, employees or agents. In no event shall MacMountain be liable to Client, whether a claim be in tort, contract or otherwise: (a) for any amount in excess of the total professional fees paid by Client to MacMountain pursuant to this Agreement; or (b) for any consequential, indirect, lost profit or similar damages relating to or arising from the Services provided under this Agreement, except to the extent finally determined to have resulted from the gross negligence, willful misconduct or fraudulent acts of MacMountain relating to such Services. In addition, MacMountain shall have no liability to Client arising from or relating to any third party hardware, software, information or materials selected or supplied by Client.

Testing
If the Services include testing, penetration, intrusion or analysis of Client’s information systems or enterprise, whether by using intrusive or passive techniques and software tools (“Testing Services”), the provisions of this section shall apply. Client hereby consents to MacMountain performing the Testing Services to Client’s systems identified as well as any other ancillary systems that may be connected to the Client’s networking infrastructure, including Internet, Intranet and Extranet connections and Client shall be solely responsible to obtain all necessary consents of all such persons or entities to allow MacMountain to perform such Testing Services.

Client understands that Testing may result in disruptions of and/or damage to Client’s or third party’s information systems and the information and data contained therein, including but not limited to denial of access to a legitimate system user, automatic shut-down of information systems caused by intrusion detection software or hardware, or failure of the information system. Client is solely responsible for understanding the testing steps that will be performed as part of the Testing Services and for arranging alternative means of operation should such disruptions or failures occur and for all damage caused by the Testing Services. MacMountain and its members, officers, directors, employees, representatives, agents, subsidiaries, affiliates, subcontractors and consultants shall have no responsibility or liability for, and Client shall have no recourse against any of them for any damages or losses whatsoever as a result of such Testing Services.

Other Matters
MacMountain shall not be liable to the other for any delay or failure to perform any of the Services or obligations set forth in this Agreement due to causes beyond its reasonable control (e.g. illness or any other personal circumstances of MacMountain’s Professionals or hired Professionals from third parties etc.). If any provision of the Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. In performing the Services, MacMountain is an independent service provider. Client accepts and acknowledges that any legal proceedings arising from or in connection with the Services must be commenced within one year from the date Client became aware or ought reasonably to have become aware of the facts which give rise to our alleged liability and in any event no later than two years after any such cause of action accrued. Neither party may assign this Agreement without the prior written consent of the other party. The provisions of this Agreement, which expressly or by implication are intended to survive its termination or expiration, will survive and continue to bind both parties. This Agreement constitutes the entire Agreement between the parties with respect to the Services and the rights and responsibilities of the parties with respect to this engagement. This Agreement supersedes any prior understandings, proposals or agreements with respect to the Services.