These Master Terms and Conditions (“Terms”) are by and between Complete Business Systems of Colorado, Inc. (“CBS”) and all clients purchasing products or services through CBS (hereafter “Customer”). Each party may also hereafter be referred to as a “Party” or together as the “Parties.”
NOW, THEREFORE, in consideration for the rights, promises and obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:
- Incorporation & Conflicts. These Terms are hereby incorporated into and forms part of each other agreement in which this Agreement is expressly incorporated by reference between the Parties. These Terms will control over any conflicting terms in any other agreement between the Parties.
- Scope. These Terms apply to all CBS services, product resales, and rentals.
- Term & Termination. These Terms take effect upon execution of the first order form for CBS services, product resales, or rentals (“Effective Date”) between the Parties and terminates upon termination of all other agreements between the Parties.
- Suspension of Services. In addition to remedies expressly included in other provisions of these Terms, other agreements between the Parties, and in addition to all remedies at law or in equity, CBS reserves the right to immediately discontinue all CBS services, including, without limitation, managed network services, cloud access and management services, and maintenance and support services, anytime Customer is past due on any payments owed to CBS pursuant to other agreements between the Parties. Services will be eligible to resume once Customer’s account is brought current and all late fees are paid in full. CBS further reserves the right to pass on additional administrative charges that it incurs in suspending and restoring services to the Customer.
- Third Party Fees. CBS may be required to pay third party fees on Customer’s behalf. Such fees include, without limitation, third party licensing fees for software products and services. Customer hereby authorizes CBS to incur such fees on its behalf and agrees to reimburse CBS for all third-party fees paid or owed on its behalf. Customer agrees to continue reimbursing CBS for ongoing third-party fees even if Customer or CBS terminates Customer’s services prior to the end of such third-party fee agreement, and until the end of such third-party fee agreement. Customer further authorizes CBS to add such fees to its reoccurring monthly invoices, if applicable, or to charge any ACH, debit or credit card account on file with CBS. The terms of Section 4 herein will apply if Customer is late on reimbursing CBS for third party fees.
- Disclaimers. PLEASE READ THE FOLLOWING DISCLAIMERS CAREFULLY. THESE DISCLAIMERS APPLY TO ALL OF CBS’ SERVICES, THIRD-PARTY PRODUCT RESALES, AND RENTALS.
- Product Resales and Rentals. CBS rents and resells third party products, which means that CBS rents and resells products made by other companies and has no control over the development or manufacturing process of the products that it rents and resells. These products include, without limitation, copiers, printers, scanners, laptops, computers, computer accessories, hardware, and software, including software as a service. All products are therefore provided “as is” and “with all faults” and CBS disclaims, to the maximum extent permitted by law, all warranties or guarantees of any kind, including implied and statutory warranties, unless expressly included in another signed written agreement between the Parties and only then to the extent expressly defined. Disclaimed warranties herein include, without limitation: (a) no warranties that products will function as described or will be free from interruptions, bugs, errors, harmful components, defects, or deficiencies; (b) no implied warranties of merchantability or fitness for a particular purpose; (c) no implied warranties arising from course of performance, course of dealing, or usage of trade; (d) no warranties of non-infringement; and (e) no warranties that products will meet Customer’s requirements, or that products will be capable of system integration with Customer’s current systems.
- CBS Services. CBS provides all services “as is” and “as available.” CBS makes no warranties or guarantees regarding any of its services, including implied and statutory warranties, unless expressly included in another signed written agreement between the Parties and only then to the extent expressly defined. Disclaimed warranties herein include, without limitation: (a) no implied warranties of merchantability or fitness for a particular purpose; (b) no implied warranties arising from course of performance, course of dealing, or usage of trade; (c) no warranties of non-infringement; and (d) no warranties that CBS’ services will meet Customer’s requirements, or that CBS’ services will be uninterrupted, timely, secure, or error free.
- CBS Recommendations and Assumption of Risk. CBS recommendations for services and products are for information purposes only. CBS recommendations do not create warranties or guarantees of any kind, whether express, implied, statutory, or otherwise. Customer agrees to be solely responsible for ultimately choosing the products and services it purchases through CBS, and Customer voluntarily and expressly agrees to assume all risks, whether known or unknown, and of every kind and character, associated with each product or service it purchases through CBS.
- Data Security. CBS provides no warranties or guarantees, express, implied, statutory, or otherwise, that Customer’s data will be secure and not improperly accessed by unauthorized persons, or lost, corrupted or damaged. Customer further understands and agrees that data breaches can still occur despite implementing the highest level of security available for commercial use.
- Data Migration. CBS uses industry best practices to migrate data from one platform to another. However, the process of data migration contains inherent risks beyond CBS’ control despite best practices and CBS therefore does not provide warranties, express, implied, statutory, or otherwise, that Customer’s data will not be lost, corrupted, or damaged during any data migration service provided by CBS.
- End User Support Limitations. As described in Section 6.1 above, CBS is a renter and reseller of third-party products and does not own the underlying intellectual property rights for the products that it rents and resells, such as third-party software products, including software as a service. This means, for example, that CBS is not allowed to alter third party software code or create software patches or updates to fix issues with third party software products. CBS’ end user support services are therefore limited to the tools made available to it by the applicable third-party software provider, including waiting for “Patch Tuesdays” in which software providers release patches and updates to the public to fix existing software issues with their products.
- Remote Device Monitoring Limitations. CBS remote device monitory services are only possible if the device is turned on and is connected to the internet. Remote monitoring is further limited by what the monitoring software is programed to monitor, which means that there may be certain software issues that the monitoring software is not programed to identify. CBS therefore makes no warranties or guarantees of any kind, whether express, implied, statutory, or otherwise, that remote device monitoring service will be uninterrupted, or that such services can identify and troubleshoot all software or hardware issues.
- Release and Hold Harmless. Customer agrees to release, waive, discharge, relinquish, and hold CBS, its owners, directors, officers, managers, employees, agents, affiliates, successors and permitted assigns harmless against all actions, causes of action, claims, charges, demands, losses, damages, costs, attorney’s fees, judgments, liens, indebtedness and liabilities of every kind and character, whether known or unknown, including foreseen or unforeseen circumstances connected to, related to, or arising out of: (a) third party product or service defects, deficiencies, interruptions, outages, connectivity issues, bugs, errors, patches, updates, or harmful components; (b) data security breaches committed by unauthorized persons; or (c) data that becomes lost, corrupted or damaged for any reason, including during data migration services performed by CBS, unless due to CBS’ gross negligence.
- Limitation of Liability. IF THERE IS A DISPUTE BETWEEN THE PARTIES, OR BETWEEN CLIENT AND CBS’ OWNERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS, THEN CLIENT AGREES TO LIMIT THE AMOUNT OF POTENTIAL MONETARY DAMAGES THAT COULD ULTIMATELY BE AWARDED TO CLIENT TO THE LESSOR OF CLIENT’S ACTUAL DIRECT DAMAGES OR THE AMOUNT OF MONEY PAID TO CBS BY CLIENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. CLIENT FURTHER AGREES THAT CBS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH CBS’ SERVICES, THIRD PARTY PRODUCT RESALES, RENTALS, OR THESE TERMS, HOWEVER ARISING, WHETHER AN ACTION AT LAW OR IN EQUITY, AND REGARDLESS OF THE LEGAL THEORY (E.G. CONTRACT, TORT, ETC.); NOR WILL CBS BE LIABLE FOR DAMAGES CAUSED BY THIRD PARTY PRODUCTS, SUCH AS EQUIPMENT, SUPPLIES, SOFTWARE, HARDWARE, OR ACCESSORIES, OR ANY DEFICIENCY OR DEFECT THEREOF, OR ANY DELAY IN DELIVERY OR INSTALLATION THEREOF.
- Limitations on Remedies for Products under Warranty. If a limited warranty is expressly provided in a signed written agreement between the Parties, then Customer is limited to the remedies listed in such warranty.
- Indemnification. Each Party (each an “Indemnifying Party”) agrees to indemnify, defend, and hold the other Party, and its owners, directors, officers, managers, employees, independent contractors, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by Indemnified Party, and awarded against Indemnified Party in a final judgment, administrative proceeding, or any alternative dispute resolution proceeding arising out of, related to, or in connection with: (a) Indemnifying Party’s negligence or willful misconduct; or Indemnifying Party’s violation of: (b) applicable law, (c) third party intellectual property rights, (d) third party licensing agreements, (e) third party software agreements, (f) third party cloud storage agreements, or (g) third party internet provider agreements.
- Non-Solicitation. While CBS performs services for Customer, and for one hundred eighty (180) days after CBS last performed services for the Customer, Customer shall not, directly or indirectly, for itself, or on behalf of any person, firm corporation, or other entity, whether its principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit, participate in or promote the solicitation of any CBS employee to leave its employ, or hire or engage such CBS employee. Customer agrees that the remedies at law for any breach of the foregoing provisions may be inadequate and that, in addition to any other remedy it might have, CBS is entitled to injunctive relief without the necessity to post bond, and Customer agrees to pay CBS, an amount equal to such employee’s annualized salary and bonus.
- Confidential Information.
- “Confidential Information” means any information that is proprietary or confidential to a Party or that a Party is obligated to keep confidential and that is either identified as proprietary or confidential by the Party or, given the nature of the information or the circumstances surrounding the disclosure, reasonably should be considered to be proprietary or confidential. Confidential Information may be of a technical, business, or other nature (including, but not limited to, information which relates to a Party’s technology, research, development, inventions, products, trade secrets, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the receiving Party prior to receiving the same from the other Party in connection with an agreement between the Parties; (b) is independently developed by the receiving Party without the use of the Confidential Information of the disclosing Party; (c) is acquired by the receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes generally available to the public through no fault or action of the receiving Party.
- Each Party reserves any and all right, title and interest that it may have in or to any Confidential Information that it may disclose to the other Party pursuant to business dealings between the Parties. The receiving Party shall (a) protect Confidential Information of the disclosing Party against any unauthorized use or disclosure to the same extent that the recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event less than reasonable care; and (b) the receiving Party shall use any Confidential Information of the disclosing Party solely for the recipient’s performance of its obligations or exercise of its rights under an agreement between the Parties. At the disclosing Party’s request, the receiving Party shall promptly return all of its Confidential Information or destroy the same and certify in writing that such Confidential Information has been destroyed; provided, however, that the receiving Party is not required to destroy or return any Confidential Information that must be retained for regulatory, legal or audit purposes or for compliance with its document retention policies, or to destroy any electronic copies made as part of its routine archival or backup procedures.
- Taxes. Customer is responsible for paying all federal, state, or local sales and use taxes that arise in connection with purchasing products or materials from CBS, which will be included in the applicable invoice. Customer will not be obligated to pay such taxes if Customer delivers a valid exemption certificate to CBS for each state of use.
- Collection Costs. If timely payment is not made to CBS and collection procedures are then utilized by CBS, Customer agrees to pay all costs of collection, including, without limitation, collection fees, reasonable attorney fees, and court costs whether or not an action is commenced or proceeds to judgment.
- Miscellaneous. The following terms apply to all agreements between the Parties, including these Terms.
- Governing law; Venue. Agreements between the Parties will be governed by the laws of the State of Colorado without giving effect to any choice or conflict of law principles of any jurisdiction. The Parties hereto agree to submit to the exclusive jurisdiction of either the Courts of the State of Colorado located in Jefferson County, Colorado, or United States Federal District Courts within Denver, Colorado and agree to accept service of process by registered or certified mail, return receipt requested, in accordance with Colorado or Federal rules of civil procedure.
- Notice. Each Party shall deliver all notices in writing to the other Party using the most current contact information on file for each Party. Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (with confirmation of transmission). A notice is effective only if the Party giving the notice has complied with the requirements of this Section, and notice will be deemed received (a) upon receipt by the receiving party if personally delivered; (b) two business days after deposit with an overnight courier; (c) four business days after deposit as certified or registered mail; and (d) upon sending an email if transmission of the email is confirmed.
- Assignment. Rights and obligations between the Parties shall be binding upon each Party and their successors and permitted assigns. Customer may not assign any agreement between the Parties, whether voluntarily or by operation of law, without CBS’ prior written consent. CBS may assign any agreement between the Parties at any time without Customer’s prior written consent.
- No Third-Party Beneficiaries. Agreements between the Parties are intended to only benefit each Party and their respective successors and permitted assigns. No agreement between the Parties conveys any right, benefit, or obligation to third parties unless expressly contained therein.
- Non-exclusivity. Agreements between the Parties are not exclusive unless expressly contained in writing.
- Amendments; Waivers; Termination. Except as expressly contained elsewhere in an agreement between the Parties, no amendment to any agreement between the Parties will be valid unless the amendment is in writing and signed by an authorized agent for each Party. Waivers are valid only if in writing and signed by the Party so waiving. The failure of a Party at any time to require performance of any provision of an agreement between the Parties will not affect such Party’s rights at a later time to enforce such provision. No waiver by any Party of any breach of an agreement between the Parties will be deemed to extend to any other breach or affect in any way any rights arising by virtue of any other breach. No termination of any agreement between the Parties is valid unless signed by an authorized agent of CBS.
- Severability. Any provision of any agreement between the Parties that is determined by any court of competent jurisdiction to be invalid or unenforceable will not affect the validity or enforceability of any other provision of such agreement. Any provision of any agreement between the Parties held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
- Force Majeure. Except for Customer’s payment obligations to CBS, each Party shall be excused from performance of any obligations under any agreement between the Parties, and shall not be liable for delay in performance or non-performance attributable in whole or in part to any cause beyond its reasonable control, including but not limited to the following: (a) action or inaction of government, whether in its sovereign or contractual capacity; (b) judicial action; (c) war, civil disturbance, insurrection, sabotage, terrorist acts or threats, or act of public enemy; (d) labor disputes or strikes; (e) fire, flood, storm, pandemic or other act of God; (f) failure or delay in delivery by suppliers or subcontractors that such Party cannot otherwise mitigate to the other Party’s satisfaction; or (g) shortage of energy, materials, supplies, equipment, labor or equipment.
- Counterparts. All agreements between the Parties may be electronically signed separately, with each copy considered an original, and all copies forming one document.
Entire Agreement. These Terms, and the agreements that incorporate these Terms by reference, contains the complete understanding between the Parties concerning the subject matter herein and supersedes all other prior or contemporaneous understandings, promises, or agreements between the Parties.