Rackley Technologies, LLC.
TERMS AND CONDITIONS INSTALLATION
The Client shall have the exclusive responsibility for preparing and maintaining the site for the equipment including, but not limited to, providing power and environmental requirements as specified by Rackley Technologies, LLC, herein referred to as Rackley and/or contract documents including but not limited to specification sheets and user manuals, wiring, and communication lines. The Client's failure to prepare and maintain the site shall relieve RACKLEY of the obligation for performing installation services. Maintenance shall mean the preventive maintenance performed on the computer hardware and on-call maintenance, with no guaranteed response time, provided during normal business hours, Monday - Friday (excluding National holidays) during the term of this agreement.
1. Preventive maintenance will not extend the warranty of equipment, but is a service intended to extend the life of equipment (hardware).
2. Service Contract/Extended Warranties are intended to extend the warranty. RACKLEY shall be released from its obligations hereunder if the client makes alterations or modifications to the computer hardware, attaching devices to it not supplied by its original supplier, or performs or attempts to perform maintenance services on it or any portion thereof during the term hereof. RACKLEY will provide maintenance services as herein stated however does not guarantee service results or represent or warrant that all errors will be corrected.
WARRANTIES AND REPRESENTATIONS
The Client Warrants and represents that he/it has the authority to enter into this agreement and perform all obligations contained herein. The Client further represents that he/it understands that RACKLEY, in the sale of the system is purchasing that system and all appurtenances thereto from a Separate independent vendor and RACKLEY makes no representations or warranties as to the fitness for any purpose of the items sold to the Client Under the terms of this Contract other than the representations that come with the packaged computer system from the Seller.
RACKLEY makes no warranty of the equipment other than that which is provided in the materials from the manufacturer thereof. The Client understands that if the equipment fails to meet any warranty of any sort, then and in that event the Client shall seek any and all remedies that it may have against the manufacturer and/or vendor of the same and not RACKLEY herein.
EXCEPT TO THE EXTEND EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN LIEU OF ALL OTHER WARRANTIES, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL EQUIPMENT AND SOFTWARE IS PROVIDED ON AN "AS IS " BASIS AND RACKLEY SHALL HAVE NO LIABILITY TO THE CLIENT FOR THE INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS BY THE COMPUTER HARDWARE OR SOFTWARE OR ANY PORTION THEREOF.
LIMITATION OF LIABILITY
IN NO EVENT SHALL RACKLEY BE LIABLE TO THE CLIENT FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF RACKLEY HAS BEEN ADVISED OF THE POSSIBILITIES THEREOF, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. RACKLEY' S LIABILITY TO THE CLIENT HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO RACKLEY HEREUNDER BY THE CLIENT, EXCLUDING SALES TAX. IN NO EVENT SHALL RACKLEY BE LIABLE TO THE CLIENT FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE COMPUTER SYSTEM, HARDWARE OR SOFTWARE, OR THE INSTALLATION OF THE SAME OR IN THE PERFORMANCE OF INSTALLATION SERVICES OR OTHER SERVICES UNDER THIS AGREEMENT. FURTHER, RACKLEY SHALL NOT IN ANY EVENT BE LIABLE TO THE CLIENT FOR FAILURE OF THE CLIENT OR CLIENT' S EMPLOYEES OR AGENTS TO BACKUP THE SYSTEM.
COMPENSATION
The Client shall reimburse the Consultant for expenses incurred by the Consultant in the rendition of the services under this agreement above and beyond the fees as set forth herein above. All Equipment is to be paid for at time of delivery, with no exceptions . All other compensation shall be charged as detailed in attached exhibit "A".
SALE OF HARDWARE
Upon the sale of the hardware contemplated between the parties, and upon payment to RACKLEY of the purchase price as set forth herein, title to the equipment shall vest in the Client. Client understands that the equipment and software is packaged by a separate vendor of the same in accordance with their current packaging specifications for equipment and software and that the Cost of Such packaging and shipping including user manuals will be paid in full by the Client and is not included in the purchase price contained herein. Client understands that RACKLEY, in the sale of equipment and software is selling a product manufactured and distributed by a separate vendor and RACKLEY does not warrant the function of the same for any purpose.
CONFIDENTIALITY
RACKLEY should not disclose or use for the benefit of any person other than the Client any materials or tangible information concerning RACKLEY's services provided under the terms of this contract.
REFUNDS
All software and hardware products to be rendered and delivered hereunder shall be deemed accepted by the Client if not rejected within 15 days of submission to the Client. If the Client rejects the services and/or any item contained herewith, the Client shall provide detailed information for the rejection and RACKLEY shall be given the opportunity to correct such services and/or items and resubmit the same for acceptance. A restocking fee equal to 20% of the price of the rejected product will be charged if a product is rejected within 15 days of submission to client. No refund will be made for any product rejected after the initial 15 day period. No refund will be made for any service provided. No refund for any special order items. Software refunds are determined by the terms of the software company and its software license agreements. The services to be rendered hereunder shall be performed by RACKLEY but such services may be subcontracted or otherwise performed by third parties on behalf of RACKLEY without the prior consent of the Client.
TERM OF THE AGREEMENT
This agreement shall continue from year to year unless terminated or voided in accordance herewith. The agreement shall automatically renew on the anniversary date of this agreement unless terminated in accordance herewith.
The acceptance of the materials and/or services performed by RACKLEY shall be acceptance by the client of the terms of this legally binding agreement.
TERMINATION
This agreement may be terminated/canceled by either party upon the occurrence of the following events and the terminating/canceling party shall have no liability to the other party for the exercise of such right or termination/cancellation:
1. By either party, in the event the other party has breached a covenant, obligation or warranty under this agreement and such breach remains uncured for a period of thirty (30) days after notice thereof as sent to such other parties; or by either party, in the event the other party ceases to conduct business. If either party terminates/cancels pursuant to this paragraph, the Client shall have no further liability to RACKLEY except to pay RACKLEY a pro rata share of the compensation for that portion of the services performed through the date of termination/cancellation.
2 . This agreement may be canceled by RACKLEY if the Client fails to perform any obligation or make any payment as contemplated under the terms of this agreement. In the event of any termination/cancellation of this agreement , RACKLEY may:
(A) declare all monies owed to RACKLEY to be immediately due and payable.
(B) enter the Client's premises and repossess any and all equipment, computer hardware and software and all other items supplied by RACKLEY.
(C) cease performance of all RACKLEY's obligations without liability to the Client.
The foregoing rights and remedies of RACKLEY shall be cumulative and in addition to all other rights and remedies available to RACKLEY in law or equity.
MISCELLANEOUS
1. This agreement is the sole and entire agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, agreements, and documentation relating to the subject matter hereof. This agreement may be amended only in writing executed by authorized representatives of both parties.
2 . Should any portion of this agreement be declared to be invalid for any reason, all other portions of the agreement shall remain in full force and effect.
3. This agreement shall be interpreted in accordance with the substantive law of the State of Tennessee.
4. The Client acknowledges that the equipment, computer system, hardware and software, is complex and may not be error free and the ultimately the vendor of the system shall be responsible therefor and not RACKLEY hereunder.
5. The Client understands the need to:
READ THE TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING THE SEALED PACKAGE CONTAINING BOTH THE EQUIPMENT AND/OR SOFTWARE. BY ACCEPTING THE PACKAGE THE CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH THEREIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, YOU MUST RETURN PROMPTLY THE PACKAGE BACK TO RACKLEY WITHOUT OPENING IT AND UPON DOING SO YOUR PURCHASE PRICE WILL BE REFUNDED.
6. In the event of any problems of any nature with the equipment and/or software, the Client agrees to operate and follow the procedures outlined by the manufacturer of the product as written.
7. RACKLEY SHALL HAVE NO LIABILITY FOR ANY ERRORS, MALFUNCTIONS, DEFECTS, OR LOSS OF DATA RESULTING FROM OR RELATED TO THE USE OF THE EQUIPMENT, HARDWARE OR SOFTWARE OR ANY DOCUMENTATION RELATING THERETO.
8. That all specification sheets and user manuals regarding the hardware and/or software are incorporated and made a part of this agreement by reference.
9. Client is responsible for filling out and sending to the appropriate place all manufacturer' s registration material. Client acknowledges that any manufacturer's warranties which may be available may not be available without completing the above documentation.
10. Sales taxes are client's responsibility, to be added to invoice and are based on the Sales Tax laws of the State of Tennessee.
11. Client agrees to be bound by the terms of all software licensing agreements. RACKLEY Shall in no event be liable to client due to client copying software or using software on systems for which the software was not licensed.
12. Shipping and handling cost for warranty repairs are the client's responsibility.
13. The Client agrees not to contact any employee or contractor of Rackley except through the business contacts of Rackley.
14. The Client agrees to not attempt to hire any employee or contractor of Rackley without the written consent of Rackley.
VENUE
Should a dispute arise between RACKLEY and the Client and no resolution is reached. Any and all legal matters will be heard in the Court system in the County of Giles, in the state of Tennessee.
ATTORNEY'S FEES
Any legal action brought by RACKLEY against the Client for Breach of Contract, failure to pay any and all fees, equipment cost or any other fees shall have any and all attorney's fees, court cost and other associated cost of litigation paid by the Client.
PAYMENTS
Payments for goods or services provided by Rackley Technologies, LLC shall be paid upon delivery unless otherwise noted. Clients with recurring or frequent services may be invoiced monthly or as deemed necessary by Rackley. These payments are due upon receipt of the invoice. Payments not received within thirty (30) days will incur a finance charge equal to the maximum allowable rate by federal government.
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