PC On Call, Inc.
Standard Terms and Conditions of Sale
 

The following terms and conditions apply to all proposals and quotations made by PC On Call, Inc. or contracts entered into by PC On Call, Inc.  All orders are subject to acceptance by PC On Call, Inc. at its principal office. 

1.       Definitions.

1.1               “Hardware” means computer systems (excluding software) and related parts. 

1.2               “Software” means software products whether owned by customer or licensed directly to customer from a third party.

1.3        “Product” or “Products” includes Hardware and Software.

1.4        “Peripheral” means any device with an external connection to the computer system such as printers, monitors and scanners.

2.       Prices.  Prices contained in any quotation, purchase order or contract are exclusive of and customer is responsible for all federal, state, municipal and other governmental, excise, sales, use, import/export tariffs (duties) or like taxes. 

3.       Payment Terms.  Orders for services, Products and Peripherals will be treated as separate orders.  Products and Peripherals will be invoiced at the time of delivery or shipment, whichever is sooner. Payment for any purchase made by a customer is due at the time the services, Products and Peripherals are rendered by PC On Call, Inc. or, with the prior approval of PC On Call, Inc., within fifteen (15) days from the date of invoice.  Interest at the rate of 1½ % per month will be charged on accounts past due.  PC On Call, Inc. reserves the right to require cash on delivery or suspend delivery of any order whenever customer’s account is past due.

4.   Limited Warranties and Return Policy. 

4.1        PC On Call, Inc. warrants that the On Call computer systems and servers will be free from defects in materials and workmanship for two years from the date of installation.  This limited warranty includes parts and labor.    

            4.2        All products other then On Call Computer systems and servers will be covered under the manufacturer’s warranty only, and PC On Call, Inc.’s normal billing rates will apply to labor to service those products.

4.3        Warranty service will be provided by any means reasonable and practical under the circumstances as determined by PC On Call, Inc., including attempting to resolve warranty-covered problems by diagnostic technical phone support prior to or in lieu of dispatching a technician for service. 

4.4        Except for any damage caused to a Product or Peripheral during the shipping of such Product or Peripheral to you or resulting from the installation of the Product or Peripheral by PC On Call, Inc., our limited warranty does not cover damage to Products or Peripheral due to external causes, such as accidents; abuse or misuse of the Product or Peripheral; spilled liquids on the Product or Peripheral or immersion of the Product or Peripheral in liquids; damage caused by disasters such as fire, flood, wind, earthquake or lightening; problems with electrical power; servicing or tampering of the Product or Peripheral that is not authorized by PC On Call, Inc. or use of parts and components not supplied by PC On Call, Inc.; damage resulting from moving the Product or Peripheral by anyone other than us; usage not in accordance with instructions for the Product or Peripheral; failure to perform required maintenance or the performance of improper maintenance; damage caused by modifications, changes, additions or attachments to the Product or Peripheral that are not approved in writing by PC On Call, Inc.; damage caused by failure to provide a suitable environment for the Product or Peripheral; or damage caused by use of the Product or Peripheral for purposes other than those for which it was intended.   

4.5        Our limited warranty for any Product or Peripheral is null and void if any part or component is added to the Product or Peripheral and not installed by PC On Call, Inc.  Our limited warranty does not cover Software.  You acknowledge and agree that you are responsible for compliance with all applicable licenses or other agreements with respect to Software.  You further agree that (i) any request by you for installation of Software by PC On Call, Inc. shall constitute your representation and warranty that you have the right to use the Software in the manner in which it is then being used, and (ii) PC On Call, Inc. and its affiliates shall have no liability whatsoever for breach of any license or other agreement between you and any third party, and you agree to indemnify and hold harmless PC On Call, Inc., its owners, officers, directors, employees, agents and affiliates from any and all liability, damages, costs and expenses (including legal fees) arising out of the breach of or noncompliance with any such third party agreement.

4.6        Our limited warranty does not apply if you reside outside PC On Call, Inc.'s current service area.   If you reside outside our service area, our limited warranty reverts to depot warranty only and you must pay the cost of all shipping (including insurance) costs.

4.7        Normal billing rates will apply to labor for any Product serviced by PC On Call, Inc. under warranty and subsequently found to be in working condition.  

            4.8        PC On Call, Inc. will facilitate the customer’s request to return non-configured standard products per the terms and conditions of the manufacturer’s warranty.  The customer should be aware that in some instances the manufacturer or master distributor will not accept returns, and, when the manufacturer or master distributor does accept a return, they will frequently levy a 15% to 25% restocking charge that the customer shall be responsible for paying.  In addition to the foregoing, any Product that PC On Call, Inc. has agreed to facilitate the return of and is returned after 14 days from the date of delivery will be charged a 5% administrative charge by PC On Call, Inc.      

5.   Disclaimer of Warranties.  THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURCHASE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.   

6.   Force Majeure.  PC On Call, Inc. shall not be liable for, and customer shall have no right with respect to, any delay or failure in performance or nonperformance that is due to acts beyond PC On Call, Inc.’s reasonable control such as acts of God, acts of third parties, acts of governmental authorities, acts of war, accidents, breakdowns of equipment, strikes, riots, fires, floods, communication line failures or other interference with production, supply or transportation of products, raw materials or components. 

7.   Limitation of Remedies and Damages. 

7.1        Customer agrees that PC On Call, Inc.’s liability and customer’s sole and exclusive remedy pursuant to any claim of any kind, including, but not limited to, a claim in contract, tort, negligence or strict liability shall be (i) repair or replacement, at PC On Call, Inc.’s option, of defective Hardware or parts thereof, or (ii) a refund of the price allocable to the defective Hardware or part thereof if PC On Call, Inc. is unable to effectively repair or replace such defect within a reasonable time.  Customer shall not be entitled to a refund of any service charges paid to PC On Call, Inc.  Any replacement Hardware or parts shall be new or serviceable used Hardware or parts and are warranted for the remainder of the original warranty period.  UNDER NO CIRCUMSTANCES SHALL PC ON CALL, INC. OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY WHATSOEVER FOR ANY COMPENSATORY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, LOSS OF USE, LOST PRODUCTION, LOST DATA, OR COST OF REPLACEMENT HARDWARE OR SOFTWARE. 

7.2        Customer acknowledges and agrees that the performance of certain repair services to customer’s Hardware by PC On Call, Inc. may void certain warranties provided by the manufacturer of such Hardware.  CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL PC ON CALL, INC. OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY WHATSOEVER FOR ANY ACTUAL, COMPENSATORY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.

8.   Non-Solicitation of Employees.  During the term of this Agreement and for a period of 3 years after completion of the services under this Agreement or termination of this Agreement for any reason, customer agrees that it shall not, directly or indirectly, solicit, hire, engage or attempt to solicit, hire or engage any individual who is an employee of PC On Call, Inc. at any time during such period.  Because the actual damages that PC On Call, Inc. would sustain in the event that customer breaches these non-solicitation provisions would be difficult to ascertain, the parties agree in good faith that the customer shall pay PC On Call, Inc. as liquidated damages, a sum equal to $75,000.  The parties acknowledge and agree that this is a good faith attempt to estimate the actual damages that will be sustained in the event of a breach and is not an attempt to impose any kind of penalty.  The foregoing provision shall not limit the right of PC On Call, Inc. to seek injunctive or other equitable relief or to seek monetary relief incurred by PC On Call, Inc. in excess of the agreed upon liquidated damages.

9.   Dispute Resolution.  Any claim, dispute or controversy under this Agreement against PC On Call, Inc., its owners, officers, directors, employees, agents or affiliates shall be resolved exclusively and finally by arbitration before three arbitrators.  The arbitration proceedings will be conducted in Cincinnati, Ohio under the commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time the demand for arbitration is made, except that the decision of the arbitrators shall include written findings of fact and conclusions of law.  Within 20 days of the date of the initial request by a party for arbitration, one arbitrator shall be selected by PC On Call, Inc. and one arbitrator shall be selected by the customer.  The third arbitrator shall be selected by the joint agreement of the two arbitrators selected by the parties, within 10 days of the date of selection of the second of the two arbitrators.  Any and all evidentiary issues shall be resolved under the Ohio Rules of Civil Procedure and the Ohio Rules of Evidence.  The decision of the arbitrators including the determination of the amount of any award, shall be exclusive, final and binding on all parties, their respective heirs, executors, administrators, successors and assigns.  Each party to the arbitration proceeding will bear his, her or its own expenses in the arbitration for attorneys’ fees and for the party’s witnesses and other expenses of presenting the party’s case.  Other arbitration costs, including arbitrators’ fees, administrative fees, and fees for jointly required or obtained records or transcripts, will be borne equally by the parties to the arbitration proceeding.  This arbitration provision shall not limit the right of PC On Call, Inc. to seek injunctive or other equitable relief to enforce the non-solicitation provisions contained herein.

10.  Severability.  The terms stated herein are declared to be severable.  If any provision of contained herein is held to be illegal, invalid or unenforceable, in whole or in part, the legality, validity and enforceability of the remaining provisions shall not be affected or impaired. 

11.  General.  These Terms and Conditions of Sale and those set forth in any PC On Call, Inc. work order, proposal or quotation and any written agreement signed by customer and PC On Call, Inc. constitute the entire agreement between the customer and PC On Call, Inc., and no other verbal or written communications, representations or commitments shall apply unless made in writing and signed by both parties.  PC On Call, Inc.’s acceptance of customer’s purchase order is conditioned on customer’s assent to the terms contained herein in lieu of those contained in customer’s purchase order.  PC On Call, Inc.’s failure to object to provisions contained in any purchase order, related documents or communication from customer shall not be deemed a waiver of the provisions of this acceptance.  These Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State of Ohio, including the application of any applicable statutes of limitations and equitable principles and the availability of any remedies.  The terms contained herein are severable.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the legality, validity and enforceability of the remaining provisions shall not be affected or impaired.

(9/9/03)    Rev: 2003-09-09