This agreement (“the agreement”) is between HotBrick (“HotBrick”) and Customer for the provisioning of a HotBrick Managed Security Service (“Service”).
This agreement (“the agreement”) is between HotBrick (“HotBrick”) and Customer for the provisioning of a HotBrick Managed Security Service (“Service”).
1. SECURITY SERVICE
HotBrick agrees to provide, and customer agrees to pay for, the service specified in the Customer’s Service Order Form, as the service is described in the applicable service specification, which is incorporated herein by reference.
2. CUSTOMER SECURITY CONTACTS
Customer acknowledges that it has assessed its own security needs, evaluated the HotBrick Service, and that HotBrick is acting in response to Customer’s perceived security requirements. Customer agrees to notify HotBrick immediately if any of the security representatives identified in Customer’s Service Order Form change. Customer security representatives must participate in an initial phone consultation with a HotBrick security engineer. HotBrick will take direction ONLY from these named security representatives. Customer agrees to act through its security representatives to communicate any change in its security operations or policies that will impact on the service provided by HotBrick. Customer requests for changes to security provisions shall be made by secure electronic mail or web-based ticket to the designated HotBrick address to facilitate an audit trail.
3. HOTBRICK–OWNED SERVICE EQUIPMENT
HotBrick shall have all right, title, interest, and ownership to the HotBrick-owned equipment provided to Customer.
A. License Grant HotBrick hereby grants a Customer a limited, non-exclusive, revocable license to use the HotBrick-owned equipment (hardware and software) provided to Customer with the selected service, subject to the terms provided herein. Customer agrees and acknowledges that it shall not have at any time any right, title, interest or ownership in or to any of the HotBrick-owned equipment, including, but not limited to, any related patents, trademarks, copyrights or other proprietary rights.
B. Ownership/Term of Usage
(1) HotBrick will select the make and model of equipment provided. Customer will be liable for applicable replacement costs plus 5% to the nearest $10.00, plus any applicable shipping and handling charges, if the equipment is subject to any damage, unauthorized alteration/modification/repair, abnormal use, misuse, neglect, abuse, accident improper installation, or other acts caused by Customer, its employees, contractors or any other person, and that such action or inaction will void any manufacturer’s warranties, if any, and HotBrick Service Level agreement guarantees. Customer further agrees that it will indemnify HotBrick for any third party claim based on Customer’s unauthorized alteration or modification of the equipment.
C. Use of Equipment Customer shall provide and maintain suitable, secure space to house the HotBrick-owned equipment required for the service. The Customer shall retain the right to disconnect the HotBrick-owned equipment from its LAN at any time; however, such action will not suspend the service, provided by HotBrick. If Customer desires to relocate the HotBrick-owned equipment, Customer may do so, but service will not be suspended and service will be charged. HotBrick shall not be responsible for any service disruptions caused by the relocations, or by any other unauthorized Customer actions or failures to act as directed by HotBrick.
D. Defective Equipment If HotBrick determines in its sole reasonable judgment that the equipment is defective, HotBrick shall replace the equipment at no cost to Customer. Customer needs to return the defective equipment.
4. PAYMENTS
A. Monthly Service Fee and other Options HotBrick shall invoice Customer for fixed recurring charges in advance. If monthly payment option is selected, initial service invoice will include two months service charges. Monthly usage based charges, if applicable, will be billed in arrears. Regular billing for the service will begin upon the service start-up date, as defined below. Thereafter, invoices will be billed for the specific period of service (monthly) and are payable 30 days after date of invoice. Invoices will include that period’s advance service fees, and any usage based fees due in arrears or Equipment fees ordered for that period, and any applicable taxes. HotBrick reserves the right to change the above billing intervals upon written notice. Customer agrees that any additional HotBrick equipment or HotBrick service requested will incur additional fees/charges, and Customer agrees to pay these fees/charges when invoiced. The service start-up date is the day the service installation has been completed as determined by HotBrick.
B. Invoices. Invoices not paid within 30 days after date of invoice will be in default, and subject to a 1.5% per month interest fee or the maximum rate permitted by law, whichever is less, on all past due balances.
5. TERM/TERMINATION/EXTENSION
A. Term Agreements. The Term for new customers begins on the activation date. You may terminate your Agreement before the Term ends by calling:
1 866 HOT BRICK, however you will be responsible for an EARLY TERMINATION FEE of $250 ("Fee").
B. Terms of Default HotBrick may terminate this agreement or suspend service immediately upon notice, with no cure period, if Customer is in default of its payment obligations. You will also be charged the Fee if we terminate the Agreement because of default of payment. Termination of Agreement does not remove Customer’s responsibilities to pay all fees up to the date of disablement or termination, as well as payment for the remainder of the service’s initial term commitment. In addition, customer agrees to pay(1) any installation or other non-recurring charges initially waived by HotBrick upon installation of the service, and (2) any reasonable out-of-pocket expenses incurred by HotBrick when disconnecting the service to customer. Reconnection of service will be at the then HotBrick rate with any applicable reconnect charges. Customer shall provide access to HotBrick-owned equipment for retrieval upon termination of contract. Customer shall not acquire any interest in, nor file any liens upon, HotBrick-owned equipment as a result of this agreement or its termination. Customer acknowledge and agrees that customer-initiated termination shall be effective only if customer uses one of the following two procedures.: (1) notice on company letterhead via US mail to Attn: Termination Department, 7243 NW 54 St. , Miami Fl. 33166 or 2) notice on company letterhead via facsimile to 305-594-4442. To be effective, Notice must be from an authorized Customer representative or Company officer. Customer is responsible for confirming the facsimile number and address by going to www.hotbrick.com.
HotBrick shall not accept, and the termination shall not be effective, if the foregoing procedures are not followed. In no case shall terminations be effective if made verbally. Use of the foregoing procedures does not waive any contractual obligations hereunder.
C. Extension. Upon the defined expiration date of the contract, an automatic renewal will occur for one year under the same pricing terms of the original contract and will continue to renew every year thereafter until the customer notifies HotBrick in writing on their intent to cancel so long as notice is provided thirty (30) days before the end of term.
6. CONFIDENTIAL INFORMATION
A. Acknowledgement of Confidentiality. Each party hereby acknowledges that it may be exposed to confidential and its proprietary information belonging to the other party or relating to its affairs, including materials expressly designated or marked as confidential. Confidential information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient, or (iii) information received by recipient from a third party who was free to disclose.
B. Covenant not to Disclose. Each party hereby agrees that it shall not use, commercialize, or disclose the other party’s Confidential Information to any person or entity, except to its own employees or agents having a “need to know” such information in connection with the performance of this agreement, and to such other recipients as the other party may approve in a signed, written document. Neither party shall alter or remove from any software, documentation or other Confidential Information of the other party (or any other third party) any proprietary, copyright, trademark or trade secret legend. The parties obligation of confidentiality under this Agreement for any reason for one year.
7. CUSTOMER EQUIPMENT AND NETWORK
HotBrick is not responsible to Customer for the cost or expense of administrative, technical, emergency and support personnel at Customer’s location necessary for dealing with HotBrick or for providing and maintaining Customer’s own computer equipment and Network or internet access. Customer shall continue to be responsible for user/access security and network access to its computer or computer network(s). HotBrick will assist in network security breach detection or identification in accordance with the service selected and industry standards.
8. WAIVERS
HotBrick MAKES NO WARRANTIES WITH RESPECT TO:
A. HotBrick owned Equipment. HotBrick DOES NOT WARRANT THAT THE EQUIPMENT WILL BE ENTIRELY FREE FROM DEFECTS OR THAT ITS OPERATION WILL BE ERROR FREE. FURTHERMORE, CUSTOMER ACKNOWLEDGES THAT HOTBRICK HAS MADE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HOTBRICK SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO (1) ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATUREWHATSOEVER INCLUDING THE ACTIVE OR PASSIVE NEGLIGENCE OR STRICT LIABILITY OF HOTBRICK FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE EQUIPMENT, WETHER OR NOT KNOWN OR DISCLOSED TO HOTBRICK; (II) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENENANCE, OPERATION, SERVICE OR USE OF THE EQUIPMENT; (III) ANY ACT OR OMISSION OF ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMERS; (IV) ANY PERSONAL OR PROPERTY DAMAGES OR FOR LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE EQUIPMENT EVEN IF HOTBRICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (V) ANY LOSS OR DAMAGES DUE TO THE FAULT OR NEGLIGENCE OF CUSTOMER OR ITS EMPLOYEES, AGENTS OR REPRESENTATIVES.
B. Security Services. CUSTOMER IS RESPONSIBLE FOR ASSESSING ITS OWN COMPUTER AND TRANSMISSION NETWORK NEEDS, AND THE RESULTS TO BE OBTAINED THEREFROM. HOTBRICK MAKES NO WARRANTIES OF ANY KIND, WETHER EXPRESSED, IMPLIED OR STATUTORY, WITH RESPECT TO THE SECURITY SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SECURITY SERVICE FOR A PARTICULAR PURPOSE. HOTBRICK MAKES NO WARRANTY TO ANY THIRD PARTY THAT MAY RELY UPON THE SECURITY OF CUSTOMER’S COMPUTER OR COMPUTER NETWORK.
C. Breaches in Security. CUSTOMER AGREES THAT IN NO EVENT SHALL HOTBRICK, ITS AFFILIATES, DIRECTORS, EMPLOYEES, AND AGENTS BE HELD LIABLE FOR ANY SECURITY BREACH EXPERIENCED BY CUSTOMER, IT’S USERS OR OTHERS RELYING ON CUSTOMER’S COMPUTER OR COMPUTER NETWORK, WHETHER OR NOT RELATED TO OR ARISING FROM THE SECURITY SERVICE, OR FOR ANY FAILURE OF THE SECURITY SERVICE TO PERFORM IN ANY RESPECT.
9. LIMITATION OF REMEDIES AND LIABILITIES
CUSTOMER AND HOTBRICK ACKNOWLEDGE THAT THE FOLLOWING PROVISIONS REFLECT A FAIR ALLOCATION OF RISK:
A. Remedies. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR HOTBRICK DEFAULT HEREUNDER SHALL BE (I) TO OBTAIN THE REPAIR, REPLACEMENT OR CORRECTION OF THE DEFECTIVE EQUIPMENT TO THE EXTENT SET FORTH IN 3.D ABOVE, OR, IF HOTBRICK REASONABLY DETERMINES THAT SUCH REMEDY IS NOT ECONOMICALLY OR TECHNICALLY FEASIBLE, (III) TO OBTAIN AN EQUITABLE PARTIAL OR FULL REFUND OF AMOUNTS PAID, UP TO TWELVE (12) MONTHS OF PAYMENTS, WITH RESPECT TO THE DEFECTIVE SECURITY SERVICE.
B. Liabilities. HOTBRICK AND ITS AFFILIATES, SHALL NOT BE LAIBLE FOR ANY AMOUNT EXCEEDING THE SUM OF FEES PAID FOR THE SECURITY SERVICE AT ISSUE DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, PROFIT OR BUSINESS INTERRUPTION, LOSS OR MISAPPROPRIATION OF DATA OR LOSS OR MISAPPROPRIATION OF CONFIDENTIAL OR PROPRIETARY INFORMATION, EVEN IF THE PARTY IS ADVISED, IN ADVANCE OF SUCH POSSIBILITY BY HOTBRICK OR THE OTHER PARTY OR ANY THIRD PARTIES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. THE PARTIES AGREE TO WORK IN GOOD FAITH TO IMPLEMENT THE PURPOSES OF THIS AGREEMENT, BUT RECOGNIZE THAT THE SECURITY SERVICE TO BE PROVIDED BY HOTBRICK COULD NOT BE MADE AVAILABLE UNDER THESE TERMS OR OTHER SIMILAR TERMS WITHOUT A SUBSTANTIAL INCREASE IN COST IF HOTBRICK WERE TO ASSUME A GREATER DEGREE OF LIABILITY TO CUSTOMER.
10. GENERAL TERMS
A. Assignments and Third Party Rights. Neither party may sell , transfer or assign this agreement, except to entities completely controlling or controlled by that party, or to entities acquiring all or substantially all of its assets, without the prior written consent of the other, which consent shall not be unreasonably delayed or withheld. Any act in derogation of the foregoing shall be invalid, provided, however, that any such assignment shall not relieve the assigning party of its obligations hereunder. HotBrick shall require written notice of any assignment by Customer. No provision to this agreement is intended, nor shall any be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any client, customer, affiliate, shareholder, partner of any partner hereto or any other third party; unless specifically provided otherwise herein and except as so provided, all provisions hereof, shall be personal solely between the parties to this agreement.
B. Customer Authorization of HotBrick as Agent. This agreement authorizes HotBrick to act as an agent for Customer as necessary in connection with the services provided under this agreement. Pursuant to this Agreement, HotBrick may order telecommunications and other services or facilities on Customer’s behalf. Also, HotBrick may gain entry to data center or telcom facilities by Customer if required for installation, maintenance or retrieval of equipment owned by HotBrick or for access to Customer owned equipment managed by HotBrick.
C. Credit Authorization. Customer authorizes HotBrick to verify credit information. This includes, without limitation, contacting bank/trade references, and/or, outside credit reporting agencies. Customer certifies that all information provided on the attached credit application is true and accurate to the best of Customer’s knowledge.
D. Insurance. Each party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage statutory worker’s compensation, comprehensive general liability for bodily injury and tangible property manager as well as coverage for vehicles, and for losses attributable to fraudulent modification, damage or destruction of electronic data.
E. Marketing. Customer permits the use of Customer name and/or logo (1) to identify Customer as a HotBrick Customer and (2) for use on HotBrick marketing material.
F. Export Controls. Customer agrees and acknowledges that any export of the equipment used for the security services is subject to U.S. export control laws and regulations. Customer shall not directly or indirectly transfer the equipment, or the related documentation, to any country or location outside of the United States without obtaining the prior written consent of HotBrick.
G. Force Majeure. Except for payment obligations, neither party shall be responsible for, and will not be considered in breach or default of this Agreement on account of, any failure to perform or delay in performance of any obligations hereunder caused by acts of god, flood, fire storm, war, public enemy, labor disturbances, including strikes and lockouts, equipment malfunction, governmental regulations or interference or any other event not within the reasonable control of the responsible party and which that party is unable to overcome by the exercise of reasonable diligence, provided that such party will use its best efforts to resume normal performance.
H. Waivers, Severability and Survivability. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. The parties’ rights and obligations that, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, shall survive such termination, cancellation or termination.
I. Cost of Collection. Customer agrees to pay all costs of collection of amounts due hereunder and repossession of equipment, including reasonable attorneys fees, if Customer defaults in payment, regardless of whether legal action is filed.
J. Entire Agreement and Governing Law. This agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only in writing signed by both parties. This agreement shall be governed by the substantive Florida law without reference to its principles of conflicts of laws. Customer agrees that any disputes among the parties arising out of or in connection with this Agreement shall be submitted to binding arbitration in Miami Dade County, Florida pursuant to the then existent rules of the American Arbitration Association.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. EACH PARTY FURTHER WARRANTS THAT IT HAS FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS BELOW IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT PARTY.