THE BYTEMASTER
TERMS AND CONDITIONS
The ByteMaster Subscriptions, Services, Website and other Legal Notices You may not reproduce or distribute any information or image from this Website, in whole or in part, without the prior written permission of The ByteMaster. Requests for permission of use should be sent via e-mail to mike@thebytemaster.com. The information, data and images included in this Website are subject to change without notice. The ByteMaster makes no warranties or representations, whatsoever, about the quality, content, completeness or adequacy of such information, data or images. The ByteMaster shall not be liable for any special, incidental or consequential damages, including, without limitation, lost revenues, lost profits or loss of prospective economic advantage, resulting from the use or misuse of any file on this Website or the information, data or images herein. Liability is accepted as described in the section ‘LIMITATION OF LIABILITY’ in the section ‘TERMS AND CONDITIONS’ below. If this Website contains links to other (external) Websites. It should be understood that these sites are not under the control of The ByteMaster. Therefore, The ByteMaster makes no representations whatsoever about any other Website to which you may have access through this Website. When you access an external Website you do so at your own risk and The ByteMaster is not responsible for the content of those Websites. These links are provided as a convenience, and the inclusion of such links does not imply that The ByteMaster endorses or accepts any responsibility for the content or uses of such Websites. It is your responsibility to take precautions to ensure that whichever Web page you select for viewing is free from viruses and other items of a destructive nature. It is your responsibility to ensure that any page or Website which you select for viewing is free from content which you may deem inappropriate. Copyright This Website is published by The ByteMaster. ©2007 The ByteMaster. All rights of reproduction are reserved. All rights reserved. Copyright and intellectual property rights for all descriptions of services contained within this Website shall remain the property of The ByteMaster. No part of this website may be reproduced, in part or in whole, in any form whatsoever or by any means, without the written permission of The ByteMaster. Trademarks All trademarks are acknowledged and remain the property of the respective owners. This content of this Website is intended as an informative guide. While every attempt has been made to ensure that the contents of this Website are correct, the liabilities of The ByteMaster will be limited to those described in the section ‘LIMITATION OF LIABILITY’ in the ‘TERMS AND CONDITIONS’ section below. NO-FIX-NO-PAY GUARANTEE If The ByteMaster does not possess the intellectual or physical capacity to solve your issue, there will be no charge for that request. Other substantial services successfully performed will require payment. However, if The ByteMaster advises the client of a solution and the customer elects not to receive service for whatever reason, there will still be a minimum diagnostic charge. Standard Scope of Maintenance Subscription Work and Exclusions The ByteMaster will contact you to perform monthly maintenance services on your computer. You or someone you authorize must be physically present to activate the remote support software from the computer for which you are authorized maintenance. An option exists to create a permanent connection if desired. You need only activate the service and need not be present for the remainder of the event. You must have a working, high speed internet connection (Cable, DSL, Fiber Optic) to obtain this service. All services offered under the scope of “Monthly Maintenance” are offered through remote connection. Services requiring a physical visit may require additional labor and/or parts costs. While the actual time spent maintaining your computer will vary from month to month, approximately a half hour is intended in our agreement. For all of the following, the determination of the appropriate frequency of such actions is at the sole discretion of The ByteMaster. Furthermore, in all events the final decision regarding the inclusion into or exclusion of services from the Maintenance Agreement and the definition of such services remains at the sole discretion of The ByteMaster. 1) Definition of Services Covered by Maintenance Agreement 1.1 Regular maintenance of Personal Computers (PCs) and Server(s) where applicable. • Scandisk • Defrag • Hardware Check via Remote Connection • Free Space Check • System Log Check (if available) • System Performance Optimization including system configuration. • Anti-virus Updating (if applicable) • Firewall updating (if applicable) • Backup of Data (if applicable) • Applying Security Patches • Installation of third-party utilities and programs intended to enhance performance, reliability and enjoyment of your PC. • Installation of Maintenance Scripts belonging to The ByteMaster. 1.2 Regular maintenance of Network nodes • Checking Hardware via Remote Connection • Checking Load • Checking Paths • Applying Security Patches 1.3 Any other items hereunder listed 2) Explicitly Not Covered Within the Scope of Maintenance Agreement 2.1 Explicitly Excluded • Repairing damage caused by malicious use of a PC/Server • Repairing damage caused by accident of any sort to PC/Servers • Installing additional software to PC’s or Servers • Installing additional hardware to PC’s or Servers • Reinstalling current software to PC’s or Servers • Moving or Relocating Equipment • Installing new PC’s or Servers • Installing new network elements (hubs, switches, cabling etc) • Installing new printers or other external devices • Costs of purchasing hardware. (To be met solely by the customer). • Updating of other software (except when agreed with The ByteMaster and Client) • Maintenance of software (except when agreed with The ByteMaster and Client) • Any licences for software that may be required. • Configuration of software (such as e mail clients, DSL or dial up connections, etc. 2.2 Any other items hereunder listed Terms & Conditions for Computer Maintenance Service Agreement General and Acknowledgement 1.1 These Conditions shall apply to all contracts for the sale of goods and services by the Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document. 1.2 Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and neuter genders and vice versa. 1.3 The headings in these Conditions are inserted for convenience only and shall not affect their construction. 1.4 Any variation to these Conditions and the Agreement (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company. 1.5 Anything in this Contract that is required to be ‘agreed in writing’ shall be agreed in writing signed by a director of the Company. Scope of the Service The Company will provide monthly maintenance either by arrangement with the Customer. In all cases the Scope of Work is defined under the “Standard Scope of Work and Exclusions”. The date and time of maintenance will vary month to month and will require prior contact with the client to initiate the remote support connection software. Replacement Parts The Company will provide at prevailing list price + VAT all parts and equipment which the Company deems necessary for maintaining the Equipment in good operating condition, subject to the Customer’s approval. The Customer will pay for any such parts and equipment + VAT at the prevailing rate, and payment shall be made prior to installation. Should the Customer be unwilling to pay for the parts and equipment required, the Company shall be released from its obligation under this Agreement to maintain the relevant part of the Equipment. All parts removed for replacement shall become the property of the Company. Additional Equipment Additional equipment may be included in this Agreement only if the parties agree in writing, together with a reasonable additional or increased charge. Exclusion of old Equipment The Company is entitled at its absolute discretion to remove / exclude from the Agreement any individual equipment items that are deemed by the Company to be disproportionately troublesome and in such event there shall be a reasonable reduced charge in respect of it. Such reduced charge normally is calculated on a pro-rata basis. Back Up & Copy Programs Additional labor may be incurred if the Customer does not have access to original media or backups of software owned and in use on the computer at the time of maintenance for purposes of file replacement/software re-load, should the Customer fail to maintain proper file backups, an additional charge may be assessed or the Customer may elect to not repair such program or file. The Customer shall obtain, keep and make available to the Company machine-readable copies of all programs, data files, and operating systems relating to the Equipment. The Company shall have no liability for the Customer’s inability to use its machine-readable data. Exclusion from monthly maintenance subscription In addition to any exclusions from the Maintenance Agreement as defined by the “Standard Scope of Work and Exclusions”, the Company’s obligation to provide maintenance services is also contingent upon the Customer’s proper use of all the Equipment. The Company shall not be obligated to furnish monthly maintenance services if: 7.1 the Equipment has been subjected to unusual physical or electrical stress; 7.2 adjustment, repair, or parts replacement is required because of accident, neglect, misuse, improper programming, or failure of electrical power, air conditioning, humidity control, transportation or causes other than normal use; 7.3 the Equipment has been maintained or repaired, or if an attempt to repair or service the Equipment has been made by someone other than the Company’s personnel without prior written approval of the Company (such approval not to be unreasonably withheld); 7.4 the Equipment is either removed from its initial installation location or is reinstalled without the written approval of the Company; 7.5 the Equipment is over 4 years old, unless the Company has agreed in writing to the Customer that it will not be excluded under Clause 5 above; 7.6 the Equipment or any part of it, in the Company’s reasonable opinion, has reached the end of its useful life; or 7.7 the Customer allows any person to access or tamper with the Company’s software on any Equipment. If maintenance services are required as a result of the causes stated above, such repairs will be made at the Company’s then prevailing non-contract rates. Work not included The maintenance service under this Agreement does not include: Installation or re-installation of software that exceeds the scope of the time permitted monthly; operating supplies or accessories including media such as tapes and disc packs, paint or refinishing the equipment, or furnishing materials for this purpose; electrical work external to the Equipment and other devices not specifically noted as part of this Agreement; verification that the Customer’s software licenses are valid and current. Licensing of the Customer’s software remains the responsibility of the Customer; prevention of any virus or spyware or similar problem entering or leaving the Equipment; and Price and Payment Payment for Monthly Maintenance Subscription will be initiated by the Customer through PayPal. You must successfully create or have an account with PayPal to accept these terms of monthly automatic renewal of the monthly charges. Once your subscription is initiated you will be charged on an unending, monthly recurring basis for the Monthly Maintenance Subscription. The ByteMaster is not required to notify you other than the initial creation of your subscription as to the automatic payment to PayPal. You may always log into and contact PayPal to determine your payment status. The Client is solely responsible to cancel the Subscription with PayPal at their discretion at any time. The Monthly Maintenance Subscription is a month-to-month agreement between Client and The ByteMaster. No other charges will occur without prior acceptance by both the Company as well as the Client. Successful initiation of the monthly subscription payment as well as cancellation and any financial inquiries or access to information provided directly to PayPal will be the responsibility of the Client and PayPal. The Price payable by the Customer shall be exclusive of VAT. Payment of the Price and VAT at the rate ruling on the date of the Company's invoice shall be due and paid as set out in the Agreement. The Customer shall also pay all other charges in accordance with these conditions (e.g. parts and equipment if not paid for before their installation) within 3 days from the date of the Company’s invoice. The risk of the supplies shall pass to the Customer upon delivery. The property in the supplies shall not pass to the Customer until the payment plus VAT for them has been made in full. Time for payment shall be of the essence. Interest on overdue payments shall accrue from the date when the payment becomes due until the date of payment at a rate of 1.5% per calendar month or part of a calendar month and shall accrue at such a rate after as well as before any judgement. The Customer shall indemnify the Company in full all its reasonable administrative and legal costs of recovering overdue payments. If the Customer has failed to make any payment in accordance with the Agreement, the Company shall be entitled to enter into the Customer’s premises to remove the installed parts and equipment and the provisions under Clause 13 below shall apply. Not withstanding any actions have or have not been taken, the Company shall be entitled to recover the price plus VAT and other damages under the Agreement. Increasing charges The Company may increase the Monthly Charge, Normal & Abnormal Hourly Charges as set out in this Agreement by giving 14 days’ prior notice to take effect at the end of the notice period. In such an event, the Customer will be required to enter into a new subscription agreement with PayPal at which time The ByteMaster will cancel the prior payment arrangement. Access to equipment The Customer shall provide, at no charge to the Company: Either the Customer or someone in their stead, to initiate the remote support software including possible customer intervention to restart the computer if needed during maintenance services; full and free access to the Equipment; working space and adequate facilities including electrical outlets within a reasonable distance from the Equipment; the opportunity to install the Company’s own software to facilitate this Agreement. Such software remains at all times the property of the Company and will be removed from the Equipment at the termination of this Agreement the opportunity at the convenience of the Company to remove software belonging to the Company. Suspension and termination Subscription payment during a month where services have been performed will be deemed to be earned premiums by The ByteMaster and not subject to refund. If the Customer fails to make payment in accordance with the Agreement or commits any other material breach or if any distress or execution shall be levied upon any of the Customer's goods or if the Customer offers to make any arrangement with its creditors or if any petition in bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrative receiver or manager shall be appointed over the whole or any part of the Customer's business or assets, the Company may in its absolute discretion and without prejudice to any other rights which it may have suspend and/or terminate the Agreement without liability upon its part. Force Majeure The Company shall not be liable to the Customer for any loss, physical or intellectual or damage which may be suffered by the Customer as a direct or indirect result of the duties and/or obligations of the Company in the Agreement being prevented, hindered, delayed or rendered uneconomic by reason of any Force Majeure Circumstances. In these Conditions "Force Majeure Circumstances" shall mean any act of God, war, riot, strike, lock-out, industrial action, accident, breakdown of plant or machinery, fire, flood, drought, storm, difficulty or increased expense in obtaining materials or transport or other circumstances beyond the reasonable control of the Company. Liability The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of the Agreement. Under no circumstances shall the liability of the Company exceed the price payable under this Agreement. Indemnity The Customer shall indemnify the Company in full including legal costs in respect of any claims by third parties which are occasioned by, or arising from the Company’s performance pursuant to the instructions of the Customer. Third parties No person other than the Company and the Customer shall acquire any enforceable rights against the Company nor the Customer under or in connection with this Agreement. Notices Any notice required or allowed under this Agreement shall be deemed properly given if mailed postage paid, to the address as stated in the Agreement unless an alternative address of service is agreed in writing by the parties. Non-solicitation of staff The Customer shall not, during the term of this Agreement and for two years thereafter, directly or indirectly canvas with a view to offering or providing employment to, offer to contract with, or entice to leave any employee of or contractor to the Company engaged in the performance of any part of this Agreement without the prior written consent of the Company. In giving such a consent, a fee may be payable by the Customer. Invalidity of part of contract If any part of this Agreement is held to be a violation of any applicable law, statute or regulation, it shall be deemed to be deleted from this Agreement and shall be of no force and effect and this Agreement shall remain in full force and effect as if that part had not originally been contained in the Agreement. Assignability The parties shall not assign any part of this Contract without the prior written consent of the other party. Waiver The failure by either party to exercise or enforce any rights conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter. Law The Agreement shall in all respects be governed by and construed and interpreted in accordance with the laws of the United States of America and the parties hereby submit to the exclusive jurisdiction of the U.S. Court System.
CANCEL
I ACCEPT
