Terms and Conditions
This Agreement is entered into by and between the customer (”Customer”) and ABC Computer Services (”ABC Computer”). Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of ABC Computer shall be construed as an inference to the contrary. If Customer has submitted a request for service to ABC Computer, ABC Computer acceptance is expressly conditional on Customer’s assent to these terms to the exclusion of all other terms; if these terms are considered an offer by ABC Computer, acceptance is expressly limited to these terms.
Definitions. The following terms shall have the meaning defined herein.
“Agreement” means this agreement, which incorporates these terms and conditions.
“Business Day” means from 10:00 a.m. to 6:30 p.m. Monday through Friday, except for Canadian government holidays.
“Problem” means an error in the Product that causes it not to conform materially to the applicable user documentation provided by manufacturer.
“Product” or “Products” means the computer software or hardware set forth in the applicable invoice from ABC Computer, including any updates or upgrades provided to Customer by the applicable manufacturer.
“Service” or “Services” or “Service(s)” means the service(s) provided by ABC Computer personnel.
“Term” means the term of this Agreement as such term is indicated on the applicable invoice from ABC Computer, or if no term is indicated, then the term shall be for one year from the date of the applicable invoice.
“Workaround” means a temporary solution or fix that restores operational capability without severely compromising the performance of the Products or integrity of the operating system or data. Workarounds may include changes to configuration parameters or operational processes.
On-site response options vary depending on the type of service purchased from ABC Computer. ABC Computer will dispatch a service technician to the Customer’s home/business location (indicated on Customer’s invoice or Customer’s applicable separately signed agreement with ABC Computer) as necessary pursuant to the Severity level and applicable onsite response table below:
|Severity Level||ABC Computer Response||Customer Role|
|1 – Emergency Service||Immediate phone troubleshooting in parallel with emergency dispatch. ABC Computer technician(s) will present at designated home/business location 4 – 8 hours after phone arrangement with ABC Computer staff.||Provide 24×7 allocation of appropriate staff/resources in support. Site senior management informed and engaged.|
|2 – Regular Service||ABC Computer technician(s) will present at designated home/business location 24 – 48 hours after phone arrangement with ABC Computer staff (applied to business days only).||Provide appropriate staff and resources to sustain continuous communication and work efforts. Site senior management informed and engaged.|
Missed Service Visit. If Customer or Customer’s authorized representative is not at the location when the service technician arrives, the service technician cannot service the Supported Product. The technician will leave a card to let Customer know he or she was there. If this occurs, Customer may be charged an additional charge for a follow-up service call.
If a problem arises with certain third party products commonly utilized in conjunction with Customer’s Supported Product, ABC Computer will provide a single point of contact, as set forth herein, until problems are isolated and escalated to the third party product vendor. Specifically, ABC Computer will contact the third party vendor and create a problem incident on behalf of Customer, providing the necessary problem documentation. Once a vendor is engaged, ABC Computer will monitor the problem resolution process and obtain status and resolution plans from the vendor until the vendor resolves the problem by either providing a resolution, steps towards a resolution, workaround, configuration changes, or escalation of a bug report. Upon the Customer’s request, ABC Computer will initiate management escalation procedures within ABC Computer and/or the vendor organization.
To be eligible for Collaborative Support, Customer must have the appropriate active support agreements and entitlement with the respective third party vendor. Once isolated and reported, the third party vendor provides technical problem support and resolution for Customer’s problem. ABC COMPUTER WILL NOT BE RESPONSIBLE FOR THE PERFORMANCE OF OTHER VENDORS’ PRODUCTS OR SERVICES. Customer agrees to indemnify and hold ABC Computer harmless for any claims related to those third party products.
Limits on Software Troubleshooting Service. ABC Computer does not warrant that any particular question will be resolved or that the Covered Software Product will produce any particular result. Situations giving rise to Customer’s questions must be reproducible on a single system (i.e., one central processing unit with its workstation and other peripherals). ABC Computer may conclude that a question is sufficiently complex or that Customer’s Supported Product is of a nature that precludes effective analysis of the question through telephone discussions. Customer understands and accepts that ABC Computer may be unable to resolve questions of this sort, and Customer understands and accepts that Customer will have to make independent arrangements for resolution of such questions.
Software/Data Backup. It is the Customer’s responsibility to complete a backup of all existing data, software, and programs on Supported Products prior to ABC Computer performing any Services. ABC COMPUTER WILL NOT BE RESPONSIBLE FOR LOSS OF OR RECOVERY OF DATA, PROGRAMS, OR LOSS OF USE OF SYSTEM(S) OR NETWORK.
Authority to Grant Access. Customer represents and warrants that it has obtained permission for both Customer and ABC Computer to access and use the Supported Product, the data on it, and all hardware and software components included in it, for the purpose of providing these Services. If Customer does not already have that permission, it is Customer’s responsibility to obtain it, at Customer’s expense, before Customer asks ABC Computer to perform these Services.
Cooperate with Phone Analyst and On-site Technician. Customer agrees to cooperate with and follow the instructions given by ABC Computer phone analyst and its on-site technicians. Experience shows that most system problems and errors can be corrected over the phone as a result of close cooperation between the user and the analyst or technician.
Third Party Warranties. These Services may require ABC Computer to access hardware or software that is not manufactured by ABC Computer. Some manufacturers’ warranties may become void if ABC Computer or anyone else other than the manufacturer works on the hardware or software. It is Customer’s responsibility to ensure that ABC Computer’s performance of Services will not affect such warranties or, if it does, that the effect will be acceptable to Customer. ABC COMPUTER DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE ABC COMPUTER SERVICES MAY HAVE ON THOSE WARRANTIES.
On-Site Obligations. Where Services require on-site performance, Customer must provide free, safe and sufficient access to Customer’s facilities and the Supported Product(s). Sufficient access includes ample working space, electricity, and a local telephone line. A monitor or display, a mouse (or pointing device), and keyboard must also be provided (at NO cost to ABC Computer), if the system does not already include these items.
NOTE: If Customer fails to comply with the responsibilities and terms outlined in this Service Description, then ABC Computer is not obligated to provide the Service.
CANCELLATION OF SERVICES
Customers may terminate their services with ABC Computer staff in the following cases:
Cancellation for Emergency Services, full service charge for the first hour will be applied.
Cancellation for Regular Services within 12 hours before the services time, cancellation fee of $40 will be applied.
Other cancellation cases, there will be no charge to customers.
ABC Computer may cancel this Service at any time during the Service term for any of the following reasons: Customer fails to pay the total price for this Service in accordance with the invoice terms; Customer makes a misrepresentation to ABC Computer or its agents; Customer refuses to cooperate with or threatens in any manner the assisting analyst or on-site technician; Customer’s repeated misuse of this Service for out of scope issues; or Customer otherwise breaches or fails to abide by all of the terms and conditions set forth in this Service Description. IF ABC COMPUTER CANCELS THIS SERVICE PURSUANT TO THIS PARAGRAPH, CUSTOMER SHALL NOT BE ENTITLED TO ANY REFUND OF FEES PAID OR DUE TO ABC COMPUTER. Any refund will be determined by ABC Computer based on the passage of time and/or the number of support incidents at ABC Computer’s discretion.
DISCLAIMER OF WARRANTIES
USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ABC COMPUTER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ABC COMPUTER MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES ABC COMPUTER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER / SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. ABC COMPUTER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM ABC COMPUTER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
ABC COMPUTER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASEDOR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF ABC COMPUTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
User is solely responsible for the contents of his or her transmissions through the Service. User’s use of the Service is subject to all applicable local, state, national and international laws and regulations. User agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. ABC COMPUTER may, at its sole discretion, immediately terminate Service should User’s conduct fail to conform with these terms and conditions of the Agreement.
User agrees to indemnify and hold ABC COMPUTER, its parents, subsidiaries, affiliates, officers and employees and its third party suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of User’s use of the Service, content provided by the User, the violation of this Agreement by User, or the infringement by User, or other user of the Service using User’s computer, of any intellectual property or other right of any person or entity.
Either User or ABC COMPUTER may immediately terminate the Service upon written notice to the other party. Upon termination of the Service, User’s right to use the Service and Software immediately ceases. User shall have no right and ABC COMPUTER will have no obligation thereafter to restore any files or User data. User will not be refunded any pro-rated amounts upon termination of the Service.
The Agreement shall be governed by and construed in accordance with the laws of the British Columbia, excluding its conflict of law provisions. User and ABC COMPUTER agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia. If any provision(s) of the Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. User and ABC COMPUTER agree that any cause of action arising out of or related to this Service must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred.