5. Maintenance & Support
The Company provides Maintenance and Support to the Client Product through separate Services.
Maintenance and support for something we build is a separate service from building it.
Last updated: 18 November 2023
THESE TERMS OF SERVICE (“TOS”) GOVERN THE USE OF FIAT INSIGHT’S SERVICES. FIAT INSIGHT SHALL HEREAFTER BE REFERRED TO AS “THE COMPANY.” THIS TOS MAY BE AGREED TO EITHER FORMALLY, BY EXECUTING A WORK ORDER THAT REFERENCES THIS TOS, OR INFORMALLY, BY REQUESTING SERVICES VIA EMAIL, PHONE, OR IN PERSON WHICH ARE REFERENCED AND GOVERNED BY THIS TOS. THEREAFTER THE CLIENT AGREES TO THE TERMS AND CONDITIONS HEREIN. AN AGREEMENT UNDER THIS TOS MAY BE ENTERED INTO ON AN INDIVIDUAL'S OWN BEHALF, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO THE INDIVIDUAL. IF AN AGREEMENT IS ENTERED INTO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REQUESTING SERVICES REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS TOS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IN EITHER CASE, IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF THE INDIVIDUAL DOES NOT AGREE WITH THE TERMS AND CONDITIONS HEREIN, ATTESTED EITHER FORMALLY OR INFORMALLY, THE INDIVIDUAL MUST NOT ACCEPT THIS TOS AND MAY NOT USE THE COMPANY’S SERVICES.
THE COMPANY SHALL MAKE EVERY REASONABLE EFFORT IN THE NORMAL COURSE OF BUSINESS TO MAKE THIS TOS AVAILABLE TO THE CLIENT. THE COMPANY ASSUMES THAT ENGAGEMENT WITH OR CONTINUED ENGAGEMENT OF THE COMPANY'S SERVICES BY THE CLIENT ATTESTS TO THE CLIENT'S AWARENESS OF THIS TOS AND ANY UPDATES MADE TO IT, AND CONSTITUTES AN AGREEMENT TO BE SUBJECT TO IT, WHETHER EXPLICITLY OR IMPLICITLY.
To help you read our terms of service more easily, we've provided some of the key points alongside the actual legally binding language (so, these side notes are not part of our Terms of Service). Note: this is for your convenience, and the legal language is what really counts!
These are Fiat Insight's terms of service. They apply to the relationships we have with our clients. They apply whether you sign a formal work order or request our services informally (via email, phone, or in person). You have to agree to them to work with us.
All capitalized terms used in this TOS have their definitions in Section 12 or as defined parenthetically within the TOS.
Look at Section 12 to understand what capitalized words mean. They're important.
This TOS governs the ongoing provision of Services to the Client. Services are generally provided in Service Units over the course of a Period. Services that reference and are subject to this TOS may be described formally via Work Orders or informally via email, phone, or personal communications.
Any work we do together will be subject to these terms of service, no matter what it is.
Invoices. The Client must pay any Invoices issued under this TOS no later than twenty (20) business days after the Company issues them. The Company issues invoices electronically according to its customary practices, which may change at the Company’s sole discretion. The preferred method of payment for Services rendered is check or credit card. If the Client places a credit card on file and authorizes services through the Company's ordering system, then the Company may automatically charge the Client on the billing date. Credit card payments of $500 or more shall be subject to a 3% servicing fee.
Penalties. Under this TOS, penalties may be assessed according to the following guidelines:
We'll send invoices that should be paid within twenty days. Keeping a card on file allows automatic payments. Late payments and cancelled services might be subject to reasonable penalties.
Code. When the Company delivers Code developed by the Company, the following permissions apply to the Code delivery (unless otherwise specified):
Hosting. When the Company provides Hosting, the following permissions apply:
Anytime we provide you code, and you pay for it, we'll give you the right to use it almost any way you want.
Any rights or terms that come from other sources (e.g., open-source software communities) will still apply. We'll also retain the right to use what we've learned writing your code when we do other work (as long as it's not part of your intellectual property, of course).
If we host your website or data, we own any servers, storage, databases, domain names, etc. that we pay for directly. We will let you use them as long as you pay us to do so, and as long as we don't think it will cause a problem. If you want to move your information to another provider for any reason, we will try to be helpful, but you might incur charges associated with our involvement in the process.
The Company provides Maintenance and Support to the Client Product through separate Services.
Maintenance and support for something we build is a separate service from building it.
For all Work Orders, the Client will provide a contact for all communications between the Company and the Client. The Client understands that during the course of Services the Company requires Client responsiveness to all communications related to the Service. Generally, the Client should treat all communications from the Company as time-sensitive and as requiring a turnaround time of one (1) business day, unless otherwise specified.
Working together is best if we know how to reach one another.
Protection of Confidential Information. Each Party shall maintain all of the other Party's Confidential Information in strict confidence and will protect such information with the same degree of care that such receiving Party exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Except as provided in this TOS, a Party shall not use or disclose any Confidential Information of the other Party without the express prior written consent of the disclosing Party. Access to and use of any Confidential Information shall be restricted to those employees and similar persons within a receiving Party's organization with a need to use the information to perform the receiving Party's obligations under this TOS. A receiving Party's consultants and subcontractors may be included within the meaning of “persons within a Party's organization.” Employees, consultants, subcontractors and any other such person provided Confidential Information on a need-to-know basis must be bound with provisions to protect the disclosing Party’s Confidential Information that are no less stringent than those applicable to the receiving Party under this TOS, and the receiving Party shall make such signed agreements, as well as the list of people with access to Confidential Information, available to the disclosing Party upon request.
Confidential Information Limits. Notwithstanding anything herein to the contrary, Confidential Information shall not include information that is: (a) already known to or otherwise in the possession of a Party (excluding information gained through a similarly executed non-disclosure between the Parties prior to the TOS) at the time of receipt from the other Party and that was not known or received as the result of violation of any obligation of confidentiality; (b) publicly available or otherwise in the public domain prior to disclosure by a Party; (c) rightfully obtained by a Party from any Third Party having a right to disclose such information without restriction and without breach of any confidentiality obligation by such Third Party; (d) developed by a Party independent of any disclosure hereunder, as evidenced by written records; or (e) disclosed pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, provided that the Party receiving such order shall notify the other prior to such disclosure and shall cooperate with the other Party in the event such Party elects to legally contest, request confidential treatment, or otherwise avoid such disclosure.
Sole Property of Disclosing Party. All of a disclosing Party's Confidential Information disclosed to the receiving Party, and all copies thereof, shall be and remain the property of the disclosing Party. All such Confidential Information and any and all copies and reproductions thereof shall, upon the termination of this TOS, be promptly returned to the disclosing Party or destroyed at the disclosing Party's direction. In addition, upon fifteen (15) days of a written request by the disclosing Party, the receiving Party shall promptly return all Confidential Information and any and all copies and reproductions thereof, or destroy it at the disclosing Party's direction. In the event of any requested destruction, the Party receiving such request shall provide to the other Party written certification of compliance therewith within fifteen (15) days of such written request.
Compliance. Each Party shall act in accordance and fully comply with all applicable data use, privacy and security policies and procedures of the other Party, where reasonable and known.
If you share things with us that you want to keep secret, we'll respect that. And you should do the same for us. Anything we share with one another remains the property of the one who shared it.
Errors & Omissions. The Company will make every effort to ensure that Services are free of errors and omissions — including errors in spelling and content — but cannot warrant this.
NO WARRANTY. THERE IS NO WARRANTY FOR THE CLIENT PRODUCT, HOSTING, MAINTENANCE, OR ANY OTHER SERVICES (“DELIVERABLES”), TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING, THE COMPANY AND/OR OTHER PARTIES PROVIDE DELIVERABLES “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF DELIVERABLES IS WITH THE CLIENT. SHOULD DELIVERABLES PROVE DEFECTIVE, THE CLIENT ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE COMPANY PROVIDES NO GUARANTEE THAT DELIVERABLES WILL CONTINUE WITH FULL FUNCTIONALITY AFTER ANY CLIENT-INITIATED UPDATES.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ITS INTELLECTUAL PROPERTY AND HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO ALL SECURITY, NETWORK COMPATIBILITY, AND PROTECTION OF USER DATA. THE COMPANY EXPRESSLY PROVIDES NO GUARANTEE REGARDING WEBSITE USE, ACCESSIBILITY, UPTIME, UNINTERRUPTED SERVICE, OR DURABILITY.
NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO EACH OTHER OR THEIR RESPECTIVE AFFILIATES FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF TIME, PROFITS, REVENUE, OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THIS TOS, OR THE TERMINATION OF THIS TOS. THIS LIMITATION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT BASED ON BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY.
IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL THE COMPANY BE LIABLE FOR DAMAGES TO ANY COPYRIGHT HOLDER, USER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE CLIENT PRODUCT AND/OR MATERIALS FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE DELIVERABLES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY THE CLIENT OR THIRD PARTIES OR A FAILURE OF DELIVERABLES TO OPERATE WITH ANY OTHER PROGRAMS OR PRODUCTS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Client Representation. The Client warrants that it has the right to use the trademarks and copyrights, whether or not registered, applicable to all Materials and/or products as part of or through any Deliverables.
We'll do our best to make sure we don't give you something with errors in it.
We do not offer a warranty for any service or product we provide. We fully expect to do our best to deliver exactly what you need as part of a work order. Once a work order is in effect, though, all changes, enhancements, additions, etc., are subject to the hourly or monthly rates in the work order. That means you can get exactly what you want / need, and it limits everyone's risk to what's clearly defined.
Company Indemnifications. The Company shall indemnify and hold harmless the Client and its members, directors, officers, employees and agents from and against all demands, claims, actions or causes of action, losses, damages, judgments, awards, liabilities, costs and expenses, including but not limited to reasonable costs and attorney fees, arising out of or resulting from the negligence or intentional misconduct of the Company or its contractors in performing Services on behalf of the Company under this TOS or resulting from any breach of this TOS by the the Company.
Client Indemnifications. The Client shall indemnify and hold harmless the Company and its members, officers, employees and agents from and against all demands, claims, actions or causes of action, losses, damages, judgments, awards, liabilities, costs and expenses, including but not limited to reasonable costs and attorney fees, arising out of, or resulting from the negligence or intentional misconduct of the Client and its agents in connection with this TOS or resulting from the use of the TOS or its deliverable content in violation of any applicable laws or the rights of any Third Party or resulting from any breach of this TOS by the Client.
Third-Party Copyright Claims. The Client is solely responsible for obtaining the copyright or permission for any Materials which the Client provides the Company for the Client Product or Deliverables. The Company accepts no responsibility for any of the Materials published through the Client Product or Deliverables at its launch and throughout its use. The Client specifically agrees to indemnify the Company for all demands, claims, actions or causes of action, losses, damages, judgments, awards, liabilities, costs and expenses, including but not limited to reasonable costs and attorney fees, arising from any violation of third-party rights to Materials. By posting or distributing Materials on or through the Client Product or Deliverables, the Client represents and warrants to the Company that (i) the Client has all the necessary rights to post or distribute such Materials, and (ii) the Client’s posting or distribution of such Materials does not infringe or violate the rights of any Third Party.
Survival. Sections 4, 7, 8, and 9 shall survive termination of this TOS.
Limitation of Damages. Any and all claims, losses, expenses, injuries, or damages (“Claim”) arising out of or any way related to this TOS by reason of any act or omission, including breach of contract or negligence shall be limited strictly to the amount which the Client has paid for Services related to the Claim and at the date of the original event causing rise to the Claim. In no way may Claims be aggregated to exceed this limit.
In case something happens that causes one of us to lose something, the most that a service is worth, and the most we can try to recoup from one another, is whatever's already been paid, nothing more.
Term. The TOS is valid from the start date of any Services agreed to until its Termination or completion. The TOS may only be terminated per the Termination procedure.
Termination of TOS. Either Party may terminate this TOS with thirty (30) days notice to the other Party, subject to the procedures of the Termination of Services herein and all other applicable clauses.
Termination of Services. Services currently in process of delivery can be terminated as outlined in the section below:
Client Non-Responsiveness. Should the Client become non-responsive (i.e., fail consistently to respond to communications by the Company for the period of fourteen (14) business days and/or move to significantly prolong the duration of Client Product work without grave cause or fair warning), the Company reserves the right to settle any open Services as if the Client had terminated prematurely.
These terms of service will relate to something specific that puts them into effect, usually a work order or informal request for services. Ending your agreement to abide by these terms can happen in different ways depending on the type of service(s) we're providing.
Assignment. Neither Party may assign this TOS or any interest herein, or delegate any obligation hereunder without the prior written consent of the other Party, and any such assignment or delegation in violation of this section shall be null and void. This TOS shall bind and inure to the benefit of the Parties and their successors and permitted assigns.
Dispute Resolution. In the event a dispute arises regarding the application or interpretation of any provision of this TOS, including either Party’s performance or nonperformance hereunder, the aggrieved Party shall notify the other Party in writing of the nature of the dispute within ten (10) days after such dispute arises. After such notice, the Parties shall make a good-faith effort to resolve the matter amicably and informally. If the matter cannot be resolved informally within five (5) days, the dispute shall then be referred to a meeting between a designated officer or other representative of each Party who are not otherwise involved in the administration of this TOS, and who shall possess the authority to resolve the dispute. The respective officers or representatives of the Parties shall have ten (10) days after the dispute has been referred to their attention within which to resolve the matter. If the dispute remains unresolved after such ten (10) day period, each Party shall have the right to pursue any and all remedies available at law or in equity. All negotiations pursuant to this Section shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state rules of evidence.
Entire TOS; Amendments. This TOS and any attachments constitute the entire understanding of the Parties with respect to its subject matter, and shall not be amended or modified except by each Party in writing. Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded and nullified by this TOS.
Force Majeure. Neither party will be liable for any delay or failure in its performance under this TOS (except for payment obligations) directly or indirectly due to acts of the other Party or its agents. Further, upon giving notice to the other Party, a Party affected by a bona fide event of Force Majeure shall be released without any liability on its part from the performance of its obligations under this TOS, except for the obligation to pay any amounts due and owing hereunder and except for the licenses granted hereunder, but only to the extent and only for the period that its performance of such obligations is prevented by the event of Force Majeure. During the period that the performance by one of the Parties of its obligations under this TOS has been suspended by reason of an event of Force Majeure, the other Party may likewise suspend the performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable.
Governing Law. This TOS shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the Commonwealth of Virginia.
Non-Solicitation. During the Term and for a period of one (1) year thereafter, each Party agrees not to solicit, nor attempt to solicit, the services of any employee of the other without the prior written consent of the other.
Notices. Any notice, request, or other communication to be given in writing under this TOS will be deemed to have been given by either Party to the other Party upon the date of receipt, if hand delivered, or four (4) business days after deposit in the U.S. mail, if mailed to the other Party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, or one (1) business day after deposit with a national overnight courier for next business day delivery, or upon the date of electronic confirmation of receipt of a facsimile or email transmission. Either Party may from time to time change the individual(s) to receive notices under this Section and its address for notification purposes by giving the other Party prior written notice of such change.
Proposals. A Proposal provides a guideline regarding the Services the Company performs and for all purposes constitutes an offer to bargain and not a binding legal agreement with the Client. The TOS in conjunction with any executed Work Orders supersedes and completely replaces whatever terms and conditions may be presented or implied in a Proposal.
Public Statements, Confidentiality and Credits. Neither Party shall disclose or make available to any Third Party any information — other than what is already publicly available — concerning the TOS or the Company’s provision of Services for the Client hereunder, or any materials which the Company or the Client may have gained access to during the term of this TOS, or the compensation payable hereunder, or any information concerning any aspect of the Client’s or the Company’s operations or existing or future programming or other information regarding the Client’s or the Company’s services, except as may be reasonably required by applicable law, court order or to the Company’s or the Client’s (i) personnel engaged to provide Services hereunder on an as needed basis; or (ii) attorney in connection with the negotiation of, or any litigation related to, this TOS. Neither Party shall make any statement to the press or any media service or distribute or circulate any written release, promotional literature, news story, advertising or publicity of any kind to any media service (explicitly excluding the Company’s professional portfolio and promotion through social media and other regular marketing channels) regarding the TOS which names the other Party without the prior written approval of the other Party. The Company reserves the right to utilize creative products in a professional portfolio, unless explicitly notified to the contrary by the Client.
Relationship of the Parties. The Parties and their personnel or agents, in performance of this TOS, are acting as independent contractors and not as employees or agents of the other. Nothing in this TOS shall be construed to create an employment, partnership, joint venture, or agency relationship between the Parties. Each Party is responsible for the supervision, management and direction of its own employees. Under no circumstances will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other except as otherwise expressly provided in Work Orders of this TOS.
Severability. If any provision of this TOS is deemed, by a court of competent jurisdiction, to be invalid or unenforceable, such judgment shall not invalidate or render unenforceable the remainder of the TOS.
Service Units. The cost and availability of time and materials for any given Service.
Time. Days in this TOS are calendar days, unless otherwise stated. Obligations that fall on weekends or Federal Holidays are transferred to the next business day, unless otherwise stated.
Titles and Explanatory Notes. Any titles and headers found in the TOS itself are for organizational purposes only. Any explanatory notes whether found on Fiat’s webpage or communicated through any means (such as, but not limited to, email, internal platforms, chats, SMS, etc.) are for explanatory purposes only and are expressly not part of the TOS.
Third Party Beneficiary. This TOS is not for the benefit of any Third Party and shall not in any manner whatsoever confer any rights upon or increase the rights of any Third Party.
Validity. This TOS is valid for fifteen (15) calendar days upon submission to the Client, at which time, if not yet signed by both Parties, the Company reserves the right to reconsider and/or renegotiate the relevant terms. This TOS is limited to services rendered by the Company as itemized in the preceding section. At the expiry of this TOS, the Company reserves the right to collect all fees hereby made payable.
Waiver. No failure of either Party to exercise any power or right granted hereunder or to insist upon strict compliance with any obligation hereunder, and no custom or practice of the Parties with regard to the terms and performance hereof shall constitute a waiver of the rights of such Party to demand full and exact compliance with the terms of this TOS. No waiver of any provision or right hereunder will be valid unless it is in writing and signed by the Party giving it.
These are important ideas that apply to the whole terms of service and any agreement to them.
Authorized Representative means a manager level or higher representative of a Party who has the apparent authority to bind the Party.
Confidential Information means information that is disclosed by either Party to the other Party in any tangible form and need not be clearly labeled or marked as confidential, proprietary or its equivalent. Confidential Information includes, but is not limited to, technical and business information relating to either Party's inventions or products, research and development, production, manufacturing and engineering processes, computer software, costs, profit or margin information, finances, clients, sublicenses, marketing, and future business plans, specifically including the Company’s Code. In addition, Confidential Information shall include any information which is identified orally or in writing by the disclosing Party to be confidential, or which a receiving Party would reasonably believe to be a trade secret or proprietary of the disclosing Party.
Code means a set of instructions in object form designed to produce a particular result within an operating system, whether desktop, server, mobile, or cloud based, and which the Company has written in the course of its Services.
Force Majeure means any event or condition, including acts of state or governmental action, riots, disturbance, war, coup d’état, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, epidemics, fire, natural disasters and their effects, including flood, hurricane, typhoon, earthquake and lightning, explosion, breakdown of public and/or private communications facilities, and computer malfunctions not existing as of the date of signature of this TOS, not reasonably foreseeable as of such date and not reasonably within the control of either Party, which prevents in whole or in material part, the performance by one of the Parties of one or more of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Force Majeure shall in no way limit the right of either Party to this TOS to make any claim against third parties for any damages suffered due to said causes.
Hosting means the allocation of server, database, file storage, and domain / DNS registration and control assets owned by the Company, either locally or via a third-pary service provider, for the purpose of storing, running, and making accessible files and scripts intended for use and availability on the internet.
Intellectual Property means all copyright rights, author's rights and all other literary property rights associated with the product of intellectual work and/or the Code thereof as well as all know-how, show-how, and other trade secret rights arising under common law, provincial law, state law, federal law, and laws related to proprietary and confidential information associated with the product of intellectual work.
Maintenance means any error corrections, patches, minor performance updates, enhancements, and other similar improvements to Code.
Party means each party individually or when plural either or both parties, where applicable.
Period means the set time during which specific Services are provided.
Proposal means a non-binding term sheet or invitation to bargain signed between the Parties prior to signing the TOS or a Work Order or Work Orders.
Scope means the Company’s estimate of time, deadline, and materials needed to complete a service.
Services means any work which the Company performs on the Client’s behalf.
Support means any effort by the Company to consult, troubleshoot, improve, or otherwise assist with maintaining the Client Product.
Term means the period of time during which the TOS is in effect.
Termination means the ending of the TOS and any applicable Service.
Third Party means any party that is not a named Party to this TOS.
User means someone visiting or engaging with the functionality of a Client Product.
Work Order means a document that specifies the Services, including the cost in time and materials as well as the Period.
These are the definitions of capitalized words referred to in Section 1.