GENERAL
1. DEFINITIONS AND
INTERPRETATION
In these Conditions, the Rate Schedule and
every Quote, Order, Plan contract, or other arrangement in connection with the
supply of Goods or Services by ShieldLink the
following words have the following meanings:
“After Hours” means from 17:00 – 09:00
Hours Monday to Friday Including all Public Holidays;
“Business
Hours” means Monday to Friday from 09:00 – 17:00 Hours excluding all 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, successors
and assigns;
“Conditions“
means these terms and conditions;
“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;
“GST” means taxes that you pay on most goods and services;
“Order” means any order requested by You to Us for Goods or Services in any
form;
“Quote” means a quote/proposal 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;
“Plan” means any arrangement between Us and You (whether alone or in
conjunction with any other person) for Services and/or the provision of Goods
provided by us under an arrangement in connection with Work agreed to be done
or progressed for or on behalf of you or any other person at your request,
including as set out in a Plan Schedule;
“Plan
Schedule” means the key terms applicable to Plans
as set, and as may be varied by Us, from time to time in its absolute
discretion without notice to You;
“Public
Holidays” means any day which is a public holiday
throughout New Brunswick;
“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 ShieldLink Technologies Inc. 733574552NP0001
and its heirs, 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, Plan, contract, or other arrangement 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 Act of Parliament, Statute or Regulation shall include any
amendment currently in force at the relevant time and any Act of
Parliament, 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
Canadian Dollars;
A reference to time is to Atlantic Standard
Time (Moncton, Halifax)
A reference to an individual or person includes a corporation, partnership, joint
venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule,
annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of
or to these Conditions;
A recital, schedule, annexure or
description of the parties forms part of these Conditions;
A reference to any agreement or document is
to that agreement or document (and, where applicable, any of its provisions),
as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form
of that expression has a corresponding meaning;
A reference to “includes” means includes
without limitation;
A reference to “will” imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up,
liquidation, dissolution, becoming an insolvent under administration, being
subject to administration and the occurrence of anything analogous or having a
substantially similar effect to any of those conditions or matters under the
law of any applicable jurisdiction and to the procedures, circumstances and
events which constitute any of those conditions or matters.
2. APPLICATIONS OF
THESE CONDITIONS
Unless otherwise agreed by Us in writing, these Conditions are deemed
incorporated in and are applicable to (and to the extent of any inconsistency
will prevail over) the terms of every Quote, Order, Plan, contract, or other
arrangement in connection with the supply of Goods and/or Services by Us to
You.
The invalidity or enforceability of any one
or more of the provisions of this Agreement will not invalidate, or render
unenforceable, the remaining provisions of this Agreement.
3. COMMITMENT TERM
3.1
The
minimum term that you acquire the service for is outlined in Our Managed
Service Agreement to You, beginning from the first of the next month after the
date of signing or approving the Quote.
3.2
After
the expiry 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 by you as specified in Clause 4.
4. TERMINATION
4.1
This
Agreement may be terminated by you upon ninety (90) days written notice if
We:
4.1.1 Fail to fulfil in any material respect its
obligations under this Agreement and do not cure such failure within thirty
(30) days of receipt of such written notice.
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
such written notice.
4.1.3
Terminate
or suspend our business operations, unless it is succeeded by a permitted
assignee under this Agreement.
4.2
This
Agreement may be terminated by Us upon ninety (90) days written notice to you.
4.3
If
either party terminates this Agreement, 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.
4.4
Should
You wish to terminate this Agreement before the end of the commitment term, you
agree to pay all of the remaining payments up until the end of the commitment
term.
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 Yours.
7. GOVERNING LAW
7.1
The
Conditions shall be governed by and construed in accordance with the laws of the
Province of N.B.
8. ASSIGNMENT
8.1
You
may not assign your rights and obligations under this Agreement without the
prior written consent of us.
9. VARIATION OF THESE
TERMS AND CONDITIONS
9.1
We may
at any time vary these Terms and Conditions by publishing the varied Terms and
Conditions on Our website. 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 30 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 30 days only. Expiry 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, the Order will be
subjected to our normal Terms and Condition of Sale.
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
honour 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 without having to notify or
receive an approval from You.
10.12
ETA information 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 labour 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 fit, including, e.g. where the Goods or Services become unavailable,
or the cost price of Goods or Services increases after the date of the Quote.
11.
ORDERS
11.1
Order
forms: You may place an Order for Goods
and/or Services with Us. You will need
to approve the quote electronically via either an email or a web based system
with the date and your signature.
11.2
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 favour of Us to be:
11.2.1
signed
by, and duly authorised by, both the person who signed the Order and the person
who sent the email; and
11.2.2
duly
authorised by the person on whose behalf the Order is placed or apparently
placed.
11.3
Acceptance
and Orders: An order has no effect unless or until it is accepted by you in
writing.
11.4
Cancellation
of Orders: You will not cancel an Order unless we agree to do so in writing at
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.
11.5
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.
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
Call-out
fees: You acknowledge that call-out fees may be charged in addition to the rates
at our absolute discretion and that the amount of the call-out fee will depend
upon where the Services are provided.
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 could include travel costs, flights,
accommodation and related meal allowance. 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.
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 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 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 terms.
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.
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);
15.5.5
We
may, without prior notice, enter into any premises where We suspect those Goods
may be, take possession of those Goods and sever and remove those Goods
(notwithstanding that they may have been attached to other goods not the
property of Ours) and for this purpose, You hereby irrevocably authorise and
direct Us (and Our employees and agents) to enter into such premises as its
duly authorised agent and You hereby indemnify and hold harmless Us from and
against any costs, claims, allegations, demands, damages or expenses or any
other acts or omissions arising from or in connection with, such entry,
repossession or removal.
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 conditions, including returns and claims policies, of any relevant
manufacturer or supplier. You will accept goods subject always to these conditions
and the terms of such conditions 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 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 accept the Goods 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:
You will indemnify and hold Us harmless in respect of all allegations
and claims in respect of Goods 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, You will always
indemnify and hold us harmless 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 will accept the sole
responsibility for, and indemnify and hold Us harmless 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 circumstances
beyond Our reasonable control, 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 matter 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)
20.2
No claim for manufacturer’s default: You indemnify
and hold us harmless 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,
condition, description, assembly, manufacture, design or performance of the
Goods or Services, whether implied by statute, common law, trade usage, custom
or otherwise, is hereby expressly excluded.
21.2 No
liability for program or data loss: You indemnify and hold us
harmless in respect of any allegation, claim, loss or expense of yours or any
third party for any program or data loss or damage suffered by you or that
third party arising directly or indirectly from the supply of the Goods or
Services by us to you. You acknowledge you
are responsible for ensuring we are backing up the correct machines.
21.3 Limit
on consequential damage: You indemnify and hold us harmless in respect of
any allegation or claim as to any indirect or consequential losses or expenses
suffered by you or any third party, howsoever caused, including but not limited
to loss of turnover, profits, business or goodwill or any liability to You or
any third party.
21.4 Limit
on damage from a failure in supply: You indemnify and hold us harmless for
any allegation or claim for loss or damage by you or a third party where we
have failed to meet any delivery date or cancels or suspends the supply of
Goods or Services.
21.5 General
limit on liability: Except as
otherwise expressly stated in these terms and conditions, we are not liable for
any loss or damage of any kind however caused (including, but not limited to,
by the negligence of us) which is suffered or incurred by you in connection
with:
21.5.1 Goods or Services provided to You or any Work;
21.5.2 these Terms and Conditions;
21.5.3 Your use of our website (including the use of
a credit card or other debit device) or any linked website;
21.5.4 the non-availability of Goods or Our Services
for any reason;
21.5.5 any act or omission of Ours or the provision
of inaccurate, incomplete or incorrect information by You, or
21.5.6 for any other reason whatsoever.
21.6
Limitation
options: To the extent
that any legislation implies a condition or warranty that cannot be excluded
but can be limited, clause 21.5 does not apply to that liability and Our
liability for any breach of that condition or warranty is limited to Our doing
any one or more of the following (at its election):
21.6.1 replacing the Goods or supplying equivalent
Goods, Services or Work;
21.6.2 repairing the Goods or the Work;
21.6.3 paying the cost of replacing the Goods or the
Work or acquiring equivalent Goods, Services or Work; or
21.6.4
paying
the cost of having the Goods or the Work repaired.
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 State or Federal
legislation 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 are correct and
accurate. In the case of an error or omission, we may rescind the affected
contract 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.
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.
YOUR
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. This includes, when necessary, providing Us with keys or security access
to Your building. This ensures We can complete critical network upgrades or
other essential work even if the business premises are closed. We commit to
notifying You in advance of any such required access and will adhere to all
agreed security protocols.
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 PCs. 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 cheque, credit card or direct deposit
in accordance with these Terms and 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 incurred in connection with the recovery of
late payments 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
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.
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 our employees not seek employment with, or be offered employment
by you during the course of engagement and for a period of two (2) years
thereafter (or the maximum amount permissible by a Court).
30.2 You agree that our
damages resulting from breach of this clause 30.1 would be impracticable and
that it would be extremely difficult for us to 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 claim, allegation, loss, damage or expense 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. COPYRIGHT AND
CONFIDENTIALITY
32.1
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.
32.2
Retention
of title: All copyright
and other intellectual property rights in any Work created, commissioned or
acquired by us in the course of the supply of Services by us to you will be the
exclusive property of ours unless otherwise agreed in writing by us and you.
32.3
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.
32.4
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 business and provided under this agreement constitute valuable
assets of, and confidential and/or proprietary information to us.
As such, both parties
shall take all commercially reasonable steps to not disclose, reveal, copy,
sell, transfer, assign, or distribute any part or parts of such information in
any form, to any person or entity, or permit any of its employees, agents, or
representatives to do so for any purpose except unless permitted in writing by
the disclosing party or as required by applicable law.
APPENDIX
A
SERVICE REQUEST LODGEMENT PROCESS
When you contact us to lodge a service
request only the methods below must be used:
Phone:
(506) 719-9818
Email:
[email protected]
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 may apply for afterhours
work). If not, the Service Request will be viewed on our next Business Day.