DISCLOSURE
1. DEFINITIONS AND INTERPRETATION
In these Conditions, the Managed Fee Service Agreement and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by TechBox, Inc. the following words have the following
meanings set forth below:
“After Hours” means from 17:00 – 9:00 hours Monday to Friday and all day Saturday and Sunday, including Public Holidays, the day after
Thanksgiving, Christmas Eve and New Years Eve.
“Business Hours” means 9:00 – 17:00 hours Monday to Friday excluding Public Holidays, the day after Thanksgiving, Christmas Eve and New Years Eve.
“Client” means a person or entity who seeks or obtains a quote for, or who orders, Goods or Services from TechBox, and includes both a person whose name is on the Order or on an email attached to which is an order, a person 5 who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed.
“Conditions” means these terms and conditions.
“Goods” means any goods and/or services sourced by TechBox or provided by TechBox 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.
“GST” means goods and services tax as defined by local, state, and/or federal law.
“Labor” as it relates to pricing, means the hours spent by an employee or agent of TechBox performing an agreed upon service.
“Order” means any order requested by Client to TechBox for Goods or Services in any form, verbal, written, or electronic.
“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between TechBox and the
Client as the period during which some Services will be provided.
“Plan” means any arrangement between TechBox and Client (whether alone or in conjunction with any other person or entity) for Services (including managed support) and/or the provision of Goods and Services provided byTechBox under an arrangement in connection with Work agreed to be done or progressed for or on behalf of Client or any other person at Client’s 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 TechBox, from time-to-time in its absolute discretion
without notice to Client.
“Public Holidays” means any day which is a Federal public holiday.
“Quote” means a quote provided to Client by TechBox, which are services provided by TechBox that are part of, but not limited to, the exclusion list; not contracted for under the Tiers known as Basic, Elite, and Premium.
“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Fee
Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by TechBox and Client or in these Conditions, and includes any monies payable to TechBox on a quantum meruit basis for any work it has done.
“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 TechBox 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 TechBox 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.
“Time and Materials” as it relates to pricing, means payment for the materials and payment for the hours of labor spent by an employee or agent
of TechBox performing an agreed upon service; said hours needed to perform such service are not known prior to the completion of the service.
“Work” means anything TechBox may do, provide, customize, produce or acquire, whether or not in connection with, or for the purposes of, Client or Client’s 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 Plan Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or
Services by TechBox, 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 local, state, or Federal, Statute or Regulation shall include any amendment currently in force at the relevant time and any
enactment 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 United States currency.
A reference to time is to Eastern Standard Time (EST).
A reference to an individual or person includes a corporation, LLC, partnership, joint venture, association, authority, trust, state or government
and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
A recital, schedule, annexure 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 TechBox 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 Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by TechBox to Client.
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. REPRESENTATIONS
3.1 Client acknowledges that no employee or agent of TechBox 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.
4. NOTICES
4.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Client. Any notices given from Client to TechBox shall be sent to TechBox, Inc., 100 East Stevens Street, Suite 310 as well as e-mailed to chris@yourtechbox.com.
5. GOVERNING LAW
5.1 This Agreement shall be governed by the Commonwealth of Virginia’s substantive law and the Commonwealth of Virginia shall have exclusive jurisdiction. The sole venue and proper forum for all such matters shall be in the courts of the Commonwealth of Virginia.
6. ASSIGNMENT
6.1 Client may not assign Client’s rights and obligations under this Agreement without the prior written consent of TechBox. TechBox may assign its interest in this Agreement at the sole discretion of TechBox.
7. VARIATION OF THESE TERMS AND CONDITIONS
7.1 TechBox may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. Client accepts that by doing this, TechBox has provided Client with sufficient notice of the variation. TechBox is under no other obligation to notify Client of any variation to these terms and conditions.
GOODS AND SERVICES
8. QUOTES
8.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to Client to place an Order with TechBox and the acceptance of a Quote by Client will not create a binding contract between Client and TechBox.
8.2 Quote is valid for 7 days only: Expiration dates on quotes are set to be able to inform TechBox when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.
8.3 The price in the final quote may vary from the original request if there is any price or product changes requested by Client. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with Client.
8.4 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If Client later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
8.5 Once the Quote has been confirmed and converted to an Order: the Order will be subjected to our normal Terms and Condition of Sale.
8.6 Though the general minimum turnaround time for Quote request: to be actioned is usually 24 hours, the turnaround time for a Quote is dependent on the size of the project. In the event a quote is required urgently please let TechBox know so that TechBox can respond to it accordingly.
8.7 When a special price or discount offer has been applied to this Quote: no other special promotion, discount or bonus offer will be applicable.
8.8 In the event products in the Quote 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 Quote accordingly. If a product has undergone a price drop or a price increase, the Quote 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 Client’s request and is subject to Client’s final approval.
8.9 Price on non-stocked products: are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While TechBox endeavours to honour every price quoted, if there is a price increase that is beyond Our control, TechBox reserves the right to increase the price as necessary.
8.10 Once a Quote has already passed the expired date: TechBox may cancel the quote or estimate without having to notify or receive an approval from Client.
8.11 ETA information: is based on an estimate given by our vendors and cannot be held as the actual promised date.
8.12 Freight charges: will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
8.13 Generally, TechBox does not keep inventory: and as such only order items once we receive a completed order from a client. If Client would like to return an item or cancel an order, a restocking fee may apply. TechBox 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.
8.14 Prices: are based upon total Quote Purchase.
8.15 Unless Specified, all items on quote: are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
8.16 Varying or withdrawing Quotes: TechBox may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to Client. TechBox may do so for any reason TechBox 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 Quote.
9. ORDERS
9.1 Order forms: Client may place an Order for Goods and/or Services with TechBox. Normally, TechBox will require that Client provide either a completed Order form or Client approve the quote electronically via either an email or a web-based system with the date and Client’s details, including Client’s full legal name or description and any applicable EIN number (including the full name or description of any person on whose behalf the order is placed), Client’s address together with any relevant Quote number and date.
9.2 Approval of Orders: Client will need to sign the Order or have it duly executed on Client’s 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 Client by the person whose name appears as the sender of the email or submitter of the form.
9.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, TechBox 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 favour of TechBox to be:
9.3.1 signed by both the person who signed the Order and on behalf of the person, firm or corporation named as Client in the Order; and
9.3.2 a valid and binding Order of the person, firm or corporation named as Client in the Order for the purchase of the Goods and/or Services referred to in the Order.
9.4 Acceptance of Order: An order has no effect unless or until it is accepted by the Client in writing and until TechBox has received from Client payment in clear funds for the order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
9.5 No Obligation to deliver: TechBox is no obliged to deliver any Order until TechBox receives payment in clear funds from Client for the order, any related freight, delivery and (where applicable) in-transit insurance costs or where TechBox are unwilling or unable to complete the Order for any reason provided it refunds any payment made by Client in respect of the order.
9.6 Credit Checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom TechBox is considering extending credit or payment terms. Client hereby consents to TechBox undertaking a credit reference check in respect to Client.
9.7 Cancellation of Orders: Client will not cancel an order unless we agree to do so in writing in our absolute discretion. Client acknowledges that amongst other things TechBox cannot cancel an order one the manufacturer or supplier has dispatched the relevant goods and thta such dispatch often occurs the same day as the order is placed by TechBox.
9.8 Processes and Procedures: TechBox has processes and procedures that TechBox follows in the course of the provision of TechBox’s services and the supply of goods. Client agrees to co-operate with Techbox and comply with such processes and procedures as advised to Client from time-to-time.
10. PAYMENT, LATE PAYMENT, AND DEFAULT
10.1 Payment due date: All invoices issued to the Client are due and payable to TechBox 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.
10.2 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by the Client to TechBox and will be recoverable from the client, in addition to the original invoice cost. If you default in payment of any invoice on time, moneys which would have become due by Client at a later date shall be immediately due and payable without any further notice to the Client. Collectively, all of thse moneys are referred to in these Conditions as a “Sum Due”.
10.3 Interest: If payment of any Sum Due is not made on time, We will charge a finance charge monthly on the Sum Due in the amount of one and a half percent (1.5%), calculated and charged monthly on and from the due date until the Sum Due is paid in full.
10.4 Application of funds: All payments of the Sum Due made by You to US will be applied as follows:
10.4.1 First in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by TechBodx in relatiohn to any dishonored check fees, collection costs or any action taken by TechBox for the recovery of any amounts owing by Client to TechBox:
10.4.2 secondly, in or towards payment of any interest due or payable hereunder, and
10.4.3 thirdly, in our towards payment of Your debts to TechBox in order from the longest standing due to the most recently incurred.
10.5 Security: We may require Client to provide security over Their property (including the Goods or any other property of Theirs) 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 TechBox to Client.
10.6 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, TechBox may, in our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to the Client.
10.7 Power of Attorney: You hereby irrevocably appoint TechBox as Client attorney to do anything we consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.\
10.8 Other remedies: We may exercise any of TechBox’s rights and remedies including taking legal action against the Client for the recovery of any moneys due to TechBox, notwithstanding it may have exercised other rights under these Conditions.
11. PRICING AND RATES
11.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by TechBox are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by TechBox).
11.2 Plan Schedule: Client must pay for Goods and Services at the Rates set out in any applicable Plan and/or Quote as applicable from time-to-time during the provision of the Goods and/or Services.
11.3 Vary Rates: TechBox reserves the right to vary any Rate and/or Plan Schedule from time-to-time (subject to any fixed pricing for specific periods in any Plan), with reasonable notice provided to Client.
11.4 Return/Cancellation Fee: Where TechBox arranges a return or refund on behalf of Client, or where an Order is canceled by Client after acceptance by TechBox, TechBox may charge Client a Return/Cancellation fee to cover the administration costs to TechBox in processing the return or refund, or in processing the Order, the cancellation and any refund. TechBox may deduct the Return/Cancellation fee from out of any monies otherwise due to be refunded to Client by TechBox.
11.5 Expenses: Client must pay any out of pocket expenses incurred by TechBox in providing the Services to Client in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, TechBox will obtain prior written authorisation from Client before such expenses are incurred.
11.6 Separate charges for Goods and Services: TechBox may in TechBox’s absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
11.7 Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, TechBox 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.
11.8 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 TechBox in connection with the supply of Goods or Services to Client, TechBox may, in TechBox’s absolute discretion, vary any of Our Rates.
12. CONTRACTING
12.1 TechBox may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.
13. DELIVERY, TITLE AND RISK
13.1 Delivery liability: TechBox will use all reasonable endeavours to despatch Goods by the due date, but does not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of TechBox, including, for example, due to failures in supply to TechBox or delays caused by third parties, such as delivery companies or manufacturers.
13.2 Availability to accept delivery: Client must be available to accept the Goods at Client’s nominated delivery address during Business Hours unless otherwise arranged.
13.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Client’s nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to Client. Nothing in this clause 12.3 will affect title to the Goods.
13.4 Obligation to insure: Client will ensure that Goods are adequately insured from the time of delivery under clause 12.3.
13.5 Retention of Title: Until We receive full payment in cleared funds for any monies due to TechBox by Client on any account or for any reason:
13.5.1 Title to, and property in, Goods supplied to Client remain vested in TechBox and does not pass to Client;
13.5.2 Client must hold those Goods as fiduciary bailee and agent for TechBox and must not sell them;
13.5.3 Client must keep those Goods separate from other goods and maintain the Goods and their labeling and packaging intact;
13.5.4 Where Client sells the goods in breach of these Conditions, Client is required to hold the proceeds of any sale of those Goods as trustee for TechBox in a separate account (however any failure to do so will not affect Client’s obligation to deal with the proceeds as trustee and remit them to TechBox);
13.5.5 TechBox may, without prior notice, enter into any premises where TechBox suspects 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 TechBox) and for this purpose, Client hereby irrevocably authorizes and directs TechBox (and TechBox employees and agents) to enter into such premises as its duly authorized agent and Client hereby indemnify and hold harmless TechBox 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.
13.5.6 Client irrevocably appoints TechBox as Client’s attorney to do anything TechBox considers necessary in order to enter such premises and repossess the Goods as contemplated by this clause 12.5.
14. RETURNS AND CLAIMS FOR GOODS AND SERVICES
14.1 General Returns Policy: Notwithstanding anything in these Conditions, Client acknowledges that TechBox supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. Client will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold TechBox harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
14.2 Customized Goods not returnable: Where Goods have some element of customization for Client, are supplied pursuant to an Order for Goods that is in the opinion of TechBox 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 TechBox to the manufacturer or supplier or any related services may not be cancelled, Client may not return the Goods to TechBox or cancel the related services.
14.3 Duty to inspect: Client will inspect all Goods immediately upon their delivery. Within 7 days of such delivery Client may give written notice to TechBox of any matter or thing, by reason of which Client might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, Client will accept the Goods without any such return, refund or claim.
14.4 Return Condition: Where Client are entitled to return Goods under these Conditions, Client 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.
14.5 Return costs: Client will pay all costs and expenses incurred by TechBox 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.
14.6 Consequences of use, installation, customization or sale: Client will indemnify and hold TechBox harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customized or re-sold by Client (without prejudice to the recourse of such a customer to the manufacturer of the Goods).
15. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE
15.1 Service limitations given the science of computing: Client acknowledges that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, Client acknowledges that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem Client is having. TechBox will make what TechBox considers (in TechBox’s absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist Client,
15.2 Client will always indemnify and hold TechBox harmless in the provision of TechBox’s Services to Client.
The Client agrees to, at all times, defend, indemnify and hold the Consultant and its officers, directors, and employees, jointly and severally, harmless from and against any and all claims and suits and associated damages, losses, liabilities, obligations (financial and otherwise), fines, penalties, actual costs and expenses (whether based on tort, breach of contract, product liability, defamation, patent, trademark or copyright infringement, or any other basis), (collectively, „losses‰), arising out of this Agreement.
In seeking indemnification under this Agreement, the indemnified Party shall promptly give written notice to the indemnifying Party when it becomes aware of a threatened or actual claim or suit and upon receipt of such written notice, the indemnifying Party will promptly assume and diligently conduct the entire defense of any suit or action, or the making of any claim as to which indemnity may be sought hereunder, including settlements and appeals, at the indemnifying Party’s sole cost and expense, and the indemnifying Party shall pay and discharge any and all settlement amounts, judgments, or decrees which may be rendered. The indemnified Party will reasonably assist the indemnifying Party (at no expense to the indemnified Party) in the defense and/or settlement of such claim. Without releasing any obligation, liability, or undertaking of the indemnifying Party, the indemnified Party insofar as its interests are affected, may, at its sole election,participate in any actions described hereunder using counsel of its own choosing, and seek reasonable attorneys fees and court costs.
15.3 Reasonable Assistance Limits: TechBox is only obliged to provide what TechBox considers, in TechBox’s absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customization of new software or hardware for Client or any other Work) under any Plan and Client will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of TechBox 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 TechBox has 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 TechBox to Client.
15.4 Recommendations, suitability, functionality and fitness for purpose:
The parties acknowledge that:
15.4.1 TechBox may recommend that Client purchase Goods provided by third parties from time-to-time;
15.4.2 Recommendations may be made in situations where Client have made known to TechBox the purpose for which the Goods will be used or some function sought to be fulfilled;
15.4.3 Client acknowledges 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.
15.4.3.1 the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or
15.4.3.2 the behaviour of third-party supplier, e.g. in relation to support;
15.4.4 Client acknowledges that for a whole number of reasons outside of Our control, the Goods may fail to meet Client’s 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;
15.4.5 Client acknowledges that the Services provided by TechBox may involve the very task of seeking to customize Goods so they may be fit for particular purposes and that customization may be a very substantial project in itself;
15.4.6 Accordingly, Client will accept the sole responsibility for, and indemnify and hold TechBox harmless in respect of:
15.4.6.1 decisions as to whether or not to follow recommendations by TechBox;
15.4.6.2 decisions as to whether or not to purchase or customize Goods or obtain Services for that or any other purpose; and
15.4.6.3 any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Client’s own independent advice or second opinion from a suitably qualified person;
15.4.7 Where TechBox provides Services with a view to achieving Client’s purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), Client 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 TechBox has acted in good faith and have made what TechBox considers, in TechBox’s absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
15.5 Testing Procedures:
Client will follow the instructions of TechBox with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, TechBox will, subject to these Conditions, allocate such resources as TechBox considers reasonable in the circumstances towards their resolution.
16. FORCE MAJEURE
16.1 Force Majeure: If TechBox is unable to supply any Goods or Services due to circumstances beyond TechBox’s reasonable control, TechBox may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to Client, in which case Client will hold TechBox harmless.
16.2 TechBox will not be liable for any breach of contract due to any matter or thing beyond TechBox’s control, including, but not limited to, failures by third parties to supply goods, services or transport, stoppages, transport breakdown, supply chain shortages, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
17. PRODUCT SPECIFICATIONS
17.1 Alterations to Specifications: TechBox makes every effort to supply the Goods in accordance with the Order; however, TechBox 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.
17.2 Substitute Goods: If TechBox cannot supply the Goods ordered by Client, TechBox may supply alternate Goods of equal or superior quality provided; however, that Client will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.
18. WARRANTIES
18.1 Reliance on Manufacturer’s Warranty: Client will rely on the warranties provided by the manufacturer of Goods supplied by TechBox (where applicable) and will deal direct with such manufacturer rather than TechBox for all claims covered by such warranties.
18.2 No claim for manufacturer’s default: Client shall indemnify and hold TechBox harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to Client by TechBox, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or monies due to Client arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.
19. LIABILITY
19.1 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.
19.2 No liability for program or data loss: Client shall indemnify and hold TechBox harmless in respect of any allegation, claim, loss or expense of Client’s or any third party for any program or data loss or damage suffered by Client or that third party arising directly or indirectly from the supply of the Goods or Services by TechBox to Client. Client acknowledges Client are solely responsible for backing up Client programs and data in order to mitigate Client’s own potential loss of programs and data. TechBox provides no guarantees against cyber security threats to include, but not limited to, malicious acts that seek to damage data, damaging data, access to files and/or data, or the disruption of digital life in general.
19.3 Limit on consequential damage: Client shall indemnify and hold TechBox harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill, or any liability to Client or any third party.
19.4 Limit on damage from a failure in supply: Client shall indemnify and hold TechBox harmless for any allegation or claim for loss or damage by Client or a third party where We have failed to meet any delivery date or cancels or suspends the supply of Goods or Services.
19.5 General Limit on Liability: Except as otherwise expressly stated in these terms and conditions, Techbox is not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of TechBox) which is suffered or incurred by Client in connection with:
19.5.1 Goods or Services provided to Client or any Work;
19.5.2 these Terms and Conditions;
19.5.3 Client’s use of TechBox’s website (including the use of a credit card or other debit device) or any linked website;
19.5.4 the non-availability of Goods or Our Services for any reason;
19.5.5 any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by Client, or
19.5.6 for any other reason whatsoever.
19.6 Limitation options:
To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, clause 18.5 does not apply to that liability and TechBox’s liability for any breach of that condition or warranty is limited to TechBox’s doing any one or more of the following (at its election):
19.6.1 replacing the Goods or supplying equivalent Goods, Services or Work;
19.6.2 repairing the Goods or the Work;
19.6.3 paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or
19.6.4 paying the cost of having the Goods or the Work repaired.
19.7 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.
20. ERRORS AND OMISSIONS
20.1 TechBox makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, TechBox may rescind the affected contract by written notice to Client, notwithstanding that TechBox has already accepted Client’s Order and/or received payment from Client. TechBox’s liability in that event will be limited to the return of any money Client have paid in respect of the Order.
OUR RESPONSIBILITIES
21. PRIVACY STATEMENTS AND CLIENT RIGHTS
21.1 TechBox is collecting Client’s company information for the fulfilment of Quotes, Orders and the provision of Goods or Services to Client and it may retain and TechBox it for any such purposes (Authorised Purposes).
21.2 Client is required to provide Client’s company information to TechBox for Authorized Purposes.
21.3 TechBox may disclose Client’s company information to other persons or entities for the purposes of the fulfilment of Quotes, Orders and Work for Client or in order to provide Goods or Services to Client, to verify the information Client provide, for enquiries about Goods or Services that may be suitable for Client’s purposes, or to confirm Client’s requirements, to anyone proposing to supply Goods or Services to Client, or to acquire Goods or Services on Client’s behalf, or in respect of enquiries relating to any of the foregoing.
21.4 Otherwise, TechBox will not disclose Client’s company information without Client’s consent unless authorised by law.
21.5 Client’s company information will be held by TechBox at TechBox’s Principal Place of Business and Client can contact TechBox to request to access or correct it.
21.6 TechBox relies on Client to submit correct information and details where requested. Client accepts that Client may incur additional expenses if Client submits incorrect information.
22. TECHBOX WEBSITE
22.1 With the exception of the agreements and terms and conditions being referenced and accepted within this Agreement, TechBox makes no representations or warranties in relation to information available on TechBox’s website, including without limitation:
22.1.1 that the information on TechBox’s website is complete or correct;
22.1.2 that TechBox’s website will be continually 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 TechBox’s website or any third party products or services referred to on TechBox’s website.
23. INSURANCE COVERAGE
23.1 We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of not less than $2,000,000. At Client’s request TechBox will provide Client 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 Client.
CLIENT RESPONSIBILITIES
24. LODGING OF SERVICE REQUESTS
24.1 In order for TechBox to provide Client with the agreed Service, Client agrees to follow TechBox’s process for lodging of Service Requests as outlined in Appendix A.
25. ACCESS TO SYSTEMS, SITES AND PEOPLE
25.1 In order to provide Client with the agreed Service, Client agrees to give TechBox access to various items of Client’s including but not limited to, equipment, people and sites as and when required.
25.2 Client agrees to allow TechBox to install software on Client’s Equipment that allows TechBox’s technicians to access Client’s systems at any time. This software allows TechBox to view system statuses, send monitoring information, see user’s desktops and control Client’s PC’s. This may require that devices are left on overnight or weekends.
26. OFF-SITE AND IN-HOME SERVICES
26.1 In the event Client maintains hardware or software off-site from Client’s primary place of doing business, including in an employee’s residence, Client shall provide a safe environment in which TechBox’s technicians may perform to the terms of this contract. Client shall make sure that utilities are on and that TechBox has safe and easy access to the respective site. In the event TechBox’s technicians, in the sole discretion of the technicians, are unable to access the premises, determine insufficient utility support, or fear for their safety, TechBox’s technicians may vacate the premises and Client agrees to pay TechBox as if the services had been rendered.
26.2 In the event that TechBox’s technicians perform services off-site from Client’s primary place of doing business, including an employee’s residence, TechBox, in TechBox’s sole discretion, may send two technicians even though the job may only require one technician, and Client agrees to pay for the services of two technicians.
26.3 In the event TechBox receives a request from an employee of Client to provide services off-site from Client’s primary place of doing business, including in an employee’s residence, TechBox may rely on such request as if it has been approved by the Client, and Client shall pay TechBox for the services rendered. Client agrees that it is not TechBox’s responsibility to verify the legitimacy of such a request.
27. THIRD PARTY AUTHORIZATIONS
27.1 At times TechBox may need to contact Client’s third party providers on Client’s behalf, such as Client’s internet provider. Some of these providers may require Client’s authorization for TechBox to support on Client’s behalf. It is Client’s responsibility to ensure that TechBox is able to deal freely with these providers.
28. NON-SOLICITATION OF CLIENTS AND EMPLOYEES
28.1 Client agrees 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 Client during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).
28.2 Client agrees that Our damages resulting from breach of this clause 27.1 would be impracticable and that it would be extremely difficult for TechBox to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client agrees to immediately pay TechBox 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 Client. 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.
29. SOFTWARE
29.1 Except for licensing provisions set forth under the Tiered Plan, all Software licenses are the responsibility of Client and not that of TechBox. With the exception of the licensing TechBox provides under the Tiered Plan, it is the duty of Client to store all licences for all Software so that they can be reproduced if and when required. This includes all Software installed by TechBox.
29.2 Client indemnifies and holds TechBox harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
29.2.1 any unauthorized Software use by Client;
29.2.2 any breach of any Software licence in respect of Software provided to TechBox by Client to be installed on one of Client’s computers;
29.2.3 otherwise as a result of TechBox installing Software at Client’s where Client is not authorized to use the Software; and
29.2.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
29.3 All copyright in custom software remains the sole property of TechBox unless alternate arrangements are made as part of a separate software agreement.
30. COPYRIGHT AND CONFIDENTIALITY
30.1 Warranty and breach: Client warrants that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by Client to TechBox belongs to Client. In the event of any breach of this warranty, Client will pay all sums due to TechBox as If such warranty had not been breached (and regardless of any non-performance of any obligation by TechBox on account of or in connection with the breach of such warranty). Client indemnify and hold TechBox harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by Client.
30.2 Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by TechBox in the course of the supply of Services by TechBox to Client will be the exclusive property of TechBox unless otherwise agreed in writing by TechBox and Client.
30.3 Confidential Information: We acknowledge that in the course of providing Services to Client, TechBox may learn from Client certain non-public personal and otherwise confidential information relating to Client, including Client’s customers, consumers or employees. TechBox shall regard any and all information TechBox receives which in any way relates or pertains to Client, including Client’s customers, consumers or employees as confidential.
30.4 Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by TechBox or which comes to TechBox’s attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to TechBox. 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.
31. SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable is ineffective as to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
32. DRUG FREE WORKPLACE
Drug Free Workplace Certification. Consultant agrees to comply with the provisions of the Code of Virginia §2.2-4312 regarding maintenance of a Drug-Free Workplace. Consultant agrees to notify its employees that they are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession or use of controlled substances.
33. CONFLICT
In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of such attachments shall govern.
34. NON-DISCRIMINATION POLICY
The Consultant does not discriminate on the basis of race, color, religion, national origin, political affiliation, disability, veteran status, sex, age, or sexual orientation in the conducting of its business practices and services provided.
35. JOINT WORK PRODUCT
This Agreement shall be deemed the joint work product of the parties to this Agreement without regard to the identity of the draftsperson and any rule of construction that a document shall be construed against the drafter shall not be applicable.
36. FORMATTING AND REFERENCING
In this Agreement, unless the contrary appears:
– The singular includes the plural and vice versa.
– A reference to a person includes a body corporate or partnership and includes that person’s successors, administrators, executors and assigns.
– A reference to a law includes any amendment to it or replacement of it.
– Headings are inserted for convenience only and do not affect the interpretation of this Agreement.
37. COMPLETE AGREEMENT
This Agreement, and the attachments referenced under section titled Contractual Terms, contain the entire Agreement between the parties hereto with respect to the matters covered herein. No other Agreements, representations, warranties, or other matters, oral or written, purportedly agreed to or represented by or on behalf of TechBox by any of its employees or agents, or contained in any sales material or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Client acknowledges that it is entering into this Agreement solely on the basis of the representation contained herein.
BY SIGNING BELOW, the individuals acknowledge that they have the authority to sign on behalf of the respective entities.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
APPENDIX A
SERVICE REQUEST LODGEMENT PROCESS
When Client contacts TechBox to lodge a service request, only the methods below must be used:
- ITSupportPanel Application (only available in Tiered Plans)
- Phone: (540) 409-5854
- Email: ticket@yourtechbox.com
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, Client must include Client’s name, company, and return contact details.
Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.
SERVICE REQUESTS OUTSIDE OF TECHBOX’S BUSINESS HOURS
Service Requests that must be addressed outside of business hours must be lodged by phone dialing (540) 409-5854 EXT 5 (charges apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.