940 668–1800 • 844 222–PCMD
701 E. California, Suite 202, Gainesville, TX

Terms & Conditions

General Service Terms & Conditions for IT Services

Application

  • These Terms and Conditions shall apply to the provision of IT Services by the Company to the Client.
  • In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Company in writing.

Definitions and Interpretation

In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

"Acceptable Delay Time"
means the time by which the Response Time may be exceeded by the Company under clause 8 for reasonable reasons including, but not limited to, unavoidable delays in travel time;
"Agreement"
means the IT Support Services Agreement entered into by the Client and the Company to which these Terms and Conditions apply;
"Business Day"
means, any day (other than Saturday and Sunday) on which ordinary banks are open for business;
"Client"
the customer &/or company name
"Commencement Date"
means the date on which the agreement between Client and Company comes into force;
"Company"
Your PCMD, LLC, 712 E. California St., Gainesville, TX 76240
"Confidential Information "
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement or otherwise (whether orally or in writing or any other medium and whether or not the information is expressly stated to be confidential or marked or may be interpreted as such);
"Equipment"
means the Equipment present at the Client's premises;
"Fees "
means the fees payable by the Client to the Company in accordance with Clause 3;
"Incident "
means an unplanned interruption to an IT Service or a reduction in the quality of an IT Service. Failure of a Configuration Item that has not yet impacted Service is also an Incident. For example, failure of one disk from a mirror set;
"Problem "
means a cause of one or more incidents. The cause is not usually known at the time a ticket is created and the Problem Management process is responsible for further investigation;
"Problem Management "
means the Process responsible for managing the lifecycle of all problems. The primary objectives of Problem Management are to prevent incidents from happening and to minimize the impact of incidents that cannot be prevented;
"Request for Change (RFC) "
means a formal proposal for a Change to be made. An RFC includes details of the proposed Change and may be recorded electronically or on paper;
"Service Request "
means a request from a User for information, or advice, or for a Standard Change or for Access to an IT Service. For example to reset a password, or to provide standard IT Services for a new User. Service Requests are usually handled by the Service Desk and do not require an RFC to be submitted;
"Services "
means the services to be provided by the Company to the Client (as set out in the Specification of Services Schedule between the Client and the Company)
"Software"
means any and all programs, applications, instructions or similar that may from time to time be installed on the Clients computer systems;
"Working Hours"
means the normal Company working hours which are Monday–Friday 10am to 6pm.
  • Unless the context otherwise requires, each reference in these Terms and Conditions to:
    • "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
    • a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
    • "these Terms and Conditions" is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
    • a Schedule is a schedule to these Terms and Conditions; and
    • a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
    • a "Party " or the "Parties " refer to the parties to these Terms and Conditions.
  • The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
  • Words imparting the singular number shall include the plural and vice versa.
  • References to any gender shall include the other gender.
  1. Company's Obligations
    • With effect from the Commencement Date the Company shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in the Specification of Services Schedule, or otherwise agreed under these Terms and Conditions.
    • The Company will use reasonable care and skill to perform the Services identified in the Specification of Services Schedule or otherwise agreed under these Terms and Conditions.
    • The Company will, subject to Clause 2, use reasonable endeavours to maintain the functionality of any Software which may be installed or otherwise operative on the Client's Equipment and undertakes to re-install any Software which may have been corrupted or otherwise made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Equipment and Software.
    • Upon receipt of the Client's request for support or rectification of a defect, the Company shall (subject to its then current commitments) normally begin work on such support or defect not later than 48 hours thereafter and shall carry out all Services as specified in the Specification of Services Schedule during Working Hours until all required work is completed to the reasonable satisfaction of the Client.
    • The Company will not guarantee the performance of any Software which the Company has undertaken to re-install under sub-Clause 1.3.
    • The Company shall use all reasonable endeavours to complete its obligations under the Specification of Services Schedule. The Parties agree that time will not be of the essence in the performance of these obligations.
  1. Client's Obligations
    • The Client shall:
      • allow the Company access to the Equipment and all relevant Software for investigation purposes;
      • provide adequate working space and facilities for the Company's staff; and
      • co-operate with them in the diagnosis of any defect or malfunction in the Equipment or Software.
    • The Client shall allow the Company the use of any Equipment, computer systems, peripherals or other hardware necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Company.
    • The Client will not allow any changes or modifications to the Software to be made by any party other than those authorized by the Company. If such changes or modifications are carried out without authorization or appropriate notification, the Company reserves the right to review these Terms and Conditions and make adjustments accordingly.
    • The Client will make freely available to the Company all documentation associated with the Equipment, working documents, original Software installation media, current data backups, Equipment and any other relevant hardware for the efficient maintenance of the Equipment and the Software.
    • The Client shall create regular data backups in such a manner as to minimize any potential data loss and to ensure that these are made available to the Company as required.
    • The Client shall take all reasonable precautions to ensure the safety and health of the Company's personnel while such personnel are at the Client's premises.
  1. Price
    • The Client agrees to pay the Fees in accordance with Clause 4 and the Specification of Services Schedule.
    • The Company shall be entitled to recover from the Client reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
    • The Client shall pay the Company for any additional services provided by the Company that are not specified in the Specification of Services Schedule in accordance with the Company's hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Specification of Services Schedule.
    • All sums payable by either Party pursuant to these Terms and Conditions are exclusive of any value added or other tax or other taxes on profit, for which that Party shall be additionally liable.
  1. Terms of Payment
    • All credit orders accepted by Company subject to satisfactory credit approval of the Client, may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment in full for all Products and Services supplied is required on delivery.
    • All payments required to be made pursuant to these Terms and Conditions by either Party shall be made within 14 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
    • The time of payment shall be of the essence of these terms and conditions. If the Client fails to make any payment on the due date in respect of any sum due under these Terms and Conditions then the Company shall have the right to charge the Client interest on any sum outstanding at the rate of 1% above the base rate of Barclays Bank PLC from the due date for payment until the date on which the payment is received.
  1. Variation and Amendments
    • If the Client wishes to vary any details of the Specification of Services Schedule it must notify the Company in writing as soon as is reasonably possible. The Company shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Client.
    • If, due to circumstances beyond the Company's control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client forthwith. The Company shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original arrangements as is reasonably possible in the circumstances.
  1. Termination
    • The Company may terminate the Agreement forthwith if:
      • the Client is in breach of any of its obligations hereunder;
      • the Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
      • the Client has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986;
      • the Client ceases or threatens to cease to carry on business; or
      • any circumstances whatsoever beyond the reasonable control of the Company necessitate and justify the Termination of the Services.
    • In the event of Termination under clause 6.1 the Company shall retain any sums already paid to by the Client without prejudice to any other rights may have whether at law or otherwise.
    • Managed Services &/or Subscription Early Termination Fee:
      • Client will be liable for an Early Termination Fee where Client elects to cancel service or service is terminated by Company prior to the minimum contract period specified in the SLA (Service Level Agreement) or proposal;
      • The Early Termination Fee is calculated using the following formula:
        Early Termination Fee = 50% of (contract term – completed contract months) x monthly value;
      • Client acknowledges that the Early Termination Fee represents a genuine pre-estimate of the loss Company will suffer and is not a penalty.
  1. Liability
    • The Client agrees to indemnify Company against damages due to errors or failures and subsequent damages that arise form updates supplied by hardware or software manufacturers and applied to systems by Company;
    • The Client shall indemnify the Company against all damages, costs, claims and expenses suffered by the Company arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agents or employees.
    • Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
    • The Company shall not be liable to the Client or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control.
  1. Confidentiality
    • During the term of the Agreement and after termination or expiration of the Agreement for any reason for a period of 6 months starting on the date of Formal Instruction, as outlined in the Formal Instruction Form completed by the Client, the following obligations shall apply to the Party disclosing Confidential Information (‘the Disclosing Party’) to the other Party (‘the Receiving Party’).
    • Subject to sub-Clause 10.3, the Receiving Party:
      • may not use any Confidential Information for any purpose other than the performance of his obligations under these Terms and Conditions;
      • may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
      • shall make every effort to prevent the use or disclosure of the Confidential Information.
    • The obligations of confidence referred to in the provisions of this Clause shall not apply to any Confidential Information that:
      • is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party;
      • is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
      • is required to be disclosed by any applicable law or regulation;
      • is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party to these Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.
    • Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
    • The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of the Agreement for whatever reason.
  1. Sub-Contracting and Assignment
    • The Company may sub-contract to third parties all or any part of the work to be performed hereunder.
    • The Client shall not assign to a third party any or all of its rights or obligations under these Terms and Conditions without the prior written consent of the Company.
  1. Force Majeure
    • Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Company failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
  1. Waiver
    • No waiver by the Company of any breach of these Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
    • No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
  1. Severance
    • If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
  1. Notices
    • All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorized officer of the Party giving the notice.
    • Notices shall be deemed to have been duly given:
      • when delivered, if delivered by courier (including registered mail) during normal business hours of the recipient; or
      • when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
      • on the fifth business day following mailing, if mailed by ordinary mail, postage prepaid.
    • In each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
  1. Recommendations
    • Company recommends Products based on information obtained via any or all of the following sources:
      • supplier or manufacturer;
      • product specifications;
      • industry publications;
      • experience of Company staff; or
      • product selection policies established by Company.
    • Company is not obliged to check all of the above sources when making recommendations about Products. When Company recommendations are accepted by the Client, the Client agrees to take full responsibility for the decisions and contracts Company to implement the recommendations at the Clients risk.
    • Where a Client requests specific Products and Company supplies those Products directly, retails those Products, or arranges for the Products to be provided by a third party, this does not constitute a recommendation by Company to use the Products, nor does it constitute Company's endorsement of the Products or the Products suitability.
  1. Law and Jurisdiction
    • These Terms and Conditions is governed by and must be construed according to the laws in Texas. The Parties hereby irrevocably submit to the jurisdiction of the courts of Gainesville, county of Cooke.
  1. General Representation and Warranty
    • You represent and warrant that (i) your use of the Service will be in strict accordance with the Your PCMD, LLC Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from United States or the country in which you reside) and (ii) your use of our Services will not infringe or misappropriate the intellectual property rights of any third party.

Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of Clause 15.