STANDARD TERMS AND CONDITIONS
- General. These terms and conditions set forth the obligations of the parties under the 247MacPCsupport.com – Managed Desktop and Server Offerings. 247MacPCsupport.com is hereafter referred to as “the Company.”
- Service Provided. The Company is providing a maintenance contract that includes the following services for the Customer’s contracted devices under this agreement. The Company will: 1) perform an initial technology assessment, 2) perform monitoring services, and 3) provide routine technical assistance and support to Customer.
- Initial Technology Assessment. The initial technology assessment will be performed according to the Company standard procedures. This technology assessment will include: 1) an inspection of Customer’s desktop and server room environment, 2) a report detailing the equipment covered by this agreement and software installed on such equipment, and 3) consultation on user activity and performance, and 4) an assessment and recommendations for the Customer’s current network.
- Monitoring Services. The Company will provide system monitoring to Customer through a remote monitoring service. Remote monitoring will occur on a 24/7 basis for servers. The Company will use systems, software, and personnel that it selects at its discretion to conduct the remote system monitoring. The Customer agrees that the Company may install software and equipment on the Customer’s network and configure Customer’s firewall and/or router if necessary, to permit the monitoring equipment to operate. The Company will retain ownership of the monitoring equipment and software it installs at Customer’s premises. The Customer may not move, tamper with or disconnect the electrical power to the monitoring equipment, and the Customer will advise its employees of this requirement. The Customer agrees that it will follow the Company’s recommendations to permit it to perform the monitoring services. The monitoring services provided are limited to the monitoring of approved and contracted components which are identified in the “Inventory of Devices to be Monitored.” Customer acknowledges that the Company’s ability to conduct monitoring services depends on the Customer having adequate connectivity to its network. Accordingly, the Customer understands and agrees that the Company will not be responsible for connectivity problems at Customer’s premises or those associated with Customer’s service or network, and that the Company will not be responsible for any inability to perform monitoring attributable to connectivity problems.
- Technical Assistance and Support. The Company will also provide technical assistance and support for the Customer’s network, computers, peripherals and devices that are covered by this agreement. Technical assistance and support will be provided through a combination of Tier 1 Help Desk support, Tier 2 & 3 remote support, and onsite support. Network Support Labor is labor that the Company provides to maintain and support systems or hardware that the Company is certified to perform. Network Support Labor includes: 1) Onsite labor provided by the Company at Customer’s premises, and 2) Tier 2 & 3 remote support provided by the Company. The Company will determine the method of providing requested technical assistance and support. The following apply with regard to each method of providing technical assistance and support:
a. Tier 1 Help Desk Support. The Company will provide Customer with a phone number for Tier 1 telephonic Help Desk support to assist in resolving problems for covered equipment. Tier I Help Desk support is available for all the Customer’s devices and is not limited to devices included in the sheet “Inventory of Devices to be Monitored.” Customer agrees, however, that Tier I Help Desk calls for non-listed equipment will be charged against Customers monthly allotment of hours. The Help Desk will be staffed by the Company during normal business hours, which are 8:00 a.m. to 5:00 p.m. (Local Time), Monday through Friday, excluding holidays. 24-hour phone support is available for contracted network devices under the Premium Plan. The Company reserves the right to restrict the amount of Tier 1 support it will provide via its Help Desk in the event it determines in its discretion that Customer is abusing Help Desk privileges with an abnormal number of calls to the Help Desk. Customer understands that this agreement does not obligate the Company to provide training to Customer’s staff on the use of software owned or licensed by Customer. If the Tier 1 Help Desk Support is unable to resolve the problem from the Help Desk, then the Company at its own discretion may escalate the problem to its Tier 2 or 3 support or dispatch onsite Network Support Labor time to address the problem.
b. Remote Support. Customer will provide the Company with access to its computer network to enable the Company to provide technical assistance and support remotely through remote access to Customer’s network and hardware. The Customer will designate a single primary contact, with telephone number and email address, to notify in the event of monitoring alerts.
c. Onsite and Remote Tier 2 & 3 Support. Onsite and Remote Tier 2 & 3 support are contemplated for routine maintenance and troubleshooting of the customer’s network. If the Company, at its own discretion, decides onsite network support is needed it will dispatch a technician to Customer’s location. In the event that the Customer requires additional onsite labor for projects etc., the Customer is responsible for contacting the Company to schedule onsite support visits. The Customer will provide the Company with reasonable access to its premises and hardware installations to enable the Company to provide onsite support. Onsite and Tier 2 & 3 remote support are available during normal business hours. Onsite and Tier 2 & 3 support time will be first drawn from the Customer’s monthly allotment. On-Site and Tier 2 & 3 support time provided outside of normal business hours or provided on an expedited schedule at the Customer’s request will be charged against the Customer’s monthly allotment at the rate of two times the actual number of hours expended. Travel time by the Company technicians and support personnel to and from the Customer’s premises is not provided for free under this agreement and is counted against the monthly block of Network Support Labor allotted to the Customer.
d. Network Support Labor. Onsite and Network Support Labor, whether provided onsite, through Tier 2 & 3 remote support or remote access is available under all versions of the Managed Desktop and Server Offerings of the Company Agreement. The amount of Network Support Labor (whether provided onsite, through Tier 2 & 3 remote support or remote access) that the Customer may utilize without extra charges for labor depends on the plan chosen by the Customer. The number of hours of Network Support Labor available to the Customer on a monthly basis without extra charge for the plan chosen by Customer is specified in the Company Agreement order form. Network Support Labor time is allotted and calculated on a monthly basis. Allotted Network Support Labor time that is not utilized by the Customer during one calendar month does not carry over to later calendar months and no refund will be made to Customer for unused allotted hours. Unused allotted hours cannot be redeemed for cash or used to discount hardware or software purchases. Customer agrees that any onsite, Tier 2 & 3 Network Support Labor or Help Desk assistance for components not included in the sheet “Inventory of Devices to be Monitored” used by Customer in excess of the monthly allotment will be billed to Customer at the plans standard rates. The Company may adjust its standard rates upward or downward over time in response to market conditions. Customer may contact the Company to determine applicable standard rates. Customer agrees to pay for such extra services and agrees that no additional prior written approval from the Customer will be necessary.
- Offsite Data Backup. The company will provide backup service whereby the customer will be able to backup data from all designated Customer computers, servers or other devices to the company’s remote data center.
a. Tier One Offsite Storage. Primary highly available offsite storage providing the shortest time to restore of offsite options.
b. Tier Two Offsite BLM Storage. Backup Lifecycle Management option provides less expensive storage for Tier Two data as defined by the customer. BLM Storage is suggested for less critical data which is not as time sensitive for restoration in the event of a disaster.
- Local Backup Option. Protect Online Backup has the ability for storing a copy of data to local storage at the Customer site. This is in addition to the offsite backup. If customer wants this feature, a similar copy of what is stored offsite will be stored locally at the Customer location.
- Native Data. Refers to the amount of data backed as measured on the Customer equipment.
- Monitoring, Management & Restore Services. The company will maintain the computer hardware and software used at its offsite data backup center to backup Customer data that has been defined in all valid backup sets by the Customer.
a. Daily Management. The company will perform a daily review of the backup job status for reported failures and make reasonable efforts to rectify the cause of the backup failure.
b. Unlimited Restore of Files. Customer may request unlimited restores of files in the event of a data loss. The company engineers will make reasonable efforts to restore data to original Customer servers or the company provided replacement equipment purchased by Customer from the company.
c. Bare Metal Restore. Based on specific customer configuration Bare Metal Restore capability may be available. In the event of a disaster, a Bare Metal Restore may be performed of Customer’s backed up server data to a replacement server. Costs associated with acquisition and fulfillment of replacement equipment will be the responsibility of the Customer and are not the responsibility the company under this Agreement. Additionally, engineer time for the reconfiguration and support of the Customer network and related systems are not covered by this agreement and will be subject to the company standard time and material rates or other contracted agreements outside of this Agreement.
- Data Replication. Tier One Offsite Storage has the option to be replicated to a secondary location for added protection.
- Customer Responsibilities. The Customer must do some things for the service to function properly. Customer must maintain the integrity of their computer network and the functioning of its hardware to make sure the backup services are operational at all times. The Customer is responsible for providing the necessary power, network connection and appropriate environment to support the Backup Appliance that the company will install on Customer’s premises. The Customer will make available a nominated and appropriately qualified representative to work with the company representative during the installation of all the necessary product and services. Customer acknowledges that the company may install device on Customer’s premises in connection with providing the backup service. Such device shall remain the property of the company. Customer authorizes the company, upon the termination of this agreement, to enter Customer’s premises for purpose of retrieving the device. The Customer nominated representative will confirm that the backup functionality of the service has been demonstrated to his/her satisfaction by the company prior to commencement of the backup service offering. The nominated Customer representative will then accept delivery of the backup services as a fully commissioned service to be provided by the company. The nominated Customer representative will sign the Service Signoff Document and present this to the company authorized representative at the time that the service is fully operational. Customer understands that the backup service will not be activated until the Customer’s representative has signed the proper account Agreements and the Service Signoff Document confirming that the functionality of the service has been demonstrated to Customer’s satisfaction. The Customer will be responsible for insuring the connectivity and availability of its network and the data to be backed up. The Customer will be responsible for defining appropriate backup sets of data and its routine schedules for those systems to be backed up. This backup service offering cannot successfully backup open files. The open files that fail to backup are reported to the company to be reviewed for possible modification of backup sets. For confidentiality and security reasons, data transmitted is never opened or read by any of the company backup processes. It therefore remains the Customer’s responsibility to ensure that data integrity, including virus checking, is maintained. The Customer will accept installation of all the company product and service releases and engineering changes (hardware, software or firmware) deemed necessary by the company to maintain and/or upgrade the backup service offering to Customer. The Customer agrees that the company can adjust the billing monthly based on the size of the backup. If the backup grows or shrinks to a different tier, the company will bill at the appropriate tier.
- Payment, Billing and Charges for Extra Services. Customer agrees to pay the Company the service charge set forth in the order form, plus any applicable taxes, in advance of any services performed. Monthly billing will be provided with payment required by the first day of the month for coverage during that period. An additional installation fee equal to one month of service on the covered equipment is required to activate this agreement and will be included with the first billing to the Customer. Additional Network Support devices added during the term of the contract will be billed according to the terms set forth above. Adjustments to the Network Support devices contracted must be received by the 15th of the month preceding the start of the next billing period to ensure proper billing. All the Company obligations under this agreement shall automatically terminate, without the need for any notice by the Company, in the event the Customer fails to make any advance payment required by this agreement or fails to make any other payment owed to the Company. Such termination shall not relieve Customer of its obligations to pay under this agreement. If the Customer orders from the Company extra services not covered by this agreement, or orders hardware or software, then it agrees that it will pay the Company for such services, hardware or software at the Company standard rates. Such extra services, hardware or software will be billed to the Customer in accord with the Company standard billing practices and payment terms. Purchase orders that may be submitted by Customer are for Customer’s internal administrative purposes only and the terms and conditions contained in those purchase orders will not supersede the terms and conditions of this service agreement.
- FEES AND PAYMENT TERMS
a. Fees. Customer shall pay the company the fee(s) set forth in this agreement prior to the commencement of services.
b. All fees assume that Backup Services will be performed during normal business hours (Monday – Friday, 8 am – 5 pm, excluding holidays).
- REPRESENTATIONS AND WARRANTIES
a. Authority to Contract. Each party represents and warrants to the other party that it has full power and authority to enter into and perform this Agreement. Each party represents and warrants to the other party that this Agreement: (a) constitutes the legal, valid and binding obligations of such party; (b) is fully enforceable against such party in accordance with the terms hereof except as limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by general principles of equity (whether considered in a proceeding at law or in equity); and (c) will not violate any judgment or agreement binding on or affecting such party. Each party further represents that the execution, delivery and performance of this Agreement has been duly authorized by all necessary actions of that party (whether a corporation, partnership, limited liability company or otherwise).
b. Workmanlike Fashion. The company represents and warrants that all backup service work and related services performed by the company will be performed by qualified personnel in a good and workmanlike fashion.
c. Disclaimer of Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION, CAPACITY, SPEED, AVAILABILITY, FUNCTIONALITY, CAPABILITIES OR SECURITY OF ANY EQUIPMENT, SOFTWARE OR SERVICES USED BY THE COMPANY AND ITS LICENSORS AND SERVICE PROVIDERS IN CONNECTION WITH ITS PERFORMANCE OF PRODUCT OFFERINGS OR SERVICES OR CUSTOMER’S USE OF THE SERVICES. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ARISING IN THE COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR ACCESS TO THE CUSTOMER’S COMPUTER NETWORK WILL BE UNINTERRUPTED.
d. Use of Services via the Internet. This provision applies to any aspect of the backup service which is being provided to Customer via the Internet or which Customer may access via the Internet. The security of transmissions over the Internet can never be guaranteed. The company is not responsible for Customer’s access to the Internet, for any interception or interruption of any communications through the Internet, or for changes to or losses of data transmitted through the Internet. In order to protect Customer and Customer’s data, the company may suspend Customer’s use of the backup services via the Internet immediately, without notice, pending an investigation, if any breach of security is suspected.
- LIMITATION OF LIABILITY
a. Mitigation of Damages. The company and Customer will each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the provision of any Product Offering or related services the company provides to the Customer.
b. DAMAGE LIMITATION. NUMSP’S LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING GROSS NEGLIGENCE OR NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT; PROVIDED HOWEVER, IF THE FEE FOR THE PRODUCT OFFERING OR RELATED SERVICES IS RECURRING, DAMAGES SHALL NOT EXCEED FEES PAID DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.
c. DISCLAIMER FOR CERTAIN DAMAGES. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, AND DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE OR BUSINESS INTERRUPTION EVEN IF THE COMPANY HAS, OR SHOULD HAVE HAD, KNOWLEDGE, AUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES.
d. Interdependency. Sections b and c are meant to be independent of each other and any lack of enforceability of one provision or portion thereof shall not affect the enforceability of the other.
- TERM AND TERMINATION
a. Term of the Agreement. This agreement is a one year agreement that renews for additional one year terms thereafter unless the Customer or the company terminates the agreement with more than thirty (30) day notice prior to the next anniversary date of the term of the Agreement. Termination of this Agreement may otherwise only occur as follows: A) the company Early Termination Right. The company shall also have the right to terminate this Agreement for a material breach of this Agreement by Customer or for payment default by Customer by giving the Customer 30 day’s written or e-mail notice of its decision to terminate the Agreement. If NuMSP gives such notice, the Agreement will terminate at the end of the month of the date of notification by NuMSP. Notwithstanding such termination for breach of the Agreement, the company shall be entitled to collect all amounts remaining due for the annual term of the Agreement as damages for breach of the contract by Customer and any past due billings to Customer; and B) Customer Termination Right.
b. The Customer may only terminate early by delivering a written notice advising the company that it is exercising its right to terminate this Agreement due to a material breach in the provision of backup services under the Agreement by the company with the specific facts of the company’s material breach of the Agreement. To be effective, this termination notice must be received by NuMSP, Attn: Contract Department, 6210 Bury Drive, Eden Prairie, MN 55346. For the termination notice from the Customer to be effective under this Agreement, the written notice provided by the Customer must specifically advise the company that the Customer is giving termination notice under Section 4(B) of this Agreement. Customer must pay all of its outstanding balance due to the company to the date of termination of its services and the factual basis for a material breach of the Agreement by the company must be factually proven as true for this termination by Customer to be effective.
- Term of the Agreement. Unless terminated earlier pursuant to subsections A) or B), this agreement will last for the time period on the service agreement from the 1st of the month following the month in which the monitoring equipment or software was installed (Effective Date). It will be automatically renewed for additional time periods, unless the Customer or the Company provides written notice of its intent not to renew the agreement at least 45 days before the expiration of the scheduled time period.
a. Company Early Termination Right. The Company shall also have the additional right to terminate this agreement at any time and for any reason by giving the Customer 30 days written notice of its decision to terminate the agreement. If the Company gives such notice, the agreement will terminate on the date specified in the notice. If Customer has prepaid for service, it will be entitled to a refund of amounts actually paid for the prorated terminated portion of the contract term.
b. Customer Early Termination Right. The Customer has the right to terminate this contract without further liability prior to the end of the contracted term in only two circumstances. First, the Customer may terminate this contract for any reason if, within 30 days of the Effective Date (installation of the monitoring equipment or software), the Customer delivers a written notice advising The Company that it is exercising its right to terminate this agreement without cause under this provision. To be effective, this early termination notice must be received by the Company within the specified initial 30-day period and the notice must be delivered to NuMSP, ATTN: Suite 100 Legal Department, 1255 Broad Street, Clifton, NJ 07013. If the Customer cancels during this initial 30-day period, then Customer will be responsible for the installation fee, the standard first month contracted service charges, and any extra time and materials work provided at the customer’s request during this 30-day period, but the Customer will be under no obligation to continue with the service provided under this agreement. Second, if the Customer does not provide a notice of termination within the initial 30 days, then the Customer has the right to terminate this contract without further liability prior to the end of the initial term or any annual renewal term only in the event the Company materially breaches this agreement and fails to cure the breach within 30 days of written notice from the Customer which i) describes the material breach and ii) demands that The Company remedy the breach within 30 days. For an early termination notice from the Customer to be effective under this section, the written notice provided by the Customer must specifically advise the Company that the Customer is giving an early termination notice and demanding a cure under Section 7(B) of this agreement.
- Non-Solicitation. Customer acknowledges that the Company invests significant time and expense in technical training and vendor authorizations for its staff. Therefore, Customer agrees it will not solicit, directly or indirectly, the employment of a technical employee of the Company for a permanent position during the term of the contract or the first 6 months after expiration of the contract. If Customer violates this provision and hires a technical employee of the Company, then it agrees it will pay to the Company a service charge equal to forty percent of the annual salary of the technician hired, such fee being due upon the Customer’s hiring of the employee.
- Amendments. No provision of this Agreement may be amended or modified except by a written document signed by duly authorized representatives of both parties.
- Notices. Any notices required under the terms of this Agreement shall be in writing and shall be deemed to have been given if: (a) sent by certified or registered mail, return receipt requested, with adequate postage; (b) sent by means of an express delivery service if it obtains a receipt to confirm delivery; or (c) sent by facsimile if such facsimile transmission permits confirmation to the addressees and facsimile numbers set forth at the beginning of this Agreement or at such other addresses as the parties may designate in writing to the other party subsequently to execution of this Agreement.
- Force Majeure. Any party to this Agreement will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations under this Agreement due to an act of God, weather related delays, war, earthquake, flood, civil disobedience, court order, transportation delays, inability to obtain materials or parts from suppliers, or other cause beyond the party’s reasonable control. Such non-performance will not constitute grounds for default but will extend the time of performance by a party by the duration of the force majeure event; provided, however, that the other party may terminate this Agreement if the period of nonperformance exceeds thirty (30) days. The non-performing party will take all reasonable steps to mitigate any potential damages that may result from the force majeure event.
- Statute of Limitations. No party may commence an action under this Agreement more than one (1) years after the expiration of its term, or, in the event of a breach, more than one (1) years after the occurrence of the breach. This provision shall not apply to the company’s action to collect payment under this Agreement which shall be governed by the applicable state law statute of limitations to collect such the amount due from a Customer.
- Electronic Communications. The parties may communicate with each other by electronic means and agree to the following for all electronic communications (a) the electronic document shall be considered to be a “writing” or “in writing” for purposes of this Agreement and (b) an electronic document shall be deemed for all purposes (i) to have been “signed” and (ii) to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business.
- Items Not Covered by this Agreement. This agreement does not provide any remote monitoring or proactive service for any device not included on the “Inventory of Devices to be Monitored” sheet. The Company does not warrant or guarantee that Customer’s network will be problem free and Customer acknowledges that the Company is not responsible for problems with Customer’s network. The Company will use its best efforts to provide commercially reasonable service to the Customer, but the Customer is not purchasing a minimum service level and the Company does not commit to provide any guaranteed minimum service levels under this agreement. This agreement does not insure against failure of the Customer’s network, hardware or software. The Company does not provide disaster recovery solutions under this agreement and does not guarantee that Customer’s data integrity will be preserved or protected from failure. Customer is responsible for confirming that data backed up is accurate, testing restores to confirm data is recoverable, and for otherwise insuring that its data and application backup and retrieval procedures and systems are adequate for the Customer’s business needs. This agreement does not include the cost of hardware or software that the Company may recommend to Customer to maintain or upgrade the Customer’s technology system. If the Customer chooses to purchase replacement hardware or software, or additional hardware or software, the Company will install the hardware or software of the Customer at the Company’s then current standard rates. If persons other than the Company move, perform work on, add to, or repair the equipment or if the Customer requests service outside the scope of the contract, the Company shall at its sole option, be entitled to either void this contract or correct problems at its applicable billable rate. The Company will not be obligated to provide technical assistance or support if Customer moves the equipment described herein outside of the normal areas in which THE COMPANY does business. Support does not include software application training support.
- Warranty Limitations. The Company IS NEITHER, A HARDWARE MANUFACTURER, GUARANTEED SERVICE LEVEL PROVIDER NOR A SOFTWARE DEVELOPER, BUT A RESELLER, INTEGRATOR AND CONTRACT TECHNOLOGY MANAGEMENT SERVICE PROVIDER. ACCORDINGLY, THE COMPANY DOES NOT GUARANTY ANY PARTICULAR SERVICE LEVEL AND DOES NOT PROVIDE ITS OWN WARRANTIES FOR HARDWARE OR THIRD-PARTY SOFTWARE UNDER THIS COMPANY AGREEMENT, BUT MERELY DELIVERS TO ITS CUSTOMERS THE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OR SUPPLIER OF THE HARDWARE OR THIRD-PARTY SOFTWARE THE COMPANY RESELLS OR SUB-LICENSES, TO THE EXTENT SUCH WARRANTIES ARE TRANSFERABLE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10(a) OF THIS AGREEMENT, THE COMPANY DOES NOT OFFER, AND SPECIFICALLY DISCLAIMS, ANY WARRANTY OF ITS OWN, EXPRESS OR IMPLIED. THE COMPANY DOES NOT WARRANT THAT CUSTOMER’S NETWORK, HARDWARE OR SOFTWARE WILL BE PROTECTED FROM FAILURE AND DOES NOT WARRANT THAT THAT CUSTOMER’S DATA OR DATA INTEGRITY WILL BE PRESERVED OR PROTECTED FROMFAILURE.
a. Services Warranty. The Company warrants that the services it performs under this agreement will be performed in a manner consistent with the Company’s customary practices and procedures. Should a failure to comply with this warranty appear within thirty (30) days after the date of completion of such services, the Company shall, if promptly notified by Customer in writing, at its option, either provide the Services anew or refund to the Customer the price charged for such non-conforming Services. Such reperformance or refund shall be Customer’s exclusive remedy and shall constitute fulfillment of all liabilities of the Company with respect to any nonconformity of or defect or deficiency in Services furnished to Customer.
b. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED; ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR THAT SOFTWARE OR EQUIPMENT IS FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF INFRINGEMENT OR THE LIKE ARE HEREBY DISCLAIMED.
- LIMITATION OF REMEDIES AND LIABILITY.
a. Exclusive Remedies. The Company liability on any claim, whether in contract, negligence, tort, strict liability or otherwise, arising in whole or in part out of this agreement shall in no case exceed the lesser of the fees paid or payable to the Company under this agreement or the fees paid or payable to the Company for the portion of services or equipment which give rise to the claim. All causes of action or claims against the Company arising out of or relating to this Agreement or the performance or breach of this Agreement shall expire unless brought within one (1) year after the first date of performance or breach which in whole or in part gives rise to the claim. These remedies are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement, or for any breach of this Agreement, whether brought under a theory of tort liability, contract liability, or any other theory.
b. Limitation of Liability. The Company liability with respect to the quality and conformity of equipment or services supplied to Customer shall be limited to the provision of the warranties set forth or described in Section 10 above. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW. Without limiting the generality of the foregoing, the Company shall have no responsibility to compensate Customer for delays in or loss of use of equipment, loss, impairment or miscalculation of data, loss of revenue or increased costs, loss of facilities, loss or delays in services, or claims of Customer’s clients, or other third parties to whom it provides goods or services, loss of profits or revenue, cost of substitute goods, facilities or services, downtime costs, delays or otherwise.
a. Indemnification of The Company. By accepting this Agreement, Customer hereby releases and agrees to indemnify, defend, and hold the Company harmless from and against any and all claims, obligations, losses, liabilities, and expenses of any and every kind whatsoever (including without limitation attorneys’ fees and other costs of defending any action) which the Company may incur as a result of any claim by Customer or third persons either:
i. For which the Company has no liability for under Section 11; or
ii. That are caused by accidents, misuses, misapplication, neglect of the Customer or any of its agents or employees or as a result of service provided by any person other than the Company representative; placement or operation of the equipment in an area that does not comply with the manufacturer’s published space or environmental requirements; or improper storage use and movement of the equipment.
- Choice of law and Dispute Resolution. This agreement shall be governed by the laws of the state of Delaware, and any dispute hereunder shall be resolved by the substantive law of Delaware Any disputes arising under this agreement or any other services provided by the Company that are decided in a court of law shall be decided in the state courts in. Prior to either party commencing any formal legal proceeding, officers for each party shall meet in person in an attempt to resolve in good faith the dispute. If the parties are unable to resolve the dispute though such a meeting, then either party may request mediation. The Company may, at its option, also demand and require arbitration of any dispute arising under or in any way related to this agreement or any services provided by the Company. Such arbitration, if elected by the Company, shall be conducted under the rules of the American Arbitration Association, and a final judgment thereon may be entered by any court having jurisdiction. The arbitration shall be conducted by an arbitrator(s) who has industry experience in the provision of technology management services. Neither a court nor any arbitrator appointed to resolve the dispute shall have jurisdiction to award punitive or exemplary damages, or any other damages that are excluded by this agreement. No claim by the Customer in any forum may be joined with the claim of any other customer and no claims may be pursued by Customer in any forum as a class representative or as a member of any putative class. Customer hereby waives any right to join any potential claim with the claim of any other party and waives its right to participate in any class action.
- Confidentiality. The Company acknowledges that the Customer’s computers may contain confidential and proprietary business information to which the Company may incidentally have access in providing services under this agreement. The Company agrees that it will not knowingly disclose any such confidential and proprietary information to third parties for any purpose unrelated to providing services under this agreement.
- Assignment. The Company may assign this contract at any time without prior notice to or the consent of the Customer. Customer may not assign this agreement without the prior written approval of the Company.
- Merger and Entire Agreement Clause. This is the final and entire agreement of the parties with respect to services provided by the Company under this agreement, and any prior representations, negotiations or agreements with respect to this agreement are merged into this agreement. No employee, agent or representative of the Company is authorized to make any representations or promises regarding the scope of this agreement that are not contained in this agreement, and any prior verbal or written representations or promises are superseded by these written terms and conditions, which are numbered 1 through 15.