This Agreement describes the terms and conditions under which company shall sell and member shall purchase services, hardware and software during the term of member's membership. All references herein to "company," "we," "our," and "ours" refers to the "company," as defined above. All references to "member," "you," and "yours," refers to all persons, as noted on the reverse side of this form, who subscribe to the services and/or purchase any of the goods sold by company, including but not limited to software and hardware.
1. ACCEPTANCE: By signing below and/or on the reverse side of this Agreement, member acknowledges that it has read, understands and accepts these terms and conditions (the "Terms and Conditions"). Furthermore, member hereby acknowledges that its purchase of goods and/or services from company, equates to member's acceptance of and willingness to be bound by these Terms and Conditions. Any terms and conditions proposed by member, now and/or hereafter, which are different from or in addition to these Terms and Conditions are unacceptable to company and are hereby specifically rejected by company. Any modifications to these Terms and Conditions shall be made in a writing which must be executed by the Parties hereto.
2. MEMBERSHIP TERMS & CONDITIONS:
A) Membership dues must be paid in full, for the complete membership term, immediately upon execution of this Agreement. Membership dues: 1) must be current at all times, for the member to be entitled to receive the services subscribed to by same; 2) are non-refundable; and 3) will not be pro-rated and/or refunded for any portion of the Term, as noted on the reverse side of this form, which remains unused, for any reason or no reason, including but not limited to cancellation of the membership by member. Except for taxes on company's income, member shall pay all applicable taxes and related charges, including interest and penalties, that any governmental or taxing authority may impose upon the purchase, ownership, possession, use, operation or relocation of any services, hardware and/or software that company furnishes under this Agreement.
B) Membership may be cancelled at any time by the member via the company web site. The Company's policy, regarding refunds of the membership dues are covered under this Agreement. Memberships must be cancelled no more than sixty (60) days and no less than thirty (30) days prior to the auto renewal date in order for member to avoid any service charges, and to continue uninterrupted service for the complete membership term.
C) Membership terms including but not limited to membership dues, service call charges, bench charges, service call duration, and equipment coverage are agreed to by member and company upon execution of this Agreement.
D) Membership will automatically renew for all members, as of the first of the month in which their then current membership is set to expire. For members convenience they will be automatically renewed each year unless they cancel per herein noted membership cancellation and will be billed via the member's payment method/s/, according to member's info section.
E) Member communication will be distributed for reminders, membership communications or other occasional promotions that the company deems appropriate. Customer communication will be delivered via email (or phone when applicable) based on the Member's info on file with company. It is each member's responsibility to keep all Members' info current, company is not liable for communication missed as a result of outdated records. Company will not share or sell your information, except with contractors within the scope of repairs or services provided.
F) Member's info includes member contact info, phone numbers, address, billing info and email address. It is each member's responsibility to keep all of their information current, via the company's web site.
G) Techs entering location; Members must be present at all times with technician, while they are at member's premises. Member unconditionally agrees that in no event will Company, its officers/managing members, employees, or any other party who has been involved in the delivery of services or goods be liable for any special, direct, indirect, incidental, or consequential damages that could ensue from a technician entering the member's location to issue service. Member must make location available at scheduled service time for technician to enter with an adult present at all times. Under no circumstances shall a technician be left unaccompanied or with a minor. Members shall assume full responsibility for failing to accompany the technician while on member's premises and shall indemnify and hold company harmless for any and all claims related to same.
H) Requesting a service call; members can set a service call anytime via the company web site, using mobile app, or by calling the service line. Requests will be responded to within 24 business hours in most cases. Members preferred payment method, according to Member's info section, will be charged at the time the service call is placed to ensure prompt payment. If more than one is listed, and member does not provide payment or specify preferred method the company may select to process as they desire.
I) Remote Access service calls Remote fix charge is 50% of your membership level service call fee per 30 minute session. Secure remote access permission is needed, at the time of the call by customer, for technicians to remotely service your computer.
J) On-site service calls will be made to the member's location on file with company. A service call time will be set and delivered to customer via their preferred service communication method. If a member does not make the location available to the technician, at the time set for the service call, then the technician will wait for time frame no more than 15 fifteen minutes and if the technician is still unable to access the service location, then the technician shall and move on to the next scheduled service call. All service calls will be invoiced, even if the technician was unable to provide the service because the member failed to allow access to the service location. This will be invoiced as a "no show" appointment for member. Each member will receive one complimentary no show appointment per membership term. Additional rates and fees may be charged for repeated events including trip charges and full service call rates.
K) Service call duration will be limited to 90 minutes (1.5 hours). If repairs take longer, then an additional service call will be billed for the additional time and work performed. All service calls are billed when started; they are not pro-ratable and/or refundable.
L) Member cancelled service calls; Member may cancel a service call, via the company web site, up to four (4) business hours prior to the scheduled service call, at no additional charge. But, if: 1) less notice is given; or 2) notice is communicated via a preferred member's support service method; or 3) member does not make location available at or within fifteen minutes of the set service call appointment; then the member will be charged half of the member's service call fee. Service calls may be rescheduled by company, based on the next service call availability. Company may cancel and/or delay a service call, at its sole discretion, at any time for any reason without incurring any liability to member.
M) Bench Work service is an additional charge for a device that is beyond repair at the member's location and must be taken off-site to be repaired at company's location. A bench charge is billed each time off-site service is performed and is billed the same as a service call in respect to repair time and payment method. When a device is benched it will be taken from members premises with permission from member and repaired off-site from member's location. The computer will be returned by company to the member's location. This will result in a minimum of three service call charges at member's rate for (1) initial on-site appointment, removing and transporting the unit, (2) bench work repairs and (3) the equipment return which includes set-up and testing. If further repair time and/or parts are needed, member is responsible for cost of parts and added repair time.
N) Techs entering location; Members must be present at all times with technician, while they are at member's premises. Member unconditionally agrees that in no event will Company, its officers/managing members, employees, or any other party who has been involved in the delivery of services or goods be liable for any special, direct, indirect, incidental, or consequential damages that could ensue from a technician entering the member's location to issue service. Member must make location available at scheduled service time for technician to enter with an adult present at all times. Under no circumstances shall a technician be left unaccompanied or with a minor. Members shall assume full responsibility for failing to accompany the technician while on member's premises and shall indemnify and hold company harmless for any and all claims related to same.
O) Valid payment methods include credit/debit cards, and auto check/savings account draft. Members are responsible for keeping a valid payment method for their account at all times. This includes but is not limited to new credit/debit cards, change of name, change of address, expiration date issues, change in checking/savings account, bank changes, etc. I understand that this payment plan may be cancelled by the Service Provider or Merchant due to NSF (Non-sufficient Funds). I will be liable to pay an NSF fee of $30.00 (or the amount allowable by law), which may be automatically debited for each NSF. P) Company may cancel a member's service agreement at any time with or without cause. If a member's service agreement is cancelled, without cause, they will be refunded their prorated membership fee within thirty days of cancellation to the members preferred payment method on file. But, if a member's service agreement is cancelled for cause, then there will be no refund of any membership fee and/or any other fees previously paid by member to company. No further service calls will be made to member's location once a membership agreement is cancelled by company.
Q) Delinquent accounts will not receive service, shall be charged reasonable service fees, and may be subject to cancellation, without refund, of member's service agreement, at company's discretion.
R) Data loss/ Data loss prevention; please back up your data, we are not responsible for lost, missing, or the cost of replacing the data; even if we set up the data back up for the member.
S) Abandoned property; materials left in the possession of the company for more than thirty days will become property of the company, and may be sold to recover the costs of storing abandoned property.
T) Hardware/Software purchases may be made by member from company. These items must be paid for prior to installation and are provided for at an additional charge, which is not included and/or covered under the member's membership fees. The installation of such hardware/software may be covered under the member's membership agreement, so long as the actual installation does not exceed the allotted service call. This Agreement addresses the warranties of all hardware and software purchased from company.
3) LIMITED WARRANTY: Member shall be entitled to all written warranties issued by any original manufacturer of the goods or any part thereof, including but not limited to software. When the sale of product includes software, member acknowledges and agrees that the manufacturer's standard license agreement shall govern member's right to use the software. The software license may also be in the form of a "click-to-accept" license or "shrink-wrap" license. Company warrants that the goods being sold under this Agreement are its property and that Company has the full right, title and interest to transfer title and possession to member. Company warrants that at the time of delivery to member the goods will be free of all liens, encumbrances and security interests. Company also warrants that the goods shall be free of defects in material and workmanship at time of delivery. Member hereby acknowledges and agrees that the replacement of the nonconforming goods shall be Member's sole remedy under these Terms and Conditions. COMPANY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT AND MERCHANTABILITY. Furthermore, Company does not and cannot warrant: (i) the performance or results that may be obtained by using the software or (ii) the software is appropriate for your purposes or that it is error free. ACCORDINGLY, THE SOFTWARE AND ITS DOCUMENTATION ARE LICENSED "AS IS" WITHOUT WARRANTY AS TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE IS ASSUMED BY YOU. All SOFTWARE PURCHASED IS NON-REFUNDABLE UNLESS SAID SOFTWARE IS UN-OPENED.
4) LIMITATION OF LIABILITY: IN NO EVENT SHALL COMPANY'S LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, INFRINGEMENT OF INTELLECTUAL PROPERTY, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED MEMBER'S REMAINING PRORATED MEMBERSHIP FEES OR THE PURCHASE PRICE OF THE PRODUCTS AND/OR SERVICES, WHICHEVER IS LESSER.
5) FORCE MAJEURE: Any delay or failure of either party to perform its obligations hereunder (except Member's duty to pay) shall be excused if, and to the extent that it is caused by an event of occurrence beyond the reasonable control of the party and without its fault, negligence, such as, by way of example and not by limitations, acts of God, actions by any authority or authorities (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor, equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten (10) days of the beginning of the delay.
6) INSOLVENCY, INSECURITY AND CREDIT: Company may immediately cancel any order or may refuse delivery, or may stop delivery in transit without liability to company in the event of the happening of any of the following or any other comparable event: (a) insolvency of the member; (b) filing of a voluntary petition in bankruptcy by member; (c) filing of any involuntary petition in bankruptcy against member; (d) appointment of a receiver or trustee for member; (e) execution of an assignment for the benefit of creditors by member, provided that such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event. Member shall use its best efforts to assist company in exercising its rights of reclamation. Shipments, deliveries and performance of services shall at all times be subject to the approval of Company's credit department. Company may at any time decline to make any shipment or delivery or perform any work except with receipt of payment or security or upon terms and conditions satisfactory to Company.
7) CANCELLATION FOR BREACH: Company reserves the right to cancel all or any part of this Agreement, without liability to company, if member repudiates or breaches any of the terms of this Agreement, including member's obligation to pay. Company may identify goods to the Agreement if member repudiates or breaches this Agreement.
8) REMEDIES: Except as otherwise provided for herein, the rights and remedies reserved to parties in this Agreement shall be cumulative, and in addition to all other remedies provided in law or equity. COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY BREACH OF WARRANTY OR THE SALE OF DEFECTIVE GOODS, INCLUDING BUT NOT LIMITED TO SOFTWARES. Company's liability and member's exclusive remedy are expressly limited to one of the following at company's option: (a) repair of the defective hardware and/or software; or (b) replacement, at the applicable FOB, of the defective or nonconforming hardware and/or software. Replacement of defective hardware and/or software will be made only upon return of the defective hardware and/or software. Members shall bear the cost of return, after member receives definite shipping instructions from company.
9) NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party of any provision of this order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this order constitute a waiver of any succeeding breach of the same or other provision.
10) RISK OF LOSS: The risk of loss or damage to the goods shall be borne by member once company delivers the goods to the carrier specified for shipment to member.
11) TAXES: Any tax imposed by any federal, state or other governmental authority on the sale of merchandise and services referred to herein shall be paid by member in addition to the quoted purchase price.
12) CREDIT CHECK & SIGNATURE: Member grants company the right to inquire about member's credit and to refuse to confirm this Agreement for credit reasons. The parties warrant and represent to each other that the electronic signatures (whether digitized signature, digital signature or otherwise) on this order and confirmations are for the people indicated and said person is duly authorized to sign on behalf of the party.
13) GOVERNING LAW: This Agreement is to be construed, governed and enforced according to the laws of the State of Texas. The parties agree that the United Nations Convention on Agreements for the International sale of goods shall not be applicable to this Agreement, its formation, interpretation and enforcement and all transactions under this Agreement. No rights or remedies referred to in Article 2A of the Uniform Commercial Code will be conferred on member unless expressly granted in this Agreement.
14) ARBITRATION: Any controversy or claim arising out of or relating to this Agreement, the breach of any duties hereunder or any other relationship, transaction or dealing between member and company (collectively "Disputes") will be settled by binding arbitration. Such arbitration shall be conducted in the city of Plano, Texas. Any award rendered by the arbitrator(s) may be entered as a judgment or order and confirmed or enforced by either member or company in any court having competent jurisdiction thereof. The failure of either party to exercise any rights granted hereunder shall not operate as a waiver of any of those rights. The arbitrators will not be empowered to award any consequential, indirect and/or punitive damages. This agreement to arbitrate will survive termination of these Terms and Conditions. If these Terms and Conditions are found not to be subject to arbitration, the parties hereto knowingly and willingly waive any right they have under applicable law to a trial by jury in any dispute arising out of or in any way related to relate to this Agreement or the issues raised by any Disputes. In any action brought between the Parties, pursuant to this section, to enforce or construe the terms of this Agreement, the prevailing party shall be entitled, in addition to any rights and remedies it may have, to recover all legal costs incurred, including but not limited to reasonable attorney's fees.
15) SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule and the remaining provisions of this order shall remain in full force and effect.
16) SECURITY INTEREST: A) Company reserves a purchase money security interest in all hardware and Software, and any proceeds of them (the "Collateral") until any and all payments and charges due company under this Agreement are paid in full, including, without limitation, fees for services, taxes, and shipping charges. Member shall sign appropriate financing statements and furnish further assurances as company deems reasonably necessary to establish or perfect its purchase money security interest. Company may, at any time and without notice to member, file in any state or local jurisdiction such financing statements to perfect its security interest in the Collateral. This Agreement shall constitute a security agreement a copy of which company may file in any state or local jurisdiction in lieu of a financing statement. Member hereby authorizes and irrevocably appoints company as its agent and attorney-in-fact to execute and file such financing statements and other documents prepared by company or its designated agent to perfect company's security interest. B) If Customer materially breaches any payment obligation under this Agreement, then, in addition to all of its other rights and remedies available at law or in equity, company shall have the rights and remedies of a secured creditor under the Uniform Commercial Code, including the right to reclaim the Collateral noted herein.
17) PARAGRAPH HEADINGS: Paragraph headings used in this Agreement are for reference purposes only and shall not be interpreted to limit or affect in any way the meaning of the language contained is such paragraphs.
18) CURRENCY; COLLECTION: All payments due to company hereunder for any reason will be made in U.S. currency. In the event that company is required to pursue the collection of past due amounts from member, company shall be entitled to recover all costs associated with such collection, including attorneys' fees and court costs, as well as interest accrued at the highest rate allowed by law from the date the notice of non-payment is given by company to member.
19) AMENDMENTS: Except as otherwise stated in this Agreement, this Agreement may not be amended except by a subsequently dated written instrument signed by both parties. Specifically, this Agreement may not be amended by addition of terms or conditions to any purchase order, delivery orders, or any other instruments.
20) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between company and member with respect to the matter contained herein and supersedes all prior oral or written representations and agreements. Both parties must agree in writing to any change, amendment or alteration of this Agreement.
IN WITNESS WHEREOF, each Party has caused its authorized representative to sign this Agreement as of the noted Effective Date.
By paying for your membership you accept all of the aforementioned Terms and Conditions.