ICE SYSTEMS, LLC

 

Standard Terms and Conditions

Contracted Services

 

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 located at https://www.proxmox.com/images/en_AGB-Proxmox-GmbH.pdf 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 the sale of Proxmox, ICE Systems separately contracts with customers and end users to provide support service, either directly or through third-party vendors selected by ICE Systems, (the “Contracted Services”). By purchasing the Contracted Services online through the ICE Systems website, online payment form, a signed quote, or by a separate Purchase Order, the Customer agrees that the Contracted Services shall be governed by the ICE Systems Standard Terms and Conditions.

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1. Contracted Services.    This Agreement shall apply to the delivery of information technology services and support purchased by the Customer through the ICE Systems website, online payment form, a signed quote, or by a separate Purchase Order, 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.
    

2. Term of Agreement.   This Agreement shall commence on the date Customer purchases Contracted Services and will continue in full force and effect until terminated by either party as provided herein, or until Company is no longer obligated to provide any Contracted Services or Products to Customer.  In the event that further Contracted Services are requested or purchased after the expiration or termination of this Agreement, this Agreement will automatically renew for the period of time that it takes for the completion of such Services or delivery of such Products.  Customer acknowledges that it will be responsible  for all fees, costs, and expenses incurred by Company for Services rendered or Products delivered after expiration or termination of this Agreement.
    

3. 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 website, online payment form, a signed quote, or by a separate 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.  Customer’s failure to remit payment due within fifteen (15) days of receipt of an invoice shall be considered a material breach of this Agreement subject to accelerated termination pursuant to paragraph 14(a) of this Agreement.  Customer shall be responsible for reimbursing Company for any actual costs, including attorney’s fees, related to resolving any unpaid balance.
    

4. 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.
    

5. 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.
    

6. 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 RESPOICE SYSTEMSBLE 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.
    

7. 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.
    

8. Independent Contractor.    The Parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties.  Company will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law.
    

9. 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.  Further, Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of the parties and shall in no event be transferred, conveyed, or assigned as a result of the services provided pursuant to this Agreement.  The foregoing duty shall survive for a period of three (3) years following the termination or expiration of this Agreement. 
    

10. Limited Warranty.    Company warrants that all Services performed pursuant to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being performed.  Security services performed will not guarantee a level of security for the system being assessed.  IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE SERVICE ATTACHMENT(S), THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE. 
     

11. 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, AND CUSTOMER AGREES TO INDEMNIFY AND HOLD COMPANY HARMLESS AGAINST SUCH LIABILITIES, CLAIMS, LOSSES, DAMAGES (CONSEQUENTIAL OR OTHERWISE) OR EXPENSES, OR ACTIONS IN RESPECT THEREOF, ASSERTED OR BROUGHT AGAINST COMPANY BY OR IN RIGHT OF THIRD PARTIES; OR (3) ANY PUNITIVE DAMAGES. FOR PURPOSES OF THIS AGREEMENT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF DATA, LOSS OF ANTICIPATED REVENUES, INCOME, PROFITS OR SAVINGS; LOSS OF OR DAMAGE TO BUSINESS REPUTATION OR GOOD WILL; LOSS OF CUSTOMERS; LOSS OF BUSINESS OR FINANCIAL OPPORTUNITY; OR ANY OTHER INDIRECT OR SPECIAL DAMAGES OF ANY KIND CATEGORIZED AS CONSEQUENTIAL OR INCIDENTAL DAMAGES UNDER THE LAW OF THE STATE OF KANSAS.  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 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.
     

12. Indemnification.    Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder.  To the extent that such claim arises from the concurrent conduct of Customer, Company and/or any third party, it is expressly agreed that Company’s liability shall be limited by the terms and provisions of paragraph 11 herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph 11 herein, each party's obligations of indemnity under this paragraph shall be effective only to the extent of each party's pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the party seeking indemnification under any settlement made without the indemnifying party's written consent.
     

13. Termination for Material Breach.  If either party believes that the other party has failed in any material respect to perform its obligations under this Agreement (including any Service Attachment(s), Statement of Work or Product Order attached hereto), then the non-breaching party shall provide written notice to the other party’s representative identified in Exhibit 1 attached hereto describing the alleged breach in reasonable detail.  If the alleged breach relates to Customer’s failure to pay any sum due and owing under this Agreement, or if Customer makes an unauthorized solicitation of a Company employee under the provisions of paragraph 9 herein, Customer shall have ten (10) business days after notice of such failure to cure the breach.  If Customer fails to cure the breach within ten (10) business days, then Company may immediately terminate this Agreement, in whole or in part, for cause, by providing written notice to Customer.  With respect to all other breaches of this Agreement, the non-breaching party must provide the breaching party notice in writing clearly identifying the breach.  Unless the Parties agree in writing to a longer time, the breaching party shall have fifteen (15) days from its receipt of the written notice of breach to cure the breach.  If the breaching party fails to cure the breach within fifteen (15) days of receipt of the written notice of breach, then the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the authorized contact identified in Exhibit 1 attached hereto and fully incorporated herein.  If the breach is one that cannot reasonably be cured within fifteen (15) days of receiving notice, the parties shall mutually agree in writing to a time schedule and plan for curing the breach.  If the breach is not cured by the mutually agreed upon deadline, the non-breaching party may terminate this Agreement.
     

14. Non-Restrictive Relationship.  Company may provide the same or similar services to other customers.
     

15. Force Majeure.  Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.
     

16. Assignment.  Customer may not assign this Agreement without the prior written consent of Company.
     

17. 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.
     

18. Captions.  The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
     

19. 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.
     

20. Modification.  Except as otherwise provided in an 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.
     

21. 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.
     

22. 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.