THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SYSTEMS AND CONTACT US IMMEDIATELY TO TERMINATE OUR EXISTING AGREEMENT.
How to Accept such Agreements: You accept this Agreement by your use of the IT services we provide you (the “Services”) or your retention of any software or equipment we provide beyond thirty (30) days from the date of this email. By accepting this Agreement, you agree to abide by these terms without modification by you. If you do not agree, you may not continue to use and/or receive the Services and you must cancel any paid services.
Future Revisions to this Agreement: From time to time we will make revisions to this Agreement and the policies relating to the Services. We will provide notice of such revisions by sending an email to the email address that you provide to receive communications from us (your “Primary Email Address”), or by mail. You also agree to notify the Company immediately of any changes in your Primary Email Address. We will provide you with at least thirty (30) days-notice prior to the effective date of any increases to the monthly price of your Systems; revisions to any other terms and conditions shall be effective on the date noted in the email or mail we send you. Unless we provide otherwise, you accept the revisions and agree to abide by them by not canceling the Systems and continuing to use the Systems after the revisions are effective.
ADDITIONAL TERMS AND CONDITIONS
All applicable taxes, shipping and handling charged are to be added to the charges for goods and services.
All invoices are payable upon receipt by Client and any invoices which remain unpaid for a period of 30 days from the invoice date shall be subject to an interest charge of the lesser of 1.5% per month or the maximum rate allowable by law from the thirtieth day from the invoice date until paid in full. In the event that collection of the invoice related to work performed or any other unpaid charges are due from Client to Company is referred to an attorney or collection agency, Client shall be liable for, in addition to the invoice amount, payment to the Company of reasonable attorney and/or collection agency fees.
The Client’s and Company’s facsimile or electronic transmission of their respective signatures shall be deemed to be the Client’s and Company’s original signatures.
Client is responsible for any and all filings and issues requiring compliance with applicable building, fire, EPA or other Federal, State, City or Local entities. Client is responsible for the maintenance of the proper environment for the equipment in accordance with the manufacturer’s specifications.
The Company will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
Client and the Company agree not to solicit nor hire nor arrange for the hire of each other’s employee(s) for a period of one year from the date of the last invoice.
Client Holidays are: New Year’s Day, Martin Luther King Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Good Friday, Thanksgiving Day and Christmas Day.
Governing Law / Arbitration: This Agreement and the parties’ rights hereunder shall be construed in accordance with the laws of the State of New York. The parties agree to submit all controversies, claims and matters of difference to binding arbitration in New York City, New York, before one arbitrator and in accordance with the rules and practices of the American Arbitration Association from time to time in force, except that if such rules and practices differ from the state rules of civil procedure or any other provisions of state law then in effect, such state rules and law shall govern. This agreement to arbitrate shall be specifically enforceable. Arbitration may proceed in the absence of one party if notice of the proceeding has been given to such party. The parties agree to abide by all awards rendered in such proceedings. Such awards shall be final and binding on all parties to the extent and in the manner provided by the state rules of civil procedure. All awards may be filed with the clerk of one or more courts, state or federal, having jurisdiction over the party against whom such award is rendered or such party’s property, as a basis of judgment and of the issuance of execution for its collection. Prevailing party shall recover all attorneys’ fees and costs from opposing party.
Indemnification: You (and also any third party for whom you operate an account or activity in connection with the workmanship provided by the Company under this Agreement (the “Services”)) agree to defend (at the Company’s request), indemnify and hold the Company and its agents, consultants and employees harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities with the Services or those conducted on your behalf): (i) your use of or access to the Services or any equipment used in connection with the Services (or the use of the Services or any Services-related equipment by anyone else) that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property, or otherwise causes harm; (ii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iii) your violation of this Agreement or any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by the Company in the defense of any claim. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of the Company. This indemnification is binding on the Client, to the fullest extent permitted by law, regardless of whether any or all of the persons and entities indemnified hereunder are responsible in part for the claims, damages, losses or expenses for which the Client is obligated to provide indemnification.
These Terms may be changed only in a signed writing and as agreed by Client and the Company. No Company technicians are authorized to make any binding agreements. You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person without the Company’s express written consent. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed.
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination.
LIMITED WARRANTY: The Company provides the Limited Warranty as set forth below. Except for such Limited Warranty, and as otherwise set forth below, the Company, to the extent permitted by applicable law, excludes all other express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, and fitness for a particular purpose, system integration, and freedom from computer virus.
Coverage and Period:This warranty is non-transferable and covers the Client only and remains in force for fifteen (15) days from the earlier of the date upon which (i) the services contracted to perform have been completed as determined by a Company writing to such effect sent to the Client or (ii) the invoice for services contracted to perform is sent to the Client.
Specific Warranty Coverage: This warranty covers any material defects in workmanship (the “ Systems”) under normal use, including installation, with the exceptions stated below.
Items Excluded from Warranty: This warranty does not cover the following items under i-vi below and under the section entitled Limitation of Liability; Waiver:
Any equipment provided to the Client manufactured by a third party or any equipment provided by the Client for use in connection with the Systems; the Client shall have to rely on any warranties, if available, provided by the manufacturer of such equipment;
Any preliminary designs, parts lists, instructions, directions or wiring lists provided by the Company;
Systems which (a) have been altered or modified, except by Company or its authorized representative; (b) have not been installed, operated, repaired, or maintained in accordance with instructions supplied by the Company; (c) have been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) have been licensed for beta, evaluation, testing or demonstration purposes; (e) have been subject to hacking, malware, phishing or virus; (f) have been subject to fire, flood, “acts of God,” or other contingencies beyond the control of the Company;
Normal maintenance items;
Consequential damages (the cost of repairing or replacing other property which damaged as a result of any defects in the Systems, including but not limited to the loss of Client data or other information); and
Incidental damages (the loss of Client time, loss of use of the Systems, or other incidental damages).
What the Company will do: The Company will repair any defective Systems. In the event repair is not possible, the Company will either replace the Systems with new Systems of similar composition and price, or refund the full purchase price, whichever you prefer. If we are found to be responsible, our liability to you is limited to the amount you paid for the Systems.
How do you get Service: In order to be eligible for service under this warranty you must contact the Company in writing within the 15-day warranty period. If you chose to notify the Company via email, you must receive confirmation from the Company with 24 hours of its receipt of such email. The Company will inspect the Systems and contact you within 72 hours from such inspection to give the results of its inspection and an estimate of the time and additional cost, if any, to repair or replace the Systems. You may wish to have the Systems repaired and/or replaced by a third party, however this warranty does not cover that expense. There is no charge for inspection. Replacement parts used may be new or equivalent to new. You will have no right to free of charge inspection after the expiration of the 15-day warranty period.
Outside the Coverage: If the claimed problem does not result from a defect in the Systems, or upon the expiration of the 15-day warranty period, the Company may be hired to repair or replace all necessary items provided that you pay the labor at the then-current rates and/or any necessary equipment charges.
How State Law Applies: This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages set forth above, so such limitations or exclusions may not apply to you.
This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
LIMITATION OF LIABILITY; WAIVER UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SYSTEMS OR GOODS MANUFACTURED OR INSTALLED BY THIRD PARTIES FOR USE IN CONNECTION WITH THE SYSTEMS; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SYSTEMS; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SYSTEMS; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE SYSTEMS’ OPERATION; OR (F) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SYSTEMS, OR RELIANCE ON OR PERFORMANCE OF THE SYSTEMS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.THE LIABILITY OF THE COMPANY PARTIES FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) AND OTHER FIXED FEES YOU HAVE PAID TO THE COMPANY FOR THE SYSTEMS DURING THE THREE (3) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION.THE COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, GOODS, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST OR CONNECTED WITH ANY SUCH THIRD PARTIES.ALL LIMITATIONS AND DISCLAIMERS STATED HEREIN ALSO APPLY TO THE COMPANY’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW. BY ENTERING INTO THIS AGREEMENT, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF LAW OF ANY STATE OR TERRITORY, THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.