These Services Terms and Conditions (the “T&Cs”) apply to the purchase of professional services (the “Services”) for the delivery of consulting, installation, education, and training Services by Custom Storage, LLC, a Delaware limited liability company doing business as cStor, its affiliates, parents, subsidiaries, and subcontractors (“cStor”). The Services shall be described in a Work Order and signed by both the buyer (“Client”) and cStor prior to or upon receipt of a Purchase Order procuring Services. By ordering or otherwise proceeding with any Services related transaction with cStor, Client agrees to these T&Cs. The T&Cs and the Work Order together constitute the entire agreement between Client and cStor (the “Agreement”). Each Work Order may also specify, among other things (i) the time for performance of the Services, (ii) the applicable fees and expenses to be paid to cStor for performance of the Services (the “Fees and Expenses”), and (iii) any non-standard or exception to cStor’s payment terms. In the event of any conflicts between the terms of a Work Order and these T&Cs, the provisions of such Work Order shall govern.
Scope of Services
- Services provided under these T&Cs will be limited to Services specifically described in the Work Order.
- cStor will provide personnel with the requisite qualifications, expertise and knowledge to perform the Services in a professional and timely manner.
- cStor shall have sole discretion over the identity of the personnel delivering the Services and is entitled to replace personnel with equivalently qualified personnel as needed.
- cStor reserves the right to change amend and alter the Services with equivalent or otherwise equal services without prior notice to Client.
- cStor will not be responsible for the loss or corruption of any Client data or for any system downtime.
- The cStor Work Order applies to services only. Any hardware and software requested or needed by the Client in relation to the professional services described in the cStor Work Order will be the sole responsibility of Client to procure and prepare for performance of the professional services and will be purchased under its own written agreement.
- Except as may be purchased under a separate cStor support or service agreement, cStor will not be responsible for any application or host system access that encompasses coding, scripting, application analysis, system performance, troubleshooting, or applications logins unless expressly described in the cStor Work Order.
- cStor may subcontract any or all portions of the Services provided that cStor shall impose on such subcontracted individuals or companies the same obligations as those under the Work Order.
- Client acknowledges that cStor’s obligations and performance of the Services described in the Work Order are contingent upon Client complying with the responsibilities set forth below.
- Client will ensure that:
• All appropriate data backups are performed.
• For onsite services, security passes or other necessary documentation are provided to cStor representatives performing the Services permitting them to enter and exit Client’s premises with laptop personal computers and any other materials needed to perform the professional services for the duration of this engagement.
• For remote services, all necessary remote access and system connectivity and/or a client resource is available with necessary system access to allow services to be completed via web meeting.
• If the performance of this engagement requires electronic/network transfer of data, Client will provision and enable any network components or services required to facilitate the data transfer.
• All environment and operational requirements are met prior to implementation including but not limited to power, network connections, floor space, and cooling for the duration of this Service engagement.
- Client will provide cStor with documentation detailing physical and logical network topology as needed to perform the Services.
- Client will provide knowledgeable personnel as required by cStor to perform the Services.
- Client will provide timely, accurate, complete and up-to-date documentation and information required for the performance of the Services throughout the Service engagement.
- Client will participate in testing/validation as required by cStor.
- Client is responsible for all network connectivity, performance and configuration issues not included in the Services.
- Client is responsible for providing and scheduling any system maintenance window(s) as needed by cStor.
- Client represents and warrants that it has obtained all necessary approvals and consents from third parties required for cStor and its subcontractors to make performance of the Services, and hereby grants cStor all necessary licenses to perform the Services.
Service Engagement Duration and Scheduling
- All scheduling is dependent upon the availability of cStor resources.
- cStor shall make reasonable efforts to meet Client’s requested time schedule however cStor’s standard resource lead time is 4 weeks from the later of the execution of the Work Order or Purchase Order.
- If Client delays, cancels, or reschedules Services less than ten (10) business days prior to scheduled dates, Client may incur a delay of up to four (4) weeks to reschedule. The risk of delay can progressively increase if additional resources are required. Furthermore, Client may incur additional consulting time and travel expenses for the canceled/rescheduled Services dates.
- Unless otherwise specified in the Work Order, the implementation schedule contemplates consecutive business days during normal business hours (8:00 a.m. to 6:00 p.m.) weekdays.
- Services not requiring presence at Client’s facilities may be performed at cStor’s facilities by mutual agreement between Client and cStor.
- As it pertains to pre-paid future services, cStor reserves the right, if through no fault of cStor the Client does not utilize Services within 18 months of purchase, to terminate said services without notice, refund, or liability to cStor.
Travel and Expenses
- For time and material (“T&M”) engagements, Client agrees to reimburse cStor for travel and related expenses (“T&E”) at a rate of $250 per day (unless otherwise outlined in the Work Order), per resource. cStor will invoice Client monthly for the T&E amount and Client will pay such fees in accordance with cStor’s payment terms.
- For fixed fee engagements, any related expenses are included unless otherwise outlined in the Work Order. If T&E fees are outlined and incurred for fixed fee engagements, cStor will invoice Client monthly for the expenses and Client will pay such fees in accordance with cStor’s payment terms.
Project Scope Exclusions /Changes
- Any additions or changes to the project scope described in the Work Order must be mutually agreed upon between Client and cStor in writing using a Change Request.
- The execution of the Change Request by both parties will cause the Change Request to become part of and incorporated into the Work Order. Commencement of the performance of the requested addition or change is conditioned upon the mutual execution of the Change Request by the parties, and cStor’s receipt of an additional purchase order authorization to cover any possible and agreed upon incremental costs if applicable.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS TO THE CONTRARY CONTAINED HEREIN OR IN THE APPLICABLE WORK ORDER, EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES TO THE OTHER PARTY IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES HEREUNDER, WHETHER IN CONTRACT OR IN TORT (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF SERVICES PAID BY CLIENT UNDER THE APPLICABLE WORK ORDER. IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, LOST OR CORRUPTED DATA PUNITIVE LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES UNDER THESE TERMS.
Each party shall indemnify, defend and hold harmless the other party, its officers, directors, managers, 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 by the negligence or willful misconduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder.
THE T&CS, THE WORK ORDER(s) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERCEDES ANY AND ALL OTHER PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN AGREEMENTS OR UNDERSTANDINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. ANY CHANGES TO THE PROVISIONS STATED HEREIN IN ANY OTHER WRITING MUST BE MUTUALLY AGREED UPON AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance the laws of the State of Arizona without regard to principles of conflicts of laws.
This Agreement shall be binding upon the parties and their respective successors and permitted assigns and may not be assigned by either party without the written consent of the other party which consent may be withheld in such party’s sole discretion.