Terms and conditions
The following Terms and Conditions are referenced in and apply to all authorized Kobargo Technology Partners contracts or purchase orders unless otherwise indicated and approved by an officer in the contract or purchase order.
Disclaimer of Warranties
For any approved contract or purchase order the buyer acknowledges and agrees that seller (Kobargo Technology Partners) is not the manufacturer of products listed in purchase order or bill of sale, and seller hereby disclaims all representations and warranties, direct or indirect, expenses or implied, written or oral, in connection with these products and related professional services (whether purchased or leased by buyer from seller or another), including but not limited to any and all express and implied warranties of suitability, durability, merchantability, and fitness for a particular purpose. Seller to the extent permitted by law assigns to buyer any and all manufacturers' warranties relating to the products purchased by buyer, and buyer acknowledges receipt of any and all such manufacturers' warranties. This includes all hosting products and services.
Web Site, Data Backup and Application Hosting
Hosting is defined as where Kobargo Technology Partners saves and or runs all or parts of applications, data and any resource necessary to run over a network or computer system. These hosting services are provided by Kobargo Technology Partners on a best effort basis only.
Buyer understands that services may be temporarily unavailable for scheduled or unscheduled maintenance and for other reasons within and outside of our direct control. Under no circumstances do any such errors, delays, interruptions in services or loss of information nullify or modify these terms and conditions, and Kobargo Technology Partners will not be held responsible for any loss of data.
Buyer represents that neither buyer, its agents nor employees shall utilize any of the services described herein for illegal purposes; transmission of threatening, obscene, or harassing materials; or interference with or disruption of network users, services or equipment. It is assumed that the information and resources accessible on or through any of the services are private to the individuals and organizations which own or hold rights to those resources and information, unless specifically stated otherwise by the owners or holders of those rights. It is therefore not acceptable for an individual to use any of the services to access information or resources unless permission to do so has been granted by the owners or holders of rights to those resources or information.
Buyer represents and warrants that: (1) That the name which it has requested to register (if applicable), or the name that buyer has registered, on its behalf with the Internet Network Information Center (Inter NIC) does not and will not infringe or conflict with any trademark, trade name, service mark or any proprietary right of any third party; and (2) that buyer will not use any of the services described herein in any way or engage in any conduct which will (whether intentionally or not) infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of, or libel, slander, defame or disparage, any third party ("Third Party Claims"), or create risk of liability for with respect to any Third Party Claims or cause Kobargo Technology Partners to become a party to any action or proceeding involving Third Party Claims.
Limitation of Remedies
Buyer acknowledges and agrees that its sole and exclusive remedy in connection with any defects in the equipment or software including manufacture or design, shall be against the manufacturer of the equipment or software under the manufacturer's warranties and that seller shall have no liability to buyer in any event for any loss, damage, injury, or expense of any kind or nature related directly or indirectly to any equipment or software or service provided hereunder.
Without limiting the above seller shall have no liability or obligation to buyer, in either contract or tort, for special incidental, or consequential damages of any kind incurred by seller, such as but not limited to, claims or damages for personal injury, wrongful death, loss of use, loss of anticipated profits, or other incidental or consequential damages or economic losses of any kind incurred by buyer directly or indirectly resulting from or related to any equipment or service or software described hereunder, whether or not caused by seller's negligence to the full extend same may be disclaimed by law, any reference to equipment or software in this paragraph shall be deemed to apply to all equipment or software purchased by buyer or leased by buyer from seller or another lessor.
Some states do not allow the exclusion or limitation of incidental or consequential damages so the above exclusion may not apply. You may also have other legal rights which vary from state to state.
Entire Agreement
This writing, in combination with seller’s Software License Agreement, seller’s Service Agreement, or seller’s other contractual forms, as and if the case may be, constitutes the final written expression of all the terms of this agreement and they are a complete and exclusive statement of those terms. No agent, employee or representative of seller has any authority to bind the seller to any affirmation, representation, promise, or warranty concerning the goods described on this agreement. Any and all representations, promises, warranties, or statements by seller’s agent, employee, or representative that differ in any way from the terms of this written agreement shall be given no force or effect.
Security Interest
Buyer agrees that to secure payment of the purchase price of the goods described here, the seller has retained title to the goods and has and shall continue to have, until the purchase price is paid in full, a purchase money security interest in such goods and in all substitutions thereof or therefore or any part thereof, and in all equipment, accessories, parts and supplies at any time installed or added or affixed to such goods. The buyer hereby appoints the seller as its attorney-in-fact to execute all necessary documents, including the filing of UCC statements, to perfect the seller’s security interest in the equipment, accessories, parts and supplies.
Taxes
Any tax imposed by federal, state, or other governmental authority on the sale of the goods described herein shall be paid by buyer in addition to the purchase price.
All Modifications to be in Writing
This agreement may be modified or rescinded only by writing signed by the fully authorized agents of seller and buyer.
Waiver
No claim nor right arising out of a breach of this agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
Kobargo Technology Partners Staff
For a period of one (1) year after the resignation, termination or completion of any project buyer agrees not to recruit, hire, engage or discuss employment with, or otherwise utilize the services in any capacity of, any person who shall have been an employee of Kobargo Technology Partners; or induce any person who shall have been an employee of Kobargo Technology Partners to terminate his/her relationship with that party without prior written consent from Kobargo Technology Partners. The agreed upon penalty for doing so without written consent of Kobargo Technology Partners shall equal 100% of the employee’s fair market salary, as determined by Kobargo at its sole discretion.
Default
If Buyer fails to make payments as agreed, or if buyer becomes insolvent, ceases to do business as a going concern, makes an assignment for the benefit of creditors, or if a petition for a receiver or in bankruptcy, or for an arrangement or reorganization is filed by or against buyer, or if any property of buyer is attached, or buyer breaches any of the terms or conditions of this agreement, the entire unpaid balance shall at once become due and payable with interest at the highest lawful rate from the date of this agreement at the election of seller.
Seller may without notice or demand, by process of law or otherwise, take possession of the goods free from all claims of the buyer and retain all payments made by the buyer for the reasonable rental of the goods.
The buyer waives all claims and rights of action for trespass or damages by reasons of such entry, taking of possession and removal.
The remedies provided in this paragraph are in addition to those provided under the Uniform Commercial Code.
Attorney’s Fees
In the event that seller finds it necessary to enforce any right under the agreement, seller shall be entitled to reasonable attorneys fees and court costs.
Severability
If any provision or clause of this agreement or application thereof to any person or circumstance is held invalid or unconscionable such invalidity or unconscionability shall not affect other provisions or applications of the agreement which can be given effect without the invalid or unconscionability provision or application, and to this end, the provisions of this agreement are declared to be severable.
Effect of Headings
The subject headings of the paragraphs of this agreement are included for the purpose of convenience only, and shall not affect construction or interpretation of any of its provisions.
Term of Agreement
Unless otherwise indicated the standard term of a Kobargo Technology Partners agreement is 12 months. An agreement may be terminated by either party provided thirty days written notice is submitted and all payments for the remaining term of the agreement have been paid in full and all outstanding invoices have been paid in full. If an agreement is not terminated in writing by either party thirty days prior to the end of its term it renews for another term at the prevailing rates and under the same terms and conditions. Kobargo Technology Partners will notify customer of new rates in writing 30 days prior to any change.
Payment Terms for Product Purchases
100% due upon acceptance.
Payment Terms for Professional Services
Unless otherwise indicated professional services will be invoiced as incurred and due within 30 business days of the invoice date.
A late charge of one and one-half percent (1½%) per month, or the legal maximum if less, shall accrue on past due billings unless Customer notifies Company of a billing dispute in writing prior to the payment due date. Customer shall be responsible for any costs incurred by Company in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due.
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