General Terms and Conditions
GENERAL
1. DEFINITIONS AND INTERPRETATION
In these Conditions, the Rate Schedule and every Quote, Order, Plan, Contract, Agreement, or other arrangement in connection with the supply of Goods or Services by KubeTech Inc (“KubeTech”) the following words have the following meanings:
“After Hours” means from 4:00 p.m. to 8:00 a.m. Monday to Friday, and all day Saturday and Sunday, including KubeTech’s observed holidays.
“Business Hours” means from 8:00 a.m. to 4:00 p.m. Monday to Friday, excluding KubeTech’s observed holidays.
“Best Effort” means in our good-faith, without timeframe, guarantee, or expectation of timely response.
“Client”, “You” or “Your” means a person or company who seeks or obtains a quote for, or who orders, Goods or Services from Us
“Conditions” means this General Terms and Conditions document as a whole, and any other quotes, agreements, orders, or other documents associate with our delivery of Goods and Services
“Goods” means any products, software, 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.
“KubeTech Observed Holidays” means New Year’s Day, Martin Luther King’s Birthday, Presidents Day, Good Friday, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve.
“Order” means any order requested by You to Us for Goods or Services in any form;
“Quote” means a quote provided to Us by You;
“Period” means a particular number of days, weeks, months, or any other period, as may be agreed between Us and 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 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;
“Rates” means the hourly Rates and other charges for Services set 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 fees payable to Us on a quantum meruit basis for any work
“Rate Schedule” means the most current published schedule of Rates, charges and conditions for the services of Ours as set on any given day on KubeTechInc.com/Agreements/Rates, 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 18.2;
“Return/Cancellation Fee” means a fee charged pursuant to clause 14.4 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 KubeTech Inc, 286 Terry Lane, Villa Park, IL 60181
“Work” means anything We may do, provide, customize, 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, Agreement, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
- 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 any rate schedule, 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; and
- A reference to “will” imports a condition not a warranty;
2. APPLICATIONS OF THESE CONDITIONS
2.1 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
2.2 The Invalidity or enforceability of any one or more of the provisions of these Conditions will not invalidate or render unenforceable, the remining provisions of these Conditions
3. COMMITMENT TERM
3.1 The date of signing and approving these Conditions is the date that these Conditions will go into effect, the (“Effective Date”), on a month-to-month basis.
3.2 The minimum term that these Conditions will be in effect for is one month after the first day of the next month after the Effective Date, the (“Commitment Term”)
3.3 After the expiry of the Commitment Term, an extension of the Term will automatically commence for one month and will continue indefinitely, unless earlier terminated by you as specified in Clause 4.
3.4 If You request additional Good and/or Services after the Effective date of these Conditions, such additions will be governed by these Conditions without the requirement of signing new Conditions. You agree to pay for such additional goods/services at our current Rates as defined in our Rate Schedule and such charges will appear on Your next scheduled invoice with prorated charges for any partial periods.
4. TERMINATION
4.1 These Conditions may be terminated by You or Us upon thirty (30) days written notice for any reason. All Termination requests must be made in writing.
4.2 Should You wish to terminate these Conditions before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term.
4.3 If either party terminates these Conditions of these Terms, upon your request, we will assist you in the cancellation and/or termination of services, including timely transfer of the services to another designated provider on a time and materials basis. You agree that You will be billed at our current Rates as defined in our Rate Schedule, as these services are not included as a part of these Conditions. These Conditions do not cover any costs associated with this migration of service.
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 These Conditions shall be governed exclusively by the laws of the State of Illinois. In the event that any portion of these Conditions are held invalid by a court of competent jurisdiction, the remaining portions of this these Conditions shall remain in full force and effect. Both You and Us agree to submit to the exclusive jurisdiction of 18th Judicial Circuit Court, DuPage County, IL for any action arising related to these Conditions, and You agrees to reimburse Us for expenses incurred related to any action arising from these conditions and successfully defended by KubeTech Inc. Each party waives any objection to the personal or subject matter jurisdiction of such courts or to the laying of venue and irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
8. SEVERABILITY
8.1 If any term or provision of these Conditions is found by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such term or provision shall not affect the other terms or provisions hereof or the whole of these Conditions, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the Parties.
9. SURVIVAL
9.1 The duties and obligations of the parties with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of these Conditions.
10. ASSIGNMENT
10.1 You may not assign Your rights and obligations under these Conditions without the prior written consent of Us, which will not be unreasonable withheld.
11. MODIFICATION OF THESE CONDITIONS
11.1 We may, at any time, modify these conditions, publish the updated General Terms and Conditions on our website at KubeTechInc.com/GeneralTermsAndConditons , and also sending notice via email to You. 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 specific itemized variation to these conditions. Except as otherwise specifically set forth herein, these conditions may not be modified, terminated, rescinded, or cancelled.
GOODS AND SERVICES
12. QUOTES FOR GOODS AND SERVICES
12.1 For a quote to be considered approved, We must have it signed by You. Once a quote has been approved by you, the prices in the quote will be confirmed as the agreed price.
12.2 Quotes will only be valid for 7 days, unless otherwise specified in the Quote.
12.3 If there is any price or product changes, We reserve the right to rescind your approval of the quote due to price or product changes. We will notify you of this and send a new Quote for approval.
12.4 The general minimum turnaround time for Quote request to be actioned is based on its priority, Our availability, and equipment availability. In the event that a quote is required urgently please let us know.
12.5 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
12.6 Shipping and tax will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
12.7 We generally do not keep a hardware 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.
12.8 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labor for hardware only on a return to depot basis.
12.9 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.
13. ORDERS
13.1 Invoices: Once you approve your quote for goods or services, you will receive an invoice for your order via Email.
13.2 Payment: Invoices for order for goods or services in excess of $100 require payment from You to Us prior to the order being placed or service starting.
13.3 No obligation to deliver: We are not obliged to deliver any Goods or Services until we have received payment from You for the Order
13.4 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending a large amount of goods or services to, You hereby consents to Us undertaking a credit reference check in respect to You. We will gain consent from You prior to a credit check taking place.
13.5 Cancellation of Orders: You will not cancel a Order unless We mutually agree to do so in writing. Final determination to cancel the Order will be Our absolute discretion. You acknowledge that, in many cases, We cannot cancel an Order once the manufacturer or supplier has received the Order.
13.6 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 cooperate with Us and to comply with such processes and procedures as advised to You.
13.7 Alterations to Specifications: We make every effort to supply the Goods and Services in accordance with the Order however We may supply alternate Goods and Services subject to minor variations in specifications where these are changed by the manufacturer of the Goods and Services after the Order date and before delivery. We will notify You of any changes.
14. PRICING AND RATES
14.1 Rates exclude Tax: All Rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax unless listed on the quote, order, or invoice.
14.2 Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the current Rate Schedule as applicable from time to time during the provision of the Goods and/or Services. We may update this Rate Schedule from time to time, and publish it to our website at KubeTechInc.com/Agreements/Rates
14.3 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. If this will modify an existing plan, we will notify and discuss this change with you.
14.4 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 or supplier costs to Us in processing the return, cancellation, or refund. We may deduct the Return/Cancellation fee from out of any payment otherwise due to be refunded to You by Us.
14.5 Expenses: Unless otherwise stated in the Quote, You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the quoted fees, upon written demand. Such expenses will include travel costs, flights, mileage, fuel, insurance, taxi fares, hotel and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorization from You before such expenses are incurred.
14.6 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.
14.7 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:
14.7.1 are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
14.7.2 are only provided by Us during the applicable Period.
14.7.3 Where Services are provided for a specified Period:
14.7.3.1 the Services remaining unused for that Period cannot be rolled over into any subsequent Period;
14.7.3.2 and We are not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services.
15. CONTRACTING AND THIRD-PARTIES
15.1 We may subcontract any or all of the Goods or Services to be performed with third parties and/or their partners, but shall retain prime responsibility for the Services under these Conditions.
16. DELIVERY, TITLE AND RISK
16.1 Loaned Equipment: Equipment that is loaned to You by Us must be returned to us in good working condition upon our request or termination of these Conditions. All equipment owned by Us will be asset tagged to identify it as belonging to Us.
16.2 Delivery liability: We will use all reasonable measures to deliver Goods by the agreed upon 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.
16.3 Availability to accept delivery: You must be available to accept the Goods at Your agreed upon delivery address during Business Hours unless otherwise arranged.
16.4 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your agreed upon address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 16.4 will affect title to the Goods.
16.5 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 16.4.
16.6 Retention of Title of Goods: Until We receive full payment in cleared funds for any payment due to Us by You on any account or for any reason:
16.6.1 Title of these goods remains assigned to us and does not pass to You;
16.6.2 You must hold those Goods for Us and must not sell them;
16.6.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
16.6.4 We reserve the right to take possession of those Goods remove those Goods and for this purpose;
17. RETURNS AND CLAIMS FOR GOODS AND SERVICES
17.1 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. In some cases, Goods that are ordered “custom” may not be able to be returned.
17.2 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 damages or incorrect items. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.
17.3 Return Condition: Where You are entitled to return Goods, 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.
17.4 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.
17.5 Consequences of use, installation, customization 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, customized or re-sold by You (except to the recourse to the manufacturer of the Goods).
18. CLIENT IT INFRASTRUCTURE
18.1 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 measures 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.
18.2 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 customization of new software or hardware for You or any other Work) under any Plan. 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 estimated for the Work the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.
18.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:
18.3.1 We may recommend that You purchase Goods and Services provided by third parties from time to time;
18.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods and Services will be used or some function sought to be fulfilled;
18.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods and Services in an existing or new computer environment, e.g
18.3.3.1 the compatibility or ability of the Goods and Services to fit into or perform to expectations in the receiving computer/internet environment; or
18.3.3.2 the behavior of third-party supplier, e.g. in relation to support;
18.3.4 You acknowledge that for a whole number of reasons outside of Our control, the Goods and Services 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;
18.3.5 Accordingly, You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:
18.3.5.1 decisions as to whether or not to follow recommendations by Us;
18.3.5.2 decisions as to whether or not to purchase or customize Goods or obtain Services for that or any other purpose; and
18.3.5.3 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;
18.3.6 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 efforts to achieve those outcomes.
18.4 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.
18.5 Cybersecurity: Installation of hardware and/or software We provide for the purpures of Cybersecurity, network security, Virus Protection, and/or any other perceived security breach protection of your IT Infrastructure are provided at a good faith, best effort basis, and are not 100% guaranteed to prevent network intrusions, virus attacks, or other security breaches due to the dynamic nature of Cybersecurity.
19. FORCE MAJEURE
19.1 Force Majeure: You or We will not be liable for any breach of contract due to any matter or thing which is caused or results form a Force Majeure Event. This includes but is not limited to: failures by third parties to supply goods and services, transport stoppages, transport breakdown, fire, flood, earthquake, natural disaster acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident, inability to obtain necessary labor, internet outages, or power outages.
19.2 If we are unable to supply goods or services due to this Force Majeure Event, we may adjust dates, cancel the Order (even if it has already been accepted) or cease to provide the Services by written notice to you, in which case you will hold Us harmless.
20. WARRANTIES
20.1 Our Warranty: KubeTech Inc warrants that our Services will be performed in a professional manner. All Services will be deemed accepted unless You notifies Us in writing within ten (10) working days after performance that the Services did not conform to this warranty. We will correct any nonconformities and will notify You in writing that the non-conformities have been corrected.
20.2 Reliance on Manufacturer’s Warranty: You and Us will rely on the warranties provided by the manufacturer of Goods and Services supplied by Us (where applicable).
20.3 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods and Services supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods and Services. This includes any damages or payment 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 and Services.
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.
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 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 General 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 cannot be excluded but can be limited, the total liability of all claims will not exceed an amount equal the amount actually paid by You to Us for the Services during the three-month period directly preceding the date the claim arises.
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 laws 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 these Conditions.
22. NON-DISCLOSURE AND CONFIDENTIALITY
22.1 We acknowledge that in the course of providing Good and Services to You, both Parties may learn or acquire otherwise confidential, trade secret, or proprietary information relating to either party. Each party shall hold such “Confidential Information” in strict confidence and shall not disclose any such information to any third party. Confidential Information includes but is not limited to:
22.1.1 Information regarding their customers, consumers, or employees
22.1.2 any technical information, design, process, procedure, formula, or improvement, as well as any, specifications, designs, business or work processes and procedures, instructions, and other data relating to the development, production of any work done specifically for the Client;
22.1.3 any business plans or financial information of the other party;
22.1.4 any information labeled as “confidential,” all regardless of whether such information would be protected under the common law.
22.2 Notwithstanding the preceding provision, Confidential Information does not include:
22.2.1 Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise;
22.2.2 Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other;
22.2.3 Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and
22.2.4 Information that must be disclosed pursuant to court order or by law.
23. COPYRIGHT
23.1 You acknowledge that all information and services, software, designed systems, consulting techniques, proposals, and documents disclosed by Us or which comes to Our attention during the course of business and provided under these terms constitute valuable assets of, confidential and/or proprietary information to Us. As such:
23.1.1 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.
23.1.2 this information will be the exclusive property of Ours unless otherwise agreed in writing by Us and You.
OUR RESPONSIBILITIES
24. PRIVACY STATEMENTS AND YOUR RIGHTS
24.1 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 (“Authorized Purposes”).
24.2 You are required to provide your personal information to Us for Authorized Purposes.
24.3 We may disclose Your personal information to other parties for the purposes of the fulfilment of Goods and Services for you, inquires about Goods or Services that may be suitable for your purposes, or to acquire Goods or Services on Your behalf. Otherwise, We will not disclose Your personal information without Your consent unless authorized by law.
24.4 You have the right to inquire to Us about what information we have stored for You, and who that information has been shared with.
25. OUR WEBSITE
25.1 We make no representations or warranties in relation to information available on Our website, including without limitation:
25.1.1 that the information on Our website is complete or correct;
25.1.2 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.
26. INSURANCE COVERAGE
26.1 We will maintain at Our own expense, insurance for commercial general liability insurance, as well as Errors & Omissions Insurance, for a minimum general aggregate of $1,000,000. At Your reasonable request, We will provide You with certificates of coverage.
YOUR RESPONSIBILITIES
27. SUBMISSION OF SERVICE REQUESTS
27.1 In order for Us to provide You with the agreed Goods and Services, You agree to follow Our process for submission of Service Requests as outlined in Appendix A.
27.2 We may update this Process from time to time, and publish it to our website at KubeTechInc.com/Agreements/ServiceRequestProcess
28. ACCESS TO SYSTEMS, SITES AND PEOPLE
28.1 In order to provide You with the agreed Goods and Services, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.
28.2 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 PC’s. This may require that devices are left on overnight or weekends.
29. THIRD PARTY AUTHORIZATIONS
29.1 At times, We may need to contact Your or Our third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to work with on Your behalf. It is Your responsibility to ensure that We are able to work freely with these providers.
30. INVOICING AND PAYMENTS
30.1 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 cash, check, credit card or ACH in accordance with these Conditions and in the way set out in the Invoice.
30.2 Invoice Dates and Payments for Reoccurring Managed Services and Cybersecurity Services: Charges for monthly reoccurring services provided to You by Us will be invoiced on the first (1st) day of each calendar month. This invoice will be for services provided in that current month, for Example an invoice dated January 1 covers services performed in January. Your ACH information is required to be kept on file for automatic payments of any invoices for reoccurring Services. We will make this automatic payment on the fifteenth (15th) day of each month. During that timeframe, it is Your responsibility to contest any fees in the associated invoice.
30.3 Invoice Dates for Professional Services: Charges for Professional Services provided to You by Us will be invoiced on the date(s) in accordance with the approved Quote / Order for the associated Professional Services.
30.4 Invoice Dates for Goods: Charges for Hardware and/or Software Goods provided to You by Us will be invoiced on the date(s) in accordance with the approved Quote / Order. We will not process any order in excess of one-hundred dollars ($100) without full pre-payment for the respective hardware and/or software Goods.
30.5 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.
30.6 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, the amount which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, this amount due is referred to in these Conditions as a “Total Amount Due”.
30.7 Application of funds: All payments of the Total Amount Due made by You to Us will be applied as follows:
30.7.1 first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to recovery of any amounts owing by You to Us;
30.7.2 secondly, in or towards payment of goods or services or payable from the longest standing due to the most recently incurred.
30.8 Payment arrangements: In the event that a repayment arrangement is made in relation to any Total Amount 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.
30.9 Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any payment due to Us, notwithstanding it may have exercised other rights under these Conditions.
31. SOFTWARE AND LICENSES
31.1 You must respond to Us within fifteen (15) days to software, hardware, and service license renewal requests. You expressly authorize Us to automatically renew hardware, software, and product license renewals necessary if Your response is not received within these fifteen (15) days.
31.2 It is Your responsibility to ensure software product / license usage to is in compliance with the Agreements, Terms, and/or conditions of the respective software product and license.
31.3 Us and the respective software product / license vendor / owner has the right to verify Your compliance with the software and product license terms at any time. You must provide any information reasonable requested by Us to verify compliance. Verifying compliance may include but not be limited to: (a) the number of devices used, (b) the number of user licenses used, (c) the amount of data used
31.4 It is the duty of Yours to store all licenses for all Software used that was not purchased through Us, so that that they can be reproduced if and when required.
31.5 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
31.5.1 any unauthorized Software use by You;
31.5.2 any breach of any Software license in respect of Software provided to Us by You to be installed on one of Your computers;
31.5.3 otherwise as a result of Us installing Software at Your where You are not authorized to use the Software; and
31.5.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
31.6 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.
31.7 You acknowledge that We do not own third-party software products or product licenses. You also acknowledge that:
31.7.1 All rights to these software products and licenses are owned by their respective company or its supplier;
31.7.2 Your possession, access, or use of the software products and licensees does not transfer any ownership rights to You;
31.7.3 Use of the software products and license is subject to Your representation that You understands such use parameters and commits to entering into an agreement with and complying with the respective Agreements/Terms and conditions of the respective software product and licenses; and
31.7.4 You may only use the installed software products and licenses installed on Your devices in accordance with the respective Agreements / Terms and conditions of the respective software product and licensees.
32. NON-SOLICITATION OF CLIENTS AND EMPLOYEES
32.1 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 one (1) year thereafter.
32.2 You agree that Our damages resulting from breach of this clause 32.1 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 these Conditions 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.
APPENDIX A
1. Service Request Submission Process
1.1 Service requests may be during Business Hours
1.2 When After-Hours or on KubeTech observed holidays, After-Hours submission process must be used.
1.3 To serve you best, when you contact us to submit a service request only the methods below may be used:
1.3.1 Support Phone (Critical and High Priority Requests Only): (630) 534-2300
1.3.2 Support Email: [email protected]
1.3.3 Web Portal: Support.KubeTechInc.com
1.4 When submitting your request, 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 submitted by either phone or external email you must include your name, company and return contact details.
1.5 If you get sent to the support voicemail, we may be helping another user. We monitor this Voicemail at all times and will return your call as quick as possible.
1.6 KubeTech Reserves the right to update these service request submission processes as reflected at KubeTechInc.com/Agreements/ServiceRequestProcess
2. After-Hours Service Request Submission Process
2.1 After-Hours Support is not included in this Agreement
2.2 All after-hours support will be subject to our current after-hours Rates as defined in our Rate Schedule
2.3 Only Critical Level Service Requests can be addressed outside of Business Hours
2.4 Critical Service Requests must be submitted by calling the Support Phone line and following the voicemail prompts. If not, the Service Request will be viewed on Our next Business Day
2.4.1 Support Phone: (630) 534 – 2300
2.5 We reserve the right to screen all Service Requests for criticality prior to work being performed After-Hours.
2.6 Response to after-hours support requests are not included in our Target Response Times, and will be on a best-effort basis
2.7 KubeTech Reserves the right to update these service request submission processes as reflected at KubeTechInc.com/Agreements/ServiceRequestProcess
3. KubeTech Hours and Holidays
3.1 “Business Hours” – 8:00 a.m to 4:00 p.m Monday to Friday, excluding KubeTech’s observed holidays.
3.2 “After Hours” – 4:00 p.m. to 8:00 a.m. Monday to Friday, and all day Saturday and Sunday, including KubeTech’s observed holidays.
3.3 “KubeTech Observed Holidays” – New Year’s Day, Martin Luther King’s Birthday, Presidents Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve.
3.4 KubeTech Reserves the right to update these hours and Holidays as reflected in Our most current published General Terms and Conditions on any given date.