Legal Terms & Conditions
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”) to the buyer (“Client”) (each a “Party” and collectively the “Parties”). The Services shall be described in a Work Order and signed by both the 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 an 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. If the Parties enter into a separate written agreement for the services, then the terms of that separate written agreement, including attached Schedules, shall apply.
1. 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.
2. Client Responsibilities.
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 logistical 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, and hereby grants cStor and its subcontractors all necessary licenses to perform the Services.
- Client shall be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness, and consistency of all such data, materials, and information supplied by Client.
- Client shall provide, at no charge to cStor, office space, services and equipment (such as copiers, fax machines and modems) as cStor reasonably requires to perform the Services.
3. Performance Conditions.
- cStor shall not be responsible for the loss or corruption of any Client data or for any system downtime.
- 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 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.
4. Service Engagement Duration and Scheduling.
- All scheduling is dependent upon the availability of cStor resources and must be confirmed and finalized with the cStor project manager.
- cStor shall make reasonable efforts to meet Client’s requested time schedule, however cStor’s standard resource lead time is four (4) weeks from 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. local time) 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 12 months of purchase, to terminate said services without notice, refund, or liability to cStor.
5. 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 the 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.
6. Travel and Expenses.
- For time and material (“T&M”) engagements, Client agrees to reimburse cStor for travel and related expenses (“T&E”) as outlined in the Work Order. 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.
Software is the machine readable (object code) version of computer programs (“Software”). Client’s use of Software and any related documentation shall be governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
8. Fees and Payment Terms.
Client agrees to pay the fees, charges, and other amounts in accordance with the applicable Work Order. Payment is due as stated on cStor’s invoice without offset or deduction for withholding taxes or otherwise. Any late payments are subject to a finance charge of the lesser of 1.5% per month or the maximum amount allowed by law. Client agrees to accept partial shipments in satisfaction of a single Purchase Order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If cStor accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of cStor’s right to collect the balance nor an accord and satisfaction, notwithstanding cStor’s endorsement of a check or other instrument. In the event of Client’s bankruptcy or insolvency, cStor shall be entitled to cancel any order then outstanding without waiving any claims in law or equity. If Client fails to comply with these payment terms, cStor reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders, Work Orders, or other agreements, and all Client’s obligations to cStor shall become immediately due and payable.
9. Warranty and Disclaimers.
9.1 Services. cStor represents and warrants that all Services shall be provided in a professional and workmanlike manner in accordance with industry standards.
9.2 Disclaimer. EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, CSTOR EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO THE PRODUCTS AND SERVICES FURNISHED BY CSTOR HEREUNDER. CSTOR DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. For the sake of clarity, unless it is otherwise specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
10. 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 OR FAILURE TO PERFORM OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD OR DELIVERED HEREUNDER, WHETHER IN CONTRACT OR IN TORT (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF PRODUCTS OR SERVICES PAID BY CLIENT UNDER THE APPLICABLE WORK ORDER. IN NO EVENT, WILL CSTOR BE LIABLE TO THE CLIENT FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, 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, EVEN IF THE CLIENT KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE.
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.
12. Term and Termination.
12.1 Term. The Term of this Agreement shall commence on the Effective Date, which shall be the date of acceptance of the first Purchase Order or Work Order. Unless otherwise specified in the applicable Purchase Order or Work Order, the Term shall run for a period of not less than one (1) year from the Effective Date. This Term shall automatically renew for consecutive one-year periods unless terminated by either Party with at least 30 days’ written notice prior to renewal date, or unless earlier terminated in accordance with the applicable Work Order or the provisions in this Section 12.
12.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written Notice to the breaching Party in accordance with Section 16 below, specifically identifying the breach or breaches on which such Notice of termination is based. The breaching Party will have a right to cure such breach or breaches within 30 days of receipt of such Notice, and these Terms shall terminate in the event that such cure is not made within such 30-day period. Without limiting the foregoing, cStor may immediately terminate this Agreement upon written Notice in the event that Client becomes insolvent or enters bankruptcy during the Term.
12.3 Termination of Individual Work Orders. Each Work Order shall terminate upon the earliest to occur of the following: (i) the completion of all Services specified in the Work Order; (ii) the date upon which any stated limitation on the scope or duration of Service(s) has been reached, whether expressed in labor-hours, scope of project, or otherwise; (iii) the date of expiration, if any, set forth in the Work Order; or (iv) the termination of this Agreement. Except as otherwise provided in this Agreement, neither Party shall have any further rights or duties under any Work Order upon its expiration or termination.
12.4 Termination for Convenience. cStor shall have the right to terminate any Work Order for convenience on at least 30 days’ prior written Notice to Client. If cStor exercises such termination right, cStor shall refund to Client the amount of any pre-paid amounts for the terminated Work Order.
12.5 Survival. The provisions of this Section 12 and Sections 9 (Warranty/Disclaimers), 11 (Indemnification), 13 (Confidentiality), 14 (Non-Solicitation), 18 (Force Majeure) will survive the termination of this Agreement.
13.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. For purposes of this Agreement “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing, the software and any databases (including any data models, structures, non-Client specific data, and aggregated statistical data contained therein) of cStor shall constitute Confidential Information of cStor. The Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
13.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
13.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 13.1 and 13.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under these Terms, including to make such court filings as it may be required to do.
12.5 Effect of Termination. Upon any termination of this Agreement or Work Order, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) shall return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) shall promptly pay all amounts due and remaining payable hereunder.
During the Term of this Agreement and Work Order and for an additional two (2) year period after termination, Client will not, without the prior written consent of cStor, solicit the employment (as employee, consultant or agent) of any director, officer, or employee of cStor; provided that the foregoing (i) shall not restrict general solicitations of employment through advertisements or other means that are not directed specifically at such directors, officers or employees, and (ii) shall not restrict hiring or retention of any such directors, officers or employees who have been terminated by cStor.
All notices, demands and other communications required or permitted hereunder or in connection herewith (“Notice”) shall be in writing and shall be deemed to have been duly given if delivered or mailed in the United States by first class mail, postage prepaid, to cStor at the following address, or to such other address it may hereafter specify by Notice:
Custom Storage, LLC
7975 North Hayden Road, Suite A105
Scottsdale, AZ 85258
Attn: Kel Williams
16. 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. Any and all disputes arising out of or relating to this Agreement shall be resolved in Maricopa County, Arizona, and each of the Parties waives any objection based on forum non conveniens and venue with respect to any action brought arising out of or relating to this Agreement.
17. Right to Preliminary and Injunctive Relief.
Each Party acknowledges and agrees that a breach or threatened breach by a Party of any of its obligations hereunder involving intellectual property rights, Confidential Information, Non-Solicitation, or compliance with applicable laws would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
18. Force Majeure.
cStor shall not be liable for any loss, delay or failure to perform resulting from any force majeure event, including but not limited to Acts of God, fire, natural disaster, labor stoppage, government intervention, war or military hostilities, inability of carriers to make scheduled deliveries, or any act beyond the reasonable control of the cStor. Any delivery date may be extended, at cStor’s option, to the extent of any delay resulting from any force majeure event.
19. No Assignment.
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 will not be unreasonably withheld.
The use of this website and the information, content, materials, products, and services (“Content”) available through it are subject to all applicable laws and regulations and are provided by Custom Storage, LLC dba cStor, a Delaware limited liability company (“cStor”) as a service to its clients, may be used for informational purposes only, do not constitute an offer to buy or sell products, and cannot be used as a basis for any transaction.
All Content on this website is provided “as is” without warranty of any kind, and cStor provides no guarantee as to the accuracy of any information. The use of the Content on this website as well as access to it are the sole responsibility of Users. Users agree not to copy, distribute, republish, upload, post, or transmit any Content, except to download for non-commercial use only, provided they do not delete or change any copyright, trademark, or other proprietary notices. USERS MAY NOT MODIFY ANY CONTENT OR USE IT FOR ANY OTHER PURPOSE.
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cStor disclaims all express and implied conditions, representations, and warranties of any kind regarding the Content on this website, and disclaims liability for any and all loss, claims, injury, or damage whatsoever, including direct or indirect damage, that may result from access to this website, its Contents, or any other website which may be accessible from this website. Any links to third party sites are provided solely as a convenience for Users, and cStor does not endorse, approve, or guarantee any of the linked website or Content, and is not responsible for their failure or performance, error, bug, omission, defect, interruption, delay, or computer virus. cStor is not liable for any direct, indirect, special consequential, or incidental damage of any kind resulting from any access or use of any link from this website. Users agree to hold cStor harmless from any and all claims whatsoever based on use of this website.
All communication, remarks, suggestions, ideas, images, graphics, other information or request for information that Users may post or transmit to cStor through this website become and remain the property of cStor and are not considered confidential. User disclaims all proprietary rights to such remarks, suggestions, ideas, images, graphics, other information (including, but not limited to, product, service or advertising ideas), and if cStor uses any such remarks, suggestions, ideas, images, graphics, other information, cStor is not obligated to pay the submitting User or any other party. The submitting User is responsible for any submissions made and shall have full responsibility for any and all aspects and content of the submission, including its legality, reliability, accuracy, appropriateness, originality, and copyright.