Terms of Service Agreement
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
The terms and conditions of product and service sales are limited to those contained herein. Any additional or varying terms or conditions in any form delivered by you (“CLIENT”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
By accepting delivery of the products or by engaging Virtually Managed IT Solutions, LLC., identified on the invoice, statement of work, or other VMITS documentation (“CONSULTANT”) to provide product or procure any services, CLIENT agrees to be bound by and accepts these terms and conditions unless CLIENT and CONSULTANT have signed a separate agreement, in which case the separate agreement will govern.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between CLIENT and CONSULTANT and are referred to herein as either, "Terms and Conditions" or this "Agreement". CLIENT accepts these Terms and Conditions by making a purchase from or placing an order with CONSULTANT or otherwise requesting products (the "Products") or engaging CONSULTANT to procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time CLIENT places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by CONSULTANT and CLIENT.
CLIENT consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting CONSULTANT. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
CLIENT may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a "Statement of Work"). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Governing Law
These terms and conditions, any statements of work, the services hereunder and any sale of products hereunder will be governed by the laws of the state of ILLINOIS, without regard to conflicts of laws rules. Any arbitration, enforcement of an arbitration or litigation will be brought exclusively in Kane County, Illinois, and CLIENT consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof and waives the right to change venue. CLIENT further consents to the exercise of the personal jurisdiction by any such court with respect to any such proceedings.
Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided CONSULTANT under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Title; Risk of Loss
If CLIENT provides CONSULTANT with CLIENT’s carrier account number or selects a carrier other than a carrier that regularly ships for CONSULTANT, title to Products and risk of loss or damage during shipment pass from CONSULTANT to CLIENT upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from CONSULTANT to CLIENT upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and CLIENT's rights therein are contained in the license agreement between such licensor(s) and CLIENT.
Services
CLIENTs may order services (collectively, "Services") from or through CONSULTANT from time to time. Certain Services may be provided by third parties, including, but not limited to, extended warranty service by manufacturers, and are sold by CONSULTANT as distributor or sales agent ("Third Party Services").
In the case of Third Party Services, CLIENT shall consider the third party to be the contracting party and the third party shall be the party responsible for providing the services to the CLIENT and CLIENT will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. CLIENT hereby release CONSULTANT from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by CONSULTANT will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. CONSULTANT, or any of its Affiliates on behalf of CONSULTANT, may execute a Statement of Work. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, these Terms and Conditions will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. CONSULTANT will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
Cooperation
In addition to any specific CLIENT duties set forth in any applicable Statement of Work, CLIENT agrees to cooperate with CONSULTANT in connection with performance of the Services by providing: (i) timely responses to CONSULTANT's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by CONSULTANT which are necessary or useful as determined by CONSULTANT in connection with providing the Services, including, but not limited to, physical and computer access to CLIENT's computer systems, and (iii) all Required Consents necessary for CONSULTANT to provide the Services. "Required Consents" means consents or approvals required to give CONSULTANT and subcontractors the right or license to access, use and modify all data and third party products. CLIENT acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by CLIENT and the knowledge and cooperation of the agents, employees or subcontractors ("Personnel") engaged or appointed by CLIENT who are selected by CLIENT to work with CONSULTANT.
CONSULTANT will follow all reasonable CLIENT security rules and procedures, as communicated in writing by CLIENT to CONSULTANT from time to time.
Access
CONSULTANT may perform the Services at CLIENT's place of business, at CONSULTANT's own facilities or such other locations as CONSULTANT and CLIENT deem appropriate. When the Services are performed at CLIENT's premises, CONSULTANT will attempt to perform such Services within CLIENT's normal business hours unless otherwise jointly agreed to by the parties. CLIENT will also provide CONSULTANT access to CLIENT's staff and any other CLIENT resources (and when the Services are provided at another location designated by CLIENT, the staff and resources at such location) that CONSULTANT determines are useful or necessary for CONSULTANT to provide the Services. When the Services are provided on CLIENT's premises or at another location designated by CLIENT, CLIENT agrees to maintain adequate insurance coverage to protect CONSULTANT and CLIENT's premises and to indemnify and hold CONSULTANT and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys' fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of CONSULTANT's gross negligence or willful misconduct.
Payment
Orders are not binding upon CONSULTANT until accepted by CONSULTANT. CLIENT agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by CLIENT), including shipping charges that are billed to CONSULTANT as a result of using CLIENT's carrier account number. Terms of payment are within CONSULTANT's sole discretion. In connection with Services being performed pursuant to a Statement of Work, CLIENT will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, CLIENT will pay for the Services as invoiced by CONSULTANT. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by CONSULTANT. CONSULTANT may issue an invoice to CLIENT. CONSULTANT may invoice CLIENT separately for partial shipments, and CONSULTANT may invoice CLIENT for all of the Services described in a Statement of Work or any portion thereof. CLIENT agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. CLIENT will pay for, and will indemnify and hold CONSULTANT and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work, the Products or the Services. CLIENT must claim any exemption from such taxes, fees or charges at the time of purchase and provide CONSULTANT with the necessary supporting documentation. In the event of a payment default, CLIENT will be responsible for all of CONSULTANT’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, CONSULTANT reserves the right to suspend Services until payment is received. CLIENT hereby grants to CONSULTANT a security interest in the Products to secure payment in full. CLIENT authorizes CONSULTANT to file a financing statement reflecting such security interest. Except as otherwise specified on an applicable Statement of Work, CLIENT will reimburse CONSULTANT for all reasonable out-of-pocket expenses incurred by CONSULTANT in connection with the performance of the Services, including, but not limited to, travel and living expenses.
Export Sales
If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by CONSULTANT in accordance with the Export Administration Regulations. CLIENT agrees that it will not divert, use, export or re-export such items contrary to United States law. CLIENT expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. CLIENT also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported Products may vary or may be null and void for Products exported outside the United States.
Warranties
CLIENT understands that CONSULTANT is not the manufacturer of the Products purchased by CLIENT hereunder and the only warranties offered are those of the manufacturer, not CONSULTANT or its Affiliates. In purchasing the Products, CLIENT is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by CONSULTANT. CONSULTANT and its affiliates hereby expressly disclaim all warranties either express or implied, related to products, including but not limited to, any warranty of title, accuracy, merchantability or fitness for a particular purpose, warranty of non-infringement, or any warranty relating to third party services. The disclaimer contained in this paragraph does not affect the terms of any manufacturer’s warranty. CLIENT expressly waives any claim that it may have against CONSULTANT based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a "Claim") with respect to any Product and also waives any right to indemnification from CONSULTANT or its Affiliates against any such Claim made against CLIENT by a third party. CLIENT acknowledges that no employee of CONSULTANT is authorized to make any representation or warranty on behalf of CONSULTANT that is not in this Agreement.
CONSULTANT makes no warranties to the CLIENT and the CLIENT hereby acknowledges that CONSULTANT makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the manufacture, performance, sale, packaging and labelling of the Products which are in force within the CLIENT’s territory.
CLIENT further acknowledges and agrees that CONSULTANT makes no representations, warranties or assurances that the Products are designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and CLIENT agrees to indemnify CONSULTANT in connection with any such use of the Products. CLIENT further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the Products in high risk environments.
CONSULTANT warrants that the Services will be performed in a good and workmanlike manner. CLIENT's sole and exclusive remedy and CONSULTANT's entire liability with respect to this warranty will be, at the sole option of CONSULTANT, to either (a) use its reasonable commercial efforts to re-perform or cause to be re-performed any Services not in substantial compliance with this warranty or (b) refund amounts paid by CLIENT related to the portion of the Services not in substantial compliance; provided, in each case, CLIENT notifies CONSULTANT in writing within five (5) business days after performance of the applicable Services. Except as set forth herein or in any statement of work that expressly amends CONSULTANT’s warranty, and subject to applicable law, CONSULTANT makes no other and expressly disclaims all other representations, warranties, conditions or covenants, either express or implied, (including without limitation, any express or implied warranties or conditions of fitness for a particular purpose, merchantability, durability, title, accuracy or non-infringement) arising out of or related to the performance or non-performance of the services, including but not limited to any warranty relating to third party services, any warranty with respect to the performance of any hardware or software used in performing services and any warranty concerning the results to be obtained from the services. This disclaimer and exclusion shall apply even if the express warranty and limited remedy set forth herein fails of its essential purpose. CLIENT acknowledges that no representative of CONSULTANT or of its affiliates is authorized to make any representation or warranty on behalf CONSULTANT or any of its affiliates that is not in this agreement or in a statement of work expressly amending CONSULTANT’s warranty.
CLIENT shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. CLIENT shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. CONSULTANT and their suppliers, subcontractors, and agents are hereby released and shall continue to be released from all liability in connection with loss, damage, or corruption of data and software, and CLIENT assumes all risk of loss, damage or corruption of data and software in any way related to or resulting from the services.
CONSULTANT will not be responsible for and no liability shall result to CONSULTANT or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond CONSULTANT’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by CONSULTANT or any purported deadlines contained in a Statement of Work or any other document are estimates only.
Pricing Information; Availability Disclaimer
CONSULTANT reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, CONSULTANT cannot guarantee that it will be able to fulfill CLIENT’s orders. If Services are being performed on a time and materials basis, any estimates provided by CONSULTANT are for planning purposes only.
Credits
Any credit issued by CONSULTANT to CLIENT for any reason must be used within one (1) year from the date that the credit was issued and may only be used for future purchases of Products and/or Services. Any credit or portion thereof not used within the one (1) year period will automatically expire.
Limitation of Liability
Under no circumstances and notwithstanding the failure of essential purpose of any remedy set forth, will CONSULTANT, its affiliates or its or their suppliers, subcontractors or agents be liable for: (A) Any incidental, indirect, special, punitive, or consequential damages including but not limited loss of profits, business, revenues, or savings, even if consultant has been advised of the possibilities of such damages or if such damages are otherwise foreseeable, in each case, whether a claim for any such liability is premised upon breach of contract, warranty, negligence, strict liability or other theory of liability; (B) Any claims, demands or actions against CLIENT by any third party; (C) Any loss or claim arising out of or in connection with CLIENT's implementation of any conclusions or recommendations by CONSULTANT or its affiliates based on or resulting from, arising out of or otherwise related to the products or services; or (D) Any unavailability of the product for use or any lost, damaged or corrupted data or software. In the event of any liability incurred by CONSULTANT or any of its affiliates, the entire liability of CONSULTANT and its affiliates for damages from any cause whatsoever will not exceed the lesser of: (A) The dollar amount paid by CLIENT for the product(s) giving rise to the claim or the specific services giving rise to the claim; or (B) $10,000.00.
Limited License
CLIENT's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for CLIENT's internal use. CLIENT will have no ownership or other property rights thereto and CLIENT shall have no right to use any such Work Product for any other purpose whatsoever. CLIENT acknowledges that CONSULTANTs may incorporate intellectual property created by third parties into the Work Product ("Third Party Intellectual Property"). CLIENT agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party's Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable Statement of Work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Statement of Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement and the applicable Statement of Work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Return Privileges
CONSULTANT allows CLIENT returns based on the policies of the original product manufacturer. Software is not returnable if the packaging has been opened. If software was distributed electronically, it is not returnable if the licenses were downloaded. CLIENTs should contact VMITS Support at 630.620.1100 or e-mail at Support@TrustVMITS.com to initiate a return or for additional information. CLIENT must notify VMITS Support of any damaged Products within fifteen (15) days of receipt.
Termination
Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for CLIENT’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, CLIENT will pay CONSULTANT for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Work. In such event CLIENT will also pay CONSULTANT for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or CONSULTANT's advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF CONSULTANT, CLIENT OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither CONSULTANT nor CLIENT will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, CLIENT will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Chicago, Illinois. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to CONSULTANT arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
Miscellaneous
CONSULTANT may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without CLIENT's consent. CLIENT may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of CONSULTANT. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between CONSULTANT and CLIENT is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
