PUBLISHED TERMS AND CONDITIONS OF SERVICE
Services at Customer’s Site; For services performed at Customer’s site,The TechStop Corporation (“CNS”) shall provide workers’ compensation and comprehensive general liability insurance and Customer shall provide comprehensive general liability insurance, workers’ compensation insurance for its employees, and property insurance for its property. Customer shall be responsible for all security and for the replacement of any and all tools, supplies, material or other goods which are stolen or damaged while at Customer’s site. Customer shall provide a reasonably safe place for CNS’s employees to perform their services on Customer’s equipment.
Service at CNS’s Service Center(s); Customer agrees to deliver the Customer’s property to CNS for repair, etc. At Customer’s request, CNS will remove such property for servicing, including dismantling, shipping, handling, and reinstallation, at Customer’s expense at CNS’s Service Agreement rates. Customer shall retain the risk of loss to Customer’s equipment while in CNS’s possession. Customer waives all rights of subrogation and contribution in the event of a loss to Customer’s equipment which may occur while it is in CNS’s possession. If Customer delivers its property to CNS, then Customer agrees to pick up all goods from CNS within 30 days of notice of completion, after which CNS shall have the right to dispose of the goods and apply the proceeds to payment of CNS’s charges hereunder, including the cost of disposition.
Acceptance by Customer; Customer shall be deemed to have accepted the goods and/or services provided by CNS upon the earliest of (a.) delivery of such goods and/or services by CNS to Customer’s place of business; (b.) installation of the goods and/or services at Customer’s place of business and certification by CNS; or (c.) acceptance by Customer in writing. Acceptance of the goods and services from CNS by Customer shall obligate Customer to payment therefore in accordance with the terms and conditions hereof.
Payment for Goods and Services; The time for payment by Customer is of the essence of this agreement. Acceptance by CNS of check, draft, or any remittance other than legal tender shall not constitute payment until such items are finally paid and until such time CNS shall be deemed to retain title to and have a security interest in all goods for which such remittances may be tendered. Customer hereby grants such security interest and authorizes CNS to execute and file financing statements on behalf of Customer in order to perfect CNS’s security interest in the items sold.
Express Warranties; Exclusion of Implied Warranties; Disclaimer of Warranties; Customer Indemnification; CNS warrants that the goods supplied hereunder will conform to the description herein stated; that it will convey good title thereto, free of all liens of any kind whatever unknown to Customer; and those goods will be of merchantable quality.
Software of any kind OR operating system environments; CNS does not warrant any software of any kind, or operating system environments, only hardware that is sold by CNS to customer and labor charged for installation.
Stock Goods; If any stock goods shall be defective and the Customer files a written claim with CNS within one year of the acceptance of such goods by Customer, CNS will replace such goods at no cost to Customer for the goods, provided that CNS reserves the right to charge for labor in excess of one-half hour.
Ordered Goods; If any ordered goods shall be defective, Customer shall rely upon the manufacturer’s warranty for replacement of the goods and CNS will provide up to one-half hour of labor for reinstallation within one year of the date of acceptance of such goods by Customer. CNS reserves the right to charge customer for facilitation of manufacturers warranty at our standard billing rates at the time of claim.
In General; Any labor provided under this warranty shall include only labor to verify the functionality of hardware, not on-site service calls or returning the system to a fully functional status, including, without limitation, reconfiguration, testing, certifying, diagnosis, etc., all of which shall be at CNS’s regular service rates. This is CNS’s sole warranty with respect to the goods or services sold by CNS to Customer. CNS Makes No Other Warranty of Any Kind Whatever, Express or Implied, And All Implied Warranties of Merchantability And Fitness For a Particular Purpose Which Exceed The Foretasted Obligation Are Hereby Disclaimed by CNS And Excluded From CNS’s Agreement With Customer. In No Event Shall CNS Be Liable to Customer For Incidental, Consequential or Punitive Damages, Including, But Not Limited To, Down Time, Loss of Data, Damage to Software, Misuse, Abuse, Failure to Following Instructions, Protocols, or Procedures, Inadequate Instructions, Delays by CNS, Failure of Software, Inappropriate Software or Combinations of Software, Improper Cooperation with or Interference by Third Parties or Other Vendors to Customer, Failure of Hardware or Peripherals Not Sold or Provided by CNS (Even If Installed by CNS), Lost Profits, Loss of Use, or Loss of Business Opportunity. CNS Shall Not Be Liable For Injury to Customer, Any Persons, or Property Damage Through The Use of Any Goods or Services Provided by CNS. CNS Is Not The Manufacturer of Any Equipment or Ancillary Products Sold or Rented by CNS to Customer. CNS Makes No Warranty Regarding Manufacturer’s Equipment And No Person Is Authorized to Make Any Such Warranties on CNS’s Behalf. No Statement Which Is Not Contained Herein Regarding Equipment, Products, or Services Shall Be Interpreted as a Warranty. Customer Agrees to Indemnify, Hold Harmless And Protect And Defend CNS Against Any Claims Relating to Customer’s Misuse of Service or Equipment Sold by CNS.
Limitation of Damages; It Is Agreed CNS Shall Not Be Liable Under The Warranties of The Respective Manufacturers of All Products Sold by CNS to Customer.
Notice of Claim; After acceptance of the goods and services, Customer shall have no claim against CNS unless Customer shall provide CNS with written notice of such claim by certified mail, return receipt requested, to CNS’s principal address within the time limits set forth in the warranty section above. No action, regardless of form, arising out of the transactions under this agreement may be brought be Customer more than one (1) year following the date of the alleged default. Failure to discover any alleged defect in the goods within such time periods shall not extend such time periods or enlarge Customer’s rights. Customer acknowledges that Customer has been given the opportunity to test the goods and services provided by CNS. Customer shall have the burden of proving the existence and nature of the defect, that the defect was caused by CNS, and that Customer did not misuse the goods.
Default by Customer; Upon any default by Customer hereunder, CNS shall have the following rights: (a) to collect a late charge equal to 5% of the unpaid amount; (b) to cancel the remainder of this agreement; (c) to charge and collect interest at the rate of 18% per annum from and after the due date of any payments; (d) to retain any and all amounts paid by Customer prior to Customer’s default; (e) to collect the balance of the purchase price; (f) to withhold delivery of any goods not delivered as of the time of Customer’s default; (g) to retain any of Customer’s property then in CNS’s possession as of the date of default; (h) to have a security interest in any property of Customer then in CNS’s possession; (i) to any and all statutory and common law liens for repairs and accessions on all equipment of Customer in CNS’s possession; and (j) to the reasonable attorneys’ fees, mediation and arbitration expenses, court costs, costs of discovery, dishonored check charges, and costs of collection, without limitation, incurred by CNS by reason of Customer’s default.
CNS’s Default; Upon CNS’s default under this agreement, Customer shall have the following remedies: (a) refund of all deposits theretofore paid to CNS; and, (b) return of all goods of Customer then in CNS’s possession, CNS to pay all freight and handling charges. This section does not modify the warranty section.
Applicable Law; Customer agrees to comply with all applicable laws and regulations. The sale shall be governed by and construed under the laws of the State of Indiana. Venue and jurisdiction of all disputes shall lie in Marion County, Indiana. In the event of any dispute among the parties exceeding the jurisdictional limits of the Small Claims Court of Marion County, Indiana, the parties agree to submit the dispute first to mediation and, if necessary, to binding arbitration according to the Rules for Alternative Dispute Resolution promulgated by the Supreme Court of the State of Indiana, as amended. In each event, CNS shall be entitled to recovery its reasonable attorneys’ fees, costs of mediation and arbitration, and costs and expenses of discovery. Customer is responsible for bringing its equipment into compliance with federal, state and local OSHA requirements.
Entire Agreement; Non-waiver; The terms and conditions set forth herein represent the entire agreement between the parties with respect to the goods and services described herein and this agreement supersedes any prior or contemporaneous representations of the parties to each other. No change to the terms or conditions of this agreement has been authorized and no such change will be valid or enforceable unless confirmed in writing by both parties. Failure of either party to enforce any right shall not constitute a waiver of such right or of any other right, whether of a similar or dissimilar nature, and shall not prohibit the exercise of the same right at a future date.