Terms of Service
1.
SERVICES PROVIDED
BY CONTRACTOR
Upon Customer’s request,
Contractor may provide advice, sales, custom design(s), service, and support
for technology-related areas, including but not limited to:
Internet-related technologies
including but not limited to dialup, ISDN, ADSL, Cable Internet, Wireless, frame-relay, T1, and all other forms of Internet
access, all forms of broadband Internet, resold Internet services; Local and long distance service; Hardware for Computers, including but not
limited to input/output devices, computer accessories, and operating systems; Hardware for servers, including but not
limited to input/output devices, server accessories, and operating systems; Hardware for network equipment, including but
not limited to routers, switches/hubs, cabling, firewalls, VPN routers, modems,
monitoring software, packet sniffers, network security, email security, website
security, or any other network-related security; Telephone system hardware,
including but not limited to telephone systems, handsets, wiring; Software Solutions, including but not limited
to OEM software, resold software, custom software; Data Backup Solutions,
including but not limited to remote data backups, onsite backups, backup drives
or devices, backup rotation schedules, backup software; Data Transmissions
including but not limited to wireless transmissions, email services, web
traffic, website content, website hosting, and all technology-related data
transmissions.
2.
ARBITRATION CLAUSE
Any controversy or claim
arising out of, or relating to, this contract, or its breach, shall be settled
by arbitration, in accordance with the rules, then obtaining, of the American
Arbitration Association, and judgment on the award rendered, if any, may be
entered in any court having jurisdiction.
3.
LIMITATION OF
WARRANTIES; DISCLAIMER OF WARRANTIES
The parties agree that
Contractor makes no warranties, either express or implied, unless otherwise
contained in writing within this agreement.
Any warranties that exist do not apply to any defect occurring from
accident, overload, misuse, or abuse of the equipment or services. Neither Contractor nor any of its underlying
service providers, subcontractors, information providers, licensors, employees,
or agents warrant that the network and equipment services, as described in this
agreement, will be uninterrupted or error free; nor does Contractor nor any of
its underlying service providers, subcontractors, information providers,
licensors, employees, or agents warrant as to results to be obtained from the
use of the services, Customer agrees that the services are provided on an “as-is”
“as-available” basis without warranties of title particular purpose or
otherwise, other than those warranties (if any) which are implied by and
incapable of exclusion, restriction, or modification under the laws applicable
to the contract and these terms and conditions all such warranties being
expressly disclaimed.
4.
EXCLUSIVE REMEDY
The parties agree that the
remedies set forth in this agreement shall constitute the sole and exclusive
remedies available for any breach of this agreement, including any breach of
warranty, whether express or implied.
Contractor’s sole obligation and Customer’s exclusive remedy for any warranty
failure is the correction or replacement of the nonconforming software or
hardware products or services or the refund of an amount not to exceed the
actual payments paid by Customer to Contractor for the nonconforming products
or services.
5.
FORCE MAJEURE
This contract is subject to
force majeure, and is contingent on strikes, accidents, acts of God, weather
conditions, inability to secure labor, regulations or restrictions imposed by
any government or governmental agency, or other delays beyond the control of
the parties. If Contractor’s services
within contract time are prevented by any cause of force majeure, then this
contract shall be void without penalty to either party for such portion not
delivered.
6.
INTEGRATION CLAUSE
This agreement embodies the
whole agreement of the parties. There
are no promises, representations, terms, conditions, or obligations other than
those contained in writing within this agreement, and this agreement shall
supersede all previous communications, representations, or agreements, whether
verbal or written, between the parties.
Neither Customer nor Contractor can alter this agreement by any oral
representation or agreement.
7.
REQUIRED PROCEDURE
FOR REPORTING PROBLEMS
Customer shall maintain a
designated individual(s) who shall be responsible for placing a “trouble
ticket” in the event that there arises a problem that cannot be corrected
either by the Customer’s local technician.
If such time arises, cell phone calls, office calls, or pages will be
returned as soon as possible.
8.
BACKUP AND DATA
RETENTION POLICY
Customer agrees
and understands that Contractor creates and maintains backups on a best efforts
basis only. Contractor does not make any specific guarantee regarding the
availability of backup copies of client files, e-mail, databases, or other
server data. Customer agrees and
understands that events including but not limited to accidental deletion,
hardware failure, software failure, natural disaster, or power surges may
occur, and agrees that Contractor shall not be held liable or responsible for
such events.
9.
LIMITATION OF
LIABILITIES
In conjunction with the
Exclusive Remedy provision contained within this agreement, the parties agree
that under no circumstance shall Contractor be liable for damages in any form
or for any amount in excess of the amount of money received by Contractor in
connection with the products sold or services rendered pursuant to this
agreement. Customer expressly
understands and agrees that Contractor
shall not be liable for any direct, indirect, incidental, special,
consequential, or exemplary damages for loss of profits, goodwill, use, data,
or other intangible losses (even if Contractor had been advised of the
possibility of such damages), resulting from: (i) downtime or lost profits due
to delays in rendering services; (ii) the cost of procurement of substitute
goods and services resulting from any goods, data, information or services
purchased or obtained or messages received or transactions entered into through
or from the service; (iii) unauthorized access to or alteration of Customer’s
transmissions or data; (iv) statements or conduct of any third party on the
service; or (v) any third party on the service; or (vi) any other matter
relating to the service.
10.
LIMITATION OF
LIABILITY FOR CONSEQUENTIAL DAMAGES
The parties expressly agree
that Exceed shall not be liable for consequential damages, including but not
limited to acts of third parties, whether authorized or unauthorized, that
cause any type of loss, loss of data for any reason, damage to equipment caused
by electrical surges, static charges, or other related causes, or loss of
business opportunities or actual losses related to equipment or service
failure.
11.
INDEMNIFICATION
Customer agrees to indemnify,
defend and hold Contractor harmless for all third party claims, causes of
action, complaints, and damages of any kind arising from services provided
pursuant to this agreement.
12.
GOVERNING LAW
This Agreement and the
Services shall be governed by the laws of the State of
13.
TERM
Customer and Contractor agree
that this agreement may be terminated by either party. The terminating party will provide written
notification of termination at least fourteen (14) days prior to termination.
14.
ENTIRE AGREEMENT
This Contract shall constitute
the entire agreement between Customer and Contractor relating to this Contract
or the Services and may not be modified or amended other than by a written
instrument executed by both parties