Last updated January 27, 2017
PLEASE READ THIS INFORMATION CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
This Agreement contains the terms and conditions that apply to purchases from NEXTRIO, LLC (“Nextrio”) that will be provided to you (“Customer”) related to requests for computer systems and/or related products and/or services and support. Whenever possible, Nextrio will provide Customer with a written proposal for parts, labor, service and/or contract pricing. Customer’s written signature, (or email or verbal consent), indicates that Customer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY (I) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH NEXTRIO, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) UNLESS OTHER NEXTRIO STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in Nextrio’s sole discretion.
1. Other Documents.
Other than as specifically provided in any separate formal purchase agreement between Customer and Nextrio, these terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Nextrio.
2. Governing Law.
THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Any claim or dispute with Nextrio arising out of or relating in any way to Customer’s purchase of a Nextrio products, offering or service will be resolved exclusively in a state or federal court located in Tucson, Arizona, and Customer consents to the personal jurisdiction of such courts over Customer for such purpose.
3. Payment Terms; Orders; Quotes; Interest.
Terms of payment are within Nextrio’s sole discretion, and unless otherwise agreed to by Nextrio, payment or deposit must be received by Nextrio prior to Nextrio’s acceptance of an order. If financing is available, it must be arranged prior to purchase. Payment for equipment and service is due upon receipt unless specified otherwise on quote. Payment for the products and services and support may be made by credit card, check, or some other prearranged payment method unless Nextrio has agreed to credit terms. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice. Nextrio may invoice parts of an order separately. Orders are not binding upon Nextrio until accepted by Nextrio. Any quotations given by Nextrio will be valid for the period stated on the quotation. Nextrio reserves the right to assess interest at 1.5% per month on all unpaid balances.
4. Shipping Charges; Taxes.
Separate charges for shipping and handling will be shown on the invoice(s). Customer is responsible for all taxes, gross receipts taxes, fees and surcharges relating to the sale, transfer of ownership, installation, license, use or provision of the products and services, except to the extent that Customer provides Nextrio with a valid tax exemption certificate before Nextrio provides products and services to Customer. Where ever possible, Nextrio will estimate these taxes on the quotation provided, if applicable, however the invoice will represent the final taxes due.
5. Title; Risk of Loss.
Title to products passes from Nextrio to Customer on delivery from Nextrio’s facility, except for equipment owned by Nextrio that may be provided under a managed services agreement. Once delivered to Customer’s facility, all product and equipment become the Customer’s responsibility. Loss or damage that occurs during shipping by a carrier selected by Nextrio is Nextrio’s responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer’s responsibility. Title to software will remain with the applicable licensor(s).
ALL SERVICES AND CONTRACTOR MATERIALS ARE PROVIDED “AS IS”. NEXTRIO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND NEXTRIO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, NEXTRIO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR NEXTRIO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8. Cloud Services.
Nextrio may use, recommend and/or resell certain third-party, cloud-based services to Customer. In such cases, Customer agrees to be bound by the service agreement(s) of such third parties and must adhere to the specific terms and conditions of these services. Although Nextrio takes great care to vet suppliers of cloud services on behalf of our clients, Customer is the responsible party for any and all cloud relationships. Under no circumstance does the responsibility of due diligence transfer from Customer to Nextrio. Similarly, Customer-requested cloud service providers are strictly the responsibility of the Customer and Nextrio bears no responsibility or liability for performance, security or availability of these services.
9. Microsoft Office 365 Services and other Microsoft Cloud Services.
Specific terms and conditions apply when you purchase Microsoft Office 365 and other Microsoft Cloud Services products through Nextrio. These Microsoft-supplied terms are non-negotiable and are incorporated by reference herein (see Addendum A: Microsoft Cloud Agreement). Your acceptance of Nextrio’s Terms and Conditions includes acceptance of these additional Microsoft Cloud Services details whenever applicable. Note that Microsoft may change this information at any time, so Nextrio recommends you periodically review the latest version at www.nextrio.com/MScloud.
For complete licensing documentation regarding the acceptable use of Microsoft products and services via Volume Licensing, please view the latest version at http://www.microsoftvolumelicensing.com/
10. Location of Use.
Unless otherwise notified in writing, Nextrio presumes the ownership and/or use of all hardware, software and services procured from Nextrio will be primarily in the United States of America by Commercial, Public Sector, Third Party, Common, Academic, Government, or Nonprofit entities. Certain products and services require specialized licenses when used outside of the United States or by entities other than those sectors listed. It is Customer’s responsibility to declare such deviation from this presumption to Nextrio so that we can assist with proper licensure. In addition, Customer represents that under no circumstances shall any product or services be exported or resold to any restricted country or violate any applicable trade regulations.
11. Contract Period.
The term of Customer’s service plan, agreement or contract shall begin on the date as stated on the quote to Customer and will expire at the end of the term specified on Customer’s invoice or contract. Unless otherwise described in the original accepted quote, contracts are non-cancelable.
12. Return and Exchange Policies.
Because many products are custom-ordered to Customer’s exact specifications, NO RETURNS WILL BE ACCEPTED on any servers, PCs, laptops, tablets, or other custom-configured hardware systems or parts unless it is defective. Defective products are subject to the processes and procedures of the third-party manufacturer and any warranty or support plan in effect. Warranty assistance from Nextrio may be considered billable time. Any other non-defective, non-customer, unopened and unused, commercially-available products purchased through Nextrio that are returned are subject to a twenty percent (20%) restocking fee unless otherwise excluded on the Customer quote. From time to time, Nextrio may, in its sole discretion, exchange products or portions of a product.
Nextrio, at its discretion, may terminate services with 30 days’ notice to Customer, in which case, Customer will be entitled to a refund subject to the conditions of the agreement offering or associated license terms. Nextrio reserves the right to immediately suspend or terminate services if Nextrio, in its sole discretion, determines that services are being misused and/or Customer has not complied with the terms and conditions herein.
Nextrio continually upgrades and revises its products and service offerings to provide Customers with new products and service offerings. Nextrio may revise and discontinue products at any time without prior notice to customers. Nextrio will ship products that have the functionality and performance of the products ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. The parts and assemblies used in building Nextrio products are selected from new and equivalent-to-new parts and assemblies in accordance with industry practices. Spare parts may be new or reconditioned as noted on Customer quote.
Prior to the expiration of Customer’s service contract or agreement, the account manager will contact Customer regarding renewal. Customer contract will automatically renew (on a month-to-month basis) upon expiration, unless Customer contacts us in writing a minimum of 30 days before expiration.
16. Proprietary Rights.
Nextrio and its vendors, suppliers and licensors shall retain sole and exclusive ownership of all right, title and interest in and to all service and software (if applicable), and nothing in this Agreement shall be construed as any transfer, sale or assignment of any such rights. All right, title, and interest in Customer’s data will remain the property of the Customer.
17. Commercially Reasonable Limits to Scope of Service.
In the course of providing services to Customer, Nextrio may determine that an issue is beyond the scope of the originally quoted services or, due to circumstances encountered, Nextrio may not be able to solve Customer’s particular problem, despite using commercially reasonable efforts. In such situations, Nextrio will reasonably assist Customer locate an appropriate alternative service provider. With regard to any services that are not within the scope of Customer’s original order or quote, it will be within Nextrio’s discretion whether to perform the services, and, if Nextrio elects to perform the services, the services will be subject to an additional charge to be paid by Customer.
18. Limitation of Liability.
NEXTRIO DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. NEXTRIO WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES BUNDLED WITH THE PRODUCTS, NEXTRIO IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS OR SERVICES UNDER THIS AGREEMENT. THE TOTAL AGGREGATE LIABILITY OF NEXTRIO AND ITS SUPPLIERS FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS TERMS OF SALE WILL NOT EXCEED THE CUMULATIVE AMOUNT OF FEES PAID BY CUSTOMER TO NEXTRIO. THE FOREGOING LIMITATIONS APPLY TO ANY CLAIM CUSTOMER MAY ASSERT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, NEXTRIO’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
19. Service Hours.
Services are delivered between the normal business hours of 8:00 AM and 5:00 PM, Monday through Friday, excluding Nextrio published holidays, unless otherwise contracted. 24×7 Support and Pre-Scheduled/Continuation Support may be offered at an additional fee at Nextrio’s sole discretion. Automated monitoring or other maintenance may occur before or after normal business hours. Published holidays correspond to the federal dates for observance of the following: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day.
20. Use of Data.
Nextrio will not access or use the contents of Customer files without Customer’s consent; however, as part of its provision of the service, Customer authorizes Nextrio to collect and access certain information relating to Customer files (“Confidential Information”), but excluding the contents of those files. Such information may include, but is not restricted to: (i) file and directory names; (ii) file sizes, (iii) creation and modification dates; (iv) hashes and file attributes. Nextrio may also collect and use data relating to Customer’s use of the service including, but not limited to, error logs, service parameters and performance metrics. Nextrio may collect and use information relating to Customer computer system and/or Internet connection including, but not limited to, Customer computer name, operating system, and IP Address.
As part of the services, Nextrio may have access to network and/or application passwords. Nextrio may only use the Confidential Information for the purpose of providing services to Customer. If applicable, based on Customer’s services, Customer agrees that Nextrio may make and maintain backups of Customer data in order to facilitate recovery from any software / hardware failures.
Nextrio agrees not to disclose any personal data about the Customer or Customer’s employees, suppliers, customers, (except as specifically required by law) without the prior written approval of the Customer.
21. Customer Responsibility.
Customer shall perform such duties and tasks as necessary to facilitate Nextrio’s performance of the services and allow Nextrio reasonable and necessary access to Customer’s facilities, including non-business hours if such access is required to provide services under the Agreement. Customer is solely responsible for all Customer content and data that it creates, stores, or uploads using any Nextrio service. Customer agrees that Nextrio cannot be held responsible for any loss or damage, financial or otherwise, relating to or arising from Customer’s data, Customer’s use of the services, or Customer’s violation of these terms and conditions. Customer’s use of the services Nextrio provides is subject to all applicable local, state, national and international laws and regulations. As such, Customer agrees not to use any Nextrio service in any way which may constitute an offense within Customer’s jurisdiction or the jurisdiction of Nextrio. Customer’s use of the service must not infringe or violate third party rights, including but not limited to copyright infringement.
Nextrio will endeavor to prevent unauthorized Nextrio employee access to the contents of files and other data stored as part of Customer’s use of the service. To this end, Nextrio agrees to use the same standard of care in protecting the confidentiality of the Confidential Information as it uses in protecting its own information of a similar nature and, in any event, no less than a reasonable standard of care. Nextrio agrees to notify the Customer promptly upon discovery that any Confidential Information has been accessed or otherwise acquired by or disclosed to an unauthorized person.
Customer agrees to request from Nextrio in writing specific regulatory or compliance requirements. Wherever possible and at Nextrio’s sole discretion, products and services that meet or exceed standards necessary to meet such requirements shall be offered for purchase via written proposal defining the exact scope and period of coverage. As regulatory and compliance requirements constantly change, Customer is the ultimate responsible party for their own initial and ongoing adherence. Under no circumstances, shall Nextrio be responsible for Customer violation, deviation or remediation of statutory requirements.
24. Applicable Law; Not For Resale or Export; Anti-Corruption/Anti-Bribery.
Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer agrees and represents that it is buying for its own internal use only, and not for resale or export. Nextrio has separate terms and conditions governing resale and transactions outside the United States. Further, Nextrio will actively combat corruption and avoid even the appearance of corruption in all our business dealings. Nextrio staff are all responsible for understanding and following rules related to giving and receiving hospitality and gifts and will refrain from giving or accepting hospitality or gifts that improperly influence commercial decisions or regulatory approvals.