ICE SYSTEMS, LLC
Standard Terms and Conditions
ICE SYSTEMS, LLC, (“ICE Systems” or “Company”) is an authorized reseller of Proxmox Software, (“Proxmox”). All licenses or subscriptions to use Proxmox Software shall be governed by the standard Proxmox Terms and Conditions contained on the Proxmox website and ICE Systems makes no further or additional representation or warranty as to the acceptability or performance of Proxmox for any application or use.
In conjunction with, or separate from the sale of Proxmox, ICE Systems additionally contracts with customers and end users (“Customers”) to provide support services, either directly or through third-party vendors selected by ICE Systems, (the “Contracted Services”). These terms and conditions are applicable to all ICE Systems sales. ICE Systems will not accept any other terms and conditions of sale, unless Customer and ICE Systems have executed a written agreement which specifically modifies, supersedes and/or replaces these terms and conditions. Acceptance of all purchase orders, or quotes (signed or unsigned) is expressly made conditional upon Customer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.
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Contracted Services. This Agreement shall apply to the delivery of information technology services and support purchased by the Customer through the ICE Systems website, by a separate Purchase Order, quote (signed or unsigned) or by any other means and regardless of whether payment is by ACH, check or other means that may be proposed and approved in writing by ICE Systems. The term “Agreement” shall include these standard Terms and Conditions as well as any and all Service Attachment(s), Statement(s) of Work, and Purchase Order(s) incorporated herein by reference. Merely publishing this Agreement does not, in and of itself, represent a commitment by Company to provide any Contracted Services or Products to Customer.
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Fees and Payment Terms. In exchange for the Contracted Services performed or Products delivered by Company, Customer agrees to compensate Company at the rates identified in the fee schedule set forth on the ICE Systems quote, website or in the Purchase Order. Customer will pay for online purchases at the time of purchase and all invoices generated pursuant to a Purchase Order shall be due and payable within Fifteen (15) days of receipt thereof, as indicated when quoted . Failure to pay within the agreed upon terms may result in a temporary suspension of subscriptions or service, to resume upon receipt of payment.
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Late Charge. Company reserves the right to charge a late payment fee of one and one-half percent (1.5%) per month on all unpaid balances.
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Taxes. Customer shall pay all federal, state and local sales, use, property, excise, or other taxes imposed on or with respect to the purchase price of the Products.
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Warranty Disclaimer. CUSTOMER ACKNOWLEDGES THAT PROXMOX AND ANY OTHER ANY PRODUCTS PURCHASED FROM COMPANY ARE SUBJECT ONLY TO THE MANUFACTURER’S ORIGINAL WARRANTY. ALL PRODUCTS ARE PURCHASED “AS IS” AND “WITH ALL FAULTS.” SOFTWARE IS SUBJECT TO SUCH WARRANTIES AS THE MANUFACTURER MAY MAKE UNDER THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE. IT IS THE RESPONSIBILITY OF THE CUSTOMER TO ENSURE THAT ALL ITS DATA FILES ARE ADEQUATELY DUPLICATED AND DOCUMENTED. COMPANY WILL NOT BE RESPONSIBLE FOR CUSTOMER'S FAILURE TO DO SO, NOR FOR THE COST OF RECONSTRUCTING DATA STORED ON FIXED DISKS, MAGNETIC TAPES, MEMORIES, OR ANY OTHER STORAGE MEDIA AND/OR DEVICES. COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR USE OR MERCHANTABILITY. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONJUNCTION WITH THE SALE OF PRODUCTS TO CUSTOMER. THE PRICES AND DISCOUNTS APPLICABLE UNDER THIS AGREEMENT TAKE INTO ACCOUNT THIS LIMITED WARRANTY AND LIMITATION OF LIABILITY.
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ICE Systems provides some of its Contracted Services via the Internet. Customer acknowledges that the Internet is not owned, operated, managed by, or in any way affiliated with ICE SYSTEMS, but is instead a separate network of computers independent of ICE SYSTEMS. Customer’s use of the internet is solely at Customer’s own risk and is subject to all applicable local, state, national and international laws and regulations. Customer’s ability to access the Internet or ICE SYSTEMS Services via the Internet is beyond ICE SYSTEMS’s control. Unless agreed otherwise in writing by the Parties, Customer assumes all risk and responsibility for the content of information transferred across the Internet by Customer.
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Confidential Information. The parties will not disclose Confidential Information to any third party at any time without the prior written consent and shall take reasonable measures to prevent any unauthorized disclosure of Confidential Information by its employees, agents, contractors, or consultants.
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Limitation of Liability. CUSTOMER AGREES THAT COMPANY SHALL NOT BE LIABLE TO CUSTOMER, OR ANY THIRD PARTY, FOR: (1) ANY LIABILITY CLAIMS, LOSS, DAMAGES OR EXPENSE OF ANY KIND ARISING DIRECTLY OR INDIRECTLY OUT OF CUSTOMER’S USE OF PROXMOX OR CONTRACTED SERVICES PROVIDED HEREIN; (2) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED. CUSTOMER’S SOLE REMEDY FOR COMPANY’S NON-CONFORMING PERFORMANCE OF SERVICES OR DELIVERY OF PRODUCTS SHALL BE, IN COMPANY’S ABSOLUTE DISCRETION, RE-PERFORMANCE OF THE NON-CONFORMING SERVICES OR A REFUND OF THE CUSTOMER’S UNUSED SUPPORT PAYMENTS OR AN AMOUNT PAID BY CUSTOMER FOR THE NON-CONFORMING SERVICE OR PRODUCTS. COMPANY’S LIABILITY FOR ANY DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT BILLED OR BILLABLE TO CUSTOMER FOR SERVICES PROVIDED BY COMPANY DURING THE PRECEDING TWELVE (12) MONTHS FROM THE DATE THE ALLEGED DAMAGES WERE INCURRED. Proxmox software sales are final and Company shall not refund any amounts or payments previously tendered to Proxmox.
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Assignment. Customer may not assign this Agreement without the prior written consent of Company.
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Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
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Entire Agreement. This Agreement and any Service Attachment(s) incorporated herein constitute the entire agreement between the Parties and supersede any prior or contemporaneous communications, representations or agreements between the Parties, whether oral or written, regarding the subject matter of this Agreement.
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Modification. Except as otherwise provided in a Service Attachment, this Agreement and any Service Attachment(s) may be modified only by an instrument in writing executed by the Parties hereto. Any written work order or request for additional services submitted by Customer shall not modify the terms of this Agreement and will only be considered an offer to modify the Agreement.
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Applicable Law. This Agreement is made under and will be construed in accordance with the law of Kansas without giving effect to that state's choice of law rules. The forum for any dispute or litigation arising out of this Agreement shall be in the Johnson County District Court or in the Federal District Court for the state of Kansas.
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Successors and Third-Party Beneficiaries. This Agreement shall inure to the benefit of Company and Customer and any successors or assigns of Company and Customer. No third party shall have any rights hereunder.
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Future Modification of Terms and Conditions. The Company’s Standard Terms and Conditions may be amended or modified in the future without prior notice. The Company shall use reasonable efforts to provide a link on its’ website to the Company’s most current Standard Terms and Conditions. Then Company’s Standard Terms and Conditions in effect on the date of a future sale shall apply to such future transactions.
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