TERMS & CONDITIONS
Intake Terms of Service with Nichols Computer & Installation Services, LLC.
I. TECH SERVICES
1) These General Terms and Conditions (“Terms”) govern the purchase of certain services (“Services”) from NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, and
its affiliates, subsidiaries, and
contractors (“NICHOLS COMPUTER & INSTALLATION SERVICES, LLC” or “us” or “we” or “our”). Descriptions of the Services (each a “Service Description”) and applicable fees are available on the
Website and in our store, and they are
incorporated into these Terms. The general terms in section I, the terms specific to each Service in the applicable section, and other referenced documents
constitute binding legal agreements
(together the “Agreements”, individually for each Service, product, or application, the “Agreement”) between you and NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. Other terms apply to
other Nichols Computer products and
services.
THESE TERMS REQUIRE SETTLEMENT OF DISPUTES THROUGH BINDING ARBITRATION AND CONTAIN A WAIVER OF YOUR RIGHTS TO BRING A CLASS ACTION AND HAVE A JURY TRIAL. SEE PARAGRAPHS 35-37.
II. SETTING UP A CUSTOMER ACCOUNT; RELIANCE ON CUSTOMER INFORMATION
2) You may be required to have a customer account (an “Account”) to purchase some of our Services. By establishing an Account, you confirm that
(a) you are the age of majority in your state; and
(b) you have the legal capacity to enter into and be bound by this Agreement on behalf of yourself or your company.
3) Your Account is personal to the Account owner. You are solely responsible for all use of your Account, even if unauthorized, for maintaining the confidentiality of your log-in information, and for monitoring your Account for unauthorized use. We have no liability for any unauthorized use under your Account.
4) You agree to the use of email or other forms of electronic communication for purposes of
(a) entering into this Agreement;
(b) ordering Services; and
(c) delivery of purchase receipts, notices, records of transactions, and other information. You waive any legal requirement that may require an original or non-electronic signature or agreement or delivery or retention of documents in paper format.
4. You agree that we may record, store, and monitor communications between you and us. You grant us a perpetual, irrevocable, worldwide, royalty free license to use comments, feedback, materials, or information submitted by you to provide the Services and for any other purpose permitted.
III. LIMITATIONS ON USE AND AVAILABILITY OF SERVICES
5. Your use of any Tech Service is solely for your personal or internal company purposes. You may not sell, resell, lease, rent, subcontract, sublicense or transfer the Tech Services to others or use the Tech Services to compete with us.
6. Tech Services are subject to the availability of parts and other materials. Tech Services include only the services, features, software, hardware, and peripherals specified in the Service Description, which may change from time-to-time. We may modify a Service Description by posting an updated version on the Website, and the modified Service Description will be effective when posted.
7. All Tech Services are provided on an AS IS and AS AVAILABLE basis. Not all Tech Services may be always available, or in all locations, or in the format generally marketed. Some Tech Services are dependent on our ability to contact you. You must give us a current email address and telephone number where you can be reached.
(a) I understand that the time it takes to diagnose and/or repair my device is unpredictable and any times quoted are based on a best guess of the work involved and is not a guarantee of how long it can take.
8. We may, at any time and without notice or liability, limit the use or availability of Tech Services. We will not be liable for delays, damages, or failures due to causes beyond our control, including, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, or other things we do not control.
9. We reserve the right, in our sole discretion and without notice, to suspend, terminate, or discontinue any aspect of a Tech Service. If we terminate or discontinue a Tech Service before we have finished providing it to you, we will terminate your Agreement and refund any fees that you have paid to us relating to the undelivered portion of the Tech Service. Such refund shall be your sole and exclusive remedy for our termination or discontinuance of a Tech Service. You will not be refunded for the portion of the Tech Services provided before the date of termination or discontinuance. You agree that the refund of fees and release from this Agreement shall be your sole and exclusive remedy for our termination or discontinuance of a Service. In some instances, a Tech Support contract is a part of another service, and you agree, that you have not paid for a tech Support Contract, if this is the case. If we need to cancel the Tech Support contract for any reason, you agree, that under these circumstances, you are not entitled to any sort of refund or reimbursement for the termination. If for any reason, there is just cause to believe that NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, has caused a breach of confidentiality and/or security of a clients data and/or computer system, infrastructure, or network, we will IMMEDIATALY terminate all pending work; put on hold any and all pending tech services agreements, and await the determination of the supposed breach from a third-party, no affiliated security consultation firm, provided by the client, before reactivating any and all services.
IV. IN-STORE AND ONSITE SERVICES
10. Some Tech Services are provided only during business hours at our retail store. If the Tech Services require that you leave a computer, tablet, mobile device, or other equipment for Tech Service, we will attempt to notify you once the Tech Service is complete. Equipment that is not picked up within 30 days after the completion of Tech Services will be discarded. You expressly relieve Nichols Computer of any liability in connection with any such disposal. WE WILL NOT PRESERVE ANY DATA STORED ON ABANDONED EQUIPMENT, AND WE ARE NOT RESPONSIBLE FOR ANY DATA THAT IS LOST AS A RESULT OF DISPOSAL OF ABANDONED EQUIPMENT.
11. For Tech Services provided at your home or office, we will use reasonable efforts to schedule a mutually convenient time to provide the Tech Services. You acknowledge that circumstances outside of our control may cause delays in our ability to schedule a service session on your desired timeline. You release us from all liability from any direct or indirect damages if we are unable to schedule a service call at your desired time or resulting from any delays. For any Tech Service that includes the installation of software, a current, licensed version of the software must be provided by you, unless we agree to provide it in the Product Description or work order. New hardware provided by you must be in original, unopened packaging. If connection to an in-home or office network is required, access to the network configuration (i.e. TCP/IP address, etc.), IDs, addresses, passwords and authority will be required. You must provide a suitable work area for the technician. If required for the Tech Services, the location must have working broadband internet access and power. An adult who is authorized to make any decisions must be present while the work is being performed.
V. REMOTE SERVICES
12. Consult the applicable Services Description for details on when remote Tech Services are available and how to access them. If Internet access is required, you must ensure that you have Internet connectivity and that your computer environment is suitable to receive the Tech Services via internet. Prior to providing a Tech Service to you, we may qualify your Internet connection to determine whether you have the minimum required speed; however, some devices may not be able to receive Tech Services even if testing shows that your connection is qualified. In that case, the Tech Services will be cancelled, and Nichols Computer shall have no liability for the inability to provide the Tech Services.
VI. ACCESS TO EQUIPMENT AND USE OF SOFTWARE
13. You authorize us to connect to, access, and control your equipment to receive the Tech Services, including all associated hardware and software. This includes the right to inspect and open the equipment, to access and remove internal components, and to perform repairs. We may use and download software, gather system data, and modify hardware and software settings and user profiles to deliver the Services.
14. We may recommend that you acquire, install, and use software that is owned or licensed by NICHOLS COMPUTER & INSTALLATION SERVICES, LLC (“Software”) or third-party licensors, providers, and suppliers (“Third-Party Software” and, together with the NICHOLS COMPUTER & INSTALLATION SERVICES, LLC Software, the “Software”). The Software may be provided as part of the applicable Fees for the Tech Services or for an additional Fee. You acknowledge that we may not be able to provide the Tech Services if you do not agree to install the recommended Software. You agree that we may download and use the Software and that we may accept applicable end user license agreements on your behalf. When Software is accompanied by an end user license agreement, your use of the Software is governed by the terms of that license agreement and by this Agreement. We may need to update or change the Software from time to time, and you agree to install such updates or changes. We may download and use trial versions of Software that may expire and cease to function unless you purchase a license to continue using such Software. We may, but are not obligated to, remove any Software when we cease to provide Tech Services to you. In some instances, your rights to use certain Nichols Computer Software will cease once the Tech Services cease.
15. Nichols Computer grants you a revocable, non-exclusive, non-transferable license to use the Nichols Computer Software in connection with the Tech Services subject to the terms of any accompanying end user license agreement and this Agreement. You may not make copies of the Nichols Computer Software. You agree that the Nichols Computer Software is the proprietary information of Nichols Computer or its third-party licensors, providers, or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The Nichols Computer Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Nichols Computer or its third-party licensors, providers, or suppliers. You may not decompile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Nichols Computer Software, or otherwise reduce the Nichols Computer Software to a readable form. You may not modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense, distribute copies, or otherwise transfer the Nichols Computer Software to any third party. You may not remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Nichols Computer Software. You acknowledge that this license is not a sale of intellectual property and that Nichols Computer or its third-party licensors, providers, or suppliers continue to own all right, title, and interest in and to the Nichols Computer Software and related documentation.
16. Third Party Software is licensed to you by the owners or licensors of the Third-Party Software. You must agree to the terms and conditions set forth by such owners or licensors in their end user license agreement, whether Nichols Computer assists you in its acquisition, installation, and use. Nichols Computer has no rights to the Third-Party Software, does not license or sublicense it to you, or warrant it to you.
17. We provide technical assistance and support for Software and hardware in accordance with our policies. If we provide technical assistance and support to you for Third Party Software, you must ensure that you comply with the terms and conditions under which you licensed such Third-Party Software. YOU ACKNOWLEDGE THAT SUPPORT OF THIRD-PARTY SOFTWARE OR HARDWARE BY AN UNAUTHORIZED SERVICE PROVIDER MAY VOID ANY WARRANTY MADE BY THE SUPPLIER OF SUCH THIRD-PARTY SOFTWARE OR HARDWARE.
18. Your license to use the Nichols Computer Software remains in effect for the duration of the Tech Services or until terminated by Nichols Computer, its third-party licensors, providers or suppliers, or until your Account is terminated. Upon termination of the Tech Services or your Account, any license to use NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., Software terminates and you must cease using the NICHOLS COMPUTER & INSTALLATION SERVICES, LLC Software. Your right to use Third-Party Software is dependent upon the license terms under which you acquired the Third-Party Software.
19. In connection with the Tech Services, Nichols Computer may suggest certain third-party services to you. Your use of any such services is subject to the terms of service of the third-party provider, and you agree that the provider is solely responsible for delivery of its services to you. Violation of a third-party provider’s terms of service may result in the termination of your Services and Account.
VII. DATA BACKUP
20. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING AND PERFORMING A COMPLETE AND COMPREHENSIVE BACKUP OF ALL DATA AND SOFTWARE STORED ON ANY EQUIPMENT OR DEVICE BEFORE PROVIDING ACCESS TO SUCH EQUIPMENT OR DEVICE TO US AND ALLOWING US TO PERFORM ANY TECH SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER UNDER ANY CIRCUMSTANCE FOR ANY LOSS, DAMAGE, DESTRUCTION, HARM OR CORRUPTION THAT MAY ARISE FROM OR BE RELATED IN ANY WAY TO THIS AGREEMENT, THE TECH SERVICES, THE EQUIPMENT OR DEVICE, OR DATA THEREON, INCLUDING CUSTOMER DATA, BUSINESS INTERRUPTION, WORKS OF LITERATURE, PHOTOGRAPHS, INFORMATION NECESSARY OR MATERIAL TO THE PERFORMANCE OF YOUR OCCUPATION, INTELLECTUAL PROPERTY, PERSONAL IDENTIFYING INFORMATION, SOFTWARE OR HARDWARE. IF YOU EXPRESSLY PURCHASE DATA BACKUP AS PART OF THE TECH SERVICES, WE WILL REASONABLY ATTEMPT TO PROVIDE SUCH TECH SERVICES, SUBJECT TO THE LIMITS OF OUR BACKUP SOFTWARE AND THE INTEGRITY AND ACCESSIBILITY OF YOUR DEVICE AND THE RELEVANT DATA. IF WE ARE UNABLE, OR FAIL, TO PERFORM THE BACKUP SERVICES FOR ANY REASON (INCLUDING OUR OWN NEGLIGENCE), OR IF ANY BACKUP REQUESTED DATA IS LOST, DAMAGED, INACCESSIBLE OR ERRONEOUSLY TRANSFERRED TO OR FROM YOUR DEVICE DURING THE BACKUP PROCESS, OUR MAXIMUM LIABILITY IS LIMITED TO THE LIQUIDATED DAMAGES SET FORTH WITHIN THIS AGREEMENT; and as the client you agree that,
(a) I confirm my data is backed up and I understand the risks of hard disk failure can lead to loss of data and under no circumstances are we liable for any data loss whatsoever.
(b) IT IS IMPORTANT YOUR DATA IS BACKED UP. WE ACCEPT NO LIABILITY FOR LOSS OF DATA.
(c) We do not have specific knowledge of your computer and its configuration. Whilst we use our best efforts to minimize disruption to your system, we cannot be held responsible for any unforeseen consequences of our services including any loss or corruption of data, information or records; any loss of goodwill, or any loss of business or contracts; any failure by you to follow our reasonable advice, recommendations or instructions; any losses you may suffer arising from your use (or failure to use) any anti-virus and internet security software and any loss that is not reasonably foreseeable.
VIII. TERM AND TERMINATION; AUTOMATIC RENEWAL OF SUBSCRIPTION SERVICES
21. This Agreement begins upon your acceptance of these Terms and continues until terminated by you or NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. Services may be provided on a one-time basis or on a recurring basis. Subscription Services are subject to an initial contractual term (the “Initial Term”) as set forth in the Service Description. At the end of the Initial Term, Subscription Services will continue an equal term as the Initial Term or on a month-to-month basis, as set forth in the Service Description, until you or Nichols Computer terminates the Services.
22. One-time Service requests may not be cancelled after work has commenced. You may cancel a Subscription Service within 30 days of (a) the date your purchase or (b) the date that we materially change the Services Description for your Subscription Service (the “Cancellation Period”), in both cases without further obligation to pay Nichols Computer after the date of cancellation. You must return any equipment or products purchased from us as part of the Subscription Service in order to receive a refund for them. If we have started to provide Services to you, no refund will be provided for Services provided before the date of cancellation. Set-up and similar fees will not be refunded. To terminate a Service after the Cancellation Period, you must notify Nichols Computer no less than 10 days before the end of the then-current period in order to avoid being charged the applicable Fee for the next period. You can cancel your Service Subscription by calling
23. You may change your Subscription Service by contacting our customer service department. If you downgrade your plan, you will be assessed a Fee equal to 25% of the balance due under the original Subscription Service for the remaining period of the Initial Term. You will not be charged a Fee if you upgrade to a higher tier plan. Upgrading or downgrading your Subscription Service will result in a new Initial Term.
24. NICHOLS COMPUTER & INSTALLATION SERVICES, LLC may suspend or terminate this Agreement without notice if;
(a) you are in breach of any of the terms of this Agreement;
(b) your use of a Service is prohibited by law or is disruptive to, adversely impacts, or causes a malfunction to the Service, NICHOLS COMPUTER & INSTALLATION SERVICES, LLC network, or the use and enjoyment of other users;
(c) NICHOLS COMPUTER & INSTALLATION SERVICES, LLC receives an order from a court;
(d) NICHOLS COMPUTER & INSTALLATION SERVICES, LLC ceases to offer the Service;
(e) we determine that you are abusing a Service or using it excessively;
(f) you fail to pay the Fees when due;
(g) your bank or debit or credit card provider denies or discontinues your payment method for any reason;
(h) our technician is physically unable to provide the services as listed, due to physically not being able to come to the property, due to no fault of NICHOLS COMPUTER & INSTALLATION SERVICES, LLC (i.e., you are in a location that we are not allowed to enter, and/or we physically can not reach your location, due to no-fault of ours); or
(i) your debit or credit card expires, and you fail to update your payment information.
IX. FEES AND PAYMENT
25. You are required to pay the charges applicable to the Services and any other applicable charges, including taxes, shipping and handling fees, activation fees, set-up fees, minimum service fees, no-show fees, failure to cancel fees, termination fees, and insufficient credit or insufficient funds fees (each a “Fee”). You authorize Nichols Computer to charge your debit or credit card or other accepted payment method for payment of the Fees.
26. Fees may be charged
(a) in advance of us providing a Service or
(b) on a periodic basis. Set-up fees, activation fees, installation fees and other non-recurring charges will typically be charged at the time of purchase. Recurring Fees be billed in advance and usage charges will be billed in arrears.
(c) after rendering services, in-store and upon your pick-up of the item
27. BY PURCHASING A SUBSCRIPTION PLAN, YOU AGREE THAT WE MAY CHARGE THE PAYMENT METHOD ASSOCIATED WITH YOUR ACCOUNT AUTOMATICALLY ON A RECURRING MONTHLY BASIS UNTIL YOU OR WE TERMINATE YOUR SERVICE IN ACCORDANCE WITH THIS AGREEMENT.
If any portion of your bill is not paid by the due date, Nichols Computer may charge you a late fee as set forth in the Service Description. If Nichols Computer utilizes a collection agency or legal action to recover monies due, you shall reimburse us for all expenses incurred, including attorneys' fees. You agree that Its Owner/Proprietor, and/or any all employees, officers, or independent contractors may charge your debit or credit card or other accepted payment method until all amounts due to Nichols Computer are paid in full.
X. LIMITED WARRANTY, DISCLAIMERS, LIMITATION OF LIABILITY, AND LIQUIDATED DAMAGES
28. We warrant we will use commercially reasonable efforts to provide the Services. You acknowledge and agree that the Services may not provide the results you desire. The Services may not detect or repair all issues or problems with your hardware and software. If any portion of the Services fails to conform to the foregoing warranty, and you give us written notice of such nonconformity within 14 days from completion of the Service, we will re-perform the nonconforming Services. THE REMEDY EXPRESSLY SET FORTH ABOVE IS YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
(a) Refurbished Computer Systems, we offer a 1-Year in House warranty. All refurbished computers come with a 1-Year warranty, and if you are unhappy for any reason can be returned, in the same condition purchased, within 14-Days. If there is a manufacturing defect, we will do our best to replace the defective component within a timely manner, but due to current shipping issues and constraints, this may take time, as manufacturers are giving 30 -day turnarounds of defective components. Please note also, that ANY work performed on your computer system by any other entity outside of NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, can VOID your warranty with us.
(b) Custom-Built Computer Systems, we offer a 2-Year in House warranty. All Custom-Built New Computer Systems, come with a 2-Year warranty, however, due to the nature of this being a custom-built computer system, and all components were custom ordered, we can only do Warranty work on these, there will be NO REFUNDS for any reason. If there is a manufacturing defect, we will do our best to replace the defective component within a timely manner, but due to current shipping issues and constraints, this may take time, as manufacturers are giving 30 -day turnarounds of defective components. Please note also, that ANY work performed on your computer system by any other entity outside of NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, can VOID your warranty with us.
29. The limited warranty in Paragraph 28 does not cover any issues or interruptions caused by problems with a third-party service such as internet or wireless service; it does not cover incidental or accidental damage (i.e., physical damage or liquid damage); as well does not cover acts of God, electrical surges, overheating due to placement, or other acts of negligence that causes any components to malfunction outside of an optimal state of performance. Further, while we use reasonable security measures to deliver the Tech Services, you acknowledge and agree that no data transmission is 100% secure and we cannot guarantee that your personal information or other data will be free from unauthorized intrusion. You are responsible for having up to date industry standard virus protection and security software or tools installed on your computer equipment and systems, including mobile devices.
30. EXCEPT AS SET FORTH IN THESE TERMS, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING YOUR TECHNOLOGY QUESTIONS OR EQUIPMENT PROBLEMS. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT, OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY
31. IN NO EVENT SHALL NICHOLS COMPUTER (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), OR ITS THIRD-PARTY LICENSORS, PROVIDERS, OR SUPPLIERS, BE LIABLE FOR:
(a) ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO OR LOSS OF DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SERVICES, OR COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, (INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY), EVEN IF NICHOLS COMPUTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR
(b) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
32. IN NO EVENT SHALL OUR TOTAL LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE PREVIOUS 12-MONTH PERIOD IN THE CASE OF A SUBSCRIPTION SERVICE OR THE ACTUAL AMOUNT PAID BY YOU FOR A ONE-TIME SERVICE.
33. CERTAIN JURISDICTIONS’ LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES AND OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU ONLY TO THE MAXIMUM EXTENT ALLOWED BY SUCH LAWS.
XI. INDEMNIFICATION
34. You agree to indemnify, hold harmless, and defend (at our option) Nichols Computer, its officers, directors, employees, affiliates, agents, and subcontractors, and any other third-party provider who furnishes Services to you against all claims, liabilities, damages, costs and expenses, including reasonable attorney’s fees, in any way related to or arising from
(a) the violation of applicable laws, regulations, or this Agreement by you;
(b) the violation of rights of any third party;
(c) claims for infringement of any intellectual property rights arising from your use of the Services, the Software, or the internet; or
(d) any personal injury, death, or property damage attributable to you. Defense counsel must be reasonably acceptable to Nichols Computer. Nichols Computer reserves the right to employ its own counsel at its own expense. You agree not to settle any loss without the Nichols Computer written consent, which will not be unreasonably withheld.
XII. ARBITRATION AGREEMENT AND WAIVERS OF CLASS ACTION AND JURY TRIAL
35. Any controversy or claim arising out of or relating to this Agreement, or its breach, shall be settled by binding arbitration in Palm Beach County, Florida, in accordance with the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall be selected pursuant to the AAA Rules and shall apply Florida law consistent with the Federal Arbitration Act. The party who initiates arbitration must pay any AAA filing fee. THE ARBITRATION OF DISPUTES SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO ARBITRATION, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL, AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. YOU AGREE TO MAINTAIN THE CONFIDENTIALITY OF ANY DECISION AND/OR AWARD MADE BY THE ARBITRATOR. DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THESE PROVISIONS.
The Fees charged for the Services are specified in-store and on the Website.
(a) Any dispute, controversy or claim arising out of or relating in any way to Products or Services provided by NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of the Terms and Conditions, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. [In the event of a dispute, controversy or claim arising out of or relating in any way to Products or Services provided by NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after 1 (One) year from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
(b) This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.
(c) The arbitration shall be conducted by 1 (one) arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within twenty days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association shall select the arbitrator in accordance with the terms of this agreement.
(d) The arbitrator shall have ten years of experience in Business Disputes and Computer Related Businesses and also shall have served as an arbitrator at least 3 (three) times prior to their service as an arbitrator in this arbitration.
(e) The arbitration shall be conducted in Coeur d'Alene, IDAHO. The laws of the State of Idaho shall be applied in any arbitration proceedings, without regard to principles of conflict of laws. The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association.
(f) It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 120 (one hundred and twenty) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
(g) Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
(h) The Parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than 500 (Five Hundred) pages of documents and to take 3 (three) depositions not to exceed a total of 6 (six) hours for all such depositions. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition.
(i) The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness 10 (ten) days before the arbitration hearing.
(j) The arbitrator[s] shall have authority to award punitive/consequential/special/ indirect damages. The arbitrator shall be entitled to issue injunctive and other equitable relief. The arbitrator shall award interest from the time of the breach to the time of award at the rate of 4 (Four)%. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by suing in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This Section shall survive the termination or cancellation of this Agreement.
(k) The filing party shall be responsible for all Fees and Costs associated with arbitration and shall pay both parties allocation of the share of these fees, pending resolution of arbitration. If the Arbitrator decides in favor of the filing party, they are entitled to recuperate these costs, in addition to any other award granted by the Arbitrator.
(l) The Arbitrator(s) are limited to awarding an amount submitted prior to the commencement of the hearings contained in a sealed envelope by each of the Parties. The parties further agree that neither party may file for litigation proceedings, unless and until Binding arbitration has concluded, and then only to obtain a judgment for the arbitrative award granted by the Arbitrator.
(m) Please note, that for liability and insurance reasons, we CAN NOT ALLOW your equipment to be picked up by a Third-Party. You must pick-up the equipment dropped off, yourself. The only exception to this term, are married couples, that give each other authorization to pick-up or drop-off equipment. This will be noted in your profile, and we will take the name of the other person that has authorization. In the case of unforeseen circumstances, and you are unable to come in, we will allow a third-party to pick-up your equipment, but only after receiving a signed waiver from you, as well as collecting the third parties contact information, and taking a copy of a valid government issued identification card.
36. CLASS ACTION WAIVER. If any claim proceeds in court rather than through arbitration, YOU AND NICHOLS COMPUTER AGREE THAT YOU AND WE SHALL BRING CLAIMS AGAINST ONE ANOTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
37. WAIVER OF JURY TRIAL. If any claim proceeds in court rather than through arbitration, for any reason, YOU AND NICHOLS COMPUTER EACH WAIVE ANY RIGHT TO A JURY TRIAL.
XIII. GENERAL PROVISIONS FOR COMPUTER REPAIR SERVICES
38. All obligations under this Agreement that expressly or by their nature would continue beyond the cancellation, termination, or expiration of this Agreement shall survive such cancellation, termination, or expiration.
39. This Agreement is governed by the law of Idaho and the arbitration provisions of this Agreement are governed by the Federal Arbitration Act. If any claim proceeds in court rather than through arbitration, for any reason, court proceedings must be brought in Coeur d’Alene, Idaho, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Except as otherwise required by applicable law, any claim under this Agreement must be filed within two (2) years after the claim or cause of action arises. NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. shall be entitled to recover its reasonable attorneys’ fees and costs if it prevails in any action.
40. NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. failure to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be an ongoing or future waiver of such terms. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions shall not be affected or impaired, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
41. This Agreement is the entire Agreement between you and NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. regarding the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void. In the event of any inconsistency between these Terms and a Services Description, the Services Description shall control.
42. You may not assign this Agreement without our written consent, and any attempted assignment shall be void. We may assign, delegate, or transfer our obligations under this Agreement to our affiliates without your consent. Any Services under this Agreement may be delivered by Nichols Computer or its contractors and suppliers.
43. You and Nichols Computer are entering into this Agreement as independent contractors. This Agreement does not create an employment relationship. Except as set forth in this Agreement, neither has the authority to bind the other to any third party or otherwise to act in any way as the representative of the other.
44. Notices to Nichols Computer under this Agreement shall be sent in writing to NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. at 4055 N Government Way, STE 11, Coeur d'Alene, ID 83815, and shall be effective upon receipt. We will send notices to you by email, phone, text, posting or at your Account address, as applicable, which shall be deemed given: (a) when sent to your registered email address; or (b) when deposited in the United States mail addressed to you at last-known address; or (c) when hand delivered to your last known address, as applicable.
45. If you cancel your repair after we have started the repair you will be liable to make payment of any parts ordered for your repair and a calculation of the cost of labor to the maximum of the agreed quoted cost of repair will be charged. We will not release any item back to you until payment in full is received.
46. I understand that although everything possible is done to ensure my device is not damaged during diagnosis/repair, some non-serviceable and sealed devices (such as iPads / Tablets / Cameras, etc. ) are impossible to dismantle for diagnosis or repair without physically damaging the device to gain entry into it and the worst case cost will be included in the quote to repair your device.
47. Additionally, NICHOLS COMPUTER & INSTALLATION SERVICES, LLC, bills all jobs per Half Hour, with a minimum charge of 1 hour. If your job, takes less then 1 hour, you will still be billed an hour, on-site time, is always billed in 1 Hour Increments. I understand I will not receive my repaired device until payment is received in full, unless other arrangements have been made with NICHOLS COMPUTER & INSTALLATION SERVICES, LLC.
48. I understand if my device's operating system is reloaded, programs such as Microsoft Office (Word, Excel, PowerPoint, Outlook), Anti-Virus Software, Financial Software (QuickBooks, Quicken, Peachtree, etc.), and other custom paid programs; may not be present on my repaired device and I understand I will need to provide the original installation media if NICHOLS COMPUTER & INSTALLATION SERVICES, LLC is to re-install my software; or re-install the software myself.
49.NICHOLS COMPUTER & INSTALLATION SERVICES, LLC is not liable for any programs, not associated with Microsoft Windows, during a re-install, unless I have paid an additional charge, and provided the necessary media to re-install the software.
50. I understand that any Pirated, or illegally obtained software, will not be re-installed on my device by NICHOLS COMPUTER & INSTALLATION SERVICES, LLC , as well as any illegal content which my device contains, may be reported to the proper authorities if discovered. NICHOLS COMPUTER & INSTALLATION SERVICES, LLC will not actively seek out illegal content, however if during our repair, it is stumbled upon, we are required by law to report it.
51.Please note, regarding this clause, that your confidential information will never be disclosed to a third-party, outside of the scope of legal protections in this regard. If we are contacted by any agency, department, or attorney representing any action, we are legally obligated to disclose information requested, within reasonable bounds.
XIV. ABANDONMENT CLAUSE
52. Any equipment and/or personal/business property that is left within the confines of NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., that is not the property of NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., and these remain for over a period of 30 days, will be considered abandoned.
53. If NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., does not abandon the property, and recycle said property, then you and/or your company will be charged a storage fee of $25.00 per day, starting on the date of abandonment, and continuing in perpetuity, until such time that NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., either recycles the items, or the property is picked-up. NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., also shall bill for any reasonable amount of time, that Its Owner/Proprietor, and/or any all employees, officers, or independent contractors, spend trying to contact and/or rectify any issues arising from the abandonment, both prior to and post abandonment.
XV. ACKNOWLEDGEMENT
54. By dropping off your computer for repair and/or purchasing any product, component, or Service from NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., and/or providing any Product or Service to NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., you agree that you have read our terms and conditions outlined; you waive any and all rights to litigate a dispute against NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., Its Owner/Proprietor, and/or any all employees, officers, or independent contractors which NICHOLS COMPUTER & INSTALLATION SERVICES, LLC. may employ the use of. You further agree that the arbitration of any claim or dispute between us shall be conducted under the Code of Procedure for Resolving Business Disputes in effect when the claim is filed. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
55. Even though every care is taken, to try and follow deadlines and due dates, you acknowledge that unforeseen circumstances may prevent this from happening, and agree, that if we need to add additional time onto your repair/installation service, that you WILL be liable for any additional time, if this is from no fault of our own. You agree that any quoted time, is just an estimate, and can change, and you relieve NICHOLS COMPUTER & INSTALLATION SERVICES, LLC., from liabilities that result from these situations.
56. Please note that your acceptance of us doing any work for you and/or your company, is considered by default an acceptance of these terms and conditions. We let all clients know of our website and/or will provide you a complete written set of these terms and conditions upon request. Your failure to know that these terms and conditions exist and/or apply to your job, is not a waiver of these terms and conditions, and all sections shall still apply.