Terms and Conditions Contract
This Terms and Conditions Contract (TCC) does not define specific services or pricing, nor obligate clients to purchase any services for any period of time. The TCC only defines the legal foundation of the relationship between Preemo and its clients. Specific goods and services including pricing and commitment terms are described in separate Addenda, Schedules, Sales Orders, and/or Service Requests.
1. Document Roles
1.1 The Role of This Contract
This Contract contains provisions that shall govern all goods and services that Preemo may provide or sell to Client. No provision of this Contract may be waived, released, modified, amended, deleted, or terminated except in writing and signed by an authorized representative of each party. The terms of this Contract shall be deemed incorporated in each and every Addendum, Schedule, Sales Order, Service Request, Change Order, or Amendment to Terms and Conditions Contract, whether or not each such document explicitly references this Contract. In the event of a conflict between this Contract and any Associated Document as defined below, the Associated Document shall control. The “Effective Date” is the date of this Contract.
1.1.1 Any Addenda, Schedule(s), Sales Order(s), Service Request(s), Change Order(s), or Amendment(s) to Terms and Conditions Contract may be referred to collectively and severally as Associated Document(s).
1.1.2 Specific services and goods shall be delivered to Client only under Associated Document(s), except in the event of an emergency during which no Associated Document(s) is/are then-currently in effect.
1.2 The Role of Addenda
1.2.1 Addenda are specific terms and conditions of each service or offering. An Addendum may change, alter, amend, or limit the terms of this Contract. Addenda are only effective if they are dated after the Effective Date, and if they are signed by an authorized representative of each Party.
1.3 The Role of Schedules
1.3.1 Schedules contain defined listings required to support each specific Addendum and contain any and all applicable Service Levels. The Schedules may change, alter, amend, or limit the terms of this Contract. Schedules are only effective if they are dated on or after the Effective Date, and if they are signed by an authorized representative of each of the Parties.
1.4 The Role of Sales Orders and Service Requests
1.4.1 The role of a Sales Order/and or a Service Request is to set forth the specific items or services requested by Client and to be delivered by Preemo in accordance with its related Addendum and/or Schedule
1.4.2 No Sales Order or Service Request may change or alter the terms of this Contract. Sales Orders are only effective if they are dated on or after the Effective Date, and if they are signed by an authorized representative of each of the Parties.
1.5 The Role of Change Orders
1.5.1 The Role of a Change Order is to set forth specific, mutually agreed-upon changes to a Schedule or Sales Order by the Parties.
1.5.2 A Change Order must be signed by authorized representatives from each of the Parties. No Change Order may change, alter, amend, or limit the terms of this Contract
1.6 Amendment to Terms and Conditions Contract
1.6.1 An Amendment to the Terms and Conditions Contract is to make specific, mutually agreed-upon changes to this document, and it represents the only acceptable method of making modifications to this document. Any Amendment to Terms and Conditions Contract must be titled “Amendment to Terms and Conditions Contract” and be dated on or after the Effective Date, and signed by an authorized representative of each Party.
2. Term and Termination
2.1 The term of this Contract shall be a period beginning on the Effective Date and will continue in effect until terminated as allowed herein.
2.2 This Contract shall remain in effect as long as:
there are any Associated Document(s) outstanding for which Preemo’s services have commenced but have not been fully completed;
Client has not fully paid all outstanding Preemo invoices; or
Preemo has performed services, or has ordered any third-party goods or services, for which no invoice has yet been generated.
2.3 Even after the termination of any Associated Document(s) for any reason:
Client shall be obligated to pay any and all amounts that it owes Preemo for services rendered and goods sold or ordered before such termination as defined by Service Requests, Sales Orders, or Change Orders, or any and all amounts for ongoing services and goods as defined by Addenda or Schedule(s); and
both parties still shall be bound by all provisions of this Contract to the extent they relate to or govern any aspect of any matter that occurred before such termination, as well as all payment obligations and terms, confidentiality provisions, all limitations of liability, all representations made by either party, all attorney’s fee provisions, and all covenants that by their express terms continue past termination.
2.4 Preemo may terminate this Agreement at any time for convenience by providing Client thirty (30) business days prior written notice. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within sixty (60) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the sixty (60) day period and is pursuing such cure diligently and in good faith. Notwithstanding anything in this Agreement to the contrary, if Client fails to make payment on any due date, Preemo shall have the right to suspend Services hereunder and, if such failure to make payment has not been cured within thirty (30) days of the due date, upon written notice terminate this Agreement. Termination of this Agreement shall not limit Preemo from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Client of its obligation to pay all fees and expenses accruing prior to such termination. Furthermore, upon termination of this Agreement, Client shall provide Preemo with access, during normal business hours, to Client’s premises (or any other locations at which Preemo-owned equipment is located) to enable Preemo to remove all Preemo-owned equipment from such premises (if any). In the event this Agreement is terminated for any reason whatsoever, all Client data held by Preemo shall be returned to the Client in a commercially reasonable manner and time frame, not to exceed fifteen (15) calendar days following the date of request of the return of such data by Client. The data shall be returned in an industry-standard format that is mutually agreed upon by the parties. In the event that Client requests Preemo’s assistance to transition to a new service provider, Preemo shall do so provided that (i) all fees due and owing to Preemo under this Agreement are paid to Preemo in full prior to Preemo providing its assistance to Client, and (ii) Client agrees to pay Preemo its then-current hourly rate for such assistance, with upfront amounts to be paid to Preemo as agreed upon between the parties. Preemo shall have no obligation to store or maintain any Client data in Preemo’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement.
2.5 In the event Client is in breach of any obligation under this Contract or under any Associated Document(s), not including any unpaid portion of an invoice being disputed, and such breach is not cured within fifteen (15) calendar days after written notice from Preemo to Client, Preemo may stop delivering services and/or goods to Client. In the case of a project, Preemo may prevent the use of goods and services installed in the project until such breach is cured, and/or may impose additional terms and conditions as a requirement for continuation or resumption of service. In such an event, Preemo shall have no liability for failure to provide services, goods, or other information to Client.
3. Hours of Operation and After-Hours Service Hours
3.1 Preemo will typically deliver remote services from 9:00am to 5:30pm (ET), Monday through Friday, with the exception of Preemo Holidays. Preemo will typically deliver on-site services from 9:00am to 5:30pm (local time), Monday through Friday, with the exception of Preemo Holidays.
3.2 Regular Service Hours are defined as 9:00am to 6:00pm (local time), Monday through Friday, not including Preemo Holidays. Any time outside of those hours are considered “After Hours”. Clients who initiate a request for After-Hours Service that are not specifically covered by Associated Document(s) understand that they may incur an “emergency service” fee as defined on Preemo’s current published price list.
3.3 All After-Hours Services provided by Preemo, unless specifically covered by Associated Document(s), will be billed at 1.5 times the normal billable rate (for each service type), or the After-Hours rate specified in an Associated Document.
4.1 At the time that Products are ordered from Preemo, Preemo will generate an invoice, which will include a valid purchase order number (PO Number) issued by Client.
4.2 Preemo will invoice client at the time of processing the order and Client agrees to pay Preemo according to the terms stated on the order/invoice. If Client disputes any portion of the invoice, Client agrees to pay the undisputed portion of the invoice and to submit a Written Notice within thirty (30) calendar days of invoice date documenting the reasons why the remaining amount is disputed. After receipt of such notice, Preemo will undertake an investigation of the disputed charges, and both Parties agree to make a best-efforts attempt to resolve the dispute. Any failure by Client to submit a Written Notice of charges being disputed within thirty (30) calendar days of invoice date shall be deemed a final approval and acceptance of all charges on the invoice.
4.3 Client agrees to pay Preemo a finance charge of three and one half percent (3.5%) per month or the maximum allowable by law, whichever is less, on balances for which payment has not been received within thirty (30 days of the invoice date, excluding balances for which Client has submitted a Written Notice under 4.2.
4.4 Client will be subject to any and all applicable taxes or Government-mandated fees. If Client is exempt from any of the taxes or Government-mandates fees, then the client must provide written proof of said exemption.
4.5 At the time that a Project Schedule is approved by Client and submitted to Preemo, Preemo will generate an invoice, which will include a valid purchase order number (PO Number) issued by Client.
4.6 Preemo will invoice client at the substantial completion of the Project Schedule, and Client agrees to pay Preemo within 30 days or receipt of invoice. If Client disputes any portion of the invoice, Client agrees to pay the undisputed portion of the invoice and to submit a Written Notice within thirty (30) calendar days of invoice date documenting the reasons why the remaining amount is disputed. After receipt of such notice, Preemo will undertake an investigation of the disputed charges, and both Parties agree to make a best-efforts attempt to resolve the dispute. Any failure by Client to submit a Written Notice of charges being disputed within thirty (30) calendar days of invoice date shall be deemed a final approval and acceptance of all charges on the invoice.
4.7 Preemo may offer certain discounts for full prepayment of project labor.
4.8 Client agrees to pay Preemo a finance charge of three and one half percent (3.5%) per month or the maximum allowable by law, whichever is less, on balances for which payment has not been received within thirty (30 days of the invoice date, excluding balances for which Client has submitted a Written Notice under 4.6.
4.9 Client will be subject to any and all applicable taxes or Government-mandated fees. If Client is exempt from any of the taxes or Government-mandates fees, then the client must provide written proof of said exemption.
5. Third-Party Goods and Services
5.1 Although Preemo may assist in procuring, installing, servicing, returning, and/or exchanging of goods and/or services manufactured and/or delivered by third parties, Preemo only acts as a reseller of these goods and/or services. Preemo is neither an agent, nor representative, nor warranty service center for any Products. Client acknowledges and understands that Preemo neither designs, nor publishes, nor manufactures any such Products, and therefore disclaims any and all warranties without limitation, and Client waives such claims against Preemo. Client acknowledges that its sole warranty related to any Products are limited to any warranty that may be given by the manufacturer or publisher of the Products.
5.2 Preemo cannot be held responsible for any errors, defects, malfunctions, or other problems resulting from
incorrect specifications having been submitted to Preemo,
Client having approved incorrect specifications,
improper use of Products,
any modification having been made to said Products by anyone other than Preemo personnel,
hardware equipment malfunctions, or
any other circumstances not caused by Preemo,
and any effort by Preemo to diagnose or correct any of the above problems shall be performed at Preemo’s then-current time and material rates.
5.3 Client acknowledges that some goods and services cannot be returned or cancelled once ordered and agrees that Preemo is under no obligation to take back or cancel any such goods or services, once ordered by Client.
5.4 For third-party goods ordered from Preemo, risk of loss or damage shall pass to Client at the time such goods are tendered to a common carrier for shipment to Client, unless Client purchases shipping insurance.
5.5 Preemo reserves the right to engage sub-contractors to perform under the terms of this Contract or any Associated Document(s).
6. Limitations on Liability and Damages
6.1 Preemo agrees to perform services under this Contract and the Associated Document(s) in accordance with industry best practices. Nevertheless, both Parties agree and understand that the complex and technical nature of computer software, computer hardware, communication systems, and Internet connectivity relating to the services provided by Preemo are rarely free from defect, rarely perform without interruption, and rarely provide complete security; and therefore, Preemo does not warrant them as such and it is therefore impossible to guarantee the trouble-free performance of information technology goods or services, even when installed and maintained according to best practices.
Basis of the Bargain
6.2 The Parties acknowledge that prices have been set, and the Contract entered into, in reliance upon the limitations of liability, remedies, damages, and the disclaimers of warranties and damages set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between the parties. Specific remedies provided herein or in any Addendum are the exclusive remedies available to Client.
6.3 Client understands that although Preemo will exercise best efforts in safeguarding Client’s data and may perform backups of Client’s data as an initial part of any Services rendered, Client is solely responsible for maintaining current backups of all data before any Services are performed, and, with the exception of gross negligence or willful intent to cause damage, in no event will Client hold Preemo liable for any special, indirect, punitive, consequential, or incidental damages, including, without limitation, any lost profits, loss of business, or damage to or loss of any electronic files, records, or data.
No Other Warranty
6.4 Except for the express warranties set forth in this Contract, any Addenda, or any references therein, the services and Client’s use of the services is at its own risk. Preemo does not make, and hereby disclaims, any and all representations and warranties, express or implied, whether in fact or by operation of law, statutory or otherwise, including, but not limited to, warranties of marketability, profitability, fitness for a particular purpose, suitability, non-infringement, title, or arising from a course or dealing, or trade practice.
Limitation on Damages
6.5 With the exception of gross negligence or willful intent to cause damage, in no event will Client hold Preemo liable for any special, indirect, punitive, consequential, or incidental damages, including, without limitation, any lost profits, damage to or loss of any records or data, or any claim or demand against Client by any other party due to any cause whatsoever, even if Preemo has been advised of the possibility of such damages or should have known of such possibility. Except in the case of gross negligence or willful intent to cause damage, Preemo’s entire liability (whether in contract, tort, negligence, or by statute, or otherwise) to Client or to any third party shall not in the aggregate exceed the lesser of
the cost of correction or replacement by Preemo, or
ninety (90) days of Preemo’s charges applicable to the Schedule(s), Sales Order(s), Service Request(s), or Change Order(s) under this Contract for the specific deliverables which are the subject of the alleged claim.
In the event that this Contract be terminated as provided for herein, the provisions of this section shall remain in full force.
7.1 “Confidential Information” means any proprietary information owned, developed, possessed, or used by either Party, including, but not limited to, technology, software, trade secrets, service-delivery documents, financial information, lists of employees, business plans and business developments, pricing information, and/or the existence or content of this Contract and any Associated Document(s).
7.2 “Confidential Information” shall not include any information that
is, at the time of disclosure, publicly known under circumstances involving no breach of this Contract;
is lawfully and in good faith made available to the receiving party by a third party who did not derive it, directly or indirectly, from Preemo or Client; or
is independently developed by either Party without use of Confidential Information.
7.3 During the Term of this Contract and for a period of two (2) years thereafter, neither Party shall disclose any Confidential Information obtained from the other Party in the course of providing services or goods under this Contract, unless so directed by the other Party or by a court of law or government authority. Except as to trade secrets, such nondisclosure obligation shall not terminate. Furthermore, during the term of this Contract and thereafter, neither Party shall use Confidential Information for its own benefit or for the benefit of a third party, other than in furtherance of the purposes of this Contract.
8. Use of Proprietary or Intellectual Property
8.1 In providing services to Client, Preemo may deploy proprietary technology or other intellectual property developed or otherwise owned by Preemo, which shall remain the exclusive property of Preemo. However, during the course of providing service, Preemo hereby grants Client a non-exclusive right to use such property. Client’s right to use such property shall end upon termination of the Associated Document(s).
9. Network Abuse
9.1 Client expressly grants Preemo permission to remove or restrict access to obscene, indecent, or offensive content made available by a network user or over the Internet, and shall not hold Preemo liable for any action taken to restrict access to material made available in violation of any law, regulation, or rights of a third party, including, but not limited to, rights under copyright law and prohibitions on libel, slander, and invasion of privacy.
10. Software License
10.1 Services provided by Preemo may require software provided by Preemo and/or third parties. All such software is licensed to Client subject to the terms and conditions of an end-user license agreement (“EULA”) which is typically provided as either a document accompanying such software or electronically during initial use of such software. Client represents to Preemo that it will abide by the terms and conditions of the EULA associated with any such software.
11. Multiple or Different Client/User Parties
11.1 “Client Affiliate” means any entity that
is a direct or indirect parent, subsidiary, or stockholder of Client;
has at least one executive officer, director, or equity owner who is also an executive officer, director, or equity owner of Client; or
shares any office space, personnel, or equipment with Client.
If any Client Affiliate receives, uses, or shares the use of any software, hardware, systems, or other goods installed, provided, sold, or serviced by Preemo, then Client stipulates that Client has signed and agreed to be bound by this Contract both on its own behalf and as authorized agent with actual authority for such Client Affiliate. If Client Affiliate receives, uses, or shares the use of any software, hardware, systems, or other goods installed, provided, sold, or serviced by Preemo, then such Client Affiliate is jointly and severally liable for all obligations of Client.
12. Force Majeure
12.1 Neither Party shall have liability to responsibility to the other Party for any delay, failure to perform, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the Party’s reasonable control, including, but not limited to: acts of nature; strikes; civil disturbances; terrorist acts; unavailability of goods or services from third parties; interruption or delay in delivery, transportation, telecommunications, or electrical services; failure of third-party hardware or software; or acts or omissions of third parties.
13. Hiring of Employees; Liquidated Damages
13.1 Neither during the Term of the Contract, nor for the period of two (2) years after its termination, will Client knowingly solicit or hire as an employee or engage as a contractor, whether part-time or full-time, any person who then is or at any time in the preceding two-year period was an employee of Preemo. Client stipulates and admits that hiring or engagement of any employee or former employee of Preemo is likely to cause irreparable damage to Preemo that would be difficult to impossible to ascertain or prove and for which the amount of damages would be difficult or impossible to prove. Accordingly, Client agrees that any breach of this paragraph shall obligate Client to pay to Preemo on demand, as liquidated damages, an amount equal to 100% of that employee’s most recent annual salary. Client again agrees that this provision is fair and not excessive.
14. Billing Disputes
14.1 Client shall have the right to reasonably dispute any of the charges contained in an invoice for a period of thirty (30 days after the date of the invoice (the “Reconciliation Date”), provided that:
Preemo receives payment in full for all non-disputed charges on or before the Due Date of such payment,
Client presents a written statement of the purported billing discrepancies to Preemo in reasonable detail on or before the Reconciliation Date, and
Client negotiates in good faith with Preemo for the purpose of resolving said “Billing Dispute”.
Preemo will not be obligate to consider any Client notice of any Billing Disputes which are received by Preemo after the Reconciliation Date.
15.1 In the event Client fails to make payment by its due date, not including any amounts which may be in a Billing Dispute, Client shall be in material default of this Contract. If payment is not received within fifteen (15) days after due date, Preemo will notify Client of past-due status and allow Client five (5) additional days to bring account current. If, after the additional grace period, Client remains in default, Preemo shall be entitled to any one or all of the following remedies:
Preemo may immediately suspend Services to Client;
all amounts due under this Contract and the associated Addenda or Schedule(s) shall be accelerated and become immediately due and payable; and/or
Preemo may terminate any Associated Document(s).
16. Dispute Resolution
16.1 Any controversy or claim related directly or indirectly to this Contract or any Associated Document (“Dispute”) shall be resolved in accordance with the terms of this section.
16.2 If the Dispute cannot be settled by good-faith negotiation between the Parties, both Parties will submit the Dispute to non-binding mediation. If complete agreement cannot be reached within thirty (30) days of submission to mediation, any remaining issues will be resolved, at Preemo’s election, by binding arbitration in accordance with The Federal Arbitration Act, 9 U.S.C. §1-15, as amended, which, in conjunction with state law, will govern the arbitrability of all disputes.
16.3 A single arbitrator who is knowledgeable in the IT business and commercial matters will conduct the arbitration. The arbitrator’s decision and award will be final and binding and may be entered in any court with jurisdiction. The arbitrator will not have authority to modify or expand any of the provisions of this Contract (e.g., the Exclusive Remedies and Limitation of Liability provisions of this Contract).
16.4 Any mediation or arbitration commenced pursuant to this Contract will be conducted under the then-current rules of the alternate dispute resolution (ADR) firm selected by Contract of the Parties, subject to any expedited resolution procedure. If the Parties are unable to agree on an ADR firm, the Parties will conduct the mediation and, if necessary, the arbitration under the then-current rules and supervision of the American Arbitration Association (AAA). Each Party will bear its own attorney’s fees associated with the mediation and, if necessary, for half of the expenses of arbitration.
16.5 In the event of litigation relating to the subject matter of this Contract, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney’s fees and costs.
17. Miscellaneous Provisions
17.1 Limitation on Actions
Any dispute Client has against Preemo with respect to this Contract, any Associated Document, or the services rendered thereof, must be brought within two (2) years after the cause of action arises, and will otherwise constitute a waiver thereof.
If any provision of this Contract is judicially held to be unenforceable, illegal, or invalid, then such provision shall be deemed modified to the minimum extent necessary to render if enforceable, legal, or valid, as applicable, or, if such modification is not possible, then such provision shall be deleted, with the rest of this Contract continuing in full force and effect.
17.3 Venue; Jurisdiction; Governing Law
Venue and jurisdiction for the purpose of any litigation regarding this Contract shall like exclusively in Miami-Dade County, Florida. This Contract shall be governed by the laws of Florida, without regard to conflict of law rules.
17.4 Entire Agreement
This Contract and any Associated Document(s) represent the entire agreement between the Parties and supersede all prior agreements, understandings, and representations, whether written or oral, and may be amended or replaced only as described in paragraph 1.6.1.
17.5 Representation and Authority
Each Authorized Representative signing below represents and warrants to the other Party that s/he has full corporate power and authority to execute this Contract and to bind her/his company to the terms of this Contract.
17.6 Security of Interest
In the event of Client’s bankruptcy, this Contract grants Preemo a specified first security interest in any remaining assets up to an including the value of this Contract, including any Associated Document(s) appurtenant hereto.
Any assignment of these Terms is null and void without the express written consent of Preemo. Preemo may assign its rights under these Terms to any successor, assign, or subsidiary.
Each Party agrees to indemnify and defend the other Party against any claim or action brought by any third party for actual or alleged infringement of any United States patent, copyright, trademark, or trade secret based upon:
in the case of Preemo indemnifying, Client’s right to use any Software or Third-Party Materials in accordance with the Contract (or applicable Associated Document(s)), and
in the case of Client indemnifying, Client’s use of the Services, Software, or Third-Party materials in violation of this Contract (or applicable Associated Document(s)).
The indemnifying Party shall pay any damages and costs, including reasonable attorney’s fees, finally awarded and/or paid in settlement and/or incurred in the defense of such claim or action by the indemnified Party. The indemnifying Party shall have the sole right to conduct the defense of any claim or action and all negotiations for its settlement, unless the Parties to this Contract agree otherwise in writing.
Preemo and Client shall have no obligation under this Contract with respect to any claim or action against the other that is based upon:
use of any Software in breach of this Contract;
use of any Software with any product, software, or system not provided or approved by Preemo; or
modification of any Software without the written approval of Preemo.
The indemnifying Party shall not be responsible for any settlement entered into without its consent. In the event of a claim or action under this section, where Preemo is the indemnifying Party, Preemo may, in its sole discretion:
procure for Client the right to continue using the Software;
provided a substitute, non-infringing Software at no cost to Client; or
only if Preemo has exhausted both (a) and (b), refund any pre-paid fees, as determined by Preemo, directly associated with the use of such Software for the time period when the Software is unavailable to Client.
19. Notifications (Written Notice)
Any notice or communication required be given hereunder must be delivered by U.S. Mail registered or certified return receipt requested, or by an overnight courier, in each case to the designated person and address as set forth in Authorizations (below). Such notice will be deemed to have been given as of the date delivered.
20. Labor and Products
20.1.1 Labor is defined as any service that Preemo delivers or otherwise provides to Client that is not covered under other Addenda to the Terms and Conditions Contract.
20.1.2 Products are defined as any hardware, software, or other tangible or intangible assets are not manufactured by Preemo but that Preemo may sell, resell, or otherwise transfer or license to Client on behalf of its manufacturer or publisher.
20.1.3 The parts of this section specifically related to Labor are detailed in paragraphs 20.3, 20.4, and 20.8, and are applicable only to Clients who order Labor from Preemo. The parts of this section specifically related to Products are detailed in paragraphs 20.5, 20.6, 20.7, and 20.8, and are applicable only to Clients who order Products from Preemo.
20.2 Client Passwords and Documentation
20.2.1 Preemo does not manage or maintain any Client passwords or other documentation under this section. Client is solely responsible for maintaining and managing passwords as well as any or all other documentation.
20.3.1 The services that Preemo will deliver under this section will consist of IT professional services. Preemo will, whenever possible, assign personnel known to possess the necessary knowledge, skills, or certifications to properly complete the necessary tasks per an associated Schedule.
20.3.2 Preemo may provide its services on-site, at Client’s offices or other location where Client’s IT infrastructure exist, or by way of remote services, without being physically present at a Client’s site.
20.4.1 Preemo may quote labor as a fixed rate under a Project Schedule. In the event that the scope of the project change, a Change Order, approved by Client, will be required.
20.4.2 When a fixed rate is not is not quoted, Preemo will exercise best efforts to provide Client with estimated charges. Client understands, however, that the hours or dollar amounts quoted are only an estimate and Client will be billed for actual hours spent in delivering the services described in the Project Schedule. Preemo will also exercise best efforts in notifying Client if service hours are excessively exceeding the original estimate.
20.4.3 Client understands that Preemo bases its prices on pre-paid labor and timely payments by Client. Labor that is not pre-paid or payments that are not delivered to Preemo in a timely manner could result in the removal of discounts or other considerations, which could result in higher billing.
20.5 Sales Orders
20.5.1 Unless otherwise stated on the Sales Order, prices quoted are only valid for 15 days and product deliveries are subject to availability.
20.5.2 Whether or not it is specifically stated anywhere, Preemo may, at its sole discretion, require a deposit from Client before placing any order for Products.
20.5.3 Preemo’s regular policy is to invoice for Products before placing the order with the third-party supplier, unless otherwise agreed upon by the Parties. Products may not be ordered from the supplier until the invoice has been paid, thereby delaying shipment and delivery.
20.6.1 All orders are FOB Shipping Point and Client is responsible for all associated shipping and handling charges.
20.7.1 All returns must have a Return Merchandise Authorization (RMA) number. RMA numbers can be obtained by contacting Preemo’s Purchasing Department at (305) 722-7162.
20.7.2 Preemo reserves the right to assess a restocking charge on non-defective returns.
20.7.3 All returns must be in “like new” condition, in the original packaging, including all manuals, etc. Preemo reserves the right to refuse a return which is not in this condition.
20.7.4 Preemo reserves the right to refuse Products for return. Certain items such as software, special orders, client-specified items, and discontinued products are sold “AS IS” and cannot be returned.
20.8.1 Other than a fixed-rate project schedule, Client understands and agrees that Preemo only sells time, on a best efforts basis, to complete any specific tasks under this section or its related Schedule(s) without any promises or guarantees of any specific result or outcome. Client is therefore responsible for, and agrees to pay, any and all charges associated with Labor provided to Client, regardless of result or outcome.
20.8.2 Client understands that although Preemo will exercise best efforts in safeguarding Client’s data and may perform backups of Client’s data as an initial part of the Services, Client is solely responsible for maintaining current backups of all data before any Services are performed, and, with the exception of gross negligence or willful intent to cause damage, in no event will Client hold Preemo liable for any special, indirect, punitive, consequential, or incidental damages, including without limitation, any lost profits, or damage to or loss of any records or data, except as set forth in the Terms and Conditions Contract.
20.8.3 Client understands and acknowledges the limitations set forth in section 4 of this Contract, which discusses Preemo’s liability as a reseller of “third-party goods and services”.