General Terms & Conditions
ComRes, Inc. (Seller), agrees to sell, and Buyer agrees to buy, the equipment (the “Goods”) and/or services (the “Services”) itemized on Seller’s Sales Agreement, Addenda or Attachment, Work Order, Installation Change Authorization Form, Service Agreement, Purchase Order or Scope of Work (collectively called the ‘Sales Agreement’). Buyer shall, at Buyer’s expense, provide Seller with access to Buyer’s location to complete the contracted work.
The Goods shall comply with industry standards.
TITLE/RISK OF LOSS.
Title to and responsibility for the Goods shall be assumed by the Buyer upon delivery to the customer’s address or job-site.
Payment shall be made to ComRes, Inc., 13798 NW 4th Street, Suite 315, Sunrise, Fl 33325, or any current future address of the company that is shown on invoices. Payments shall be made in U.S. dollars only.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 1.5 percent per month, or the maximum percentage allowed under applicable laws, whichever is less. The buyer may elect to negotiate a third-party lease, in lieu of cash payment (subject to credit approval). Seller is not responsible for guaranteeing lease rates or lease approval. In the event that Buyer cannot obtain leasing, cash payment shall be required pursuant to the above-stated terms. If the Buyer arranges to lease the system, and Seller provides the services/equipment in accordance with this agreement, the Buyer agrees to have the leasing company pay Seller cash payment terms of 50% of the purchase price upon contract execution, and 50% upon installation and acceptance of the Goods by Buyer. Buyer shall sign leasing company Delivery and Acceptance documents immediately upon completion of work, which is defined as 1) the Goods were delivered according to a Scope of Work agreed upon by the Buyer prior to Delivery and 2) the Goods have been installed according to manufacturer’s specifications. In addition to any other right or remedy provided by law, if the Buyer fails to pay for the Goods and/or Services delivered when due, the Seller at its option may treat such failure to pay as a material breach of this Contract, and may terminate this Contract and/or seek legal remedies available, including but not limited to injunctive relief.
4.1. Payment Terms. Unless shown differently on the Sales Agreement, payment terms are 100% due upon issuance of an invoice by ComRes.
4.2. Taxes and fees. Sales Agreements may not always contain all taxes and fees such as Sales Tax, Communications tax, etc., which ComRes will add and/or correct on actual invoicing.
Seller warrants that the Goods shall be free of substantive defects in material and workmanship.
5.1 EXCEPT FOR ANY LIMITED SATISFACTION GUARANTY SET FORTH IN OTHER SECTIONS OF THIS AGREEMENT, THE GOODS AND SERVICES PROVIDED BY COMRES TO BUYER IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SALES AGREEMENT ARE PROVIDED AS IS AND WITH ALL FAULTS, AND COMRES DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES (IF ANY), DUTIES OR CONDITIONS OF MERCHANABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, REILABILITY OR AVAILABILITY, ACCURACY, RESULTS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO ANY OF THE SERVICES WHICH INCLUDE COMPUTER SOFTWARE.
5.2 COMRES WILL NOT BE LIABLE TO BUYER WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS, DAMAGE, OR EXPENSE THAT INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (A) THE LOSS OR INACCURACY OF DATA; OR (B) THE PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IF SUCH COMRES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 IN ALL SITUATIONS INVOLVING PERFORMANCE OR NONPERFORMANCE BY SELLER UNDER THIS AGREEMENT, BUYER’S SOLE AND EXCLUSIVE REMEDY IS (1) TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SELLER, AND (2) TO RECEIVE A PRO RATA REFUND OF ANY PRE-PAID MAINTENANCE SERVICE CHARGES FOR SERVICES THAT HAVE NOT YET BEEN RENDERED, LESS ANY SUMS DUE AND OWING TO COMRES. WITHOUT LIMITING THE FOREGOING, IN NOT EVENT SHALL COMRES’ AGGREGATE LIABILITY TO BUYER PURSUANT TO THIS AGREEMENT AND ALL SALES AGREEMENTS EXCEED THE TOTAL SERVICE FEES PAID BY BUYER TO COMRES DURING THE SIX MONTH PERIOD IMMEDIATE PRECEDING THE ACT OR OMISSION THAT GIVES RISE TO SUCH LIABILITY.
The occurrence of any of the following shall constitute a material default under this Contract – a) the failure to make a required payment when due, b) the failure of the Buyer or Seller to fulfill the obligations within this agreement.
REMEDIES ON DEFAULT.
In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term, or condition of the Contract (including without limitation the failure to make a monetary payment when due), the other party may elect to terminate this Contract if the default is not cured within 10 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. If the Seller terminates this agreement for the reason of default, the Seller maintains the right to demand immediate payment for money owed under any sales agreement or work order, including a) un-billed contractual progress payments and b) future monthly rental or maintenance billing owed under a sales agreement. The Buyer agrees to pay for a) interest on all late payments for money owed under all sales and work order agreements at the maximum rate allowed by law until paid and b) reasonable costs for collection and c) reasonable costs of attorneys’ fees and expenses of litigation that the Seller may incur in collecting any unpaid amount.
If the performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, terrorism, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, labor disputes, or supplier failures.
During the Term of this Agreement, including any subsequent signed Sales Agreement, Addenda or Attachment, Work Order, Installation Change Authorization Form, Service Agreement, Purchase Order or Scope of Work, and for a period of two (2) years after termination of this or any subsequent Agreement, Buyer shall not, directly or indirectly, (i) solicit, induce, hire or engage, or attempt to solicit, induce, hire or engage any employee or subcontractor of ComRes, or (ii) solicit, induce or attempt to solicit or induce any employee or subcontractor of ComRes, to terminate his or her employment or relationship with ComRes. This provision shall survive the termination of this Agreement for any reason. Upon any breach or threatened breach of this Section by Buyer, in addition to and irrespective of the availability of any other right or remedies, Seller shall be entitled to equitable relief, including without limitation injunctive relief to prevent actual or threatened breaches of this Section and to specifically enforce the terms and provisions hereof, without the necessity of proving actual damages or the inadequacy of the available remedies at law, and without posting a bond or other security; provided, however, that if a bond is required, the parties agree that a bond in the amount of $1,000 is adequate and reasonable. Accordingly, if Seller institutes an action against Buyer to enforce any of the restrictive covenants in this Section, Buyer waives the claim or defense in such action that an adequate remedy at law is available and Buyer agrees not to assert in any such action the claim or defense that an adequate remedy at law exists. The remedy provided in this section is in addition to any remedy available to ComRes under this Agreement or by law or in equity, including the recovery of monetary damages. In any action under this Agreement, the prevailing party will be entitled to recover from the other party to such action all reasonable costs, including reasonable attorneys’ fees, incurred in connection with such action.
Both parties acknowledge that during the course of this Contract, each may obtain confidential information regarding the other party’s business. Both parties agree to treat all such information and the terms of this Contract as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Contract (this refers to confidential information that is not available publicly by other means). The Buyer grants Seller limited permission to use its name in proposals or on its website for marketing purposes only.
Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above, or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for by the addressee.
Neither party may assign or transfer this Contract without the prior written consent of the other party, for which consent shall not be unreasonably withheld.
This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written which have not merged into this agreement unless done so in writing in the form of a Sales agreement. This Agreement supersedes any prior agreements between you and ComRes and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
This Contract may be modified or amended if the amendment is made in writing and signed by both parties. All services/equipment provided shall be listed on documents collectively named as Sales Agreements defined earlier in this agreement.
If any term, clause, or provision of this Agreement shall be judged to be invalid, the validity of any other term, clause, or provision shall not be affected; and such invalid term, clause, or provision shall be deemed deleted from this Agreement. Except as otherwise expressly provided in this Agreement, no remedy in this Agreement conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy under this Agreement shall preclude any other or further exercise thereof.
WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement, nor shall any failure or delay by either party to exercise any right under this Agreement operate as a waiver of any such right, unless such waiver is in writing and signed by the party granting such waiver.
Seller shall install the Goods according to manufacturer or service-provider’s specifications to ensure that the Buyer is reasonably protected from toll fraud. In the event that toll fraud occurs and the Seller can demonstrate that it took reasonable measures to prevent such events from happening, the Buyer shall hold the Seller harmless and pay for all usage related to the toll fraud. Buyer agrees to indemnify the Seller from any risk of loss due to fraud in any way, as long as the Seller can demonstrate that it took reasonable measures to prevent such fraud from occurring.
LIMITATIONS OF 911 SERVICE.
This paragraph applies only to Buyers using the Seller for general phone system or 3rd party VoIP service support. Additional terms regarding 911 service are listed in the CloudTalk VoIP terms of this agreement and apply only to Buyers using the Seller’s CloudTalk VoIP service. Seller disclaims any duties or legal obligations for purposes of ensuring Buyer access to emergency 911 services. Seller is in the business of selling, installing, and maintaining communications equipment and systems only. The communications equipment and systems sold, installed, and/or maintained by the Seller may not, by themselves, enable the Buyer to access emergency 911 services. To ensure Seller’s equipment and systems function properly with local or state emergency 911 services, please contact your services provider. By executing this agreement, the Buyer acknowledges the Seller’s role. Should any legal action result from the failure to be able to access emergency 911 services relating to the Buyer’s telecommunications equipment or services, the Buyer shall hold the Seller harmless and if necessary, defend the Seller in any legal action resulting from such events.
LABOR RATES AND POLICIES.
ComRes’ labor rates and policies may change at any time. For customers that are not under a maintenance agreement or block of hours, ComRes’ labor rates are published at:
This Contract shall be governed by the laws of the State of Florida, without regard to its conflicts of law provisions. The Parties agree that any court located in Broward County, Florida (and the applicable appellate courts) shall have exclusive jurisdiction in any action or proceeding relating to this Agreement and/or any Sales Agreement. Each of the Parties (i) irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; (ii) irrevocably and unconditionally waives, to the fullest extent it or he may legally and effectively do so, any objection that it or he may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement and/or any Sales Agreement in any such court; and (iii) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
This Agreement shall be binding upon and shall inure to the benefit of any successor(s) or permitted assign(s) of the parties hereto.
FUTURE CHANGES TO THIS AGREEMENT.
Seller may change the terms and conditions posted on our web site at www.ComResUSA.com/Legal from time to time without notice. Such changes shall become binding on you on the date they are posted to ComRes’ website and no further notice by Seller is required upon the Buyer’s continued use of the Service. The Terms and Conditions Agreement as and when posted supersedes all previously posted and agreed-to terms of service, except for any specific changes to ComRes Terms and Conditions that have been agreed to in writing by the Buyer and Seller in a separate agreement.
The Seller makes no warranties, expressed or implied, except as specifically stated herein. SUCH WARRANTIES, IF ANY, ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR — USE. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform according to the sales agreement(s) and ComRes Terms and Conditions whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.