Performance Enhancements Inc.
Azure Consulting Services Terms and Conditions

Whereas PEI is offering information technology services and solutions specific to the those offered in the Microsoft Azure Marketplace; and
whereas Customer desires to hire and retain PEI for those services and solutions.

Now, therefore, in consideration of the mutual covenants and agreements contained herein, including the foregoing, the parties agree as follows:

I.	Services

1.	The Azure consulting services offered through this Azure Marketplace listing are provided by PEI. These services are designed to assist customers in optimizing and managing their Azure environment.

2.	The scope of the consulting services will be defined and agreed upon between PEI and the customer. This may include but is not limited to Azure environment assessment, design and architecture review, deployment and configuration guidance, security and compliance recommendations, optimization strategies, and ongoing support.  Should Customer desire to engage PEI for any additional services, PEI will provide a separate Professional Services Agreement (PSA) that will govern the terms and conditions of those services.  The PSA will replace any previously executed agreements.

II.	Service Level Agreement

1.	PEI will strive to provide consulting services with a high level of professionalism, expertise, and responsiveness. However, specific SLAs for response times, resolution times, or uptime are not included in this Azure Marketplace offer.

2.	Customer represents and warrants that Customer has title to or has a license or the right to use or modify Customer’s Computer Systems and the right to permit PEI to use, access or modify any Customer’s Computer Systems that Customer has requested PEI to use, access, or modify as part of the Services. Customer is responsible for independently ensuring that it has all appropriate authorizations, licenses, or other approvals for Customer’s Computer Systems. PEI represents and warrants that PEI has title to or has a license or the right to use or modify PEI-Supplied Computer Systems and the right to permit Customer to use, access or modify any PEI-Supplied Computer Systems that PEI has provided to Customer for the Services. PEI is responsible for independently ensuring that it has all appropriate authorizations, licenses, or other approvals for PEI-Supplied Computer Systems.

III.	Compensation, Payment, and Invoices

1.	The fees for the Azure consulting services will be outlined in the Professional Services Agreement (PSA) or agreed upon statement of work. Customers are responsible for making the required payment as specified by the payment terms provided by PEI. Failure to make timely payments may result in a suspension or termination of services.

IV.	Events of Default 

1.	Customer shall be in default under this agreement upon the occurrence or happening of any of the following: (a) Customer’s non-payment or non-performance of any indebtedness or payment obligation to PEI; (b) Customer’s breach of any provision of this Agreement or any PSA, or the inaccuracy or any warranty, representation, or statement made or furnished by Customer to PEI; (c) discontinuance of Customer as an ongoing business; or (d) dissolution, insolvency or bankruptcy of Customer (an “Event of Default”).  Upon an Event of Default, in addition to any other remedies PEI may have at law, in equity, or otherwise, PEI shall no longer be obligated to perform the Services.

V.	Limited Warranty

1.	PEI hereby warrants that the Services contracted under this Agreement will be performed in a competent manner consistent with reputable consulting firms providing similar services under similar circumstances in the same geographic area in compliance with applicable law.  This warranty shall be judged as of the time the Services are rendered, and not according to later standards.  The warranty period shall begin on the date of receipt by Customer of Services provided by PEI and shall extend for a period of ninety (90) days.  If, within the warranty period, Customer notifies PEI that the Services fail to meet the provisions of the warranty, PEI shall promptly correct any defects by re-performance of the Services in question.  Except as set forth herein, re-performance of the Services in question shall be Customers sole remedy for breach of this limited warranty.  This limited warranty does not cover issues or liabilities (a) caused by accident, abuse, or misuse of the Services; (b) arising from the use of the Work Product or Services in a manner inconsistent with this Agreement, PEI’s published documents, or PEI’s guidance or instructions; (c) arising from Customer’s or Customer Parties’ breach of this Agreement; or (c) resulting from events beyond PEI’s reasonable control. 

2.	PEI does not warranty any third-party manufacturer’s software, products, or services, even if included in any Work Product or Services.  

VI.	Limitations on Liability and Disclaimers

1.	CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK ASSOCIATED WITH THE SUITABILITY AND MARKETABILITY OF THE WORK PRODUCTS AND SERVICES PRODUCED OR PROVIDED UNDER THIS AGREEMENT.  PEI HAS NO LIABILITY FOR ANY CUSTOMER LIABILITY, LOSS, OR HARM AND CUSTOMER WAIVES ANY CLAIMS RELATED TO OR ARISING FROM (A) FAILURE OF CUSTOMER’S COMPUTER SYSTEMS; (B) ANY ILLEGAL OR UNAUTHORIZED USE OF OR UNAUTHORIZED USERS OBTAINING OR ATTEMPTING TO OBTAIN ACCESS TO CUSTOMER’S DATA, CUSTOMER’S COMPUTER SYSTEMS, OR PEI-SUPPLIED COMPUTER SYSTEMS, INCLUDING WITH RESPECT TO VIRUSES, WORMS, TROJAN HORSES, HACKING, PHISHING, SPAM, OR OTHER CYBERATTACKS REGARDLESS OF HOW THEY OCCUR; (C) ANY DATA LOSS OR SOFTWARE FAILURES.

2.	CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE CONTENT AND SECURITY OF ALL CUSTOMER DATA.  CUSTOMER WILL SECURE AND MAINTAIN ALL RIGHTS TO CUSTOMER DATA NECESSARY FOR PEI TO PROVIDE SERVICES TO CUSTOMER WITHOUT VIOLATING THE RIGHTS OF ANY THIRD PARTY OR OTHERWISE OBLIGATING PEI TO CUSTOMER.  PEI DOES NOT AND WILL NOT ASSUME ANY OBLIGATION WITH RESPECT TO CUSTOMER DATA AND CUSTOMER WAIVES ANY CLAIMS WITH RESPECT TO THE SAME.

3.	THE LIMITED WARRANTY SET FORTH HEREIN IN SECTION VIII IS THE SOLE AND EXCLUSIVE WARRANY PROVIDED BY PEI WITH RESPECT TO THE SERVICES.  PEI DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS MAY BE PROVIDED HEREIN, PEI DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE.  EXCEPT AS MAY BE PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WHERE IS” BASIS WITH ALL FAULTS AND CUSTOMER’S USE THEREOF IS AT CUSTOMER’S SOLE RISK.

4.	IN NO EVENT SHALL PEI BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THIRD-PARTY CLAIMS INCLUDING LOST PROFITS, LOST GOODWILL, LOSS OF DATA, LOSS OF USE OR OTHER INJURY IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT, HOWEVER BASED.  WITHOUT LIMITING THE FOREGOING, PEI'S MAXIMUM LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES SHALL BE LIMITED TO THE MONIES PAID BY CUSTOMER TO PEI FOR THE SERVICES IN DISPUTE UNDER THIS AGREEMENT DURING THE CALENDAR YEAR IN WHICH THE ALLEGED INJURY OR LIABILITIES OCCURRED.  NO ACTION WHATSOEVER ARISING OUT OF THE AGREEMENT OR SERVICES OR ANY SOW MAY BE INITIATED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED, EXCEPT FOR PAYMENTS OWED HEREUNDER.

5.	Information security threats are continually changing, with new vulnerabilities discovered daily. PEI makes no representations, warranties, guarantees, or certifications related to identification of such vulnerabilities. If provided as part of the Services, Customer acknowledges that vulnerability testing does not protect against personal or business loss. PEI offers no representation, warranties, guarantees or legal certifications concerning the applications or systems it tests. PEI does not warrant that the resources tested are suitable for task, free of other defects, fully compliant with any industry standards, or fully compatible with any operating system, hardware, or other application.

VII.	Indemnification

1.	PEI agrees that it shall indemnify, defend, and hold Customer and Customer Parties harmless from any and all liability, loss, costs, charges, obligation, expenses reasonable attorney’s fees, litigation, judgements, damages, claims and demands of any kind whatsoever (“Losses”) to the extent arising from (a) PEI’s or PEI Parties’ infringement of any intellectual property rights of third parties, or allegations related to the same, with respect to Customer’s use, sale, or purchase of the Services or (b) PEI’s or PEI Parties’ breach of this Agreement.  

2.	Customer agrees that it shall indemnify, defend, and hold PEI and PEI Parties harmless from any and all Losses to the extent arising from (a) Customer’s or Customer Parties’ infringement of any intellectual property rights of third parties, or allegations related to the same, with respect to Customer’s use, sale, or purchase of the Services or PEI-Supplied Computer Systems, Customer’s Computer Systems, or Customer Data, (b) Customer or Customer Parties breach of this Agreement, (c) an Event of Default, or (c) Customer’s Computer Systems or Customer Data.
  
VIII.	Confidentiality

1.	PEI will treat all customer information and data as confidential and will not disclose it to any third parties without the customer's prior consent, unless required by law or necessary for the provision of the services. The customer agrees to provide necessary access and permissions to PEI to fulfill the scope of the consulting services.

IX.	Term and Termination

1.	This Agreement shall be effective upon the date of mutual execution by the parties until terminated by the terms of this Agreement (the “Term”).  Either PEI or Customer may terminate this Agreement without cause if it determines that such termination is in their best interest.  Notice of termination must be provided in writing specifying the effective date of termination.  

2.	Customer shall be liable to pay PEI for Services and other products delivered as of the effective date of termination, including outstanding invoices, applicable termination fees, and amounts due for products shipped and services performed up to and on the effective date of termination.  PEI will not perform any additional services following receipt of the notice of termination.

X.	Governing Law, Venue, Waiver of Jury Trial, and Arbitration

1.	This Agreement is governed by the laws of the State of Colorado, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.  

XI.	Entire Agreement; Amendment

1.	This Agreement is the entire agreement between the parties and cannot be modified or amended except by a written agreement signed by both Customer and PEI.  Except for any SOWs or other written agreements entered by the parties, this Agreement supersedes all prior and contemporaneous offers, negotiation, agreements, and understandings whether oral or written between the parties.  

XII.	Assignment

1.	Neither party may assign this Agreement without the written consent of the other party, which consent shall not be unreasonably delayed, withheld, or conditioned.

XIII.	Relationship of the Parties

1.	The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

XIV.	Notices

1.	Written notices required under this Agreement and all other correspondence between the parties. 

XV.	Amendment and Modification; Waiver

1.	PEI reserves the right to modify these Terms and Conditions at any time. Any changes will be effective immediately upon posting the updated Terms and Conditions on the Azure Marketplace listing.