Legal

GENERAL

1. DEFINITIONS AND INTERPRETATION

‍In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by Defender Technology, LLC dba InfoTank “InfoTank” the following words have the following meanings:

“After Hours” means from 17:30 - 08:00 EST hours Monday to Friday and all day Saturday and Sunday, including Public Holidays;

“Business Hours” means Monday to Friday from 08:00 to 17:30 EST hours excluding Public Holidays;

"Client”, “You" or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from InfoTank, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears an order is placed, and in any case each of their heirs, successors and assigns;‍

"Conditions" means these terms and conditions;

"Goods" means any goods and/or services sourced by InfoTank or provided by InfoTank in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;

“Order” means any order requested by Client to InfoTank for Goods or Services in any form;

“Quote” means a quote provided to Client by InfoTank;

“Period” means a particular number of half-days, days, weeks, months, or any other period, as may be agreed between InfoTank and the Client as the period during which some Services will be provided;

“Plan” means any arrangement between InfoTank and Client (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by InfoTank under an arrangement in connection with Work agreed to be done or progressed for or on behalf of Client or any other person at Client’s request, including as set out in a Plan Schedule;

“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by InfoTank, from time to time in its absolute discretion without notice to Client;

“Public Holidays” means any day which is a public holiday throughout the United States and corporate holidays observed by InfoTank.

“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done;

“Rate Schedule” means the schedule of rates, charges and conditions for the services of InfoTank as set, and as may be varied, by InfoTank from time to time in its absolute discretion without notice to Client;

“Reasonable Assistance Limits” has the meaning set out in clause 17.2;

“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by InfoTank from time to time;

“Service request” means a request for service such as adds, moves, changes and technical assistance;

"Services" means the provision of any services by InfoTank including Work, advice and recommendations;

“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;

“InfoTank” means Defender Technology, LLC dba Infotank and its heirs, successors and assigns; and

“Work” means anything InfoTank may do, provide, customize, produce or acquire, whether or not in connection with, or for the purposes of, Client or Client use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by InfoTank, unless the contrary intention appears:

Words denoting the singular number only shall include the plural number and vice versa;

Reference to any gender shall include every other gender;

Reference to any Act of Congress, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Congress, Statute or Regulation enacted or passed in substitution therefore;

Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;

All references to dollars ($) are US Dollars

A reference to time is in Eastern Standard Time (EST)

A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;

A recital, schedule, annexure or description of the parties forms part of these Conditions;

A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;

Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

A reference to “includes” means includes without limitation;

A reference to “will” imports a condition not a warranty; and

A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.

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2. APPLICATIONS OF THESE CONDITIONS

Unless otherwise agreed by InfoTank in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Proposal, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by InfoTank to Client.

The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

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3. COMMITMENT TERM

3.1 The minimum term that Client acquires the service for is outlined in Our Proposal to Client, beginning from the date of signing or approving the Proposal.

3.2 After the expiration of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by you as specified in Clause 4.

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4. COMMITMENT TERM

4.1 This Agreement may be terminated by Client upon written notice if InfoTank:

1. 4.1.1 Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
2. 4.1.2 Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.
3. 4.1.3 Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.

4.2 This Agreement may be terminated by InfoTank for any reason upon ninety (90) days written notice to you.

4.3 If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.

4.4 Should Client wish to terminate this Agreement before the end of the commitment term, Client agrees to pay all of the remaining payments up until the end of the commitment term.

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5. REPRESENTATIONS

5.1 You acknowledge that no employee or agent of InfoTank has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

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6. NOTICES

6.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Client.

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7. GOVERNING LAW

7.1 Georgia law will govern and enforce this Agreement. Any litigation or arbitration between Client and InfoTank will take place in any state court located within Cobb County, Georgia or federal court within the Northern District of Georgia. Client and InfoTank waive any objection to personal jurisdiction or venue in any forum located in those jurisdictions. Except for a claim of payments of amounts due, no action, regardless of form, arising out of this Agreement may be brought by either party against the other more than one year after the cause of action has arisen. At the option of either Client or InfoTank, any dispute arising from or with respect to this Agreement will be decided by arbitration by the American Arbitration Association in accordance with its Commercial rules. At the request of either party, proceedings may be conducted in secrecy.

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8. ASSIGNMENT

8.1 Client may not assign their rights and obligations under this Agreement without the prior written consent of InfoTank.

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9. VARIATION OF THESE TERMS AND CONDITIONS

9.1 InfoTank may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on our website. Client accepts that by doing this, InfoTank have provided Client with sufficient notice of the variation. InfoTank is under no other obligation to notify Client of any variation to these terms and conditions.

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GOODS AND SERVICES

10. QUOTES

10.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to Client to place an Order with InfoTank and the acceptance of a Quote by Client will not create a binding contract between Client and InfoTank.

10.2 Quote is valid for 7 days only. Expiration dates on quotes are set to be able to inform InfoTank when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.

10.3 Once a quote has been confirmed by InfoTank, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as 'final' as soon as both parties agree with the final price after any last changes requested by Client.

10.4 The price in the final quote may vary from the original request if there is any price or product changes requested by Client. InfoTank reserves the right to alter product and prices in the quote, as long as the quote has not been confirmed with Client.

10.5 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If Client later require any changes to the quotes, and InfoTank agrees to the changes, these changes will be charged at InfoTank’s prevailing rate.

10.6 Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.

10.7 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.

10.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

10.9 In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of InfoTank control InfoTank reserves the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Client request and is subject to Client final approval.

10.10 Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While InfoTank endeavours to honour every price quoted, if there is a price increase that is beyond our control, we reserve the right to increase the price as necessary.

10.11 Once a Quote has already passed the expiration date, InfoTank may cancel the quote    or estimate without having to notify or receive an approval from the Client.

10.12 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.

10.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

10.14 InfoTank does not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.

10.15 Prices are based upon total Quote Purchase.

10.16 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.

10.17 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.

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11. ORDERS

11.1 Order forms:  You may place an Order for Goods and/or Services with InfoTank.  Normally, we will require that Client provide either a completed Order form or Client approves the quote electronically via either an email or a web based system with the date and Client details, including Client’s full legal name or description and any applicable EIN number (including the full name or description of any person on whose behalf the order is placed), Client address together with any relevant Quote number and date.

11.2 Approval of Orders: Client will need to sign the Order or have it duly executed on Client’s behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of Client by the person whose name appears as the sender of the email or submitter of the form.

11.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, InfoTank may rely upon the apparent validity of an Order.  If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favor of InfoTank to be:

1. 11.3.1 signed by, and duly authorized by, both the person who signed the Order and the person who sent the email; and
2. 11.3.2 duly authorised by the person on whose behalf the Order is placed or apparently placed.        

11.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by Client in writing and, until InfoTank has received from Client payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.

11.5 No obligation to deliver: InfoTank is not obliged to deliver any Order until we have received payment in clear funds from Client for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where InfoTank is unwilling or unable to complete the Order for any reason provided it refunds any payment made by Client in respect of the Order

11.6 Credit checks:  For the purposes of ascertaining the credit standing or history of a prospective customer to whom InfoTank is considering extending credit or payment terms, Client hereby consents to InfoTank undertaking a credit reference check in respect to Client.

11.7 Cancellation of Orders: Client will not cancel an Order unless InfoTank agrees to do so in writing in our absolute discretion.  Client acknowledges that, amongst other things, InfoTank cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by InfoTank.

11.7 Processes and Procedures: InfoTank has processes and procedures that we follow in the course of the provision of our Services and the supply of Goods.  Client agrees to co-operate with InfoTank and to comply with such processes and procedures as advised to Client from time to time

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12. PRICING AND RATES

12.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by InfoTank are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by InfoTank).

12.2 Rates Schedule: Client must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.

12.3 Vary Rates: InfoTank reserves the right vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to Client.

12.4 Call-out fees: Client acknowledges that call-out fees may be charged in addition to the Rates at our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.

12.5 Return/Cancellation Fee: Where InfoTank arranges a return or refund on behalf of Client, or where an Order is cancelled by Client after acceptance by InfoTank, we may charge Client a Return/Cancellation fee to cover the administration costs to InfoTank in processing the return or refund, or in processing the Order, the cancellation and any refund. InfoTank may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to Client by InfoTank.

12.6 Expenses: Client must pay any out of pocket expenses incurred by InfoTank in providing the Services to Client in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, rental cars, fuel, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, InfoTank will obtain prior written authorization from Client before such expenses are incurred.

12.7 Separate charges for Goods and Services: InfoTank may in our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.

12.8 Calculation of increments:  Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, InfoTank will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.

12.9 Change in underlying costs: Without prejudice to any other rights of InfoTank under these Conditions, where there is any increase in the underlying costs incurred by InfoTank in connection with the supply of Goods or Services to Client, InfoTank may, in our absolute discretion, vary any of Our Rates.

12.10 Pre-Paid Blocks of Service:  Where Client agrees to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between InfoTank and Client in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:

1. 12.10.1 are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
2. 12.10.2 are only provided by InfoTank during the applicable Period. Where Services are provided for a specified Period:
3. 12.10.2.1 the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and
4. 12.10.2.2 InfoTank is not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify Client in respect of those unused Services.
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13. SERVICES AND PLANS

13.1 Service and Plan Variations: Currently, InfoTank offers the Services and Plans referred to in the Rates Schedule and any Plan Schedule.  InfoTank may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to Client, from time to time in our absolute discretion.

13.2 Copies on Request: InfoTank will provide Client with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

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14. CONTRACTING

14.1 We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.

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15. DELIVERY, TITLE AND RISK

15.1 Delivery liability: InfoTank will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of InfoTank, including, for example, due to failures in supply to InfoTank or delays caused by third parties, such as delivery companies or manufacturers.

15.2 Availability to accept delivery: Client must be available to accept the Goods at Clients nominated delivery address during Business Hours unless otherwise arranged.

15.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Client nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 15.3 will affect title to the Goods.

15.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 15.3.

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16. RETURNS AND CLAIMS FOR GOODS AND SERVICES

16.1 General Returns Policy: Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.

16.2 Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in the opinion of Ours special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.

16.3 Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim.  If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

16.4 Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.

16.5 Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.

16.6 Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).

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17. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE

17.1 Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You will always indemnify and hold Us harmless in the provision of our Services to You.

17.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for You or any other Work) under any Plan and You will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of Us to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.

17.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:

1. 17.3.1 We may recommend that You purchase Goods provided by third parties from time to time;
2. 17.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled;
3. 17.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.
4.  17.3.3.1 the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or
5.  17.3.3.2 the behaviour of third-party supplier, e.g. in relation to support
6. 17.3.4 You acknowledge that for a whole number of reasons outside of Our control, the Goods may fail to meet Client expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects;
7. 17.3.5 You acknowledge that the Services provided by Us may involve the very task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself
8. 17.3.6 Accordingly, You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:
9. 17.3.6.1 decisions as to whether or not to follow recommendations by Us;
10. 17.3.6.2 decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
11.  17.3.6.3 any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Client own independent advice or second opinion from a suitably qualified person;
12. 17.3.7 Where We provide Services with a view to achieving Client purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes

17.4 Testing Procedures: You will follow the instructions of InfoTank with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.

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18. FORCE MAJEURE

18.1 Force Majeure: If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

18.1 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, pandemics, intervention or public authority, explosion or accident.

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19. PRODUCT SPECIFICATIONS

19.1 Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.

19.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.

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20. WARRANTIES

20.1 Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.

20.2 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to Client arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.

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21. LIABILITY

21.1 Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

21.2 No liability for program or data loss: Client indemnifies and holds InfoTank harmless in respect of any allegation, claim, loss or expense of Clients or any third party for any program or data loss or damage suffered by Client or that third party arising directly or indirectly from the supply of the Goods or Services by InfoTank to Client.  Client acknowledges Client is solely responsible for backing up Client programs and data in order to mitigate Client’s own potential loss of programs and data.

21.3 Limit on consequential damage: Client indemnifies and holds InfoTank harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to Client or any third party.

21.4 Limit on damage from a failure in supply: Client indemnifies and holds InfoTank harmless for any allegation or claim for loss or damage by Client or a third party where InfoTank has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

21.5 General limit on liability: Except as otherwise expressly stated in these terms and conditions, InfoTank is not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of InfoTank) which is suffered or incurred by Client in connection with:

1. 21.5.1 Goods or Services provided to Client or any Work;
2. 21.5.2 these Terms and Conditions;
3. 21.5.3 Client use of our website (including the use of a credit card or other debit device) or any linked website;
4. 21.5.4 the non-availability of Goods or Our Services for any reason;
5. 21.5.5 any act or omission of ours or the provision of inaccurate, incomplete or incorrect information by Client, or
6. 21.5.6 for any other reason whatsoever.

21.6 Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, clause 21.5 does not apply to that liability and Our liability for any breach of that condition or warranty is limited to InfoTank doing any one or more of the following (at its election):

1. 21.6.1 replacing the Goods or supplying equivalent Goods, Services or Work;
2. 21.6.2 repairing the Goods or the Work
3. 21.6.3 paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or
4. 21.6.4 paying the cost of having the Goods or the Work repaired.

21.7 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

21.8 Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.

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22. ERRORS AND OMISSIONS

22.1 InfoTank makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, InfoTank may rescind the affected contract by written notice to Client, notwithstanding that InfoTank has already accepted Client Order and/or received payment from Client. Our liability in that event will be limited to the return of any money Client has paid in respect of the Order.

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OUR RESPONSIBILITIES

23. PRIVACY STATEMENTS AND CLIENT RIGHTS

23.1 We are collecting personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to Client and it may retain and use it for any such purposes (“Authorised Purposes”).

23.2 Client is required to provide personal information to InfoTank for Authorised Purposes.

23.3 InfoTank may disclose Client personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for Client or in order to provide Goods or Services to Client, to verify the information Client provide, for enquiries about Goods or Services that may be suitable for Client purposes, or to confirm Client requirements, to anyone proposing to supply Goods or Services to Client, or to acquire Goods or Services on Clients behalf, or in respect of enquiries relating to any of the foregoing.

23.4 Otherwise InfoTank will not disclose Client personal information without Client consent unless authorised by law.

23.5 Client personal information will be held by InfoTank at Our Principal Place of Business and Client can contact InfoTank to request to access or correct it

23.6 We rely on Client to submit correct information and details where requested. Client accepts that Client may incur additional expenses if Client submits incorrect information.

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24. OUR WEBSITE

24.1 We make no representations or warranties in relation to information available on Our website, including without limitation:

1. 24.1.1 We make no representations or warranties in relation to information available on Our website, including without limitation:
2. 24.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.

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25. INSURANCE COVERAGE

25.1 We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000. At Client request We will provide Client with certificates, including renewal certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by Client.

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CLIENT RESPONSIBILITIES

26. LODGING OF SERVICE REQUESTS

26.1 In order for InfoTank to provide Client with the agreed Service, Client agree to follow Our process for lodging of Service Requests as outlined in the SLA.

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27. ACCESS TO SYSTEMS, SITES AND PEOPLE

27.1 In order to provide Client with the agreed Service, Client agrees to give InfoTank access to various items of Clients including but not limited to, equipment, people and sites as and when required.

27.2 Client agree to allow InfoTank to install software on Client Equipment that allows Our technicians to access Client systems at any time. This software allows InfoTank to view system statuses, send monitoring information, see users’ desktops and control Client PC’s. This may require that devices are left on overnight or weekends.

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28. THIRD PARTY AUTHORISATIONS

28.1 At times We may need to contact Client third party providers on Client behalf, such as Client internet provider. Some of these providers may require Client authorisation for InfoTank to deal on Client behalf. It is Client responsibility to ensure that We are able to deal freely with these providers.

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29. PAYMENT, LATE PAYMENT AND DEFAULT

29.1 Payment due date: All invoices issued to Client are due and payable to InfoTank within the terms stated on the invoice (unless otherwise agreed in writing). by cash or check in accordance with these Terms and Conditions and in the way set out in the Invoice.

29.2 7 days late: Where Client fails to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to Client.

29.3  Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by Client to InfoTank and will be recoverable from Client, in addition to the original invoice cost. If Client default in payment of any invoice on time, moneys which would have become due by Client at a later date shall be immediately due and payable without any further notice to Client. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.

29.4  Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.

29.5  Application of funds: All payments of the Sum Due made by Client to InfoTank will be applied as follows:

1. 29.5.1  first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by InfoTank in relation to any dishonoured check fees, collection costs or any other action taken by InfoTank for the recovery of any amounts owing by Client to InfoTank;
2. 29.5.2  secondly, in or towards payment of any interest due or payable hereunder, and;
3. 29.5.3  thirdly, in or towards payment of Client debts to InfoTank in order from the longest standing due to the most recently incurred.

29.6  Security: We may require Client to provide security over Client property (including the Goods or any other property of Clients) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by InfoTank to Client.

29.7  Payment arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to Client.

29.8  Power of Attorney: Client hereby irrevocably appoints InfoTank as Client attorney to do anything InfoTank considers fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.

29.9  Other remedies: InfoTank may exercise any of our rights and remedies including taking legal action against Client for the recovery of any moneys due to InfoTank, notwithstanding it may have exercised other rights under these Conditions.

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30. NON-SOLICITATION OF CLIENTS AND EMPLOYEES

30.1  Client agrees that employees are one of InfoTank’s most valuable assets, policy and professional ethics require that InfoTank employees not seek employment with, or be offered employment by Client during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).

30.2  Client agree that InfoTank’s damages resulting from breach of this clause 30.1 would be impracticable and that it would be extremely difficult for InfoTank to ascertain the actual amount of damages. Therefore in the event Client violates this provision, Client agrees to immediately pay InfoTank 100% of the employee’s total annual salary, as liquidated damages and InfoTank shall have the option to terminate this Agreement without further notice or liability to Client. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs InfoTank would incur to identify, recruit, hire and train suitable replacements for such personnel.

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31. SOFTWARE

31.1  All Software licences are the responsibility of Client and not that of InfoTank. It is the duty of Clients to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by InfoTank.

31.2  Client indemnifies and holds InfoTank harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

1. 31.2.1  any unauthorised Software used by Client;
2. 31.2.2  any breach of any Software licence in respect of Software provided to InfoTank by Client to be installed on one of Client computers;
3. 31.2.3 otherwise as a result of InfoTank installing Software at Client where Client are not authorised to use the Software; and
4. 31.2.4 any problem, defect or malfunction associated with any Software (or related      services) supplied by third parties

 31.3 All copyright in custom software remains the sole property of InfoTank unless alternate arrangements are made as part of a separate software agreement.

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32. COPYRIGHT AND CONFIDENTIALITY

32.1 Warranty and breach: Client warrants that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by Client to InfoTank belongs to Client.  In the event of any breach of this warranty, Client will pay all sums due to InfoTank as If such warranty had not been breached (and regardless of any non-performance of any obligation by InfoTank on account of or in connection with the breach of such warranty). Client indemnifies and holds InfoTank harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by Client.

32.2 Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by InfoTank in the course of the supply of Services by InfoTank to Client will be the exclusive property of InfoTank unless otherwise agreed in writing by InfoTank and Client.

32.3 Confidential Information: We acknowledge that in the course of providing Services to Client, InfoTank may learn from Client certain non-public personal and otherwise confidential information relating to Client, including Client customers, consumers or employees. We shall regard any and all information InfoTank receives which in any way relates or pertains to Client, including Client customers, consumers or employees as confidential.

32.4 Client also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by InfoTank or which comes to InfoTank’s attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to InfoTank.

As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing party or as required by applicable law.

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APPENDIX A

SERVICE REQUEST LODGEMENT PROCESS

When you contact us to lodge a service request only the methods below must be used:

Phone: 770-924-7309

Email:support@infotank.com

Web Portal: infotank.com/help

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Company Intranet:

Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.

If the issue is being lodged by either phone or external email you must include Client name, company and return contact details.

Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

SERVICE REQUEST OUTSIDE OF OUR BUSINESS HOURS

Service Requests that must be addressed outside of business hours must be lodged by phone (charges apply for after hours work). If not, the Service Request will be viewed on our next Business Day.