Effective Date: 12/01/2026
These Terms and Conditions (“Terms”) constitute a binding agreement between Geekland IT Inc (“Provider”) and any entity or individual (“Client”) receiving services from Provider in the absence of a duly executed Master Service Agreement (“MSA”). If an MSA is in effect, such MSA shall govern and supersede these Terms. Acceptance of any quotation, estimate, work order, or services rendered by Provider shall constitute Client’s agreement to these Terms. Capitalized terms not defined here have the meanings given in the applicable Service Order.
1. Services
1.1 Scope of Services
Provider shall render managed IT services, cybersecurity solutions, technical consulting, and reseller services as delineated in work orders, estimates, service schedules, or invoices (“Service Order”). The provision of services is contingent upon availability and the acceptance of the applicable Service Order by Provider.
1.2 Service Orders
Client acknowledges and agrees that it bears sole responsibility for the accuracy of all information furnished to Provider when requesting services. Each Service Order shall expressly define the nature and scope of services, term, pricing, and any additional fees. A Service Order shall be deemed accepted upon the earlier of signing an estimate, electronically accepting an estimate, or scheduling or delivery of the specified services.
1.3 Term, Renewal, and Early Termination
(a) Term and renewal. Each Service Order begins on the date stated in it (or, if none, on the date Services are first provided) and continues for the initial term stated in it. If a Service Order provides for automatic renewal, it renews at the end of each term for a renewal term of one (1) year unless either Party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term (for a Wisconsin Client, at least thirty (30) days or one (1) calendar month, whichever is shorter). If a Service Order does not provide for automatic renewal, or has no stated term, the Services continue month-to-month after any initial term, and either Party may end them on thirty (30) days' written notice.
(b) Wisconsin Clients. For a Client located in Wisconsin, an automatic renewal for a period longer than one (1) month applies only if the Service Order includes Provider's Wisconsin Auto-Renewal Rider, with its disclosures presented conspicuously as required by Wis. Stat. § 134.49, and Client has initialed it. Otherwise, the Service Order continues month-to-month after the end of its current term under Section 1.3(a). Provider will send renewal reminder notices as stated in the Wisconsin Auto-Renewal Rider and as applicable law requires.
(c) Early termination fee. Unless the Service Order states otherwise, if Client terminates a Service Order without cause before the end of its then-current term, or Provider terminates it because of a Client Default, Client shall pay Provider, as an early termination fee:
- (i) fifty percent (50%) of the monthly recurring charges ("MRC") remaining for the then-current term;
- (ii) the amount of any discounts, credits, waived or reduced onboarding or setup fees, and other concessions Provider gave in exchange for Client's term commitment;
- (iii) the remaining cost of any third-party commitments Provider made for Client that Provider cannot cancel without cost, including annual or multi-year software subscriptions and licenses (such as Microsoft New Commerce Experience annual seats) for their remaining commitment period, less any amount Provider actually recovers by reassigning or reducing them; and
- (iv) any non-recurring costs Provider has incurred in fulfilling the Service Order and not yet invoiced.
The early termination fee never includes MRC for any renewal term that has not yet begun. The Parties agree that Provider's losses from early termination (including staffing, tooling, and licensing committed to Client's account) are difficult to measure in advance, and that this fee is a reasonable estimate of those losses and not a penalty. All amounts invoiced before termination remain due.
2. Billing and Payments
2.1 Charges and Payments
Provider invoices on the first (1st) day of each month for recurring Services for the month ahead, together with any prior-month support, usage, arrears, and licensing charges not previously billed. Recurring charges are due in full by the fifth (5th) day of that month. Charges for one-time services and projects, and for equipment, software, hardware, and other non-recurring items, are due upon receipt of invoice. All fees are in U.S. dollars and exclude applicable taxes, which Client shall pay.
2.2 Late Payments
Late Charges. Any amount not paid by its due date is past due, and Provider will notify Client in writing (email is sufficient). If a past-due amount remains unpaid ten (10) days after its due date, Client shall pay a late charge equal to the greater of fifty dollars ($50) or one and one-half percent (1.5%) of the unpaid past-due balance, and the same late charge again on the same day of each following month while any part of that balance remains unpaid. The parties agree that a past-due account causes Provider real costs that are difficult to measure in advance for any particular invoice, including monthly statements and reminders, account review and reconciliation, payment follow-up, and the cost of carrying the unpaid balance, and that this late charge is a reasonable estimate of those costs and not a penalty. Total late charges on any single invoice will not exceed fifty percent (50%) of that invoice's original amount. Late charges compensate Provider's internal costs and are separate from third-party collection costs and attorneys' fees recoverable under Sections 2.6 and 6.11. Late charges, together with any other amount treated as interest, will never exceed the maximum permitted by applicable law; any excess will be credited to Client's account or refunded. Provider may waive any late charge, and a waiver does not waive any later charge.
2.3 Retail Rates
Services performed outside the scope of a Service Order shall be invoiced at Provider’s prevailing retail rates as posted and available at https://www.geeklandit.com/terms.
2.4 Refunds and Cancellations
All fees are non-refundable. Once Client orders Services, Provider begins preparing for them, including planning, scheduling, reserving technician time, and procuring hardware, software, and licenses, and the cost of that work is difficult to measure in advance for any particular engagement. If Client elects to cancel Services before Provider begins performing them, Client shall pay a cancellation fee equal to the greater of thirty percent (30%) of fees paid or one thousand dollars ($1,000), as recovery of Provider's preparation, planning, and procurement costs, plus any third-party costs Provider has incurred for Client that Provider cannot cancel, return, or recover. The Parties agree that this fee is a reasonable estimate of those costs and not a penalty.
2.5 Invoice Disputes
If Client disputes any part of an invoice in good faith, Client shall notify Provider in writing within fifteen (15) days after the invoice date, identifying the specific charges disputed, the amount, and the reasons, with reasonable supporting detail. Client shall pay all undisputed amounts by the due date. Any part of an invoice not disputed in this way is accepted by Client and is final. Both Parties will work in good faith to resolve a timely dispute. If the dispute is resolved in Client's favor, Provider will issue a credit on Client's next invoice. If it is resolved in Provider's favor, Client shall pay the amount within ten (10) days, and late charges under Section 2.2 apply from the original due date. While a dispute is being resolved, each Party shall keep performing its obligations, except that Provider may suspend Services under Section 5.3 for non-payment of undisputed amounts. Client may not withhold or offset disputed amounts against other invoices or accounts.
2.6 Collection Costs
Client shall be liable for all costs associated with collection efforts, including but not limited to collection agency fees, attorney's fees, and court costs.
2.7 Fee Changes
Provider may adjust pricing in response to third-party cost increases, and may otherwise change recurring fees on at least thirty (30) days' written notice (email is sufficient). During the initial term of a Service Order, Provider will not increase its own recurring fees; increases in third-party costs (such as software, licensing, and vendor charges) passed through to Client are still permitted. If increases to the recurring fees under a Service Order, not counting third-party pass-through increases, total more than ten percent (10%) in any twelve (12)-month period, Client may terminate the affected Services without the early termination fee under Section 1.3(c) by written notice given within thirty (30) days after receiving Provider's notice of the increase. Termination takes effect on the date the increase would have taken effect, or on a later date Client chooses within the thirty (30) days. Client remains responsible for charges through that date and for non-cancellable third-party commitments under Section 1.3(c)(iii).
3. Warranty and Liability
3.1 Limited Warranty
Provider warrants, for a period of thirty (30) days following delivery of any services hereunder (the “Warranty Period”) that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. Provider’s sole liability (and Client’s exclusive remedy) for any breach of this Warranty shall be for Provider to re-perform any deficient services, or, if Provider is unable to remedy such deficiency within fifteen (15) days, to void the invoice for the deficient services. Provider shall have no obligation with respect to any Warranty claim if (1) it is notified of such claim after the Warranty Period or (2) the claim is the result of third-party hardware or software, the actions of Client, or the actions or omissions of some other party or is otherwise caused by factors outside the reasonable control of Provider.
THIS SECTION IS A LIMITED WARRANTY, AND SETS FORTH THE ONLY WARRANTIES MADE BY PROVIDER. PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY PROVIDER. PROVIDER DOES NOT WARRANT THE UNINTERRUPTED OR ERROR-FREE OPERATION OR PROVISION OF THE SERVICES, THAT THE SERVICES WILL BE FREE FROM INTERRUPTION, THE SERVICES WILL BE SECURE FROM UNAUTHORIZED ACCESS, THAT THE SERVICES WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF CLIENT’S COMPUTER SYSTEMS, THAT THE SERVICES WILL PREVENT EVERY BREACH, OR THAT RESULTS GENERATED BY THE SERVICES WILL BE ERROR-FREE, ACCURATE OR COMPLETE. ALL INFORMATION, MATERIALS AND SERVICES ARE PROVIDED TO CLIENT “AS IS”. CLIENT MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.
Provider will pass along to the Client any third-party warranties relating to any goods purchased and/or installed by Provider on Client’s premises and/or equipment.
3.2 Limitation of Liability
CLIENT UNDERSTANDS AND AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES. PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WHICH MAY OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL THE AGGREGATE AMOUNT CLIENT MAY RECOVER FROM PROVIDER UNDER THESE TERMS FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES AND/OR THESE TERMS, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO PROVIDER’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY (“CLIENT’S CLAIMS”) EXCEED THE LESSER OF THE TOTAL PAYMENTS MADE TO PROVIDER BY CLIENT PURSUANT TO THESE TERMS IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS OR TEN THOUSAND (10,000) DOLLARS. THE FOREGOING SUM REPRESENTS PROVIDER’S TOTAL LIABILITY FOR ALL OF CLIENT’S CLAIMS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF PROVIDER. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND WILL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. Confidentiality and Data Protection
4.1 Confidentiality
Each Party acknowledges that, in connection with these Terms, it may be furnished with, or given access to, certain confidential and/or proprietary information of the other Party, and that, subject to the provisions of this section, such information shall not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by these Terms.
4.2 Information Subject to Confidentiality.
Confidential Information may include, but is not limited to, the following:
- Any materials regardless of form furnished by either Party to the other for use;
- Any information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret;
- Any business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information; and other confidential trade secrets, data and knowledge of either Party;
- Any information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners and affiliates of either Party;
- Any non-public inventions the rights to which have not been assigned to the Party receiving the information;
- Any non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the Party receiving the information.
- These Terms and any Service Schedule or Service Order made pursuant to these Terms, including but not limited to pricing information.
and other proprietary information owned by either Party, (collectively “Confidential Information”), which are valuable, special and/or unique assets of that Party.
Any templates, schematics, processes or technical documentation provided by Provider shall be deemed Confidential Information and proprietary information of Provider without any marking or further designation. Client may use such information solely for its own internal business purposes.
Provider shall maintain the confidentiality of information in its possession regarding individual protected health information in accordance with applicable law, and shall not release such information, to any other person or entity, except as required by law.
4.3 Non-Disclosure
Neither Client nor Provider will disclose or use, either during or after the term of these Terms, in any manner, directly or indirectly, any such Confidential Information of the other Party, for their own benefit or the benefit of any third party. Neither Party will use, share, divulge, disclose or communicate in any manner whatsoever any Confidential Information to any third party without the prior written consent of the other Party, except to the extent specifically permitted under these Terms.
Both Parties will protect all Confidential Information of the other, and will treat it as strictly confidential, unless and until: i) said information becomes known to third parties not under any obligation of confidentiality to the party whose confidential information is at issue (“Disclosing Party”), or becomes publicly known through no fault of the other party (the “Receiving Party”); or ii) said information was already in the Receiving Party’s possession prior to its disclosure, except in cases where the information has been covered by a preexisting Confidentiality Agreement; or iii) said information is subsequently disclosed by a third party not under any obligation of confidentiality to the Disclosing Party; or iv) said information is approved for disclosure by prior written consent of the Disclosing Party; or v) said information is required to be disclosed by court order or governmental law or regulation, provided that the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure; or vi) said information is proven independently developed by the Receiving Party without recourse or access to the information; or vii) disclosure is required in order for a party to comply with its obligations under these Terms, provided that prior to disclosure, the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure.
A violation of this paragraph shall be a material violation of these Terms.
4.4 Employees and Agents
The Parties further agree to disclose the Confidential Information only to their officers, directors, employees, contractors and agents (collectively, the “Agents”) solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to i) hold any Confidential Information received by such Agents in the strictest confidence, ii) not to disclose such Confidential Information to any third party, and iii) not to use such Confidential Information for the benefit of anyone other than the party to whom it belongs, without the prior express written authorization of the party disclosing same.
4.5 Unauthorized Disclosure of Confidential Information
If Either Party to these Terms discloses or threatens to disclose the other party’s Confidential Information to another party or to the Disclosing Party’s detriment or damage, in violation of these Terms, the party whose information is at issue will suffer irreparable damage and shall be entitled to an award by any court of competent jurisdiction of a temporary restraining order and/or preliminary injunction to restrain the other party from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed.
4.6 Data Protection
The Parties acknowledge that Provider may have access to certain of Client’s computer and communications systems and networks for the purposes set forth in these Terms. If any data is made available or accessible to Provider, its employees, agents or contractors, pertaining to Client’s business or financial affairs, or to Client’s projects, transactions, clients, customers, partners, vendors or any other person or entity, Provider will not store, copy, analyze, monitor or otherwise use that data except for the purposes set forth in these Terms and any valid Service Schedule or Service Order. Provider will comply fully with all applicable laws, regulations, and government orders relating to personally identifiable information (“PII”) and data privacy with respect to any such data that Provider receives or has access to under these Terms or in connection with the performance of any Services for Client. Provider will otherwise protect PII and will not use, disclose, or transfer such PII except as necessary to perform under these Terms or as specifically authorized by the data subject or in accordance with applicable law. To the extent that Provider receives PII related to the performance of these Terms, Provider will protect the privacy and legal rights of Client’s personnel, clients, customers and contractors.
4.7 Ownership of Work Product
"Work Product" means the configurations, scripts, policies, documentation, designs, reports, and other deliverables Provider creates in performing the Services. Provider owns all Work Product. Until Client has paid in full all amounts invoiced for the Work Product, Client has a limited, non-exclusive, revocable license to use it for Client's internal business purposes while Client's account is current. When Client has paid in full, Client receives a perpetual, non-exclusive, non-transferable license to use that Work Product for Client's internal business purposes, and Provider keeps ownership. Provider always keeps its pre-existing and general-purpose tools, templates, scripts, know-how, and methods, and licenses them to Client only as needed to use the deliverables. Client's own data, accounts, tenants, domains, and licenses purchased in Client's name remain Client's property at all times, and nothing in this Section allows Provider to withhold them.
5. Default and Termination
5.1 Default by Client
Client is in default of these Terms if it i) fails to cure any monetary breach within ten (10) days of receiving notice of the breach from Provider; ii) fails to cure any non-monetary breach of any terms of these Terms within thirty (30) days of receiving notice of the breach from Provider; or iii) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Client Default”).
In the event of a Client Default, Provider may suspend Services as provided in Section 5.3, or may terminate these Terms and/or any or all Service Orders, in which case Section 1.3 applies as if Client had terminated without cause. These remedies are in addition to, and not a substitute for, all other remedies available to Provider under these Terms, at law, or in equity.
5.2 Default by Provider
Provider is in default of these Terms if it fails to cure any non-monetary breach of any material term of these Terms within thirty (30) days of receiving written notice of the breach from Client (“Provider Default”); provided, however, that Client expressly acknowledges that Service related failure or degradation in performance is not subject to a claim of a Provider Default. Client’s sole and exclusive remedy for any failure of Service is limited to the remedies set forth in under the Limited Warranty and Limitation of Liability sections of these Terms. In the event of a Provider Default, Client may terminate the Services and these Terms upon written notice to Provider. Any termination shall not relieve Client of its obligations to pay all charges incurred hereunder prior to such termination.
5.3 Suspension and Reactivation
If any undisputed amount is past due, Provider may give Client written notice (email is sufficient) that Services will be suspended. If the past-due amount is not paid within ten (10) days after that notice, Provider may suspend any or all Services, without liability to Client, until all past-due amounts (including late charges) are paid in full. Suspension does not relieve Client of its obligation to pay recurring charges during the suspension. Before Services are restored, Client shall pay a reactivation fee of two hundred fifty dollars ($250), equal to one hour of Remote Support at Provider's posted Retail Rates, plus any third-party reactivation charges. Provider is not responsible for any loss or damage resulting from a suspension made in accordance with this Section. Provider will not suspend security monitoring, backups, or other Services where suspension could cause loss of Client data without giving an additional five (5) days' written notice.
5.4 Transition Assistance
When Services end for any reason, Provider will make Client's data and administrative credentials for Client-owned systems and accounts available to Client, and will meet any return or destruction obligations under any business associate agreement between the Parties or applicable law. Any other transition or offboarding assistance, including coordination with a successor provider, knowledge transfer, documentation handover beyond the Work Product Client has paid for, data migration, and decommissioning of Provider's tools, is a separate project that Client orders through a Service Order, billed at Provider's then-current Retail Rates and paid in advance. Provider will begin that project once Client's account is current, including any early termination fee owed under Section 1.3(c).
6. Miscellaneous
6.1 Amendments
Provider may update these Terms by posting a revised, dated version at https://www.geeklandit.com/terms and keeping prior versions available there. Revised Terms apply (a) to any Service Order, estimate, or quotation accepted, and any new Services ordered, on or after the revised effective date; and (b) to existing Services, from the later of the revised effective date or thirty (30) days after Provider gives Client written notice of the revision. A conspicuous notice of the revision on an invoice delivered to Client, together with the same notice in the body of the email that delivers that invoice, is written notice for this purpose; Provider may also give written notice by email to Client's primary or billing contact. Client's continued use of the Services after the revision applies constitutes acceptance of the revised Terms. However, a revision that materially increases Client's financial obligations under a Service Order with a fixed term (including changes to fees, late charges, or early termination charges) applies to that Service Order only from the start of its next renewal term, unless Client agrees in writing sooner. A signed MSA or Service Order controls over any revision to these Terms as provided above.
6.2 Severability
If any provision of these Terms is declared by any court of competent jurisdiction to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of these Terms shall remain in full force and effect, and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of these Terms may be made enforceable by limiting such provision, then such provision shall be deemed written, construed and enforced as so limited.
6.3 Successors and Assigns
Client shall not transfer or assign, voluntarily or by operation of law, its rights or obligations under these Terms or any Service Order without the prior written consent of Provider. A sale of all or substantially all of Client's assets or of the business that receives the Services, or a change of control of Client, is a transfer for this purpose and requires Provider's prior written consent. These Terms may be assigned by Provider (i) pursuant to a merger or change of control of Provider, or (ii) to an assignee of all or substantially all of Provider's assets. Any purported assignment in violation of this section shall be void. Unless Provider releases it in writing, the Client that accepted a Service Order remains jointly and severally liable with any successor, assignee, or acquirer for all obligations under these Terms and that Service Order, including obligations arising after the transfer, whether or not Provider consented to the transfer.
6.4 Representations and Warranties
Each party represents and warrants to the other party that (i) it has the full right, power and authority to enter into and to perform these Terms; (ii) the execution, delivery and performance of these Terms has been duly authorized by all necessary corporate action; (iii) these Terms constitute a valid and binding obligation of such party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; and (iv) the execution, delivery and performance of these Terms does not or will not violate or cause a breach or default under i) the governing corporate or company documents of such party; ii) any agreement, lease, mortgage, license or other contract to which such party is a party; or iii) any law, rule, regulation, order, decree or consent action by which such party is bound or to which it is subject.
6.5 Survival
All provisions that logically ought to survive termination of these Terms, including but not limited to payment obligations (including Sections 1.3(c), 2.2, 2.5, and 2.6), applicable Warranties, Limitation of Liability, Ownership of Work Product, Transition Assistance, Choice of Law, Venue Selection, and Confidentiality provisions, shall survive the expiration or termination of these Terms.
6.6 No Waiver
The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements or conditions set forth in these Terms, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements or conditions, or any breach thereof.
6.7 Force Majeure
Either Party who fails to timely perform their obligations under these Terms (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, as long as the Nonperforming Party complies with its obligations as set forth below.
For purposes of these Terms, “Force Majeure Event” means any event, circumstance, occurrence or contingency, regardless of whether it was foreseeable, which is i) not caused by, and is not within the reasonable control of, the nonperforming Party, and ii) prevents the Nonperforming Party from its obligations under these Terms. Such events may include, but are not limited to: acts of war; insurrections; fire; laws, proclamations, edicts, ordinances or regulations; strikes, lock-outs or other labor disputes; riots; explosions; delays in transportation, accident, failure of Client to provide a suitable operating environment for Provider; hardware malfunctions caused by defects in software or otherwise; failure of Client to allow Provider access to its computer systems; and hurricanes, earthquakes, floods, and other acts of nature.
The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under these Terms shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate these Terms upon ten (10) days’ prior written notice to the other Party.
Upon occurrence of a Force Majeure Event, the Nonperforming Party shall do all of the following: i) immediately make all reasonable efforts to comply with its obligations under these Terms; ii) promptly notify the other Party of the Force Majeure Event; iii) advise the other Party of the effect on its performance; iv) advise the other Party of the estimated duration of the delay; v) provide the other Party with reasonable updates; and vi) use reasonable efforts to limit damages to the other Party and to resume its performance under these Terms.
6.8 Mediation and Arbitration
If a dispute arises under these Terms, the Parties hereby agree to first attempt to resolve said dispute by submitting the matter to a mutually agreed-upon mediator in the State of Minnesota. The Parties agree to share any mediation costs and fees, other than their respective attorney fees, equally.
If the dispute is not resolved through mediation, the Parties agree to submit the dispute to binding arbitration in accordance with the rules of the American Arbitration Association, and each Party hereby consents to any such disputes being so resolved. Judgment on the award so rendered in any such arbitration may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, a claim to collect amounts invoiced under these Terms or any Service Order (including late charges, early termination fees, and collection costs) may be brought, without first mediating or arbitrating, in conciliation court or district court in Dakota County, Minnesota. Client may raise any defense in that action, but any counterclaim by Client shall be resolved only through mediation and arbitration under this Section and not in that action. Bringing such a claim does not waive mediation or arbitration of any other dispute.
6.9 Choice of Law
These Terms shall be governed and construed in accordance with the laws of the State of Minnesota (without regard to the conflict of laws rules or statutes of Minnesota or any other jurisdiction that might result in the application of other law) and all claims relating to or arising out of these Terms, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Minnesota.
6.10 Choice of Venue
The Parties hereby agree that all demands, claims, actions, causes of action, suits, proceedings, including any arbitration, mediation and/or litigation between the parties, to the extent permitted under these Terms and arising out of same, shall be filed, initiated, and conducted in the State of Minnesota, County of Dakota. Unless the provisions of these Terms exclude litigation as a remedy in a dispute by the Parties, it is hereby agreed that any litigation arising out of these Terms must be filed and litigated in a state or federal court located in the State of Minnesota. In connection with the foregoing, to the extent that litigation is a permissible method of dispute resolution under these Terms, each Party hereby consents and submits to the exclusive jurisdiction of those courts for purposes of any such proceeding, and waive any claims or defenses of lack of jurisdiction of, or proper venue by, such court.
6.11 Attorney Fees
In the event that any arbitration, suit or action is instituted to resolve a dispute pertaining to matters covered under these Terms, or enforce any provision thereof, the prevailing Party in any such dispute or proceeding shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to these Terms, including without limitation, all reasonable fees and expenses of attorneys and accountants, court costs, and expenses of any appeals.
6.12 Headings Not Controlling
Headings used in these Terms are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of these Terms.