THIS IS A LEGAL AGREEMENT, BY ACCESSING THIS WEBSITE OR USING ANY OF OUR SERVICES OR PRODUCTS, YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
Thank you for the opportunity you have extended to G.I.S., Inc. d/b/a VirtuWorks ("VirtuWorks," “we,” or “us”) to provide you (“you” or "Client") with services and products. As was discussed, we are providing you with the Terms and Conditions of Services ("Terms") that will allow us to assist you with your IT needs. VirtuWorks' services will be provided upon the terms and conditions described in these Terms, as applicable.
These Terms apply to the services and products provided to you (including without limitation the Casual Services, the Project Services, and the Online Services, as each is defined herein), your use of and access to any VirtuWorks owned or operated website, as well as any electronic transmission sent, received, posted, accessed, or stored via any VirtuWorks network, including without limitation its internal email network for communicating with VirtuWorks employees (collectively, referred to “Services”).
For purposes of these Terms, “You,” or “Client” means the client, defined as either (i) the person or entity identified in Virtuworks’ account records as responsible for payment of all charges; or (ii) any other person with actual or apparent authority to represent that person or entity or to use the Virtuworks’ services and products. By contracting, using or paying for any Services, you agree to be bound by the terms and conditions of these Terms as set forth herein.
THESE TERMS MAY BE AMENDED BY US FROM TIME TO TIME WITHOUT NOTICE TO YOU. YOU CAN REVIEW THE MOST CURRENT VERSION OF THESE TERMS AND CONDITIONS AT ANY TIME AT THIS SITE. YOUR USE OF THIS SITE AND YOUR RELATIONSHIP WITH VIRTUWORKS ARE SUBJECT TO ALL GUIDELINES OR RULES THAT MAY BE POSTED FROM TIME TO TIME ON THE SITE, WHICH ARE ALL INCORPORATED BY REFERENCE INTO THIS AGREEMENT.
A. TYPES OF SERVICES
1. Services. From time to time, VirtuWorks may provide Client with Casual Services, Project Services, and/or Online Services as each is defined herein.
2. Casual Services. Casual Services are provided in response to requests from Client's authorized representative(s) for which (1) the scope has been estimated by VirtuWorks to be less than eight (8) hours, but not limited to eight (8) hours. (2) the requirements are, in VirtuWorks' sole opinion, well and clearly defined, and (3) no project plan or functional specification is deemed necessary by VirtuWorks. Casual Services are performed by VirtuWorks on a time and materials basis in accordance with VirtuWorks' hourly rates for staff in effect at that time. Examples of Casual Services may include requests for telephone support or on-site consulting services less than one day in duration. It is Client's responsibility to specify and communicate to VirtuWorks the identity of Client's authorized representative(s).
3. Project Services. Project Services will be provided in accordance with separate statements of work ("Statement of Work") signed by both VirtuWorks and Client. A Statement of Work will not be effective unless signed by both VirtuWorks and Client. Examples of Project Services may include services in connection with pre-implementation plans, implementation services, training, custom modifications and technical reviews. Each Statement of Work will include the following:
- A description of the Project Services to be provided and specifications for any deliverables, if applicable for the project
- The fees for the Project Services
- An estimated timetable for the Project Services
- A statement referencing this Agreement and confirming that the Statement of Work will be attached to and made a part of this Agreement.
4. Online Services. VirtuWorks is a Web Presence Provider. User accounts on our Internet servers are subject to compliance with the terms and conditions set forth below. Under these Terms, your placement of information on VirtuWorks’ servers is an acknowledgement that you have read and understood these Terms, and that you agree to be bound by the terms and conditions below. If you do not wish to be bound by these terms and conditions, you should not proceed to place any information of any kind on VirtuWorks servers.
B. TERMS OF ONLINE SERVICES
1. User Conduct. Online Services may only be used for lawful purposes. Any use of Online Services which violates any local, state, federal, or international laws which may apply to VirtuWorks, your local jurisdiction, or any jurisdiction that you or your site may be subject to is strictly prohibited. While using the service, you may not:
- Restrict or inhibit any other user from using and enjoying the Internet;
- Post or transmit any unlawful, threatening, abusive, libelous, defamatory, or otherwise objectionable information of any kind including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
- Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
- Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
2. Indemnification. You agree to indemnify, defend, and hold harmless VirtuWorks from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the Online Services which damages either you, VirtuWorks, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account including but not limited to domain name selection and Web site content.
3. Refusal or Discontinuance of Online Service. VirtuWorks reserves the right to refuse or discontinue Online Services to anyone at VirtuWorks sole discretion. VirtuWorks may deny you access to all or part of the Online Services without notice if you engage in any conduct or activities that VirtuWorks in its sole discretion believes violates any of these Terms. VirtuWorks shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that VirtuWorks has the right to monitor the Online Services electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. VirtuWorks reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement.
4. No Warranties. VirtuWorks makes no warranties or representations of any kind for the Online Services being offered. The Online Services are provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non-infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by VirtuWorks or its agents or employees shall create a warranty. VirtuWorks provides no warranty that the Online Services will be uninterrupted or error free or that any information, software or other material accessible on the Online Services is free from viruses or other harmful components. Under no circumstances shall VirtuWorks be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the Online Services, or for third parties' use of the Online Services to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the Online Services, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
If you are dissatisfied with VirtuWorks’ Services or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Online Service. You understand that by placing information on VirtuWorks' servers that such information becomes available to all Internet users and that VirtuWorks has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of VirtuWorks' servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through VirtuWorks or on the Internet generally.
5. ECPA Notice. VirtuWorks reserves the right to monitor any and all communications through or with our facilities. You agree that VirtuWorks is not considered a "secure communications medium" for the purposes of the Electronic Communications Privacy Act (“ECPA”), and that no expectation of privacy is afforded.
6. No Interference with Operation of System. You agree not to maliciously or intentionally interfere with the proper operation of the system including but not limited to defeating identification procedures, obtaining access beyond that which you are authorized for, and impairing the availability, reliability, or quality of Online Services for other customers. You further agree not to interfere with the proper operation of other systems reachable through the Internet including any attempt at unauthorized access. You agree to follow the acceptable use policy of any network or service you connect to. You agree to adhere to system policies as published online by VirtuWorks, including restrictions on Online Services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at VirtuWorks. You agree to abide by any and all future VirtuWorks policy decisions.
7. Security. You agree that the security of your account for Online Services is solely your own responsibility. You further agree that if you believe the security of your account has been compromised in any way, you will notify VirtuWorks immediately in writing by registered or certified mail, return receipted, to VirtuWorks, 3850 Bird Road - Suite 501 Coral Gables, FL 33146. You shall be held fully responsible for any misuse or compromise to your account for which VirtuWorks is not properly notified. You agree that if any security violations are believed to have occurred in association with your account, VirtuWorks has the right to suspend access to the account pending an investigation and resolution. You also agree that VirtuWorks has the right to cooperate in any government or legal investigation regarding any aspect of our Online Services, including Services sold to you. Any use of our system to engage in software piracy or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.
8. Backup of Data. Your use of the Online Services is at your sole risk. VirtuWorks is not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on VirtuWorks’ servers.
9. Transmittal of Materials. You agree not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of VirtuWorks or any other service with reference to Online Services obtained through VirtuWorks, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming" is strictly prohibited and may cause your Online Services to be terminated immediately and without warning and you will be held fully responsible for any damages to you, VirtuWorks, or any other party or parties resulting from any such conduct.
10. Acknowledgment. By placing and continuing to maintain or place information on VirtuWorks' servers you are stating and acknowledging that you have read these Terms and that you understand such terms and conditions and agree to be bound by them.
11. Representations and Indemnification. You hereby warrant that (i) You are the owner of all artwork, designs, pictures, logos, trademarks, literature and other materials supplied to VirtuWorks hereunder, (ii) none of the artwork, designs, pictures, logos, trademarks, or other materials supplied by You infringe any copyrights, trademarks, or other rights of any third party, and (iii)You have the full authority to use such materials for the purposes contemplated hereunder. You hereby agree to hold VirtuWorks harmless against all liabilities, demands, damages, expenses, claims, or losses including all costs of defense and reasonable attorneys fees arising (i) out of use by VirtuWorks or its transferees of any materials, artwork, designs, logos, photographs or other information furnished under this agreement, or (ii) out of any use, sale, or other disposition by You or your agents or affiliates of any products made or sold by You. Without prejudice to its other rights and remedies in the event of a breach of this Agreement by You, which rights are expressly reserved by VirtuWorks, VirtuWorks hereby retains the right to immediately terminate this agreement and shut down the entire website, or such infringing portions, either temporarily or permanently, based on any breach or claimed breach of the above representations, or threat of suit, without any liability to You. Any indemnity given under this Agreement shall survive termination of this agreement.
C. GENERAL TERMS OF ALL SERVICES
1. Professional Services. VirtuWorks will provide Client those certain Services specified in the Services Agreement, document, quote, or invoice (the "Document"), if any, to which these Terms are made a part of and incorporated, upon and subject to these Terms and the terms of the Document. These Terms, along with the Document, if any, and all appendices thereto, are collectively referred to as this Agreement.
2. Expenses. Client will promptly reimburse VirtuWorks, upon written request therefore, for all actual travel and other expenses incurred by VirtuWorks in connection with, and in furtherance of, its performance of the Services. Expenses include, as applicable, mileage, parking, out-of-town travel costs, report preparation supplies, and allocated charges to cover the costs of technology, fax, telephone and mail/delivery services.
3. Invoicing and Payment. Fees for the Services will be due and payable when invoiced or, if the Document specifies payment terms, pursuant to the payment terms specified in the Document. Interest shall be assessed on any amount outstanding more than thirty (30) days after the invoice date thereof at a rate equal to the greater of one-half (½) percent per month or part thereof or the highest rate permitted by law. In addition, Client shall be liable for, and shall promptly pay to VirtuWorks, all costs, expenses and fees, including, without limitation, attorneys fees and court costs, incurred by VirtuWorks in connection with collecting any amounts due and owing from Client. If Client's account is past due and VirtuWorks has notified Client, verbally or in writing, of the past due balance, VirtuWorks may, without advance notice, immediately cease providing any and all further Services without any liability for interruption of pending work or breach of this Agreement. You agree that all fees for Online Services are non-refundable once setup is completed. You agree that until and unless you notify VirtuWorks of your desire to cancel any or all Services received, those Services will be billed on a recurring basis. You agree that if you are paying by credit card, prepayments will be billed and charged automatically, and that VirtuWorks may apply the amount due to the provided card at any time.
4. Taxes. The fees quoted by VirtuWorks do not include taxes. If VirtuWorks is required to pay any federal, state or local taxes as result of the performance of the Services pursuant to the terms of this Agreement, such taxes will be billed to, and promptly paid by, Client. Notwithstanding the foregoing, VirtuWorks will be solely responsible for the payment of all taxes assessed against VirtuWorks as a result of the income received from Client under this Agreement.
5. Billing Disputes. You must notify VirtuWorks in writing of any disputed charges within thirty (30) days of the charge being posted to your account or invoiced. Notices must include all relevant information, including but not limited to account number, amount in dispute, reasons for the dispute, a contact number and email address for the account holder and any other detail sufficient for VirtuWorks to appropriately evaluate the dispute. To the extent VirtuWorks determines that a charge adjustment is warranted, VirtuWorks will credit your account. If you fail to notify VirtuWorks of a charge or invoice dispute as noted above, you shall have waived all rights to bring any claim or defense regarding the particular charge or invoice.
6. Identification Information. You agree that you as the person legally responsible for use of the Services, are at least 18 years of age. You agree to supply VirtuWorks with a current and truthful name, postal address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any credit card that you supply to us and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
7. Staffing Decisions. VirtuWorks shall be solely responsible for staffing decisions with respect to its personnel and the performance of Services. VirtuWorks reserves the right to assign, re-assign and substitute its personnel with personnel with comparable qualifications at any time during the term of this Agreement.
8. Termination of Services. Virtuworks may cancel the services provided to Client pursuant to this Agreement at any time in the event Client fails to make timely payment, perform, or observe any term or condition herein by giving ten (10) days’ written notice. Otherwise, the Services may be terminated by either VirtuWorks or Client at any time by providing at east thirty (30) days prior written notice to the other party. All fees and expenses related to Services provided must be paid by Client to VirtuWorks, in full, prior to termination.
9. Limitations on Warranty. VIRTUWORKS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR THE PERFORMANCE THEREOF. VIRTUWORKS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
10. Limitation of Liability; Indemnification. CLIENT’S EXCLUSIVE REMEDY AND VIRTUWORKS’ SOLE LIABILITY TO CLIENT, FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO, AT VIRTUWORKS ELECTION, EITHER RE-PERFORMANCE OF THE SERVICES, OR REFUND OF A PRORATA PORTION OF THE FEES PAID TO VIRTUWORKS BY CLIENT UNDER THIS AGREEMENT. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE. IN NO EVENT WILL VIRTUWORKS BE LIABLE FOR ANY LOSS OF PROFIT, REVENUE, DATA, USE OR OTHER COMMERCIAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, SUFFERED BY CLIENT OR ANY THIRD PARTY, WHETHER OR NOT VIRTUWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY, DAMAGES OR THIRD-PARTY CLAIM, UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES. CLIENT SHALL INDEMNIFY AND HOLD VIRTUWORKS HARMLESS OF, FROM AND AGAINST ANY CLAIM, THIRD-PARTY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY CLIENT/CUSTOMER/VENDOR OF CLIENT, IN CONNECTION WITH VIRTUWORKS’ PERFORMANCE OF THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
11. Non-Solicitation. During the term of this Agreement and for a period of two (2) years thereafter (collectively, the “Non-Solicitation Period”), Client understands and agrees that Client will not solicit, entice, hire, employ, engage, or seek to employ or engage any employee, partner, principal or independent contractor employed or engaged by VirtuWorks during the Non-Solicitation Period (each individually a “Person”) without the express written consent of VirtuWorks. Any violation of this Paragraph will be considered a material breach of this Agreement. In the event of a violation of this Paragraph, in addition to any other remedies VirtuWorks may be entitled to, Client will pay VirtuWorks, immediately upon such Person’s departure from VirtuWorks, a sum equal to three (3) times the annual aggregate compensation, monetary and dollar value of non-monetary, payable to the applicable Person by VirtuWorks immediately prior to such breach. VirtuWorks and Client each acknowledge and agree that the foregoing payment is not intended to constitute liquidated damages or a penalty, but instead is intended to provide VirtuWorks with a sum of money in which to commence to seek a replacement for said Person.
12. Assignment. Client may not assign this Agreement, in whole or in part, or any of its rights or obligations hereunder, without the prior written consent of VirtuWorks, which written consent will not be unreasonably withheld. VirtuWorks has the right to assign this Agreement, and any or all of its rights and obligations hereunder, to any of its affiliates, without the prior written consent of or notice to Client.
13. Headings. The headings herein are for con¬venience of reference only and shall not be deemed to be part of the sub¬stance of this Agreement.
14. Governing Law; Construction. This Agreement has been executed and delivered in, and shall be governed by and construed in accordance with, the laws of the State of Florida. The parties agree that this Agreement was prepared jointly by each of them and shall be construed on a parity as between the parties. There shall be no canon of con¬struction for or against any party by reason of the physical preparation of this instrument. This Agreement sets forth the entire agreement between the parties with respect to the subject matter herein, superseding all prior agreements, negotiations or understandings, whether oral or written, with respect to such subject matter. The rights, covenants, agreements and obligations of VirtuWorks and Client under this Agreement will be binding upon and inure to the benefit of VirtuWorks and Client and their respective legal representatives, successors, permitted assigns, if any. Unless otherwise defined in the Document, all defined terms will have the definitions set forth in this Agreement.
15. Jurisdiction and Venue. Jurisdiction and venue for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement, shall vest only in the Federal or State Courts located in Miami-Dade County, Florida. The parties expressly submit and consent in advance to such jurisdiction in any action or proceeding commenced in any such court, and the parties hereby waive any objection which either may be based upon the lack of personal jurisdiction and hereby consent to the granting of such legal or equitable relief as is deemed appropriate by any such court. Furthermore, the parties waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent any proceedings are brought in accordance with the paragraph. The parties hereby waive personal service of any summons or complaint or other process or papers to be issued in any action or proceeding involving any such controversy and hereby agrees that service of such summons or complaint or process may be made by registered or certified mail, Federal Express, or UPS at the address appearing herein.
16. Joining of Disputes. NO DISPUTE OR CLAIM MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON. BY AGREEING TO THIS AGREEMENT OR USING VIRTUWORKS’ SERVICE, YOU EXPRESSLY WAIVE ANY RIGHT TO BRING YOUR CLAIM ON A CLASS-WIDE BASIS OR IN THE FORM OF A CLASS ACTION.
17. WAIVER OF TRIAL BY JURY. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THE PARTIES HERETO MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT WITH THE OTHERS.
18. Attorney Fees. In the event that it becomes necessary for any party herein to seek legal means to enforce the terms of this Agreement, the non-prevailing party will be liable for all reasonable attorneys’ fees and attorneys’ fees on appeal, travel expenses, deposition costs, expert witness expenses and fees and any other costs of whatever nature reasonably and necessarily incurred by the prevailing party as a necessary incident to the prosecution or defense of such action, plus court costs in all proceedings, trials and appeals.
19. Enforceability. If any provision contained in this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision will be severed from this Agreement and such invalidity or unenforceability will not affect any other provision of this Agreement, the balance of which will remain in and have its intended full force and effect; provided, however, if such invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of law, such provision will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law. The parties acknowledge and agree that this Agreement allocates risk between them as authorized by any applicable law and that the amount of the fees charged for the Services reflects this allocation of risk and other limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement will remain in full force and effect.
20. Use of Name. Client hereby grants to VirtuWorks the limited, royalty-free, non-exclusive and non-transferable right and license to list the name of Client in the marketing materials of VirtuWorks for the sole purpose of informing the public that Client is a client of VirtuWorks. This right and license shall not enable VirtuWorks to describe the specific purpose for which VirtuWorks has or had been retained by Client without the prior written consent of Client.
21. Independent Contractor. VirtuWorks and Client acknowledge that the relationship between the parties to this Agreement is exclusively that of an independent contractor and that VirtuWorks’ obligations to Client are exclusively contractual in nature. This Agreement does not create an agency, employment, partnership joint venture, trust or other fiduciary relationship between the parties. Neither party shall have the right to bind the other to any third person or otherwise to act in any way as a representative or agent of the other.
22. Email Transmissions. In connection with VirtuWorks’ performance of the Services, VirtuWorks may communicate, from time to time, with Client or others via email transmission. Client acknowledges and accepts, and waive any claim in opposition hereof, that VirtuWorks cannot guaranty, and does not warrant, that the email transmissions from VirtuWorks: (i) will not be intercepted and read, disclosed or otherwise used or communicated by a third party; or (ii) will be delivered to each of the parties to whom they are directed and only such parties. In furtherance thereof, VirtuWorks specifically disclaims and hereby waives any liability or responsibility whatsoever for intercepted, disclosed or communicated email transmissions, and with respect to the unauthorized use or failed delivery of email transmissions, transmitted by VirtuWorks or its personnel in connection with the performance by VirtuWorks of the Services. FURTHERMORE, VirtuWorks SPECIFICALLY DISCLAIMS AND HEREBY WAIVES ANY, AND CLIENT HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT VirtuWorks SHALL HAVE NO, LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY LOSS OR DAMAGE TO ANY PERSON OR ENTITY, INCLUDING, WITHOUT LIMITATION, Client, RESULTING, IN WHOLE OR IN PART, FROM THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, DIRECT OR INDIRECT OR SPECIAL DAMAGES, SUCH AS LOSS OF SALES OR ANTICIPATED PROFITS OR DISCLOSURE OR COMMUNICATION OF CONFIDENTIAL OR PROPRIETARY INFORMATION.
23. Service Rates. Service is billed in tenth hour increments. Travel and preparation time are billed at the normal hourly rate. These rates apply between 8:00 a.m. and 7:00 p.m. Eastern Time, Monday through Friday, except Holidays. If travel is in excess of one hour driving time each way, day rates apply, and will be quoted for the specific engagement. Day rate services must be provided during normal business hours (8:00 a.m. to 7:00 p.m.). Services provided outside these normal business hours will be billed according to our standard overtime rates. Rates quoted do not include expenses related to travel, which will be billed as incurred. Premium rates apply to after-hours service, according to the following table:
| HOURS OF SERVICE | RATE | MINIMUM |
| Weekdays: 7:00pm - 10:00pm | 1.5 times service rate | 1 hour |
| Weekends: 7:00am - 10:00pm | 2.0 times service rate | 1 hour |
| Every day: 10:00pm - 7:00 am | 2.0 times service rate | 1 hour |
24. Notice. All notices and other communications required or desired to be given pursuant to this Agreement will be given in writing and will be deemed duly given (i) upon personal delivery; (ii) on the third day after mailing if sent by registered or certified mail, postage prepaid, return receipt requested; (iii) on the day after mailing if sent by a nationally recognized overnight delivery service which maintains records of the time, place and recipient of delivery; or (iv) upon receipt of a confirmed transmission, if sent by facsimile transmission, and in each case if addressed to Client to the address or fax number on record with VirtuWorks or if to VirtuWorks: 3850 Bird Road, Suite 501 Coral Gables, FL 33146, Fax: (305) 265-0872.