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Terms and Conditions

THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO USE RAYZINA SERVICES. BY PLACING AN ORDER COMPANY ACCEPTS THESE TERMS AND CONDITIONS, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN COMPANY AND RAYZINA, LLC, A TEXAS LIMITED LIABILITY COMPANY ("RAYZINA"). THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THE COMPANY PLACES AN ORDER OR USES THE SERVICES (the "Effective Date").

1. Definitions.

"COMPANY" means any customer that places and order or uses RAYZINA services; and RAYZINA desires to perform such Services for COMPANY under the terms and conditions set forth herein.

"Services" means IT consulting services, as shall be more specifically defined in both detail and scope on the Scope of Work (herein so called), a form of which is attached hereto as Exhibit "A" and incorporated herein for all purposes.

2. Term and Termination.

The Term (so called herein) shall commence as of the Effective Date hereof and shall continue for an initial period of twenty-four (24) months (except as may be otherwise specifically provided in the Scope of Work) (the "Term"), unless earlier terminated as provided herein. The Term shall automatically renew for additional and successive periods of twelve (12) months each, until and unless earlier terminated as provided herein. After the expiration of the initial Term, either party may terminate this Agreement upon at least sixty (60) days prior written notice. Further, this Agreement may be terminated if a party is in default of this Agreement and fails to cure said default within twenty (20) business days from receipt of written notice thereof. Regardless, if COMPANY is delinquent (i.e., more than thirty (30) days behind) in the payment of any sums due and owing to RAYZINA, then RAYZINA may immediately cease and suspend is provision of the Services without considered being in default hereunder. Upon any termination of this Agreement, COMPANY shall owe RAYZINA any and all Compensation (as defined below) earned through the termination date.

3. Compensation and Expenses.

a. Compensation.

RAYZINA's fees and compensation ("Compensation") for the Services shall be as set forth on the respective Scope of Work. RAYZINA shall provide COMPANY with invoices for such Services at least monthly following the date RAYZINA begins providing Services (or as otherwise set forth in the Scope of Work), as well as with a detailed listing of the Services provided during the respective time period. Invoices shall be due and payable immediately upon receipt by COMPANY. If the scope of Services set forth in any respective Scope of Work is exceeded, then RAYZINA reserves the right to modify the Compensation to be charged to and paid by COMPANY. Prices and charges under this Agreement are exclusive of all taxes, including state and local use, sales, property and similar taxes. Any payment not received within thirty (30) days from its respective due date shall accrue interest at a rate of 1.5% per month, but not to exceed the highest non-usurious amount allowed by Texas law. Compensation shall be earned and deemed due and payable upon provision of the underlying Services by RAYZINA. The provisions of this Section shall constitute the payment terms for this Agreement, unless otherwise specifically set forth in the Scope of Work.

b. Expenses.

COMPANY will also be billed for all of RAYZINA's expenses incurred in providing the Services, but only to the extent approved in advance, in writing, by COMPANY (or as otherwise set forth in the Scope of Work).

4. Ownership.

Any Work Product (herein so called) produced or created by RAYZINA exclusively for COMPANY under this Agreement (including as described in any Scope of Work) shall belong exclusively to COMPANY and shall constitute "work made for hire" under applicable copyright laws and regulations, and to the extent such work does not constitute a work made for hire, RAYZINA shall assign to COMPANY all rights, title and interest in the Work Product, including the intellectual property rights therein. Notwithstanding the foregoing, neither COMPANY, nor any applicable third party, shall have any ownership interests in any third party materials or with respect to any preexisting RAYZINA materials, software, development tools, or associated object or source code (the "Preexisting IP") used to provide the Services, regardless of whether any such Preexisting IP is incorporated into a deliverable under this Agreement. However, if any such Preexisting IP is incorporated into a deliverable, RAYZINA grants to COMPANY (subject to any applicable existing license agreements) a non-exclusive right and license, to use such identified third party materials, and a non-exclusive right and license to any Preexisting IP, in each case solely with respect to COMPANY's business purposes as part of the Work Product. RAYZINA shall retain its exclusive ownership rights associated with its Preexisting IP and Confidential Information (as hereinafter set forth), including without limitation its proprietary methodology that may be used by RAYZINA and/or provided by RAYZINA to COMPANY during the course of providing Services. Consistent with Section 6 herein below, COMPANY acknowledges and agrees to hold RAYZINA's Confidential Information and proprietary methodology in confidence in accordance with the provisions of this Agreement. The obligations and licenses set forth in this Section shall survive the expiration or earlier termination of this Agreement in perpetuity.

5. Acceptance by COMPANY.

All Services performed by RAYZINA under this Agreement shall be deemed accepted by COMPANY and fully acceptable to COMPANY and in full compliance with all terms and conditions of this Agreement, unless written notice is given by COMPANY to RAYZINA within ten (10) days of receipt of RAYZINA invoice for said Services. Notwithstanding the foregoing, if COMPANY makes any claim that the Services provided are insufficient, deficient or not consistent with the Scope of Work, RAYZINA shall promptly investigate the claim and make commercially reasonable efforts to cure said alleged deficiency.

6. Confidentiality.

Each party acknowledges that information provided by either party in connection with this Agreement may contain confidential and proprietary data (collectively, the "Confidential Information"), and disclosure of such Confidential Information may be damaging to the disclosing party. The term "Confidential Information" denotes any and all technical and business information disclosed in any manner or form including, but not limited to financial plans and records, marketing plans, business strategies and/or methodologies, trade secrets, present and proposed products and methodologies, electrical or other design schematics, computer software programs, source code, relationships with third parties, customer lists, information regarding customers and suppliers, founders, employees, and affiliates. Confidential Information shall exclude any information known generally to the public, information obtained independently from third party sources without the receiving party's knowledge that the source has violated any fiduciary or other duty not to disclose such information, and/or information developed independently by the receiving party. Both parties agree to hold such Confidential Information provided by the other in strict confidence, not to make use of it other than as required for the performance of this Agreement or the use of any Work Product or other deliverable, to release it only to employees requiring such Confidential Information, and not to release or disclose it to any other third party. The obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement in perpetuity.

7. Nondisclosure of Confidential Information.

Each party agrees that it will use the Confidential Information of the other party solely in connection with its engagement pursuant to this Agreement, and not for any other purpose, and that such Confidential Information will be kept strictly confidential by the receiving party, as provided herein. Each party further agrees that it will not at any time, either during or after this Engagement terminates, directly or indirectly, make known or divulge or communicate in any fashion, form or manner to any person, firm or company in any manner whatsoever, Confidential Information of the other party during the term of this Agreement or any renewal thereof. In the event that either party is required (by deposition, interrogatory, request for documents, or similar legal or administrative process) in any legal or other governmental proceeding, or by any court order, law, or applicable regulation, to disclose any Confidential Information of the other party, such party shall give the other party immediate oral notice and prompt written notice of such requirement so that the other party may seek an appropriate protective order. If, in the absence of a protective order, such party is nonetheless compelled in a proceeding to disclose Confidential Information, the party may disclose such of the Confidential Information as is absolutely required, and no more, without being deemed to have breached this Agreement. No other right, authorization, or license, whether express or implied, to use or exploit any information, know-how, trademark, patent, copyright, trade secret, or any other intellectual property right, is either granted or implied by the making of the Confidential Information available to the other party. All Confidential Information (including tangible copies and computerized or electronic versions and summaries thereof) shall remain at all times the property of the providing party. Neither party shall make copies of any of the Confidential Information of the other party without the prior written consent of the other party. Upon termination of this Agreement or at the request of a party at any time, the other party shall promptly deliver to the requesting party or destroy all copies of tangible Confidential Information owned by the requesting party and will deliver or destroy all memoranda, notes and any other materials prepared by the receiving party based on any Confidential Information, provided that COMPANY shall have no obligation to return any Confidential Information embodied in any Work Product or other deliverable.

8. Data Security and Safeguarding.

Each party is required to take all reasonable and appropriate measures to safeguard their data and protect against unauthorized access to or use of data, systems, networks, servers and cloud-based applications. In addition, each party shall ensure that all personnel receive appropriate and periodic awareness training on data privacy and security. COMPANY acknowledges that RAYZINA will not store, copy, transfer or process any personal data, credit card payment data, health information or social security numbers on behalf of COMPANY. Also, COMPANY acknowledges and agrees that no computer system and/or network (including neither COMPANY's nor RAYZINA's), or other systems, networks, servers, applications, and IT environments connected to the Internet can be guaranteed to be 100% secure. Consequently, RAYZINA does not and cannot guarantee nor warrant the complete security of any system, network, server, application, website or IT environment, and if there is a security leak or resulting damages, COMPANY hereby agrees to hold harmless RAYZINA from any and all damages and expenses that may result, including indemnifying RAYZINA from any negligent actions or omissions of RAYZINA, as well as any and all claims and causes that may be asserted by any third parties. The obligations of this Section shall survive the expiration and/or earlier termination hereof.

9. Representations, Warranties and Covenants.

Each party represents, warrants, and covenants to the other party as follows: (a) each party has full right, power, and authority to enter into this Agreement and to perform the duties and obligations contemplated hereby; (b) the execution and delivery of this Agreement by each party does not (i) violate any terms or provisions of any law or any order, writ, or judgment under which such party is bound or (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default under, or give to any person or entity any right of termination, cancellation, acceleration, or modification in or with respect to any contract to which such party is a party; (c) each party shall use its best professional efforts in the performance and completion of any and all duties which may be assigned to it from time to time in accordance with this Agreement; and (d) each party shall perform all of its duties and obligations hereunder in a good and workman-like manner, and in compliance with all Federal, State, and local laws.

10. Limitation of Warranty and Liability.

RAYZINA MAKES NO WARRANTIES WITH REGARD TO THE SERVICES OR PRODUCTS PROVIDED TO COMPANY PURSUANT TO THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, USE, OR QUIET ENJOYMENT (EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE SCOPE OF WORK). NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT. THE SERVICES ARE PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE SCOPE OF WORK. RAYZINA DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, FAULT-FREE OR FREE FROM DEFECTS, BUGS, VIRUSES OR OTHER MALICIOUS SOFTWARE. COMPANY ACKNOWLEDGES THAT THERE ARE RISKS INHERENT WITH COMPUTER SYSTEMS THAT COULD RESULT IN THE LOSS OF COMPANY'S CONFIDENTIAL INFORMATION, PRIVACY AND PROPERTY. RAYZINA DOES NOT GUARANTEE THE PREVENTION FROM LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO, COMPANY DATA, OR THAT CONTENT LOSS WON'T OCCUR. RAYZINA WILL IN NO WAY BE HELD RESPONSIBLE OR LIABLE FOR DAMAGES, MONETARY OR OTHERWISE, BY COMPANY, OR ANY OTHER AFFECTED PARTY, IN THE EVENT OF (i) SECURITY BREACHES, (ii) UNAUTHORIZED ACCESS TO THE COMPANY'S DATA OR IT SYSTEMS CAUSED BY AN ACT OR OMISSION OF RAYZINA (INCLUDING ANY NEGLIGENT ACT OR OMISSION); (iii) DAMAGE TO, IMPAIRMENT OF, DISABLEMENT OF, OR LOSS OF USE OF ANY COMPUTER SYSTEM, HARDWARE, SOFTWARE, DATA, TANGIBLE PROPERTY, OR ANY OTHER PROPERTY CAUSED BY AN ACT OR OMISSION (INCLUDING NEGLIGENT ACT OR OMISSION) OF RAYZINA. RAYZINA WILL NOT EXPAND A MANUFACTURER'S STANDARD END-USER WARRANTY. THE OBLIGATIONS SET FORTH IN THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT IN PERPETUITY.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY BUSINESS INTERRUPTION, LOST REVENUE, LOST BUSINESS, LOST DATA, LOSS OF GOODWILL, PERSONAL INJURY OR DEATH, EMOTIONAL DISTRESS, PROPERTY DAMAGE, UNAUTHORIZED ACCESS TO DATA (INCLUDING PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION), DAMAGE FROM ANY SECURITY BREACH OR ANY OTHER SECURITY INTRUSION, DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK OR VIRUS OR OTHER MALICIOUS SOFTWARE. RAYZINA'S MAXIMUM LIABILITY TO COMPANY, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY COMPANY TO RAYZINA DURING THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE LIMITATION OF LIABILITY WILL APPLY IN AGGREGATE TO ANY AND ALL CLAIMS BY COMPANY AND ITS AFFILITATES AND SHALL NOT BE CUMULATIVE. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO COMPANY. IN THESE JURISDICTIONS, RAYZINA'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

11. Independent Contractor.

RAYZINA is an independent contractor, and with regard to the Compensation paid to RAYZINA under this Agreement, COMPANY shall have no responsibility to provide fringe benefits or to withhold taxes normally withheld from an employee's pay with regard to such Compensation.

12. Non-Solicitation of Employees.

Unless otherwise approved in writing by RAYZINA, from the Effective Date of this Agreement and for a period of twenty-four (24) months beyond its expiration or earlier termination, COMPANY will not offer any employment or otherwise hire, engage or accept work from, in any capacity either as an employee or independent contractor, either individually or through a third party, any current or former employee or agent of RAYZINA, whether or not such individual was involved in providing any Services to COMPANY pursuant to this Agreement. Likewise, unless otherwise approved in writing by COMPANY, from the Effective Date of this Agreement and for a period of twenty-four (24) months beyond its expiration or earlier termination, RAYZINA will not offer any employment or otherwise hire, engage or accept work from, in any capacity either as an employee or independent contractor, either individually or through a third party, any current or former employee or agent of COMPANY. The obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement.

13. Indemnification.

COMPANY hereby agrees to indemnify, defend and hold harmless RAYZINA, its officers, partners, employees and agents from and against any and all suits, claims, causes, obligations, liabilities, damages, costs and expenses, including attorneys' fees (collectively, "Claims") arising out of or from, either directly or indirectly, the actions or omissions of COMPANY, its officers, directors, managers, partners, employees and agents, whether or not such actions or omissions constitute a breach of this Agreement, including but not limited to any Claim(s) alleging that COMPANY's data, work product, information or contributions provided, or system infringes a third party's patent, trade secret, copyright, intellectual property and/or other rights, as well as Claim(s) arising from COMPANY's use of third party products or services that are modified or maintained by a party other than RAYZINA.

Likewise, RAYZINA agrees to defend, indemnify and hold COMPANY harmless against any and all Claims, but only to the extent they arise out of or from: (i) RAYZINA's material breach of this Agreement or any Scope of Work; or (ii) RAYZINA's gross negligence, unlawful or willful misconduct.

With regard to any indemnification, each party shall reasonably cooperate with the other party in defending the Claim, and each party shall give the other party prompt written notice of any such Claim, as well as the right to control and direct the defense and settlement of each such Claim. The obligations set forth in this section shall survive the expiration or earlier termination of this Agreement in perpetuity.

14. Insurance.

RAYZINA shall obtain and maintain general liability insurance, professional liability insurance, and data breach insurance. Likewise, COMPANY shall obtain and maintain a cyber liability insurance policy designed to mitigate losses from a cyber incident including data breaches, business interruption, data destruction and/or theft and legal claims. If COMPANY collects, stores, sends or receives Personally Identifiable Information (PII), Personal Health Information (PHI), credit cards, and/or financial information, COMPANY's insurance policy should provide coverage for: (i) Lost business revenue and data recovery costs due to a breach or extortion threat, (ii) Defense against privacy lawsuits and regulatory fines, and (iii) Costs associated with responding to a breach including notification costs, forensics, credit protection services, identity theft protection services, and crisis management.

15. Miscellaneous.

Non-performance by RAYZINA will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, wars, acts of terrorism, pandemic, lock-down, governmental orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the control and not caused by the negligence or intentional actions or omissions of RAYZINA. This Agreement may not be assigned by either party without the prior written consent of the other party. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended by the parties to be severable and independent of any other such provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein will remain in effect. All notices or other communication required or permitted by this Agreement to be served on or given to either party to this Agreement by the other party must be in writing to primary address of party as listed in the preamble to this Agreement and shall be deemed duly served and given when personally delivered, by receipted delivery, to the party to whom it is directed or, in lieu of such personal service, when sent by confirmed facsimile transmission, by registered or certified U.S. mail, or overnight delivery. Email delivery is sufficient, if receipt is acknowledged by the recipient party. Such notice will be deemed to have been given five (5) days after deposit in the mail, the date of confirmed facsimile or the date of delivery for overnight delivery. This Agreement supersedes all prior written or oral understandings and constitutes the entire agreement between RAYZINA and COMPANY with respect to the Services or materials provided under this Agreement. The terms of this Agreement may be modified only in a writing signed by both parties. Both parties agree that this Agreement will be governed by the laws of the State of Texas and that exclusive venue with respect to any claims hereunder shall be in Collin County, Texas. The parties agree that time shall be of the essence in the performance of all obligations contained herein.

Exhibit "A"

Scope of Work. This Scope of Work shall be considered a part of, and shall be interpreted and enforced consistently with the TERMS and CONDITIONS.

Scope of Work:

RAYZINA shall provide the Services and Deliverables(s) as follows:

  • Provide input on technology roadmap and strategic direction for Microsoft Office 365 and Microsoft Azure
  • Configuration and support of Microsoft Office 365 including SharePoint, Teams, and OneDrive
  • Configuration and support of Microsoft Azure
  • Implement and support projects designed to drive efficiency, improve productivity and reduce complexity.

There are no specific milestones for this project. There are no specific timelines or deadlines for this project.

Completion Criteria:

RAYZINA shall have fulfilled its obligations when there are no objections from COMPANY within 5 business days of receipt of monthly invoice consistent with the term of this Agreement and the services to be provided pursuant to this Scope of Work.

Assumptions:

The following assumptions are made as part of this Scope of Work.

  • All licenses, applications and software are legally procured by COMPANY.
  • COMPANY purchases any licenses needed to grant access to RAYZINA.
  • RAYZINA is granted timely access to systems as needed for Scope of Work.
  • COMPANY makes timely decisions on any configuration options.
  • COMPANY gives RAYZINA periodic feedback especially when expectations are not met.
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