Terms of Service

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Terms of Service 2017-09-20T02:47:16+00:00

Terms of Service

Please read these terms of use carefully, You the Client (hereinafter “Client”), hereby retain(s) Xponential Technology Group, LLC, a Minnesota limited liability company, d/b/a The MacGuys+, PO Box 868, River Falls, WI 54022 (hereinafter “The MacGuys+” or “Consultant”) as its service provider or vender on any files, projects, and requests for services or computer hardware requested from The MacGuys+ as specified in your support agreement.

We are excited to have you as our Client. The following terms and conditions (collectively, these “Terms of Service” or “General ServiceAgreement”) apply to your Support or Service with the MacGuys+; including any content, functionality and services offered on or via www.themacguys.com (the “Website”). Please read the Terms of Service carefully before you start working with the MacGuys+, because by using any of our Managed Support plans, Alerts plans, On-site support services, Carry-in services, phones support or other services offered by the Mac Guys+ or entering into any agreement with the MacGuys+ you accept and agree to be bound and abide by these Terms of Service, our General Service agreement aka our Welcome agreement.

Term and Termination.

This agreement will take effect upon execution of this Agreement and shall continue until terminated by either party or as set forth in any Support Agreement. The MacGuys+ shall not have any contractual obligations to Client without a valid Support Agreement in effect. Upon any such notice of termination, services by Consultant shall be discontinued and charges to Client will cease to accrue after expiration of the notice period. In the case of prepaid support the remainder of the unused hours will be forfeit immediately upon notice of termination.

Billed Services.

Client will be billed for services that include, but are not limited to, the following: (1) telephone calls, emails, and other contact with Client; (2) all services necessary investigating and researching issues involving the Client; (3) travel time to and from locations away from “The MacGuys+” office; (4) consulting about possible implementation and impacts of technology; and (5) coordination of other vendors or service providers. A minimum charge of 1 hour will be applied to all on-site and in-shop work. Remote assistance will be billed in 0.25-hour increments.

Hourly Fees & Costs and Advances.

Client agrees to pay The MacGuys+ its normal hourly fees or flat-fee charges for its services or as set forth in any Support Agreement. A schedule of The MacGuys+’ normal hourly fees is set forth on the Rate Schedule on our webpage at themacguys.com/rate-schedule. From time to time The MacGuys+ reviews and may increase hourly rates. If the hourly rate of any individual is increased, the new rate will be indicated on your next bill. Invoices are payable upon receipt. If Client has concerns with the accuracy or the amount of any invoice, Client agrees to notify The MacGuys+ in writing within seven (7) days of receipt of the invoice of any such concern, request, or objection. Upon the expiration of the seven (7) day period, all invoices not previously objected to in writing shall be deemed accepted.

Monthly Billing and Payment Practices.

Client agrees that services provided on a scheduled basis will be billed as stated in any Support Agreement and will be charged to the Client’s credit card or ACH withdrawal without pre-notification of processing.

Diagnostic Fee.

Client agrees to pay any diagnostic fee regardless of whether Client decides to have the equipment repaired. If Client goes forward with the repair or service, the diagnostic fee will be applied to the first hour of service and Client will be charged in fifteen (15) minute increments according to the hourly rate specified above. Client must pay for computer parts and software in advance and such purchases are final and cannot be returned.

Payment.

Full payment is due upon completion of services or as stated in any Support Agreement and all charges must be paid before equipment will be released to Client. A late fee of $35/month will be added to all unpaid invoices each month to cover expenses related resending invoices and contacting clients.

Unclaimed Equipment.

The MacGuys+ is not responsible for equipment left more than thirty (30) days after service completion. A storage fee of $75.00 per month shall be charged for equipment left for more than thirty (30) days. Client consents and agrees that any equipment left over 60 days after notice of service completion becomes the sole property of the MacGuys+. Any data left on the equipment will be securely deleted. Client agrees that no further notice will be given. Client further agrees that they waive any and all statutory or other rights they might otherwise have (allowed by law) and that this Agreement is the sole and exclusive remedy that shall apply.

Shipping, Re-Stocking Fees and Return Goods Charges.

Client is liable for shipping costs and charges billed by The MacGuys+ and/or its delivery carrier. Client is solely liable for these charges. The return of any merchandise shipped at the request of Client shall subject Client to liability for all shipping charges for delivery to Client and return delivery to The MacGuys+. The return of goods ordered shall also be subject to standard restocking fees and charges for return of goods sold, if applicable.

Insufficient Funds.

Client shall be liable for all bank fees charged for dishonored checks tendered by Client or insufficient funds from an authorized ACH withdrawal, plus a service charge in the amount of $30.00. In addition, should litigation become necessary The MacGuys+ would be entailed to any additional amounts permitted under the law.

Credit Information.

The Client and the undersigned also understand that The MacGuys+ intends to obtain credit information on my/our business and/or me/us (as individuals) in order to make an informed decision on our credit worthiness on an ongoing basis. Further, Client and the undersigned authorize The MacGuys+, to share and release, within its sole and complete discretion, credit information with third parties as is necessary for the approval of credit pursuant to this Agreement. The Client and the undersigned release The MacGuys+ from any and all liability related thereto. My/Our signature(s) (below) grants The MacGuys+ the authority to fully investigate our credit and release of such information to third party reporting agencies.

Fees Estimates and Budgeting.

IT IS NOT POSSIBLE TO ESTIMATE THE TOTAL TIME THAT WILL BE REQUIRED TO COMPLETE ANY PARTICULAR PROJECT. THIS IS BECAUSE IT IS IMPOSSIBLE FOR The MacGuys+ TO CONTROL MANY FACTORS THAT AFFECT THE COST OF PROJECTS. WHILE The MacGuys+ MAY PROVIDE AN ESTIMATE OR A BUDGET OF ESTIMATED FEES, THIS IS MERELY A COURTESY SO AS TO PROVIDE CLIENT A BROAD RANGE OF POSSIBLE COSTS ASSOCIATED WITH THE SERVICE OR HARDWARE REQUESTED BY CLIENT. ALL ESTIMATES ARE NON BINDING. ALL SERVICE WORK COMPLETED OUTSIDE OF A PROJECT’S SCOPE OF WORK WILL BE BILLED ON A SEPARATE SERVICE TICKET.

Initial Deposit.

An initial deposit of 50% is required prior to the commencement of any quoted projects by The MacGuys+.

Travel Expenses.

The MacGuys+ charges a flat rate travel change for on-site visits requiring less than 30-minutes of drive time by our consultants. On-site visits requiring more than 30 minutes of drive time may be charged a portal to portal travel charge based on our hourly rate.

Indemnification and Hold Harmless.

Client agrees to indemnify and hold harmless TheMacGuys+ from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, to the extent the damages arise out of or relating to the work of The MacGuys+.™

Limitation of Liability.

To the Maximum extent permitted by law, in no event shall the maximum liability under this contract exceed the amount client actually paid for services rendered by The MacGuys+ in the last 30 days. The MacGuys+ shall not be liable for any indirect, special, punitive, or consequential damages, including without limitation loss of profits, arising from this agreement. The MacGuys+ shall also not be liable for any of the following:

1. Failure of computer hardware in or outside of warranty period. This includes disk drives and other storage media and any data contained within. Under no condition is consultant liable for lost data.

2. Failure of hardware or software based on faulty engineering. Any item deemed defective by the manufacturer will not entail any liability on the Consultant. Examples include buggy or poorly engineered software, poorly designed hardware or poorly designed components or upgrades.

3. Failure of computer hardware caused by malicious tampering, sabotage or unauthorized use.

4. Printers, computers or software supported or installed by other vendors, unless agreed upon by both client and consultant.

5. Failure of back up services or data storage. The MacGuys+ will follow Industry Best Practices, however, do not take responsibility for back up services or loss of data as a result of a back up failure, unless such services are specifically set forth in a Support Agreement.

Intellectual Property.

The MacGuys+ shall retain all copyrights, patent, trade secret and other intellectual property rights The MacGuys+ may have in anything created or developed by The MacGuys+ for Client under this Agreement (hereinafter referred to as “Work Product”). The MacGuys+ grants Client a non-exclusive worldwide license to use and sub-license the use of the Work Product for the purpose of developing and marketing its products, but not for the purpose of marketing Work Product separate from its products. The license shall have a perpetual term and may not be transferred by Client. This license is conditioned upon full payment of the compensation due The MacGuys+ under this Agreement.

Solicitation.

Client hereby agrees that it will not solicit or hire any employees, agents or representatives of The MacGuys+ during the term of this Agreement or within twenty-four (24) months after the termination of this Agreement. Client hereby agrees that The MacGuys+’s employees, agents and representatives are highly trained computer professionals and are a valuable resource of The MacGuys+. In the event that Client violates this provision, Client shall be liable to the The MacGuys+ for liquidated damages in the amount of $100,000.00.

Confidential Information.

Upon being notified that a party to this Agreement considers information confidential, each party hereto agrees not to disclose the confidential information of the other party, directly or indirectly, under any circumstances or by any means, to any third person, without the express, written consent of such party, obtained in advance. Each party hereto agrees that it will not copy, transmit, reproduce, summarize, quote, or make any commercial or other use whatsoever of the other party’s confidential information, except as provided herein. Each party agrees to exercise the highest degree of care in safeguarding the confidential information of the other party against loss, theft, or inadvertent disclosure, and agrees generally to take all steps necessary to ensure the maintenance of confidentiality. A party may notify the other of information it deems confidential by making such notification directly on the information provided or by marking any tangible item “Confidential”. Upon termination of this agreement, or as otherwise requested, each party agrees to deliver promptly to the other party all confidential information of that party, in whatever form, that may be in its possession or under its control.

Force Majeure.

A “Force Majeure Event” means an act of God, electrical surge, riot, civil disorder, or any other similar event beyond the reasonable control of a party, provided that the event is not caused directly or indirectly, by such party. In the case of a Force Majeure Event, The MacGuys+ will be excused from further performance or obligation for as long as the circumstances prevail and continues to use commercially reasonable efforts to recommence performance to whatever extent possible without delay. Any party so delayed in its performance shall promptly communicate with the other party by telephone and in writing and will describe at a reasonable level of detail the circumstances causing the delay as well as the reasonable steps being taken to minimize said delay.

Warranties.

The MacGuys+ warrants that all services performed under this Agreement shall be performed consistent with generally prevailing professional or industry standards. Client must report any deficiencies in The MacGuys+’ services to The MacGuys+ in writing within fifteen (15) days of performance to receive warranty remedies. Client’s exclusive remedy for any breach of the above warranty shall be the re-performance of The MacGuys+’ services. If The MacGuys+ is unable to re-perform the services, The MacGuys+ shall have the option to refund Consulting Fees paid in relation to the service rendered. Client will rely exclusively upon the warranty, if any, of the manufacturer(s) of all products installed or implemented by the The MacGuys+. The MacGuys+ makes no additional warranties, express or implied. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT. There are some things that are beyond the MacGuys+ expertise. In the case the client wishes us to perform these duties, we will do our best effort but if it’s beyond our abilities we can’t be held responsible to the same level as an expert in that field.

Independent Contractor.

It is understood and agreed that The MacGuys+ shall be acting only in the capacity of an independent contractor insofar as this Agreement is concerned, and will not be deemed to be for any purpose, an employee, agent, partner, co-venturer, franchisee or representative of Client. As such, the payments made by Client to The MacGuys+ hereunder are only for the acceptable performance of the Services. Client is interested only in the results obtained under this Agreement; the manner and means of The MacGuys+’s performance is within The MacGuys+’s sole control and discretion.

Dispute Resolution.

Client and/or the Personal Guarantor(s) agrees that the exclusive venue, forum and jurisdiction governing all actions on this agreement or otherwise between the Client and/or the Personal Guarantor(s) and The MacGuys+ shall be in St. Croix County, Wisconsin, and that Wisconsin law shall govern any and all disputes or litigation between the Client and/or the Personal Guarantor(s) and The MacGuys+. The Client and/or the Personal Guarantor(s) hereby agree to waive any and all defenses based on lack of personal jurisdiction or improper venue or forum in any such action(s).

To avoid the expense and time of litigation, Consultant and Client will attempt to resolve all disputes outside of the courthouse. If the parties cannot reach a resolution of the matter through their own efforts, they agree to then employ more formal dispute resolution methods. Any disputes connected with this agreement, services, or duties will be brought to mediation within thirty (30) days of the date either party requests mediation in writing. If a mediator cannot be agreed upon, the parties elect to have one provided for them by the American Arbitration Association (A.A.A.) or by Judicial Arbitration and Mediation Services (J.A.M.S. Endispute). If mediation is not successful in resolving the dispute, both parties agree that the matter shall be taken to binding arbitration by a single arbitrator mutually agreed upon by the parties or by an arbitrator selected through A.A.A. or J.A.M.S. Arbitration shall occur within 60 days of the mediation.

Security Interest.

To secure the payment, Client grants The MacGuys+ a security interest in, and assigns to the The MacGuys+ a security interest in any and all goods, wares, and/or merchandise supplied to Client. The risk of loss regarding any and all goods, wares, and/or merchandise supplied to Client shall pass to Client upon The MacGuys+’s agreement to supply the goods requested. Client grants The MacGuys+ the authority to file any such documents such as financing statement to protect its security interests. The MacGuys+ may in its sole discretion foreclose upon its security interest at anytime client fails to make full payment on invoices aging in excess of 30 days.

No Transfer.

This Agreement shall not be assigned or transferred by either party without the express written consent of the other party, obtained in advance.

Taxes.

Both parties shall promptly pay all applicable taxes of every kind, nature, and description arising out of the establishment, nature, and operation of its business in connection with the event described in this Agreement.

Counterparts and Facsimile Delivery.

This Agreement may be executed in one or more counterparts, and by different Parties on different counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement shall be effective only upon the signature of The MacGuys+, whether or not all such signatures are on the same counterpart. Either Party may deliver an executed counterpart of this Agreement by mail or scan and e-mail and that shall constitute an original.

Collection Costs.

Client and/or the Personal Guarantor(s) shall be liable for all collection costs, including employee time expense and all attorneys’ fees and costs and disbursements incurred in collecting the amounts owing to The MacGuys+ and the protection of The MacGuys+ interests in past due accounts whether or not legal proceedings are actually filed. The parties expressly agree that if The MacGuys+ refrains from collecting interest due on Client’s account in a given case this shall not be deemed a wavier, modification or other limitation on The MacGuys+’s right to collect such interest in future dealings with Client herein or any other Client.

Severability.

The parties intend to create and be bound by a valid agreement. If any provision of this Agreement is held or declared by a court of competent jurisdiction to be void, invalid, or illegal for any reason, such provision shall be deemed to be altered to the extent necessary to conform it with applicable law, and such actions shall not in any way invalidate or affect any other provision of this Agreement.

Survival.

The party’s respective obligations in this Agreement, which by their nature would continue beyond the termination of this Agreement or expiration of any Support Agreement, shall survive, including but not limited to Non-Solicitation of Consultant’s employees, Intellectual Property rights and Confidentiality Agreement.

Communication and Notices.

Regular communication with The MacGuys+ should go through the “Help Desk” located on our website at www.themacguysplus.com. All support requests must be sent via email to support@themacguys.com which will allow you to review support requests and allow us to serve you better.

All other notices, including any notices required under this agreement shall be sent to:

The MacGuys+, PO Box 868, River Falls, WI 54022

Client will provide The MacGuys+ with contact information where any notices should be sent relating to service with The MacGuys+ or this agreement.

Entire Agreement.

This Agreement includes any properly executed attachments, including, but not limited to, exhibits, addenda or Statement(s) of Work, or Support Agreements now or hereafter attached hereto. Further, the parties agree that the Recitals contained herein and any Specifications are specifically incorporated into the Agreement by the reference herein. In addition, this Agreement constitutes the exclusive and entire agreement between the parties with respect to its subject matter and as of its date supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral, relating to its subject matter. Neither party will be bound or liable to the other party for any representation, promise or inducement made by any agent or person in the other’s employ that is not embodied in this Agreement. No changes or modifications of or additions to this Agreement shall be valid unless the same shall be in writing and signed by each party hereto.