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Beacon Computers / ProTune-up Terms of Use
1. Definitions
“Service Request” is defined as a Customer’s request for Technical
Support from Beacon Computers, Inc., a New York State corporation
(hereafter “Beacon”). Service Requests include, but are not limited to
requests made on-line, over the phone or via email.
“Technical Support” is defined as answers and advice pertaining to
configuration and troubleshooting of Microsoft Windows Operating Systems
and the installation and troubleshooting of hardware and software for
these Operating Systems. Support will be provided by telephone, email
and Remote Control of Customer’s computer.
“Remote Control” is defined as remote control of Customer's computer by which
a Beacon technician will be able to see the contents of Customer's computer’s
monitor and have control of Customer's computer mouse and keyboard via our
custom ProTune-up software which communicates over the Internet.
2. Remote Control
Remote Control of Customer's computer is only possible when you execute the ProTune-up software and submit a Service Request or configure your workstation for scheduled maintenance. Customer grants Beacon the right to
download and install third-party diagnostic software and utilities on
Customer’s computer and grants Beacon
permission to agree to all third-party License Agreements on Customer’s
behalf as required during the installation of such software. Installed
software will be used for the exclusive purpose of servicing
Customer’s computer.
3. Remote ProTune-up Maintenance
Beacon will take Remote Control of Customer's computer and use utilities to remove known spyware, adware, trojans,
viruses and other known malware from Customer's computer. Beacon may require
Customer's
assistance with logon, passwords and restarting computer in safe
mode. While there is no specific amount of time or effort that will be applied to remove
unwanted software from Customer's computer during the Remote ProTune-up
process, uncommonly difficult
software may require Billable Technical Support (see
below).
ProTune-up pricing is based on our Customer's having high
speed Internet (768 kilobaud or better) and a computer that is a Pentium 4 or better. Slower Internet connections and slower computers may
incur an additional charge at Beacon's discretion. Customer will be
made aware of this charge before service is rendered and can elect
to cancel the service at no charge.
4. Billable Technical Support
Beacon will provide Technical Support billed by the minute at a rate
specific for Customer's account. Billable Technical Support will
include all telephone, Remote Control, email or other communication that
is not considered to be Remote ProTune-up service as well as all time spent by Beacon researching customer’s issue while working towards a resolution.
Customer acknowledges that Beacon may not be able to complete all goals
requested in a Service Request due to the complexity of some issues or
problems that may not be correctable.
Customers that have signed up for the monthly maintenance service will receive free technical support for items covered specifically by the maintenance service, such as virus and spyware removal and windows updates. Other non-maintenance technical support issues are billable.
5. Non-transferability of Services
All services provided under this Agreement may not be transferred,
assigned or resold by the Customer unless specific permission has been
given in writing by Beacon. Any such transfer or assignment will result in
immediate termination of this contract in the sole discretion of Beacon.
6. Availability of Service
Beacon Technical Support is available 9:00 am to 7:00 pm EST, Monday
through Friday. Immediate availability of a technician may be limited by
volume of Service Requests by other customers. Customer is required to
have an Internet connection for Remote ProTune-up service and is
responsible to provide and properly configure all equipment necessary to
connect their computer to the Internet for Remote Control services. This
may include opening of ports in a hardware or software firewall.
7. Data Backup and Loss Prevention
Customer is solely responsible for backing up all data and settings. Beacon
will not be responsible for loss of data on a Customer’s computer under
any circumstances. Customer acknowledges that hardware failures and data
loss are common occurrences on personal computers. Beacon recommends that
Customers do not rely solely on a single hard drive to store important
or valuable data and make backups of their data regularly.
8. Billing
Remote ProTune-up services will be billed at the rate identified on Customer's account
per Remote ProTune-up Service per Computer. Beacon will automatically bill
Customer's Credit Card on record upon completion of each service. This fee
will include one Remote ProTune-up Service and might include some
Technical Support minutes depending on promotions received during
registration. Additional minutes not included in the Remote ProTune-up
Service charge will be billed as Billable Technical Support.
Customer is required to keep their personal billing information up to
date and accurate. Customer authorizes Beacon to make a credit
authorization prior to providing Remote ProTune-up or Technical Support
services. Credit card authorizations are not charges, just a
confirmation that the Credit Card on file is still valid.
Business Servers will be billed $49.95 per month due to additional work
required to check backup operation.
9. Expiration
Remote ProTune-up Services are auto-renewing based on the frequency you
choose during registration. These services will continue until Customer
cancels or Beacon cancels the Agreement at its discretion due to lack of
payment or inability to contact Customer. The frequency of ProTune-up
Service can be adjusted on our website. Customer can cancel the
service at any time without penalty.
10. Non-Payment and Collection Costs
A late fee of 1.5% per month will be charged on any past due account
balances. Past due accounts can be cancelled at Beacon’s discretion.
In the event that Beacon is required to take legal proceedings to collect
money due Beacon by Customer, or to enforce any judgment(s) obtained
against a Customer, Customer shall be liable to Beacon for all reasonable
costs incurred by Beacon in such proceedings and enforcement actions,
including attorneys’ fees, collection fees and court costs.
11. Third-Party Content Disclaimer
Beacon may install third-party software on Customer's computer or link to
third-party websites from Beacon’s website. Beacon does not control, is not
responsible for and will not be held liable for the content or actions
of any third-party software or websites. This includes Microsoft
Software and Operating System Updates and Patches (installed as part of
our regular ProTune-up service) which may cause undesired results.
Beacon can not control the quality or compatibility of such software and
will not be responsible to remove, uninstall such software or correct
any issues that may result from its installation. Beacon urges that Customer review
all websites and their Privacy Policies before giving them any personal
information.
12. No Warranties
Other than any expressly stated warranty herein this Agreement, all
Technical Support, Beacon websites (including all information and products
that are referenced or linked to in Beacon websites), and all other
information, documents, products, services, advice and information
provided by Beacon and any of its third-party product or service providers
are provided “as-is” and without warranty of any kind, either express,
implied or statutory, including but not limited to, implied warranties
of merchantability, fitness for a particular purpose, or
non-infringement. Beacon assumes no responsibility for any errors,
omissions or other inadequacies in the performance of Technical Support
services pursuant to the support Agreement, the Beacon website (including
all information and products that are referenced or linked to in the Beacon
website), or any other information, documents, products, software,
downloads, services, advice and information provided by Beacon or any of
its third-party product or service providers.
13. Limitation of Liability
Under no circumstances, including, but not limited to, negligence, shall
Beacon or any of its employees, officers, directors or agents be liable for
any direct, indirect, incidental, special, or consequential damages that
result from the receipt of or reliance upon Remote ProTune-up or
Technical Support services provided to Customer under a support
Agreement, or by a Customer’s use of, or the inability to use, any Beacon
website or materials or functions on any such site, even if Beacon has been
advised of the possibility of such damages. Applicable law may not allow
the limitation or exclusion of liability or incidental or consequential
damages, so the above limitation or exclusion may not apply to Customer.
In the event of non-applicability of the preceding, in no event shall
Beacon’s total liability to customer for any and all damages, losses, and
causes of action (whether in contract, tort (including, but not limited
to, negligence), or other legal theory) exceed the amounts paid by
customer under any Agreement.
14. Indemnity
In consideration for receiving Remote ProTune-up or Technical Support
services under this Agreement, Customer agrees to indemnify, save and
hold harmless Beacon and its employees, agents, officers and directors from
and against any and all demands, liabilities, costs, penalties,
obligations, interest, damages and expenses of whatever nature or kind,
including fees of attorneys (including both outside and in-house
attorneys' fees) and all other expenses, related to or arising from
Customer’s request that Beacon provide Remote ProTune-up service or Technical
Support for Customer lacks or is disputed by any third party to lack
proper legal title, ownership, or the necessary license or otherwise to
possess or use, or Customer’s violation of any state, federal, foreign
or international laws, codes or regulations.
15. Restrictions on use of materials
All materials contained in any Beacon website are the copyrighted property
of Beacon, a New York Corporation, or its subsidiaries or affiliated
companies and/or third-party licensors. All trademarks, service marks,
and trade names are proprietary to a New York Corporation or its
affiliates. No material from any Beacon Site or any Internet site owned,
operated, licensed, or controlled by Beacon or its affiliates may be
copied, reproduced, republished, uploaded, posted, transmitted, or
distributed in any way, except that Customer may download for
noncommercial home use only, provided that (i) Customer keeps intact all
copyright and other proprietary notices, (ii) Customer makes no
modifications to the materials, (iii) Customer does not use the
materials in a manner that suggests an association with any of Beacon’s
products, services, or brands, and (iv) Customer does not download
quantities of materials to a database that can be used to avoid future
downloads from any Beacon Site. For purposes of these terms, the use of any
such material on any other Web site or computer environment is
prohibited. All trademarks, service marks, trade names, and trade dress
are proprietary to Beacon.
16. Force Majeure
In the event Beacon's delivery of Technical Support services is delayed,
prevented, or otherwise made impracticable by reason of any acts of God,
fires, floods, earthquakes, or other natural catastrophes; national
emergencies, strikes, lockouts or other labor difficulties; computer
"hacking" attack or computer virus; any law, order, regulation or other
action of any governing authority; or any other cause beyond Beacon's
reasonable control, then Beacon shall be excused from such delivery to the
extent that it is delayed or prevented by such cause, and in turn,
Customer shall be excused from making payment if owed under the Support
Agreement during this same time period.
17. Modification of Terms of Service
Beacon reserves the right to amend the Terms of Service that govern use of
Remote ProTune-up and Technical Support services at any time by (a)
posting a revised version of the Terms of Service on the Beacon website, or
by (b) sending information regarding any amendment to the Terms of
Service to the email address Customer provides to Beacon. Customer is
obligated to ensure that Beacon is always provided with Customer’s current
email address. Customer is responsible for regularly reviewing the Beacon
website to be notified of any amendments to the Terms of Service.
Customer's continued use of the Remote ProTune-up or Technical Support
services after such amended Terms of Service have been posted or
information regarding such amended Terms of Service has been sent to
Customer shall be deemed acceptance by Customer of the amended Terms of
Service.
18. Applicable Law and Arbitration
The laws of the State of New York govern this Agreement and all of its
terms and conditions, without giving effect to any principles of
conflicts of laws. Customer agrees that any controversy or claim arising
out of or relating to this Agreement or Beacon’s services shall be settled
by binding arbitration in accordance with the commercial arbitration
rules of the American arbitration association. The arbitration shall be
conducted in New York County, New York, and judgment on the arbitration
award may be entered into any court having competent jurisdiction
thereof. Either customer or Beacon may seek any interim or preliminary
relief from a court of competent jurisdiction in New York County, New
York, if necessary to protect the rights or property of Customer or Beacon
pending the completion of arbitration and customer hereby irrevocably
and unconditionally consents and submits to the exclusive jurisdiction
of such courts over any suit, action or proceeding arising out of these
terms and conditions
19. General Provisions
This Agreement and the general terms, conditions set forth on the
website, including but not limited to those set forth in the Privacy
Policy, constitute the entire Agreement of the parties with respect to
the subject matter hereof and supersedes and cancels all prior and
contemporaneous Agreements, claims, representations and understandings
of the parties in connection with the subject matter hereof.
Beacon is not the agent, fiduciary, trustee or other representative of
Customer. Nothing expressed or mentioned in or implied from this
Agreement is intended or shall be construed to give to any person other
than the parties hereto any legal or equitable right, remedy or claim
under or in respect to this Agreement. This Agreement and all of the
representations, warranties, covenants, conditions and provisions hereof
are intended to be and are for the sole and exclusive benefit of Beacon and
Customer.
If any provision of this Agreement shall be deemed unlawful, void, or
for any reason unenforceable, then that provision shall be deemed
severable from these terms and conditions and shall not affect the
validity and enforceability of any remaining provisions.
Beacon’s failure to enforce the strict performance of any provision of this
Agreement will not constitute a waiver of Beacon’s right to subsequently
enforce such provision or any other provisions of this Agreement.
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