General Terms and Conditions

GENERAL

1. Definitions and Interpretation

In these General Terms and Conditions, the following words (whether capitalized or not in these have the following meanings:

“After Hours” means from 5:00 PM – 8:00 AM Monday to Friday and all-day Saturday and Sunday, including Public Holidays;

“Business Hours” means Monday to Friday from 8:00 AM to 5:00 PM excluding Public Holidays;

“Client”, “You” or “Your” means a person who seeks or obtains a Quote 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, executors, administrators, successors and permitted assigns;

“Conditions” means these General Terms and Conditions and will hereinafter be referred to as “the Conditions” or “these Conditions”;

“Damages” shall include actual, multiple, exemplary, indirect, incidental, special, exemplary, consequential or punitive damages or loss, taxes, tax consequences, fines, penalties, interest, attorney’s fees, expenses and costs.

“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;

“Intellectual Property Rights” or “Intellectual Property” means all intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the applicable laws of any jurisdiction in any part of the world.

“Order” means any order requested by You to Us for Goods or Services in any form, subject to the terms of Clause 11.4 of these Conditions;

“Quote” means a quote provided to You by Us;

“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;

“Public Holidays” means any day which is a public holiday throughout Ohio other than a bank holiday.

“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, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit 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 12.4 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 Advanced Technology Partners, LLC (Tax Number 83-1541359) and its, successors and assigns; and

“Work” means anything We may do, provide, customise, 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 Quote, Order, Contract 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, Statute or Regulation shall include any amendment currently in force at the relevant time and any, 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 US Dollars.

A reference to time is to Eastern Time.

A reference to an individual or person includes a natural person, corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

A reference to a recital, clause, schedule, appendix, or exhibit is to a recital, clause, schedule, appendix or exhibit of or to these Conditions;

A recital, schedule, supplement, appendix, or description of the parties forms part of these Conditions;

A reference to any agreement or document is to that agreement or document with any and all exhibits, appendix and schedules (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.

Additional words or phrases are hereinafter defined as provided below in these Conditions.

2. Applications of These Conditions

Unless otherwise agreed by Us in writing, through an authorized representative, the contract between Client and Us (“Contract”) in connection with the supply of Goods and/or Services by Us to Client consists of the Order (accepted as provided by Clause 11.4 of these Conditions), these Conditions, the Quote to which the Order responds (as may be modified by the Order) and the exhibits, appendices or schedules to the foregoing, if any, and any drawings, specifications, manuals and other documents referenced in the any of the foregoing. Any and all Quotes, Orders and any subsequent or modified Quotes and Orders automatically incorporate all of these Conditions. These Conditions govern this transaction and take precedence over any other terms and conditions contained in Your Order or other documents provided by You which are in addition to or different from these Conditions, unless otherwise expressly agreed in writing, executed by Client and Us, through Our authorized representative. Quotes, Orders, Contracts and any subsequent or modified Orders and Contacts shall not be binding on Us absent an express written assent by Us, signed by an authorized representative. Any terms and conditions set forth on Your Order or other documents provided by You which are in addition to or different from these Conditions are objected to and rejected by Us and shall be of no force or effect.

3. Commitment Term

3.1 The minimum term that You acquire the service for is outlined in Our Quote to You, beginning from the first of the next month after the date of signing or approving the Quote.

3.2 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 as specified in Clause 4 hereof.

4. Termination

4.1 This Agreement may be terminated by You upon thirty (30) days written notice if We:

4.1.1 Fail to fulfil in any material respect Our obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of a written notice to cure.

4.1.2 Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of a written notice to cure.

4.1.3 Terminate or suspend Our business operations, unless it is succeeded by a successor or assignee under this Agreement.

4.2 This Agreement may be terminated by you upon ninety (90) days written notice to Us without cause.

4.2.1 If an agreement is terminated, without cause, prior to its defined term, the amount remaining on the full term of the agreement will be owed upon termination. If the term of an agreement is not defined, the only amount owed will be work performed until agreement is fully terminated.

4.3 This Agreement may be terminated by Us upon ninety (90) days written notice to you.

4.4 If either party terminates this Agreement in accordance with this paragraph 4, 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.

5. Representations

5.1 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

6.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of the recipient for the applicable party.

7. Governing Law

7.1 These Conditions shall be governed by and construed in accordance with the internal laws of the State of Ohio without regard to its choice of law principles. You submit to the exclusive jurisdiction of the State and Federal courts of Mahoning County, Ohio, and agree that venue and personal jurisdiction shall lie in those courts, regardless of where these Conditions, any Contract, Quote, Order or any other document is signed or issued, the parties are domiciled, any breach occurs or performance is due.

8. Assignment

8.1 You may not assign Your rights and obligations, in whole or in part, under this Agreement without the prior written consent of Us, through Our authorized representative which We may withhold in Our discretion. We may assign Our rights and obligations, in whole or in part, in Our absolute discretion.

9. Variation of These Conditions

9.1 We may at any time vary these Conditions by communicating the varied Terms and Conditions to you via the last notified e-mail address of Yours within 24 hours. 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. Quotes

10.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

10.2 Quote is valid for 7 days only. Expiration dates on Quotes are set to be able to inform Us when the Quote is still active or to be discarded. Once discarded the Quote will need to be requested again.

10.3 Once a Quote has been confirmed by Us, then the prices in the Quote will be confirmed as the final agreed price. A Quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.

10.4 The price in the final Quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the Quote, as long as the Quote has not been confirmed with You.

10.5 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 You later require any changes to the Quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.

10.6 Once the Quote has been confirmed and converted to an Order, accepted by Us the Order will be subjected to these Conditions as provided above in paragraph 2 of these Conditions.

10.7 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a Quote is required urgently please let Us know so that we can respond to it accordingly.

10.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

10.9 In the event that 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 Your request and is subject to Your final approval.

10.10 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 We endeavour to honor every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.

10.11 Once a Quote has already passed the expired date, We may cancel the Quote or estimate in Our absolute discretion without having to give you prior notice or receive an approval from You.

10.12 The estimated time of delivery of any Goods and/or Services by Us is based on an estimate given by our vendors and cannot be held as the actual promised date.

10.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

10.14 We do not keep inventory and as such only Order items once we receive a completed order from a client. If You would like to return an item or cancel an Order, a restocking fee may apply. 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.

10.15 Prices are based upon total Quote Purchase.

10.16 Unless Specified, all items on Quote are covered by manufacturer’s warranty covering parts and labor for hardware only on a return to depot basis.

10.17 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider appropriate, 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.

11. Orders

11.1 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 quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable ABN or ACN number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date.

11.2 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.

11.3 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:

11.3.1 signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and

11.3.2 duly authorised by the person on whose behalf the Order is placed or apparently placed.

11.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have also accepted the Order through Our authorized representative and received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.

11.5 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 consent to Us undertaking a credit reference check in respect to You.

11.6 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 despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.

11.7 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

12.1 Rates exclude Tax: All rates and amounts charged or quoted 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).

12.2 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.

12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in Our absolute discretion and without prior notice to You.

12.4 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 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.

12.5 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. 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, We will obtain prior written authorisation from You before such expenses are incurred.

12.6 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.

12.7 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.

12.8 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 Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates without Your consent and without prior notice to You.

12.9 Pre-Paid Blocks of Service: Where You agree to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between Us and You in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:

12.9.1 are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and

12.9.2 are only provided by Us during the applicable Period. Where Services are provided for a specified Period:

12.9.2.1 the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and

12.9.2.2 We are not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services.

13. Services and Plans

13.1 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 prior notice to You, from time to time in Our absolute discretion.

13.2 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

14.1 We may subcontract any or all of the Services to be performed but shall retain prime responsibility for the Services under these Conditions.

15. Delivery, Title and Risk

15.1 Delivery liability: We will use all reasonable endeavours 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.

15.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

15.3 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 15.3 will affect title to the Goods.

15.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 15.3. In addition, We have the right, but not duty, to insure the Goods in our absolute discretion for Our benefit after delivery and until title passes under clause 15.5.

15.5 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:

15.5.1 title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;

15.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;

15.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;

15.5.4 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);

16. Returns and Claims for Goods and Services

16.1 General Returns Policy: Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these return and clam polices 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.

16.2 Customised Goods not returnable: Where Goods have some element of customisation 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 cancelled, You may not return the Goods to Us or cancel the related services.

16.3 Duty to inspect: You will inspect all Goods and Services immediately upon their delivery. Within 7 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 irrevocably accept the Goods and Services without any such return, refund or claim.

16.4 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.

16.5 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.

16.6 Consequences of use, installation, customisation or sale: We are not liable for, and You shall indemnify and hold Us harmless from and against any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of Yours or any other person arsing directly or indirectly from or in respect of Goods and Services once such Goods have been used, installed, customised 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

17.1 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 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 endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, We are not liable for and You shall always indemnify and hold Us harmless from and against any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of Yours or any other person arsing directly or indirectly from or in the provision of our Services to You.

17.2 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 customisation 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.

17.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:

17.3.1 We may recommend that You purchase Goods provided by third parties from time to time;

17.3.2 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;

17.3.3 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.

17.3.3.1 the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or

17.3.3.2 the behaviour of third-party supplier, e.g. in relation to support;

17.3.4 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;

17.3.5 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 customisation may be a very substantial project in itself;

17.3.6 Accordingly You shall accept the sole responsibility for, and indemnify and hold Us harmless from and against any and in respect of all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of Yours or any other person arising directly or indirectly from or in respect of:

17.3.6.1 decisions as to whether or not to follow recommendations by Us;

17.3.6.2 decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and

17.3.6.3 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;

17.3.7 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.

17.4 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

18.1 Force Majeure: If We are unable to supply any Goods or Services due to any circumstance or thing beyond Our reasonable 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. 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.

18.2 We will not be liable for any breach of contract due to any circumstance 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

19.1 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.

19.2 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

20.1 Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal directly with such manufacturer rather than Us for all claims covered by such warranties.

20.2 No claim for manufacturer’s default: We are not liable for and You shall indemnify and hold Us harmless from and against any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of Yours or any other person directly or indirectly from or 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 moneys 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

21.1 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, MERCHANTABILITY, CONDITION, DESCRIIPTION, ASSESMBLY, MANUFACTURE, DESIGN OR PERFORMANCE OF THE GOODS OR SERVICES, WHETHER EXPRESSED, IMPLIED OR BY STATUTE, COMMON LAW, TRADE USAGE, CUSTOM OR OTHERWISE IS HEREBY EXCLUDED AND DISCLAIMED. Without any recourse or liability whatsoever to Us, We will assign and transfer to You any assignable or transferrable manufacturers’ and suppliers’ warranties, if any, applicable to the Goods.

21.2 No liability for program or data loss: We are not liable for and You shall indemnify and hold Us harmless in respect of any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of Yours or any other person for any program or data loss or damage suffered by You or any other person arising directly or indirectly from or in respect of 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.

21.3 Limit on damage from a failure in supply: We are not liable for and You shall indemnify and hold Us harmless for any any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever of You or any other person arsing directly or indirectly from or in respect of Our failure to meet any delivery date or Our cancellation of suspension of the supply of Goods or Services under these Conditions.

21.4 General limit on liability: Except as otherwise expressly stated in these Conditions, We are not liable for any damages of any kind however caused (including, but not limited to, by the negligence of Us) which is suffered or incurred by You or any other person in connection with:

21.4.1 Goods or Services provided to You or any Work;

21.4.2 these Conditions;

21.4.3 Your use of Our website (including the use of a credit card or other debit device) or any linked website;

21.4.4 the non-availability of Goods or Our Services for any reason;

21.4.5 any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You, or

21.4.6 for any other reason whatsoever.

21.5 Limitation options: To the extent that any applicable statute, ordinance, regulation, common law, court order or other applicable law of any type whatsoever (“Laws”) provides that any exclusion or limitation of a condition or warranty cannot be excluded or limited as provided in these Conditions, and/or prohibits the exclusion or limitation of damages as provided in these Conditions, then in that event, Our liability, if any, and damages, if any, shall be limited to Our doing any one or more of the following (at Our election):

21.5.1 replacing the Goods or supplying equivalent Goods, Services or Work;

21.5.2 repairing the Goods or the Work;

21.5.3 paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or

21.5.4 paying the cost of having the Goods or the Work repaired.

21.6 No right of set-off or recoupment. You shall have any right of set-off, counter-claim, or recoupment in respect of any debt or other obligation to Us or the payment and performance thereof,

21.7 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 Laws applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

21.8 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

22.1 We make every effort to ensure that all prices and descriptions quoted in any Quote are correct and accurate. In the case of an error or omission, We may rescind the affected Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You. Order 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. All typographical and clerical errors in these Conditions are subject to correction without consent of both parties at any time.

OUR RESPONSIBILITIES

23. Privacy Statements and Your Rights

23.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes (“Authorised Purposes”).

23.2 You are required to provide your personal information to Us for Authorised Purposes.

23.3 We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, for enquiries 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 enquiries relating to any of the foregoing.

23.4 Otherwise We will not disclose Your personal information without Your consent unless authorised by law.

23.5 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.

23.6 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

24.1 We make no representations or warranties in relation to information available on Our website, including without limitation:

24.1.1 that the information on Our website is complete or correct;

24.1.2 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

25.1 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. You will procure and maintain at your own expense the requisite insurance coverage for your own benefit and as required by clause 15.4

YOUR ADDITIONAL RESPONSIBILITIES

26. Lodging of Service Requests

26.1 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 Systems, Sites and People

27.1 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.

27.2 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 Authorisations

28.1 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 authorisation 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, Late Payment and Default

29.1 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 Conditions and in the way set out in the Invoice.

29.2 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.

29.3 Recoveries: All legal and other costs and expenses (including reasonable attorney fees) incurred in connection with the recovery of late payments or the exercise of any other right or remedy 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 moneys are referred to in these Conditions as a “Sum Due”.

29.4 Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.

29.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:

29.5.1 first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;

29.5.2 secondly, in or towards payment of any interest due or payable hereunder, and

29.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

29.6 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.

29.7 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.

29.8 Other remedies: We may exercise any of Our rights and remedies at law and in equity 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. All of Our rights and remedies are cumulative and may be exercised concurrently or separately and the exercise of any one right or remedy shall not be deemed to be an election of such right or remedy or to preclude the exercise of any other right or remedy. No failure on Our part to exercise, and no delay in exercising, any right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by Us of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

30. Non-Solicitation of Clients and Employees

30.1 You agree that employees are one of Our most valuable assets, policy and professional ethics require that you do not solicit, hire or otherwise engage our employees.

30.2 You agree that during all times when We are providing You any Goods and/or Services and for a period of two (2) years after the last time Goods and/or Services are provided by Us to You, You shall not hire or otherwise engage, directly or indirectly, as an employee, independent contractor, consultant, or in any other capacity any person who is then an employee of Ours or who was an employee at any time during the previous one (1) year time frame.

30.3 You agree that Our damages resulting from breach of this clause 2 are not easily quantifiable at this time and would be extremely difficult for Us to prove and 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

31.1 All Software licences are the responsibility of You and not that of Us. It is the duty of Yours to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by Us.

31.2 You indemnify and hold Us harmless against any any and all claims, allegations, demands, damages, liabilities, actions, administrative proceedings, arbitral matters, causes of action and suits at law or in equity of any kind or nature whatsoever arising directly or indirectly from:

31.2.1 any unauthorised Software use by You;

31.2.2 any breach of any Software licence in respect of Software provided to Us by You to be installed on one of Your computers;

31.2.3 otherwise as a result of Us installing Software at Your where You are not authorised to use the Software; and

31.2.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.

31.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

32. Intellectual Property and Confidentiality

32.1 Ownership: Each of the Parties acknowledges and agrees that each Party retains exclusive ownership of its Intellectual Property Rights. We and You each hereby acknowledges and agrees that it does not have, and shall not acquire, any interest in the other party’s Intellectual Property Rights unless otherwise expressly agreed to in a writing executed by both Client and Us through Our authorized representative. Notwithstanding the foregoing, each Party hereby grants to the other Party the limited right and limited license in and to each Party’s Intellectual Property solely to the extent necessary to the manufacture and supply of the Goods and Services in accordance with the Contract between Client and Us

32.2 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 due to Us as If such warranty had not been breached (and regardless of any non-performance 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.

32.3 Retention of title: All Intellectual Property Rights in any Work created, commissioned or acquired by Us in the course of the supply of Goods and/or Services by Us to You will be the exclusive property of Ours unless otherwise agreed in writing by Us and You.

32.4 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.

32.5 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 providing Service and/or Goods or otherwise in the course of business and provided under Our transaction with You constitute valuable assets of, and confidential and/or proprietary information to Us.

32.6 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 confidential 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.

32.7 Notwithstanding the foregoing, the following shall not be confidential information:

32.7.1 Information that is or hereafter becomes generally available to the public other than by reason of any default with respect to confidentiality under these Conditions.

32.7.2 Information that hereafter is disclosed to the receiving Party by a third party who is not in default of any confidentiality obligation to the disclosing Party (and such disclosure can be properly demonstrated by the receiving party), or

32.7.3 Information that was previously or is hereafter developed by or on behalf of the receiving Party, without reliance on confidential information acquired prior to the date hereof (and such can be properly demonstrated by the receiving party).

APPENDIX A

Service Request Lodgement Process

When you contact us to lodge a service request only the methods below must be used:

Phone: (330) 259-8399
Email: [email protected]
Web Portal: http://help.advanced-tech.net

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.

Service 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.