Terms of Service
Any product and service provided by eSudo to Customer shall be governed by the Master Services Agreement (“Agreement” or “MSA”). The terms “you”, “end user” and “Customer” refer to the user, buyer or purchaser of eSudo’s product and services. The terms “eSudo”, “We” and “Compnay” refer to eSudo Technology Solutions, Inc., a California corporation (“eSudo”). Customer and eSudo are each referred to as a “Party” and jointly as the “Parties”. Please read these terms and conditions carefully of the Agreement. The Agreement affects the legal rights between Customer and eSudo by, among other things, requiring (1) Governing Law and Resolutions Of Disputes; (2) charging an early disconnection fee; and (3) limiting eSudo’s liability under the Agreement. Customer acknowledges that you are of legal age and authorized to enter into this Agreement.
- Order. For purposes of this Agreement, "Products" means hardware, computer accessories, software licenses or subscription services from third party vendors in which eSudo is acting a reseller. “Services” means any and all services rendered by eSudo, including but not limited to technical support via telephone, email, remote administration, or onsite service, and eSudo’s provision of recommendations or documentation to support any Product or Service. Product and Service will be provided to Customer as described in one or more Statements of Work (each, a “SOW”) that may be executed between the Parties from time to time. A Statement of Work may include an electronic form of Quote, Recommendations or Proposal. Each SOW is enforceable according to the terms and conditions contained therein, and in the event of a direct conflict between the language of this Agreement and any SOW, the language of the SOW shall control, but only with respect to that particular SOW. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and invoices. Any additional, different, or conflicting terms and conditions on any such document issued by Customer at any time are hereby objected to by eSudo, and any such documents shall be wholly inapplicable to any sale made or service rendered hereunder and shall not be binding in any way on eSudo.
- Payment. Upon purchase of the Service or Product, Customer must provide eSudo with a electronic check (e-check), valid credit card number from an issuer that is accepted by eSudo or a Customer issued purchased order number. Customer authorizes eSudo to charge the credit card number or echeck provided by Customer for all charges arising from Customer’s order for Services or Products. Customer agrees to notify eSudo of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. eSudo shall not be responsible for any charges made by the Credit Card issuer to Customer’s Credit Card account for exceeding credit limit, insufficient funds or other reasons. Orders for Services and Products are non-cancelable and non-returnable except in the case of defective materials or parts.
- Billing. eSudo will provide Customer with a monthly, quarterly, or annual electronic invoice for the Services and bill all charges invoiced to Customer’s account to the payment method on file. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month’s service; and any other applicable charges are billed subsequent to the end of each month’s service. Billing for monthly service fees commences upon the date listed on the eSudo’s SOW (Effective Date), and the first month’s monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
- Late/Non-Payment. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges or invalid checking account, eSudo may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by eSudo. If charges cannot be processed to the Credit Card or checking account, eSudo will be charged a fee of ten dollars ($10.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve Cusomter from paying any amounts due hereunder.
- Billing Diputes. If Customer believe Customer’s invoice is incorrect, Customer must contact eSudo in writing within thirty (30) days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit.
- Governing Law and Resolution of Disputes. This Agreement shall be governed by and interpreted in accordance with California law without reference to conflict of law principles. The parties shall submit any disputes arising in relation to this Agreement, any SOW or any Customer purchase order to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. Customer agrees that if any section or provision is found to be unenforceable, the remainder of these sections will remain in full force and effect. . Customer futher agrees all claims Customer bring against eSudo must be resolved in accordance with this Governing Law and Resolution of Disputes Section. All claims filed or brought contrary to the Governing Law and Resolution of Disputes Section shall be considered improperly filed. Should Customer file a claim contrary to the Governing Law and Resolution of Disputes Section, eSudo may recover attorneys’ fees and costs up to $5000, provided that eSudo has notified Customer in writing of the improperly filed claim, and Cusotmer have failed to promptly withdraw the claim.
- eSudo-Owned Equipment (“Equipment”). (a) To provide Services, eSudo may provide Equipment to Customer. Equipment may include software and/or hardware installed on Customer computer and/or provided on-site at Customer office. Customer will be provided manufacturer’s warranty from the date of purchase of Equipment or Service. Customer shall be required to obtain authorization from eSudo to return any Equipment. eSudo will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. eSudo will not cover replacement for lost, stolen or modified equipment. (b) Upon termination of this Agreement for any reason, Customer shall provide eSudo with access, during normal business hours, to Customer’s office (or any other locations at which eSudo-owned equipment is located) to enable eSudo to remove all Equipment from such offices (if any). If Customer fails to grant eSudo access as described herein, or if any of the Equipment is broken or damaged (normal wear and tear excepted), eSudo shall have the right to invoice Customer for, and Customer hereby agrees to pay, the full replacement value, including repair cost, of any and all Equipment located at Customer’s premises. (c) Customer shall not modify the Equipment in any way without the express written permission of eSudo. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. Customer shall immediately notify eSudo of any lost or stolen Equipment and shall cooperate with eSudo in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At eSudo’s sole option, failure to report lost or stolen equipment in a timely manner will cause Customer to be responsible for all service fees accrued until the time that eSudo is informed of the loss or theft and can effect a termination of the Services.
- Prohibited Uses. Any use of the Services or any other action that causes a disruption in the network integrity of eSudo or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of eSudo. Customer understands that neither eSudo nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited email advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of eSudo.
- Term; Termination. a) Term. The term of this Agreement (Term) begins on the date that Customer signs the eSudo SOW for Services and continues for the duration of the service period as defined by the service plan that is selected by Customer (“Plan”). At the end of the current Term, the Term is automatically renewed unless Custmer provides eSudo, prior to the end of the current Term, notification of intention to cancel the service as set forth below. Customer agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder. If Customer chooses to cancel the service before the end of the current Term, Disconnection Fees may apply as set forth below. This Agreement, and any SOW, may be terminated only as indicated below.
i) Without Cause. Either Party may terminate this Agreement for any reason (i.e., without cause) by providing the other Party with thirty (30) days prior written notice; however, any SOW in effect on the date of termination shall continue to remain in effect, and shall continue to be governed by the terms of this Agreement through the SOW’s natural expiration or termination date. Unless agreed upon by eSudo, a SOW shall not be cancelled without cause.
ii) For Cause. This Agreement and/or any SOW may be terminated by one Party for cause upon providing the other Party with written notice if such other Party breaches any material term or condition of the Agreement and such breach remains uncorrected for ten (10) days (or any different time period set forth in the SOW) following delivery of the written notice of default. Subject to any provision in the SOW to the contrary, upon termination of this Agreement or SOW for any reason, eSudo shall be entitled to receive full payment for all software, hardware, equipment or other materials eSudo ordered for Customer’s account in accordance with the SOW, and full payment for all Services performed prior to the effective date of the termination, calculated at eSudo’s standard hourly rate in effect at the time or set forth in the SOW. b) Disconnection Fees. Subsequent to the expiration of the Trial Period, if Customer terminates a one (1) Year Plan, a two (2) Year Plan or a three (3) Year Plan prior to the end of the committed term, eSudo will charge the Customer the remaining service fees under the Plan agreement. All fees, including service fees, payable under this Plan shall be non-refundable and non-creditable. c) Transition. In the event that Customer requests eSudo’s assistance to transition to a new service provider or in-house person, eSudo shall do so provided that (i) all fees due and owing to eSudo are paid to eSudo in full prior to eSudo providing its assistance to Customer, and (ii) Customer agrees to pay eSudo its then-current hourly rate for such assistance, with upfront amounts to be paid to eSudo as agreed upon between the parties. Unless otherwise expressly stated in a SOW, eSudo shall have no obligation to store or maintain any Customer data in eSudo’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement.
- Force Majeure. In no event shall eSudo be liable for failure to fulfill its obligations under this Agreement where such failure is the result of or due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of third parties (including but not limited to vendors), acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. eSudo's time for performance of any such obligation shall be extended for the time period of the force majeure or, if the force majeure is expected to last more than fifteen (15) days, eSudo may, at its option, cancel any SOW or remaining part thereof without liability by giving notice of cancellation to Customer.
- Privacy. eSudo utilizes the public Internet and third party networks to provide email, fax, voice, and video communication services. Accordingly, eSudo cannot guarantee the security of email, fax, voice and video communications of Customer. eSudo is committed to respecting Customer’s privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer’s relationship with eSudo. eSudo will not sell, rent, or lease Cusotmer’s personally identifiable information to others. Unless required by law or subpoena or if Customer’s prior permission is obtained, eSudo will only share the personal data Customer provides with other eSudo entities and/or business partners that are acting on eSudo’s behalf to complete the activities described herein. Such eSudo entities and/or national or international business partners are governed by eSudo’s privacy policies with respect to the use of this data. eSudo is required to file numerous reports with different administrative bodies. As such, eSudo may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, eSudo reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either eSudo or any company affiliated with eSudo. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, eSudo may disclose personally identifiable information.
- Independent Contractor; Use of Subcontractors. At all times, each Party is an independent contractor to the other, and not an employee, employer or agent of the other Party. eSudo may, at its sole discretion, use a subcontractor to fulfill its obligations herein, provided that any such subcontractor has entered into an appropriate nondisclosure agreement with eSudo. Unless otherwise specified in the SOW, the Services are not provided on a “Work for Hire” basis, and eSudo owns (and shall continue to own) all of its inventions, concepts, designs and ideas.
- Disclaimer Of Consequential Damages. (a) In no event shall eSudo or its vendors be liable for any special, incidental, indirect, punitive or consequential damages or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use services or products provided hereunder whether due to a breach of contract, breach of warranty, the negligence of eSudo or its vendors or otherwise. (b) End User agrees to defend, indemnify and hold eSudo, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
- Warranties and Liabiltiy Limitations. In the case of all products sold hereunder, the only applicable warranties will be provided by the manufacturers of such products. eSudo shall assign to Customer an warranty delivered to it by the manufacturer of such product and such warranty shall expressly be in lieu of any other warranty by eSudo. eSudo makes no warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. Neither eSudo nor its vendors will be liable for unauthorized access to eSudo’s or end user’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of end user’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of eSudo’s or its vendors’ negligence. Any claim against eSudo must be made within 90 days of the event of the claim or 90 days from the termination of service, whichever is earlier and eSudo has no liability thereafter. eSudo’s liability is limited to repair, replacement, credit or refund. eSudo may elect to provide a refund in lieu of credit, replacement or repair. All warranties cover only defects arising under normal use and do not include malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification, improper installation, or repairs by anyone other than eSudo. In no event shall eSudo’s total liability hereunder exceed the amounts paid by end user to eSudo in the prior twelve (12) months from date of claim. eSudo is not responsible for service going down due to natural calamities and vendor dependency issues.
- Non-Solicitation. During the term of this Agreement and for a period of six (6) months thereafter, neither Party will hire the other Party’s employees, nor solicit, or knowingly induce or influence, any of the other Party’s employees or contractors to discontinue or reduce the scope of their employment or business relationship with such other Party. The Parties acknowledge and agree that any Party aggrieved by the other Party’s breach of this covenant of non-solicitation may suffer irreparable harm and, in the event of such breach, monetary damages would be inadequate to compensate the aggrieved Party for such breach. Accordingly, in addition to any other remedies available to it at law or in equity, the aggrieved Party shall be entitled to seek injunctive relief to enforce the terms of this Agreement, without the requirement of posting bond.
- Assignment. Neither Party may assign this Agreement or any rights granted in this Agreement to any third party. Notwithstanding the foregoing, eSudo may assign or transfer this Agreement in the event that such assignment or transfer is part of a sale of all or substantially all of eSudo’s assets to a third partyeSudo shall notify Customer no less than thirty (30) days before such assignment or transfer is to take place.
- Remedies Cumulative. No remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. Failure by a party to enforce any provision of this Agreement (or a SOW) will not be deemed a continuing waiver or a waiver of future enforcement of that or any other provision.
- Changes To The Agreement, Services or Plan (“Change of Service”). eSudo reserves the right to make changes to the terms and conditions of this Agreement, and/or the Services. In the event of a Change of Service, eSudo will be posted at http://www.eSudo.com/terms. Customer may request a Change of Service at anytime, subject to any applicable change of service fee and additional terms and conditions. The Plan will take effect in the first month after the Plan is changed. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge may apply.
- Notice. Notice will be considered received by Customer and such changes will become binding to Customer, on the date the changes are posted to the Web Site (Change Date), and no additional notice will be required. If Customer does not send eSudo notification of their desire to terminate this agreement or uses the Service after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this Agreement, Customer will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. Cusomter may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
- Communications (Notices). eSudo communicates with Client primarily via email. Notices to Customer shall be sent to the email address specified by Customer on the SOW from for the Services or as subsequently specified by Customer (Email Address). Customer is responsible for notifying eSudo of any Email Address changes. Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Cusstomer reads any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
- Responsibility for Registration Information and Content of End User Communications. Customer is solely responsible for maintaining the confidentiality of Customer password and account, and agree not to transfer email address or password, or lend or otherwise transfer use of or access to the eSudo Service, to any third party. Customer is also solely responsible for any and all activities that occur under Customer account. Customer agrees to immediately notify eSudo of any unauthorized use of Cusomter account or any other breach of security related to Customer account or the eSudo Service, and to ensure that Cutomer log off/exit from Customer account (if applicable) at the end of each session. eSudo is not liable for any loss or damage arising from Customer failure to comply with any of the foregoing obligations. In consideration for using the eSudo Service, Customer agrees to: (1) provide certain current, complete, and accurate information about Customer when prompted to do so by the eSudo Service, and (2) maintain and update this information as required to keep it current, complete and accurate. Customer agrees that any such information shall be accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (Content) sent by Customer or displayed or uploaded by Customer in using the Services. Customer agrees that Customer will not use the Services to send unsolicited commercial e-mail outside Customer company or organization in violation of applicable law. Customer further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Recognizing the global nature of the Internet, Customer also agree to comply with applicable local rules or codes of conduct (including codes imposed by Customer employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States or the country in which Customer reside. eSudo reserves the right to investigate and take appropriate action against anyone who, in eSudo’s sole discretion, is suspected of violating this provision, including without limitation, reporting Customer to law enforcement authorities. Use of the Services is void where prohibited. Although eSudo is not responsible for any such communications, eSudo may delete any such communications of which eSudo becomes aware, at any time without notice to Customer. Customer retains copyright and any other rights already held in Content which Customer submits, posts or displays on or through, the Services. Customer understands and agrees that by displaying, exchanging or uploading Content to a eSudo website, transmitting Content using the Services or otherwise providing Content to eSudo, Customer automatically grant (and warrant and represent Customer have a right to grant) to eSudo a world-wide, royalty-free, sublicensable (so eSudo affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Site and/or the Services.
- Software Licenses. Customer shall be responsible for obtaining and maintaining any and all software licenses for all software installed on, or used by, Customer unless eSudo agrees to obtain and maintain such licenses in a SOW. Customer agrees to provide copies of such licenses to eSudo or vendor upon written request by eSudo or law enforcement.
- Binding Effect. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective administrators, executors, legal representatives, heirs, and permitted assigns and successors, whether so expressed or not.
- Survival. Those provisions that are intended to extend beyond the term of this Agreement shall survive the termination of this Agreement, including Sections 5, 6, 9, 15, 20.
- Entire Agreement. The terms and conditions of this Agreement, along with the SOW, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of eSudo and Customer.
Last Updated: April 6, 2015