Terms & Conditions
Last Updated on November 16, 2016
1. Parties. “Service Provider” will mean Concise Computer Consulting II, Inc., a Michigan Corporation. “Customer” will mean the entity or person purchasing Services and/or Materials (as defined below) from Service Provider.
2. Application. These Terms and Conditions of Service define the relationship of Customer and Service Provider and will apply to all purchases by Customer of services (“Services”) and any equipment or materials required for Services (collectively, “Materials”). Customer acknowledges and agrees that these Terms and Conditions of Service are incorporated in, and are a part of, each quotation, purchase order, service order, invoice, release, requisition, work order, shipping instruction, specification and any other document, whether expressed verbally, in written form or electronic commerce, relating to the Services and Materials to be provided by Service Provider (such documents are collectively referred to as the “Agreement”).
3. Quotation Expiration. Written quotations are valid for a period of thirty (30) days unless otherwise noted by Service Provider. Service Provider will have the right to withdraw any quote which has not been accepted by Customer within the thirty (30) day time period.
4. Pricing; Taxes. Prices for Services and Materials and other related information shown in any Service Provider publication including, but not limited to, marketing materials and websites are subject to change without notice. Prices quoted do not include (and Customer will pay) all taxes or fees of any kind which may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Services and Materials.
5. Terms of Payment. Unless otherwise specifically agreed in writing between Service Provider and Customer, the total price due to Service Provider shall be payable C.O.D., without setoff or other deductions or charges.
Any amounts due by Customer to Service Provider which are not paid as provided above will bear interest at a rate determined by Service Provider, which shall not exceed the maximum rate permitted by law. The accrual of payment of any interest as provided above will not constitute a waiver by Service Provider of any rights and remedies in connection with a default by Customer. Customer will pay all court costs, attorneys’ fees, and other costs incurred by Service Provider in collecting past due amounts, including interest.
If performance of the Services or shipment or delivery of the Materials is delayed by or at the request of Customer, payment will remain due in full thirty (30) days from the date of Service Provider’s invoice. In such event, Service Provider may impose, and Customer agrees to pay, storage charges and other incidental expenses incurred by Service Provider as a result of the delay, in addition to any interest on late payments as described above.
6. Security Interest. As security for payment of all accounts due to Service Provider, Customer grants to Service Provider a security interest in all Materials sold by Service Provider to Customer, and Service Provider will have all rights of a secured party under the Uniform Commercial Code with respect to such Materials. Customer agrees and appoints Service Provider as its attorney-in-fact to do, at Service Provider’s option, all acts and things Service Provider may require to perfect the above security interest in any one or more jurisdictions, and Customer agrees to pay all applicable filing fees.
7. Disclaimer of Warranties. To the extent assignable, Service Provider assigns to Customer any warranties that are made by manufacturers and suppliers of Materials. OTHERWISE, MATERIALS FURNISHED HEREUNDER ARE FURNISHED AS-IS, WHERE-IS, WITH NO WARRANTY WHATSOEVER. SERVICE PROVIDER FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SERVICE PROVIDER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE.
8. Limitation of Liability. SERVICE PROVIDER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF CUSTOMER SET FORTH IN THE AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SERVICE PROVIDER’S LIABILITY TO CUSTOMER EXCEED THE PRICE PAID BY CUSTOMER FOR THE SPECIFIC SERVICES OR MATERIALS PROVIDED BY SERVICE PROVIDER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE OR RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY EXPENSE OCCASIONED BY THE USE OF DEFECTIVE MATERIALS.
It is expressly understood that any technical advice furnished by Service Provider with respect to the Services or the use of the Materials is given without charge, and Service Provider assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Customer’s risk.
9. Delivery. Any delivery dates or other schedule of performance by Service Provider are approximations, and the sole obligation of Service Provider with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Materials or perform the Services, consistent with the reasonable demands of its business. In any event, Service Provider will have no liability to Customer or any other person for delays in performance due to strikes or labor disputes of any type, accidents, fire, floods, acts of God, or actions by governmental authorities, acts, omissions, or delays of Customer or any other third party, shortages of labor, or without limitation of the above, for any causes reasonably beyond the control of Service Provider.
10. Title and Risk of Loss. Title to and risk of loss or damage to the Materials will pass to Customer upon delivery by Service Provider F.O.B. (a) Service Provider’s facility, (b) Service Provider’s supplier’s facility when Materials are shipped directly from the manufacturer, or (c) as otherwise indicated per the Agreement.
11. Inspection and Acceptance. Customer shall have three (3) business days from the date of completion of each portion of the Services to inspect the Services, and in the event of any non-conformity, Customer must give written notice to Services Provider within said period stating why the Services are non-conforming. Failure by Customer to give such notice constitutes unqualified acceptance of the Services.
12. Cancellation or Termination. In the event of cancellation of the Agreement by Customer, or in the event of default under the Agreement by Customer which is not cured within thirty (30) days after notice by Service Provider, Customer will pay to Service Provider on demand all direct and indirect costs (including without limitation all applicable restocking or cancellation charges including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Service Provider in connection with the Agreement, all as reasonably determined by Service Provider, plus any profit to be negotiated with Customer. In no event, however, will any amount payable by Customer under the Agreement exceed the total price payable by Customer for the Services and/or Materials.
(a) Service Provider Changes. Service Provider reserves the right from time to time to correct any typographical or clerical errors, including errors in mathematical computation, which may exist on the Agreement.
(b) Customer Changes. Customer may request changes or additions to the Services. In the event such changes or additions are accepted by Service Provider, Service Provider may revise the price and performance dates.
14. Billable Services. Additional charges will be billed to Customer at Service Provider’s then prevailing labor rates and Materials prices for any of the following: a) any Services not specified in Service Provider’s quotation, Service Provider’s order acknowledgement, or other documents referenced herein and therein; b) any Services performed at times other than Service Provider’s normal service hours; c) if reasonable site and/or equipment access is denied the Service Provider’s service representative; d) if Service or repair is necessary to return equipment to proper operating condition as a result of something other than Service Provider (i) maintenance, repair or modification (including, without limitation, changes in specifications or incorporation of attachments or other features), (ii) misuse or neglect, (including, without limitation, failure to maintain facilities and equipment in a reasonable manner), (iii) failure to operate equipment in accordance with applicable specifications, and (iv) catastrophe, accident, or other causes external to equipment; or e) Service Provider’s performance is made more burdensome or costly as a result of Customer’s failure to comply with its obligations herein.
15. Modifications and Waiver – Entire Agreement. Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Agreement. The Agreement contains the entire agreement between Service Provider and Customer and can be modified or rescinded only by a writing signed by both parties. No waiver of any provision of the Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist upon strict performance of the Agreement will not be construed as a waiver of any term or condition of the Agreement.
Any document submitted by Customer to Service Provider confirming its intention to purchase Services and/or Materials described in the Agreement (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of the Agreement, even if such document states terms in addition to or different from those in the Agreement. All agreements between Service Provider and Customer will be solely under the terms and conditions of the Agreement, and Service Provider objects to any and all such additional or different terms contained in any document submitted to Service Provider by Customer. Any execution by Service Provider of any other document submitted by Customer in connection with the purchase of Services and/or Materials does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement, but will constitute only acknowledgment of receipt of such document. In addition, notwithstanding any terms contained in any documents submitted by Customer in connection with the purchase of Services and/or Materials described under the Agreement, the acceptance of delivery by Customer of Services and/or Materials described in the Agreement will constitute a course of conduct constituting Customer’s agreement to the terms and conditions of the Agreement, to the exclusion of any additional or different terms and conditions.
16. Compliance with Laws. Customer will be responsible for compliance with any and all federal, state or local laws or regulations respecting safety or respecting use of the Services and Materials, and shall indemnify and hold Service Provider harmless from and against any and all claims of violations of such laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance or operation of the Services and Materials.
17. Non-Solicitation. Customer shall not solicit, directly or indirectly, or employ any employee of Service Provider during the period any Services or Materials are being provided to Customer and for a period of one (1) year after the last provision of Services or Materials to Customer.
18. Assignment. Customer shall not assign its right or delegate its duties hereunder or any interest herein without the prior written consent of Service Provider, and any such assignment, delegation, without such consent, shall be void.
19. Additional Service Conditions. Customer shall furnish to Service Provider, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation, regulated electric power and outlets for testing purposes. The facilities shall be within a reasonable distance from where the Services are to be provided. Service Provider and its representatives shall have full and free access to the equipment in order to provide the necessary Services. Customer shall provide the means to shut-off and secure electric power to the equipment and provide safe working conditions. Service Provider is under no obligation to remove or dispose of Materials or equipment unless specifically agreed upon in the Agreement. Service Provider removed Materials become the property of Service Provider. Customer shall immediately inform Service Provider, in writing, at the time of order placement and thereafter, of any unsafe or hazardous substances or conditions at the site, including, but not limited to, the presence of asbestos or asbestos-containing materials, and shall provide to Service Provider with any applicable Material Data Safety Sheets regarding the same. Any losses, costs, damages, claims and expenses incurred by Service Provider as a result of Customer’s failure to so advise Service Provider shall be borne by Customer. Service Provider, in its sole discretion and without cost or penalty, reserves the right to cancel its performance under the Agreement immediately upon written notice to Customer following Service Provider’s discovery of unsafe or hazardous site substances or conditions or any other circumstance altering Service Provider’s performance of Services. Customer shall appoint a representative familiar with the site and the nature of the Services to be performed by Service Provider to be accessible at all times that Service Provider personnel are at the site. Service Provider shall not be liable for any expenses incurred by Customer in removing, replacing or refurbishing any Customer equipment or any part of Customer’s building structure that restricts Service Provider’s access. Customer personnel shall cooperate with and provide all necessary assistance to Service Provider. Service Provider shall not be liable or responsible for any work performed by Customer.
20. Customer Property. Customer property will be held for 30 days following completion of the Services. Following such 30 days period, Customer will be notified that all such property will be disposed of by Service Provider unless Customer picks up such property within 14 days of the notification date. If the property is not claimed by Customer within the time period prescribed herein, Customer acknowledges and agrees that Service Provider may dispose of or recycle the property in any manner it deems appropriate.
21. Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of Michigan. Customer and Service Provider agree that the proper venue for all actions arising in connection herewith shall be only in Michigan and the parties agree to submit such jurisdiction. No action, regardless of form, arising out of the transactions relating to this Agreement, may be brought by either party more than one (1) year after the cause of action has accrued. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
22. Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against such principal in accordance with its terms.