In the absence of a signed service agreement, this constitutes the entire and sole Agreement between XFER International (XFER) and the Customer (CUSTOMER), and supersedes all prior negotiations and communications, oral or written, between the parties with respect to the subject hereof, and no deviation from these terms and conditions shall be binding unless in writing and signed by an authorized employee of XFER International. These General Terms and Conditions are included in all service agreements.
Payment of all charges is due upon receipt of invoice.
Charges for service will be made at the prevailing XFER rates for labor, parts, and travel incurred during the course of rendering services to the CUSTOMER.
If payments for services or equipment should fall into arrears, services will be suspended until balance is made current. Thereafter, all future services and equipment provided by XFER will require payment prior to delivery. Cancelation charges of 25% of the price of the returned product will apply to product returns. Cancellations made prior to the installation of the product are also subject to this cancellation fee.
XFER warrants to CUSTOMER that the services rendered under this contract will be performed by qualified personnel in a professional manner. All planning, advising, and consultation services provided hereunder are based on XFER’s best assessment of the issues, in view of the following: all information provided by CUSTOMER, the available product information from product manufacturers and public sources.
XFER will provide assistance to CUSTOMER in compatibility testing and systems integration of networking products for all equipment purchased from XFER which is standard XFER product. XFER will use reasonable efforts in integrating such products on CUSTOMER’S network system. Manufacturer’s warranties, when applicable, will be passed from XFER to the CUSTOMER.
ASSUMPTIONS OF RISK
CUSTOMER recognizes that the use of computer products entails a substantial risk of loss of magnetically stored data, and that any industry standards dictate CUSTOMER’S systematic use, in conjunction with any central processing unit, of products which provide comprehensive back-up of data so as to prevent such loss. In addition to other risks assumed by CUSTOMER hereunder, CUSTOMER ASSUMES ALL RISK OF LOSS OF MAGNETICALLY STORED DATA IN ANY WAY RELATED TO OR RESULTING FROM THE SUPPLY OF SERVICE OR PRODUCTS BY XFER, AND CUSTOMER HEREBY RELEASES XFER FROM ANY LIABILITY FOR LOSS OF CUSTOMER’S MAGNETICALLY STORED DATA OR DOWNTIME INCURRED BY THE CUSTOMER REGARDLESS OF THE CAUSE.
ARTICLE LIMITATIONS OF LIABILITY
XFER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND STRICT LIABILITY, SUCH AS, BUT NOT LIMITED TO, LOSS OR ANTICIPATED PROFITS OR BENEFITS RESULTING FROM THE USE OR SERVICING OF A PRODUCT OR ANY BREACH OF THIS AGREEMENT, EVEN IF XFER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF XFER EXCEED THE PRICE PAID FOR THE PRODUCT OR SERVICE.
XFER shall not be liable to CUSTOMER for any failure or delay in performance due to circumstances beyond its reasonable control, including, but not limited to, Acts of God, accident, fire, storm, death, or illness of key personnel, acts, omissions and defaults of third parties, and official, government or judicial action no the fault of XFER.
During the Term and for a period of one (1) year thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or contractor of XFER without the prior written consent of XFER. Violation of this provision shall entitle XFER to assert liquidated damages against the Customer equal to two hundred (200) percent of the solicited person's annual compensation.
CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
(a) Acknowledgment of Confidentiality. Each party hereby acknowledges that it may be exposed to confidential and proprietary information of the other party including, without limitation, Covered Software, Custom Work Product, Embedded Software and other technical information (including functional and technical specifications, designs, drawings, analysis, research, processes, computer programs, methods, ideas, "know how" and the like), business information (sales and marketing research, materials, plans, accounting and financial information, personnel records and the like) and other information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient, or (iii) information received by the recipient from a third party who was free to disclose it.
(b) Covenant Not to Disclose. With respect to the other party's Confidential Information, the recipient hereby agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose such Confidential Information to any person or entity, except to its own employees having a "need to know" (and who are themselves bound by similar nondisclosure restrictions), and to such other recipients as the other party may approve in writing; provided, that all such recipients shall have first executed a confidentiality agreement in a form acceptable to the owner of such information. Neither party nor any recipient may alter or remove from any software or associated documentation owned or provided by the other party any proprietary, copyright, trademark or trade secret legend. Each party shall use at least the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own confidential information.