Phlox Incorporated DBA ColoDetroit

 

This Master Services Agreement (“Agreement”) sets forth the terms of your agreement to purchase Services (“Service”) provided by Phlox Incorporated (“Phlox”) subject to the prices, quantities, terms and conditions set forth in your Order Form (“Order Form”) and governed by the terms and conditions contained in this Agreement.

 

Property Rights. Phlox owns all rights, title and interest in Phlox trade names, Service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide the individual Service elements of which they consist. This Agreement does not constitute a license to you to use Phlox’s trade names or Service marks.

 

Personal Property Taxes. You will be solely responsible, where applicable, for paying local and state personal property taxes associated with your equipment stored in a facility rented or owned by Phlox. In the event that Phlox is required by a governmental authority to pay property taxes on your behalf, Phlox will have the right to be reimbursed by you for such amount. You must reimburse Phlox within 30 days of written notice that a tax has been paid on your behalf by Phlox.

 

Term and Termination. Phlox may reject any Order Form at its discretion. This Agreement will remain in full force and effect for the initial term as specified on your Order Form, beginning from the date of the Phlox acceptance and will apply to all future Services you purchase from Phlox. You may terminate this Agreement at the end of the initial term or each subsequent term by so notifying Phlox by registered mail at the address provided for herein, no less than thirty (30) days prior to the renewal date at the Phlox Incorporated address listed below. Phlox may terminate this Agreement at any time without prior notice to You.

 

Billing and Collection of Charges. You will be billed by Phlox pursuant to the terms of your Order Form. Subject to the terms of your Order Form, Phlox reserves the right to increase your rates and charges. All invoices are due and payable by the invoice due date. When billing is based on customer usage, charges will be billed monthly for the preceding billing periods. When Service does not begin on the first day of the month, or end on the last day of the month, the charge for the fraction of the month in which Service was furnished will be calculated on a pro rata basis. Billing by Phlox will begin on the Service Commencement Date. Billing accrues through and includes the day that the Service is discontinued. Past due balances may be charged a minimum service fee of $35 plus 1.5% of the total outstanding amount. Declined credit cards will be charged a $10.00 declination fee. Accounts that are more than 10 days past due may have service discontinued for nonpayment. Accounts that have been discontinued for nonpayment are subject to a $100 reconnection fee. If your account has been turned over by Phlox Incorporated to an outside agent for collection, you agree to pay Phlox a "Processing and Collection" fee of not less than $50.

Billing Disputes. All payments to Phlox are NON-REFUNDABLE. If you dispute a term or amount on an invoice, you must do so in writing within 60 days from the invoice date. Disputes must be sent by registered mail at the address provided for herein.

You must pay an amount equal to the part of the bill that is not in dispute. Payment of the amount of the invoice not in dispute will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. If you report a disputed charge to your credit card company, and Phlox later determines that it is a valid charge, you agree to pay Phlox a "Processing Fee".

Allowances for Interruptions in Service. Interruptions in Service that are not caused by you, or during which Phlox does not provide a replacement Service, may be credited to you for that part of the Service that the interruption affects. Credit allowances will only be made when an interruption occurs because of a failure of any component furnished by Phlox. An interruption period begins from the time your Service is reported or is found to be out of Service. An interruption period ends when the Service or facility is operative. If you report a Service, Equipment, or facility to be inoperative but decline to release it for testing and repair, it is considered to be impaired, but not interrupted. For calculating credit allowances, every month is considered to have 30 days. A credit allowance for fixed recurring fees only is applied on a pro rata basis against the rates specified hereunder and is dependent upon the length of the interruption. Credit allowances will only be given for interruptions of 24 hours or more.

 

Limitations on Allowances. No credit allowance will be made for: (a) interruptions due to the cause of, negligence of, or noncompliance with this Agreement or any posted policy of Phlox by, you or your Users; (b) interruptions of Service during any period in which Phlox is not given full and free access by you to your facilities and equipment for the purpose of investigating and correcting interruptions;(c) interruptions of Service during a period in which you continue to use the Service on an impaired basis; (d) interruptions of Service during any period when you have released Service to Phlox for maintenance purposes or for implementation of an Order Form placed by you for a change in Service arrangements; and (e) interruption of Service during a time period in which Phlox provides a satisfactory replacement Service.

Cancellation for Service Interruption. Cancellation or termination of your Service due to Service interruption is permitted only if you experience a single continuous outage of Service for no less than 7 days or more or cumulatively for 14 days within a continuous 3 month period. The right to cancel Service under this provision only applies to the single Service or equipment that has been subject to the outage.

 

Cancellation of Service. If you cancel an Order Form or terminate Services before the completion of the term (Early Termination) for any reason whatsoever other than a Service interruption (as defined above), you agree to pay charges to Phlox, as defined below. These charges will become due and owing as of the effective date of the cancellation or termination. Your liability for Early Termination will be equal to: (i) all unpaid Non-Recurring charges reasonably expended by Phlox to establish Service to you; plus (ii) any disconnection, early cancellation or termination charges reasonably incurred and paid to suppliers or third parties by Phlox on your behalf or to enable your Service, including but not limited to any and all waived or discounted installation charges; supplier or wholesaler termination charges incurred by Phlox; plus (iii) all Recurring Charges incurred prior to disconnection, cancellation or termination plus fees equal to (6) times your monthly recurring fee for the Service; (iv) any waived or promotional credits applied on earlier invoices (you will also be responsible for the difference in discounted monthly fees that were contingent upon you signing an agreement for a specified term); minus (v) reasonable allowance for costs avoided by Phlox as a direct result of the your cancellation.

All cancellations must be received in writing according to the above deadlines. Regular mail, email and fax notifications are acceptable. Upon cancellation, you are responsible to remove your equipment, data, information, systems and property of any kind from the Service and to return all equipment provided to you by Phlox to:

 

PHLOX INCORPORATED

24275 Northwestern Hwy.

Ste. 101

Southfield, MI 48075

If you fail to redeem your equipment within 14 days following the termination of this Agreement, you agree that your equipment, data, information, systems and property of any kind will be deemed abandoned and will become the sole property of Phlox.

Transfers and Assignments. You may not assign or transfer your rights, passwords or duties in connection with the Services provided by Phlox without the prior written consent of Phlox. All transfers of rights or duties herein, without the advanced permission in writing of Phlox, shall be void and unenforceable as a matter of law.

Limitation of Liability. PHLOX SHALL NOT BE LIABLE FOR ANY AND ALL: DIRECT OR INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO CUSTOMER FOR A BREACH OF THESE POLICIES, OR AN ORDER FORM OR TERM AND CONDITION OF PHLOX. IN THE EVENT OF A BREACH OF AN OBLIGATION BY PHLOX, CUSTOMER’S DAMAGES SHALL BE LIMITED TO $500. Notwithstanding anything herein to the contrary, You agree to accept the service on an “as-is” non-warrantable basis. Phlox expressly disclaims the warranties of merchantability, TITLE and fitness for a particular purpose regarding the providing of GOODS AND services to You.

Notices and Communications. You must designate on your Order Form a mailing address and e-mail address to which Phlox may mail or deliver notices and other communications. All notices you send to Phlox must be in writing, by registered mail, sent to:

PHLOX INCORPORATED

24275 Northwestern Hwy.

Ste. 101

Southfield, MI 48075.

Privacy Policy. You agree to abide by Phlox’s Privacy Policy, as may be amended from time to time, and which is incorporated by reference and made a part of this Agreement.

Terms of Service. You agree to abide by Phlox’s Terms of Service, as may be amended from time to time, and which is incorporated by reference and made a part of this Agreement.

Acceptable Use Policy. You agree to abide by Phlox’s Acceptable Use Policy, as may be amended from time to time, and which is incorporated by reference and made a part of this Agreement.

Domain Name Terms and Conditions. You agree to abide by Phlox’s Domain Name Terms and Conditions, which may be subject to change and is incorporated by reference and made a part of this Agreement.

Applicable Law. Venue and Jurisdiction. Dispute Resolution. This Agreement shall be subject to and governed by the laws of the State of Michigan. Any claim under this Agreement may be arbitrated in Oakland County Michigan if Phlox gives advanced written consent to you to arbitrate.. Notwithstanding the foregoing, venue for any legal action arising out of this Agreement shall be exclusively within the State of Michigan, Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan

Third-Party Services. Phlox allows access to advertisers and third-party merchant sites (“Merchants”) on www.managedway.com from which you may purchase certain goods or services. You understand that Phlox does not operate or control the products or services offered by Merchants and that Phlox is not responsible for information provided to you by the Merchants. Merchants are responsible for all aspects of order processing, truth in advertising, fulfillment, billing, and customer service relating to the services and offers advertised and sold by Merchants. Phlox is not a party to the transactions entered into between you and the Merchant and you agree that Phlox will not be liable to you for any contract, promise, obligation, pledge, or other agreement entered into between you and the Merchants. Phlox’s site contains links to other Web sites. Phlox is not responsible for the content, accuracy or opinions express in such Web sites, and such Web sites are not investigated, monitored or checked for accuracy or completeness by Phlox. Inclusion of any linked website on our Phlox’s site does not imply approval or endorsement of the linked website by Phlox. If you decide to leave Phlox’s website and access these third-party sites, you do so at your own risk.

Partial Invalidity. Waiver. Conflict of Terms. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In addition should a term of the MSA and any other posted policy of Phlox be in conflict with one another, the MSA shall control.

 

Statute of Limitations. You agree that any claim against Phlox, whether arising in tort, contract or otherwise, must be brought within 6 months of the date giving rise to the claim.

 

Entire Agreement; Modifications. This Agreement and your Order Form set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.

 

Risk of Loss. At all times, you will bear the risk of any loss, damage or destruction of your assets, equipment or property provided or maintained by Phlox, from: fire, water damage, theft or other casualty. You will be solely responsible for insuring your property and filing insurance claims for losses associated therewith. If Phlox is aware of loss or casualty to your property, Phlox will immediately notify you, stating the extent of loss or damage incurred and the cause, if known.

 

Indemnification. You agree to indemnify, defend, and hold Phlox harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third- party Web site provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys' fees, resulting from your violation of this Agreement, misuse or abuse of the Service, violation of State or Federal law, or infringement thereof by you or Users of your account. Phlox reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of Phlox.

Attorneys’ Fees. If legal proceedings are instituted to enforce any or the terms and conditions of your Order Form or this Agreement, you agree to pay all costs of Phlox in connection therewith, including actual attorneys fees.