The following terms and conditions govern the products, subscriptions and/or services to you.
Palmetto Technology Group, Inc., together with its subsidiaries (collectively, “PTG”), offered to provide you with Products and/or Services by means of a written or electronic document issued by PTG and designated as a “Quote” and/or by means of PTG’s online store. Unless a different period of time is specified, prices in a Quote expire thirty days from the date of the Quote or sooner if PTG notifies you before your acceptance. These Terms and Conditions and the Quote accepted by you will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing the sale, lease or license of Products and/or Services. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) by acknowledging electronically by clicking that you accept these Terms and Conditions; (b) sending to PTG a written acknowledgment of the Quote (which may be via email); (c) placing a purchase order or giving instructions to PTG with respect to the sale, license or lease of the Products and/or Services described in the Quote; or (d) payment for the Products and/or Services. You will be deemed to have received these Terms and Conditions if we have notified you where they can be accessed via the Internet or other reasonable means. If you attempt to accept a Quote after it has expired, PTG may accept your offer to be bound by the Quote by commencing the provision of the Products and/or Services or other reasonable means, but any acceptance by PTG is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. These Terms and Conditions along with the Quote shall be the exclusive contractual documents and terms. No term shall be included, excluded or modified except by mutual agreement signed by both you and PTG, and any terms contained in any purchase order or other document issued by you are expressly rejected.
Defined Terms. “Products” means Hardware, Software or a subscription to Microsoft Online Services described in the Quote. Unless expressly set forth in the Quote, you are responsible for providing adequate Hardware, Software and Network Services for use of the Products. PTG makes no warranties or representations that the Products are compatible with your Hardware, Software or Network Services.
“Hardware” means computer hardware, related devices and other accessories, including embedded components other than Software.
“Software” means any software, library, utility, tool or other computer or program code in binary form. Software and/or subscriptions to Microsoft Online Services provided by PTG or third parties is licensed (and not sold) to you, and subject to the provisions of the license agreement with the owner of such Software or subscription services. Software and/or subscription service licenses based on the number of users may be increased or decreased by you, but will be subject to additional fees, including cancelation fees if you decrease the number. You will be responsible for installing any updates to Software unless you have agreed to pay for a Service from PTG that provides for the installation of updates.
“Services” means support services, management services or other services performed by PTG’s personnel. Services may be on a one-time or periodic recurring basis, as set forth in the Quote. The scope of a Service and our obligations related to a Service are as set forth in the proposal delivered by PTG, or if not in a proposal, as set forth on PTG’s website from time to time.
“Quote” means the Quote or similarly worded document from PTG describing the Products and/or Services and the fees and charges related to them and/or any Products or Services offered to you through PTG’s online store. If you authorize us to add any additional Products or Services over the telephone or otherwise, those additional Products or Services will be considered part of the Quote and subject to these Terms and Conditions.
“Network Services” means (i) the internal computer network for your company, which may include VPN based services for multiple office locations and may also include wired and/or wireless services, and (ii) services provided by your Internet Service Provider to include internet service and/or phone and/or fax services.
Payment. Fees for Products and/or Services set forth in the Quote may not include applicable sales, use, or other similar taxes and you are responsible for paying such taxes. Payment for Products and/or Services is due no later than 15 days after the date of the Quote, or if no Quote was issued, payment is due 15 days after date of our invoice. For any recurring fees for Products and/or Services, payment is due in advance on the first day of each calendar month with any partial month prorated based on the actual number of days in such month. You must pay all such recurring amounts via pre-authorized automatic ACH payments. Fees are not refundable unless PTG agrees otherwise in writing, and any returns may be subject to a reasonable restocking/administrative charge in PTG’s sole discretion. You acknowledge and agree that if you do not timely pay amounts due for recurring fees, PTG or its licensor or lessor (or their respective distributors) may terminate your access to (or right to use) Products, Software and PTG’s provision of Services, without prior notice. You understand that access to and use of Products, Software and PTG’s provision of Services are contingent upon timely payment. In such event of non-payment, neither PTG, Microsoft, or PTG’s other licensors or lessors, nor their respective distributors shall be liable to you for any consequential or other damages, including any loss of use, loss of business or loss of profits. If not otherwise stated in the Quote, all recurring fees are subject to increase annually (Microsoft subscriptions shall be subject to the terms of the Quote and the subscription shall automatically renew at the prevailing rates established by PTG unless otherwise agreed.). PTG may apply such increases at each anniversary of the date of the Quote or on the same calendar day each year. Any sums not paid by you when due will bear interest at the rate of 1.5% per month (or such lesser amount as required by applicable law). If PTG has to engage an attorney, collection agency or other third party to collect sums past due, you will also be liable for all such reasonable costs incurred by PTG.
Term of Contract Documents; Termination. Unless otherwise described in the Quote or a subscription to online services, and subject to the other provisions of these Terms and Conditions, the Contract Documents shall be in effect for a one-year period commencing on the date of the Quote, and shall renew automatically for additional one-year terms until cancelled by either party. Notwithstanding this term, either you or PTG may terminate the Contract Documents upon 30 days written notice to the other party; provided, however, if a Product or Service is subject to a minimum initial or minimum renewal term, your obligation to pay for such Product or Service shall include the full duration of such initial or renewal term as set forth in further detail in Section 5. Any transfer of Microsoft Cloud or other online services, including without limitation to another provider of services the same as or similar to PTG’s services, shall be considered a termination under the Contract Documents and requires 30 days written notice to PTG. You will be responsible to pay PTG for all charges due for any such transferred services for the full duration of the then-current initial term or renewal term. Notwithstanding the foregoing, either party may terminate the Contract Documents if the other party commits a material breach and such breach is not cured within 30 days. In addition, PTG may terminate the Contract Documents immediately if (i) you fail to make any payment when due, (ii) you declare bankruptcy or are adjudicated bankrupt, or (iii) a receiver or trustee is appointed for you or substantially all of your assets. Upon termination of the Contract Documents, all rights and obligations under the Contract Documents will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
Termination Fee; Liquidated Damages. You acknowledge and agree that the prices and rates for services and the length of the license terms provided under the Quote were determined by mutual agreement between the parties. You also acknowledge that PTG has incurred obligations on your behalf with respect to services being licensed by Microsoft and/or other third-party providers, and would not have done so without the certainty of revenues during the license term stated in the Quote(s). Accordingly, in the event of any early termination of the Contract Documents (including by transfer of licenses to a different service provider), you agree to pay a termination fee to PTG, as liquidated damages (the “Liquidated Damages”), in an amount equal to the remaining Contract Value. The Contract Value is calculated as the sum of any unpaid amounts due for the remaining duration of any fixed license term under the applicable Quotes plus any additional unpaid non-recurring charges (other than time and expense amounts which the parties have agreed to bill in arrears as incurred) under the Quote(s). PTG reserves the right, in its sole discretion, to reduce the amount of Liquidated Damages due to PTG on a case by case basis, but is under no obligation to do so.
Limited Warranty; Limitation of Liability. PTG will pass through any manufacturer’s, licensor’s or lessor’s warranties to the extent permitted by the manufacturer, licensor or lessor. Except as provided in the next sentence for Services, PTG does not provide any warranty, and any descriptions in a Quote or other material of PTG shall not be construed as a warranty. To the extent PTG is providing Services, PTG warrants that the Services will be performed by qualified personnel and in a manner consistent with good industry standards. EXCEPT AS EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PTG, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, INTEROPERABILITY, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS OR SERVICES; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR; OR (v) THAT DATA WILL BE RECOVERABLE OR UNCORRUPTED. The Products and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). PTG expressly disclaims any express or implied warranty of fitness for High-Risk Activities. If you purchase any Products or Services that provide for data storage, backup, recovery or security, there is no guarantee that you will be able to retrieve data or that it will be uncorrupted or that your data or systems will not be compromised by third parties.
PTG WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, SERVICES OR THIRD-PARTY PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
PTG’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS (INCLUDING PRODUCTS AND SERVICES) SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PTG DURING THE PRIOR 3 MONTHS UNDER THE CONTRACT DOCUMENTS FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PTG’S PROVISION OF PRODUCTS AND/OR SERVICES TO YOU, ARE A MATERIAL INDUCEMENT FOR PTG TO ENTER INTO THE CONTRACT DOCUMENTS WITH YOU, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
Confidential Information. Each party hereto shall use its commercially reasonable efforts to hold in confidence and not disclose confidential information of the other party, except as required by applicable law.
Notices. Any notice under the Contract Documents must be in writing and delivered to the respective addresses of the parties set forth in the Quote or to such other address as either party may designate by written notice to the other in accordance with this provision. Notice must be provided in any manner reasonable under the circumstances and shall be deemed to be given on the date received; provided, however, any notice sent by nationally recognized overnight courier service shall be deemed to be received on the date delivery is first attempted.
Governing Law; Jurisdiction. The Contract Documents shall be governed by and construed in accordance with the laws of the state of South Carolina without regard to its conflict of laws principles. Each party hereby consents to service of process by, the jurisdiction of, and venue in the courts located in Greenville, South Carolina.
Microsoft Online Services. Microsoft Online Services. All Microsoft Cloud and other online services shall be subject to Microsoft’s Cloud Agreement which is available at https://www.goptg.com/tsandcs and the Microsoft Customer Agreement which is available at https://www.microsoft.com/licensing/docs/customeragreement.