Terms and Conditions
Table of Contents
General
1. Definitions And Interpretations
2. Applications Of These Conditions
3. Commitment Term
4. Termination
5. Representations
6. Notices
7. Governing Law
8. Assignment
9. Variation Of These Terms And Conditions
Goods and Services
10. Estimates
11. Orders
12. Pricing And Rates
13. Services And Plans
14. Contracting
15. Delivery, Title And Risk
16. Returns And Claims For Goods And Services
17. Computer Utility, Functionality And Fitness For Purpose
18. Force Majeure
19. Product Specifications
20. Warranties
21. Liability
22. Errors And Omissions
Our Responsibilities
23. Privacy Statements And Your Rights
24. Our Website
25. Insurance Coverage
Your Responsibilities
26. Lodging Of Service Requests
27. Access To System, Sites and People
28. Third Party Authorizations
29. Payment, Lake Payment, And Default
30. Non-Solicitation Of Clients And Employees
31. Software
32. Copyright And Confidentiality
Appendix A
Service Request Lodgment Process
Services Requests Outside Of Our Business Hours
General
1. Definitions And Interpretations
In these Conditions, the Rate Schedule and every Estimate, Order, Plan contract, or
other arrangement in connection with the supply of Goods or Services by W.A.C.D.,
LLC, the following words have the following meanings:
“After Hours” means from 17:00 - 08:00 hours Monday to Friday and all day Saturday
and Sunday, including Public Holidays;
“Business Hours” means 08:00 - 17:00 hours Monday to Friday excluding Public
Holidays;
"Client”, “You" or “Your” means a person who seeks or obtains a Estimate for, or who
orders, Goods or Services from Us, and includes both a person whose name is on the
Order or on an email attached to which is an order, a person who places an order, and a
person on whose behalf an Order is placed or on whose behalf it appears and order is
placed, and in any case each of their heirs, successors and assigns;
"Conditions" means these terms and conditions;
"Goods" means any goods and/or services sourced by Us or provided by Us in
connection with any such goods and/or services including computer hardware and
Software and any goods or services provided in connection with any of those things;
“Order” means any order requested by You to Us for Goods or Services in any form;
“Estimate” means a Estimate provided to You by Us;
“Period” means a particular number of half-days, days, weeks, months, or any other
period, as may be agreed between Us and the You as the period during which some
Services will be provided;
“Plan” means any arrangement between Us and You (whether alone or in conjunction
with any other person) for Services (including unlimited support) and/or the provision of
Goods provided by Us under an arrangement in connection with Work agreed to be
done or progressed for or on behalf of You or any other person at Your request,
including as set out in a Plan Schedule;
“Plan Schedule” means the key terms applicable to Plans as set, and as may be
varied by Us, from time to time in its absolute discretion without notice to You;
“Public Holidays” means any day which is a public holiday throughout Indiana;
“Project” means anything that is not currently something the customer has.
“Rates” means the hourly rates and other charges for Services (including any call-out
fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan
Schedule, Estimate, contract or arrangement entered into by Us and You or in these
Conditions, and includes any monies payable to Us on a quantum merit basis for any
work it has done;
“Rate Schedule” means the schedule of rates, charges, and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
“Reasonable Assistance Limits” has the meaning set out in clause 17.2;
“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us
from time to time;
“Service request” means a request for service such as adds, moves, changes, and
technical assistance;
"Services" means the provision of any services by Us, including Work, advice, and
recommendations;
“Software” includes software and any installation, update, associated software, and
any services provided in connection with any of these things;
"Us”, “Our” or “We” means Warsaw Area Computer Doctors 26-3955028 and its heirs,
successors and assigns; and
“Work” means anything We may do, provide, customize, produce or acquire, whether
or not in connection with, or for the purposes of, You or Your use or benefit, and includes
testing, troubleshooting, installation and configuration of new equipment or software,
consulting, scoping, planning, documenting and quoting for complex items.
In these Conditions, the Rate Schedule and every Estimate, Order, Plan, contract, or
other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
Words denoting the singular number only shall include the plural number and vice
versa;
Reference to any gender shall include every other gender;
Reference to any law, Statute or Regulation shall include any amendment currently
in force at the relevant time and any Act of Congress, Statute or Regulation enacted or
passed in substitution therefore;
Headings and words put in bold are for convenience of reference only and do not
affect the interpretation or construction of these Conditions;
All references to dollars ($) are to U.S. Dollars;
A reference to time is to Eastern Standard Time (New York);
A reference to an individual or person includes a corporation, partnership, joint
venture, association, sole proprietorship, limited liability company, trust, state or
government and vice versa;
A reference to a recital, clause, schedule, addendum or exhibit is to a recital, clause,
schedule, addendum or exhibit of or to these Conditions;
A recital, schedule, addendum or description of the parties forms part of these
Conditions;
A reference to any agreement or document is to that agreement or document (and,
where applicable, any of its provisions), as amended, novated, supplemented or
replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that
expression has a corresponding meaning;
A reference to “includes” means includes without limitation;
A reference to “will” imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation,
dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
2. Applications Of These Conditions
Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in
and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Estimate, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or enforceability of any one or more of the provisions of this Agreement
will not invalidate, or render unenforceable, the remaining provisions of this Agreement.
3. Commitment Term
1. The minimum term that You acquire the service for is outlined in Our Estimate to
You, beginning from the first of the next month after the date of signing or approving
the Estimate.
2. After the expiration of the Committed Term, an extension of the Term will
automatically commence for the same period as the original Committed Term and
will continue indefinitely, unless earlier terminated by you as specified in Clause 4.
4. Termination
This Agreement may be terminated by You upon ninety (90) days written notice if We:
- Fail to fulfill in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
- Breach any material term or condition of this Agreement and fail to remedy such
breach within thirty (30) days of receipt of such written notice. - or suspend our business operations, unless it is succeeded by a permitted
assignee under this Agreement.
This Agreement may be terminated by Us upon ninety (90) days written notice to you.
If either party terminates this Agreement, we will assist you in the orderly termination of
services, including timely transfer of the services to another designated provider. You
agree to pay us for rendering such assistance at our normal rates as outlined in our
current Rate Schedule.
Should You wish to terminate this Agreement before the end of the commitment term,
You agree to pay all of the remaining payments up until the end of the commitment term.
This Agreement may be terminated by only the Owner, Founder, or IT Contact that you
have kept up to date with us Via the initial onboarding.
5. Representations
You acknowledge that no employee or agent of Ours has any right to make any
representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.
6. Notices
Any notices given under the Conditions shall be in writing and sent by e-mail to the last
notified e-mail address of Yours.
7. Governing Law
The Conditions shall be governed by and construed in accordance with the laws of
Indiana, and the parties submit to the non-exclusive jurisdiction of the Courts of
Kosciusko County, Indiana.
8. Assignment
You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.
9. Variation Of These Terms And Conditions
We may at any time vary these Terms and Conditions by publishing the varied Terms
and Conditions on Our website. You accept that by doing this, We have provided You
with sufficient notice of the variation. We are under no other obligation to notify You of
any variation to these terms and conditions.
Goods and Services
10. Estimates
1. Term and effect: Estimates will only be valid for two (2) days unless otherwise
specified in the Estimate. An Estimate is merely an invitation to You to place an
Order with Us and the acceptance of an estimate by You will not create a binding
contract between You and Us.
2. Estimates are valid for two (2) days only. Expiration dates on Estimates are set to
be able to inform Us when the Estimate is still active or to be discarded. Once
discarded the Estimate will need to be requested again.
3. Once an Estimate has been confirmed by Us, then the prices in the quote will be
confirmed as the final agreed price. An Estimate is confirmed as 'final' as soon as
both parties agree with the final price after any last changes requested by You.
4. The price in the final Estimate may vary from the original request if there are any
price or product changes requested by You. We reserve the right to alter products
and prices in the Estimate, as long as the Estimate has not been confirmed with
You.
5. Estimates shall be deemed to correctly interpret the original specifications and are
based on the cost at the time the Estimate is given. If You later require any changes
to the Estimate, and We agree to the changes, these changes will be charged at
Our prevailing rate.
6. Once the Estimate has been confirmed and converted to an Order, the Order will be
subjected to our normal Terms and Conditions of Sale.
7. The general minimum turnaround time for an Estimate request to be actioned is
usually 24 hours. In the event that an Estimate is required urgently please let us
know so that we can respond to it accordingly.
8. When a special price or discount offer has been applied to this Estimate, no other
special promotion, discount or bonus offer will be applicable.
9. In the event that products in the Estimate are subjected to any price and supply
fluctuations that is outside of Our control We reserve the right to update the price
and product in the Estimate accordingly. If a product has undergone a price drop or
a price increase, the Estimate will then be adjusted accordingly. If there is a product
that is no longer available, the product will then be replaced or substituted based on
Your request and is subject to Your final approval.
10. Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Estimate is turned into an Order. While We endeavor to
honor every price Estimated, if there is a price increase that is beyond our control,
We reserve the right to increase the price as necessary.
11. Once an Estimate has already passed the expired date, We may cancel the
Estimate without having to notify or receive an approval from You.
12. ETA information is based on an estimate given by our vendors and cannot be held
as the actual promised date.
13. Freight charges will be added to the Order unless otherwise stated. Any included
delivery charges are estimates only.
14. We do not keep inventory and, as such, only order items once we receive a
completed order from a client and the customer has paid the hardware cost via ACH
or Credit Card with a 3% fee. If You would like to return an item or cancel an order, a
restocking fee may apply of 35%. We will need to get approval from the distributor
that the stock is returnable before being able to issue a refund, as not all products
can be returned.
15. Prices are based upon total estimated purchase.
16. Unless Specified, all items on Estimate are covered by the manufacturer’s warranty
covering parts and labor for hardware only on a return-to-depot basis.
17. Varying or withdrawing Estimates: We may vary or withdraw an Estimate at any time
in Our absolute discretion and without prior notice to You. We may do so for any
reason We consider fit, including, e.g. where the Goods or Services become
unavailable or the cost price of Goods or Services increases after the date of the
Estimate.
11. Orders
1. Order forms: You may place an Order for Goods and/or Services with Us. Normally,
We will require that You provide either a completed Order form or You approve the
Estimate electronically via either an email or a web-based system with the date and
Your details, including Your full legal name or (including the full name or description
of any person on whose behalf the order is placed), Your address together with any
relevant Estimate number and date.
2. Approval of Orders: You will need to sign the Order or have it duly executed on Your
behalf, unless the Order is sent by email or via the web based ordering system, in
which case the Order will be treated or deemed as if signed by or on behalf of You
by the person whose name appears as the sender of the email or submitter of the
form.
3. Reliance on appearance of validity: Absent actual knowledge to the contrary, We
may rely upon the apparent validity of an Order. If any Order is signed or sent by
email or approved through the web based ordering system by a named person, that
person warrants that the Order is, and it is acknowledged the Order is deemed in
favor of Us to be:
signed by, and duly authorized by, both the person who signed the Order and
the person who sent the email; and
duly authorized by the person on whose behalf the Order is placed or
apparently placed.
4. Acceptance and Orders: An Order has no effect unless or until it is accepted by You
in writing and, until We have received from You payment in clear funds for the Order
and any related shipping/handling, delivery and (where applicable) in-transit
insurance costs in clear funds.
5. No obligation to deliver: We are not obliged to deliver any Order until we have
received payment in clear funds from You for the Order, any related
shipping/handling, delivery and (where applicable) in-transit insurance costs or
where We are unwilling or unable to complete the Order for any reason provided it
refunds any payment made by You in respect of the Order.
6. Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment
terms, You hereby consents to Us undertaking a credit reference check in respect to You.
7. Cancellation of Orders: You will not cancel an Order unless We agree to do so in
writing in Our absolute discretion. You acknowledge that, amongst other things, We
cannot cancel an Order once the manufacturer or supplier has shipped the relevant
Goods and that such shipping often occurs the same day as the Order is placed by
Us.
8. Processes and Procedures: We have processes and procedures that We follow in
the course of the provision of Our Services and the supply of Goods. You agree to
co-operate with Us and to comply with such processes and procedures as advised
to You from time to time.
12. Pricing and Rates
1. Rates exclude Tax: All rates and amounts charged or Estimated for Goods and/or
Services by Us are exclusive of Tax and any other applicable taxes or government
charges (unless otherwise stated in writing by Us).
2. Rates Schedule: You must pay for Goods and Services at the Rates set out in any
applicable Plan and the Rate Schedule as applicable from time to time during the
provision of the Goods and/or Services.
3. Vary Rates: We reserve the right vary any Rate and/or the Rate Schedule from time
to time (subject to any fixed pricing for specific periods in any Plan), in its absolute
discretion and without notice to You.
4. Call-out fees: You acknowledge that call-out fees may be charged in addition to the
Rates at Our absolute discretion and that the amount of the call-out fee will depend
upon where the Services are provided.
5. Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or
where an Order is cancelled by You after acceptance by Us, We may charge You a
Return/Cancellation fee of 35% to cover the administration costs to Us in processing
the return or refund, or in processing the Order, the cancellation and any refund. We
may deduct the Return/Cancellation fee from out of any moneys otherwise due to
be refunded to You by Us.
6. Expenses: You must pay any out of pocket expenses incurred by Us in providing the
Services to You in addition to the Rates, charges and call-out fees, upon written
demand. Depending upon your physical location, such expenses may include travel
costs, flights, car hire, gasoline, insurance, taxi fares, accommodation and related
meal allowance, tolls and car parking expenses. Where appropriate, We will obtain
prior written authorization from You before such expenses are incurred.
7. Separate charges for Goods and Services: We may in Our absolute discretion
charge for Goods separately from Services or may charge for Goods and Services
together.
8. Calculation of increments: Where a charge is calculated based on increments of
time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole
increment of time even if work is done during part of, but not for the whole of, that
increment of time.
9. Change in underlying costs: Without prejudice to any other rights of Ours under
these Conditions, where there is any increase in the underlying costs incurred by Us
in connection with the supply of Goods or Services to You, We may, in our absolute
discretion, vary any of Our Rates.
10. [Reserved]
13. Services and Plans
1. Service and Plan Variations: Currently, We offer the Services and Plans referred to
in the Rates Schedule and any Plan Schedule. We may withdraw the provision of,
or vary the scope or terms of, or add to or change, the Services without notice to
You, from time to time in Our absolute discretion.
2. Copies on Request: We will provide You with a copy of the current Rates Schedule
upon request. Plan Schedules are tailored for particular Plans and are available to
Clients participating in the Plan.
14. Contracting
We may subcontract any or all of the Services to be performed, but shall retain prime
responsibility for the Services under these terms.
15. Delivery, Title and Risk
1. Delivery liability: We will use all reasonable endeavors to despatch Goods by the
due date, but do not accept any liability for non-delivery or failure to deliver on time
where this is caused by circumstances beyond the reasonable control of Ours,
including, for example, due to failures in supply to Us or delays caused by third
parties, such as delivery companies or manufacturers.
2. Availability to accept delivery: You must be available to accept the Goods at Your
nominated delivery address during Business Hours unless otherwise arranged.
3. Passing of Risk: Delivery is deemed to take place when the Goods are delivered to
Your nominated address, whereupon risks of loss, breakage and all damage and all
other risks pass to You. Nothing in this clause will affect title to the Goods.
4. Obligation to insure: You will ensure that Goods are adequately insured from the
time of delivery under clause 3.
5. Retention of Title: Until We receive full payment in cleared funds for any moneys
due to Us by You on any account or for any reason:
- title to, and property in, Goods supplied to You remain vested in Us and does
not pass to You; - You must hold those Goods as fiduciary bailee and agent for Us and must not
sell them; - You must keep those Goods separate from other goods and maintain the Goods
and their labeling and packaging intact; - Where You sell the goods in breach of these Conditions, You are required to
hold the proceeds of any sale of those Goods on trust for Us in a separate
account (however, any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us); - We may, without prior notice, enter into any premises where We suspect those
Goods may be, take possession of those Goods and sever and remove those
Goods (notwithstanding that they may have been attached to other goods not
the property of Ours) and for this purpose, You hereby irrevocably authorize and
direct Us (and Our employees and agents) to enter into such premises as its
duly authorized agent and You hereby indemnify and hold harmless Us from
and against any costs, claims, allegations, demands, damages or expenses or
any other acts or omissions arising from or in connection with, such entry,
repossession or removal.
16. Returns And Claims For Goods And Services
1. General Returns Policy: Notwithstanding anything in these Conditions, You
acknowledge that We supply Goods subject to all applicable conditions,
including returns and claims policies, of any relevant manufacturer or supplier.
You will accept Goods subject always to these Conditions and the terms of such
conditions and will indemnify and hold Us harmless in respect of any further or
other obligation or any failure or default on the part of that manufacturer or
supplier.
2. Customized Goods not returnable: Where Goods have some element of
customization for You, are supplied pursuant to an Order for Goods that is in the
opinion of Ours special or unusual, the Goods are obtained from overseas, the
Goods are obtained from a supplier who is no longer trading, or the Goods are
otherwise not readily returnable by Us to the manufacturer or supplier or any
related services may not be canceled, You may not return the Goods to Us or
cancel the related services.
3. Duty to inspect: You will inspect all Goods immediately upon their delivery.
Within seven days of such delivery, You may give written notice to Us of any
matter or thing, by reason of which You might wish to return the Goods, ask for
a refund, or make a claim. If no such notice is given on time, You will accept the
Goods without any such return, refund, or claim.
4. Return Condition: Where You are entitled to return Goods under these
Conditions, You must return the Goods in their original condition and unopened,
provided always that where, upon opening the packaging, it becomes apparent
that the Goods are different to what is described on the packaging or that the
Goods are faulty, the Goods may be returned.
5. Return costs: You will pay all costs and expenses incurred by Us in arranging
the return of the Goods to a manufacturer or supplier and/or the cancellation of
any related services unless that manufacturer or supplier pays such costs.
6. Consequences of use, installation, customization or sale: You will indemnify and
hold Us harmless in respect of all allegations and claims in respect of Goods
once such Goods have been used, installed, customized or re-sold by You
(without prejudice to the recourse of such a customer to the manufacturer of the
Goods).
17. Computer Utility, Functionality And Fitness For Purpose
1. Service limitations given the science of computing: You acknowledge that a
reasonable incident of the Services may involve trial and error and that it is a
General Terms and Conditions 14
science applied often in novel or unknown circumstances and involving
experiment. In particular, You acknowledge that the Services may involve tests,
troubleshooting, advice and recommendations that may prove incorrect or
inappropriate, particularly in an attempt to cure a problem You are having. While
We will make what We consider (in Our absolute discretion) to be all reasonable
endeavors to provide appropriate tests, troubleshooting, sound advice and
good recommendations in order to assist You, You will always indemnify and
hold Us harmless in the provision of our Services to You.
2. Reasonable Assistance Limits: We are only obliged to provide what We
consider, in Our absolute discretion, to be reasonable assistance in the
circumstances (including with the installation and customization of new software
or hardware for You or any other Work) under any Plan and You will pay for
additional work at the Rates unless otherwise agreed. Without limiting the
discretion of Us to determine what reasonable assistance is, normally,
reasonable assistance is limited to work done during Business Hours over a
period of time not exceeding any period that We have allowed or allows for the
Work or has estimated or estimates the Work will take, whether or not notice of
the time allowed or estimated is given by Us to You.
3. Recommendations, suitability, functionality and fitness for purpose: The parties
acknowledge that:
- We may recommend that You purchase Goods provided by third parties
from time to time; - Recommendations may be made in situations where You have made known
to Us the purpose for which the Goods will be used or some function sought
to be fulfilled; - You acknowledge that We have no control over many factors involved with
the suitability, function or fitness for purpose of Goods in an existing or new
computer environment, e.g.
- the compatibility or ability of the Goods to fit into or perform to
expectations in the receiving computer/internet environment; or
- the behavior of third-party supplier, e.g. in relation to support; - You acknowledge that for a whole number of reasons outside of Our control,
the Goods may fail to meet Your expectations, may not turn out to be fit for
all or any of the purposes sought, may not be suitable or may not function
properly in all or any respects; - You acknowledge that the Services provided by Us may involve the very
task of seeking to customise Goods so they may be fit for particular
purposes and that customization may be a very substantial project in itself; - Accordingly, You will accept the sole responsibility for, and indemnify and
hold Us harmless in respect of:
- decisions as to whether or not to follow recommendations by Us;
- decisions as to whether or not to purchase or customize Goods or
obtain Services for that or any other purpose; and
- any failure or defect in suitability, function or fitness for purpose of any
Goods and/or Services, including a responsibility to obtain Your own
independent advice or second opinion from a suitably qualified person; - Where We provide Services with a view to achieving Your purposes,
suitability, function or fitness for purpose (whether expressed, agreed or
otherwise), You must pay for those Services on time without any set-off or
counter-claim, whether or not We are able to achieve any of such purposes,
suitability, function or fitness for purpose, provided always that We have
acted in good faith and have made what We consider, in Our absolute
discretion, to have made all reasonable endeavours to achieve those
outcomes.
4. Testing Procedures: You will follow the instructions of Ours with regard to
testing or troubleshooting any problems and that if those do not resolve the
outstanding problems, We will, subject to these Conditions, allocate such
resources as We consider reasonable in the circumstances towards their
resolution.
18. Force Majeure
1. Force Majeure: If We are unable to supply any Goods or Services due to
circumstances beyond Our reasonable control, We may cancel the Order (even
if the Order has already been accepted) or cease to provide the Services by
written notice to You, in which case You will hold Us harmless.
2. We will not be liable for any breach of contract due to any matter or thing
beyond Our control, including failures by third parties to supply goods, services
or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of
God, strikes, lock-outs, work stoppages, wars, riots or civil commotion,
intervention or public authority, explosion or accident.
19. Product Specifications
1. Alterations to Specifications: We make every effort to supply the Goods in
accordance with the Order however We may supply alternate Goods subject to
minor variations in actual dimensions and specifications where these are
changed by the manufacturer of the Goods after the Order date and before
delivery.
2. Substitute Goods: If We cannot supply the Goods ordered by You, We may
supply alternate Goods of equal or superior quality provided however that You
will not pay a higher price than the price Quoted or otherwise agreed for the
Goods ordered.
20. Warranties
1. Reliance on Manufacturer’s Warranty: You will rely on the warranties
provided by the manufacturer of Goods supplied by Us (where applicable) and
We will deal direct with such manufacturer on your behalf for all claims covered
by such warranties.
2. No claim for manufacturer’s default: You indemnify and hold Us harmless in
respect of the performance or otherwise, by any manufacturer of Goods
supplied to You by Us, of any of the obligations of such manufacturer in respect
of such Goods. This includes any damages or monies due to You arising under,
or in connection with, any breach by the manufacturer of any the manufacturer’s
warranties in respect of the Goods.
21. Liability
1. Exclusion: Except as specifically set out herein and so far as may be permitted
by law, any term, condition or warranty in respect of the quality, fitness for
purpose, condition, description, assembly, manufacture, design or performance
of the Goods or Services, whether implied by statute, common law, trade usage,
custom or otherwise, is hereby expressly excluded.
2. No liability for program or data loss: You indemnify and hold Us harmless in
respect of any allegation, claim, loss or expense of Yours or any third party for
any program or data loss or damage suffered by You or that third party arising
directly or indirectly from the supply of the Goods or Services by Us to You. You
acknowledge You are solely responsible for backing up Your programs and data
in order to mitigate Your own potential loss of programs and data.
3. Limit on consequential damage: You indemnify and hold Us harmless in
respect of any allegation or claim as to any indirect or consequential losses or
expenses suffered by You or any third party, howsoever caused, including but
not limited to loss of turnover, profits, business or goodwill or any liability to You
or any third party.
4. Limit on damage from a failure in supply: You indemnify and hold Us
harmless for any allegation or claim for loss or damage by You or a third party
where We have failed to meet any delivery date or cancels or suspends the
supply of Goods or Services.
5. General limit on liability: Except as otherwise expressly stated in these terms
and conditions, We are not liable for any loss or damage of any kind however
caused (including, but not limited to, by the negligence of Us) which is suffered
or incurred by You in connection with:
- Goods or Services provided to You or any Work;
- these Terms and Conditions;
- Your use of Our website (including the use of a credit card or other debit
device) or any linked website; - the non-availability of Goods or Our Services for any reason;
- any act or omission of Ours or the provision of inaccurate, incomplete or
incorrect information by You, or - for any other reason whatsoever.
6. Limitation options: To the extent that any legislation implies a condition or
warranty that cannot be excluded but can be limited, clause 5 does not apply to
that liability and Our liability for any breach of that condition or warranty is
limited to Our doing any one or more of the following (at its election):
- replacing the Goods or supplying equivalent Goods, Services or Work;
- repairing the Goods or the Work;
- paying the cost of replacing the Goods or the Work or acquiring equivalent
Goods, Services or Work; or - paying the cost of having the Goods or the Work repaired.
7. Laws still apply: Nothing in these Conditions is to be interpreted as excluding,
restricting or modifying or having the effect of excluding, restricting or modifying
the application of any State or Federal legislation applicable to the supply of the
Goods or Services which cannot be excluded, restricted or modified.
8. Severance: If any provision contained in the Conditions is unlawful, invalid or
unenforceable, those provisions may be severed without prejudice to the validity
and enforceability of the remaining provisions of the Conditions.
22. Errors And Omissions
We make every effort to ensure that all prices and descriptions quoted are correct
and accurate. In the case of an error or omission, We may rescind the affected
contract by written notice to You, notwithstanding that We have already accepted
Your Order and/or received payment from You. Our liability in that event will be
limited to the return of any money You have paid in respect of the Order.
Our Responsibilities
23. Privacy Statements And Your Rights
1. We are collecting Your personal information for the fulfillment of Estimates, Orders
and the provision of Goods or Services to you and it may retain and use it for any
such purposes (“Authorized Purposes”).
2. You are required to provide your personal information to Us for Authorized
Purposes.
3. We may disclose Your personal information to other persons for the purposes of the
fulfillment of Estimates, Orders and Work for you or in order to provide Goods or
Services to You, to verify the information You provide, for inquiries about Goods or
Services that may be suitable for your purposes, or to confirm Your requirements, to
anyone proposing to supply Goods or Services to You, or to acquire Goods or
Services on Your behalf, or in respect of inquiries relating to any of the foregoing.
4. Otherwise, We will not disclose Your personal information without Your consent
unless authorized by law.
5. Your personal information will be held by Us at Our Principal Place of Business and
You can contact Us to request to access or correct it.
6. We rely on You to submit correct information and details where requested. You
accept that You may incur additional expenses if you submit incorrect information.
24. Our Website
1. We make no representations or warranties in relation to information available on
Our website, including, without limitation:
- that the information on Our website is complete or correct;
- that Our website will be continuously available or free from any delay in
operation or transmission, virus, communications failure, internet access
difficulties or malfunction in hardware or software; and that We endorse any
internet site linked to Our website or any third-party products or services
referred to on Our website.
25. Insurance Coverage
We will maintain at Our own expense, commercial general liability insurance for
personal injury and property damage for a general aggregate of $2,000,000. At Your
request We will provide You with certificates, including renewal certificates evidencing
such coverage within thirty (30) days of commencing this Agreement, at every renewal
and at other times as may be reasonably requested by You.
Your Responsibilities
26. Lodging Of Service Requests
In order for Us to provide You with the agreed Service, You agree to follow Our process
for lodging of Service Requests as outlined in Appendix A.
27. Access To System, Sites and People
1. In order to provide You with the agreed Service, You agree to give Us access to
various items of Yours including but not limited to, equipment, people and sites as
and when required.
2. You agree to allow Us to install software on Your Equipment that allows Our
technicians to access Your systems at any time. This software allows Us to view
system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.
28. Third Party Authorizations
At times, We may need to contact Your third-party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.
29. Payment, Lake Payment, And Default
1. Payment due date: All invoices issued to You are due and payable to Us within the
terms stated on the invoice (unless otherwise agreed in writing). by cash, check,
credit card or direct deposit in accordance with these Terms and Conditions and in
the way set out in the Invoice.
2. 7 days late: Where You fail to pay an invoice within seven (7) days of the due date,
We may, in Our absolute discretion and without prior notice, suspend or discontinue
the supply of Goods and/or Services to You.
3. Recoveries: All legal and other costs and expenses incurred in connection with the
recovery of late payments, including but not limited to court costs and attorney fees,
will be added to the amount due by You to Us and will be recoverable from You, in
addition to the original invoice cost. If You default in payment of any invoice on time,
moneys which would have become due by You at a later date shall be immediately
due and payable without any further notice to You. Collectively, all of these monies
are referred to in these Conditions as a “Sum Due”.
4. Interest: If payment of any Sum Due is not made on time, We will charge interest at
the rate of 18%, calculated and charged daily on and from the due date until the
Sum Due is paid in full.
5. Application of funds: All payments of the Sum Due made by You to Us will be
applied as follows:
- first in or towards payment of any costs (including court costs and attorney
fees), charges, expenses or outgoings paid by Us in relation to any dishonored
(NSF) check fees, collection costs or any other action taken by Us for the
recovery of any amounts owing by You to Us; - secondly, in or towards payment of any interest due or payable hereunder, and
- thirdly, in or towards payment of Your debts to Us in order from the longest
standing due to the most recently incurred.
6. Security: We may require You to provide security over Your property (including the
Goods or any other property of Yours) as collateral to be held as security for any
Sum Due or as a condition precedent to the continuation of supply of Goods or
Services by Us to You.
7. Payment arrangements: In the event that a repayment arrangement is made in
relation to any Sum Due and the supply of Goods or Services is resumed, but then
a repayment due under that arrangement is not made on time, We may, in Our
absolute discretion and without prior notice, again suspend or discontinue the
supply of Goods or Services to You.
8. Other remedies: We may exercise any of Our rights and remedies including taking
legal action against You for the recovery of any moneys due to Us, notwithstanding
it may have exercised other rights under these Conditions.
30. Non-Solicitation Of Clients And Employees
1. You agree that employees are one of Our most valuable assets, policy and
professional ethics require that Our employees not seek employment with, or be
offered employment by You during the course of engagement and for a period of
two (2) years thereafter (or the maximum amount permissible by a Court).
2. You agree that Our damages resulting from breach of this clause would be
impracticable and that it would be extremely difficult for Us to ascertain the actual
amount of damages. Therefore in the event You violate this provision, You agree to
immediately pay Us 100% of the employee’s total annual salary, as liquidated
damages and We shall have the option to terminate this Agreement without further
notice or liability to You. The amount of liquidated damages reflected herein is not
intended as a penalty and is reasonably calculated based upon the projected costs
We would incur to identify, recruit, hire and train suitable replacements for such
personnel.
31. Software
1. All Software licenses are the responsibility of You and not that of Us. It is the duty of
Yours to store all licenses for all Software used, so that that they can be reproduced
if and when required. This includes all Software installed by Us.
2. You indemnify and hold Us harmless against any claim, allegation, loss, damage or
expense arising directly or indirectly from:
- any unauthorized Software use by You;
- any breach of any Software licence in respect of Software provided to Us by
You to be installed on one of Your computers; - otherwise as a result of Us installing Software at Your where You are not
authorized to use the Software; and - any problem, defect or malfunction associated with any Software (or related
services) supplied by third parties.
3. All copyright in custom software remains the sole property of Ours unless alternate
arrangements are made as part of a separate software agreement.
32. Copyright And Confidentiality
1. Warranty and breach: You warrant that any confidential or copyright information or
intellectual property (of any kind and in any form held) or provided by You to Us
belongs to You. In the event of any breach of this warranty, You will pay all sums
General Terms and Conditions 23
due to Us as If such warranty had not been breached (and regardless of any nonperformance of any obligation by Us on account of or in connection with the breach
of such warranty). You indemnify and hold Us harmless in respect of any
allegations, claims, loss, costs or expenses in connection with such breach of
warranty by You.
2. Retention of title: All copyright and other intellectual property rights in any Work
created, commissioned or acquired by Us in the course of the supply of Services by
Us to You will be the exclusive property of Ours unless otherwise agreed in writing
by Us and You.
3. Confidential Information: We acknowledge that in the course of providing
Services to You, We may learn from You certain non-public personal and otherwise
confidential information relating to You, including Your customers, consumers or
employees. We shall regard any and all information We receive which in any way
relates or pertains to You, including Your customers, consumers or employees as
confidential.
4. You also acknowledge that all information and services, consulting techniques,
proposals, and documents disclosed by Us or which comes to Our attention during
the course of business and provided under this agreement constitute valuable
assets of, and confidential and/or proprietary information to Us.
As such, both parties shall take all commercially reasonable steps to not disclose,
reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in
any form, to any person or entity, or permit any of its employees, agents, or
representatives to do so for any purpose except unless permitted in writing by the
disclosing party or as required by applicable law.
Appendix A
Service Request Lodgment Process
When you contact us to lodge a service request, only the methods below must be used
Preferable in this order:
Web Portal: portal.wacdllc.com
Email: service@wacdllc.com
Phone: 1+ 574.306.4017
Include a short description of the problem and any screenshots of errors to assist in the
resolution of the issue.
If the issue is being lodged by either phone or external email you must include your
name, company and return contact details.
Service requests must not be lodged directly with technicians, as this detracts them
from resolving the current issue
Services Requests Outside Of Our Business Hours
Service Requests that must be addressed outside of business hours must be lodged by phone (charges apply for after hours work). If not, the Service Request will be viewed on Our next Business Day.