Terms & Conditions for Elevated Group Avalon Technology Solutions LLC

            Avalon Technology Solutions LLC. - DBA Elevated Group - Terms and Conditions
Background: Avalon Tech shall supply Equipment and Services as requested by the Customer in accordance with this Agreement.
It is agreed as follows:
Definitions In this agreement the following definitions shall have the following meanings:
*Avalon"AvalonTechnology Solutions LLC, HEAD OFFICE located at 2876S 460W, South Salt Lake, UT, 84115. These conditions together with any Order Form referable to these conditions.
"Agreement" the allowed prints and PC (PRICE PER COPY) billing volume specified in an Order Form being the minimum number of copies which shall be deemed to be taken by the Customer on a photocopier in each month of this Agreement,
excluding toner, fuser and other consumables, unless otherwise stated.
*CPC* means the Cost Per Copy stated in an Order Form being the cost of each Copy taken by the Customer during the term of this Agreement.
"Change Request" a request for a change made by the Customer to Avalon.
"Charges" the Price and the Service Charge.
*Conditions" these Avalon Technology Terms and Conditions.
"Copy" or "Copies" any scan, fax, copy or print performed by the Customer using the Equipment. A copy of A4 (Letter) size or below will be considered a copy and a copy of A3 size and above will be considered as 2 copies.
"Customer Facilities" all hardware, software, ancillary equipment, telecommunications, storage and other facilities owned or controlled by the Customer.
"Delivery Address" the address stated in an Order Form to which equipment will be delivered.
"Documentation" any specifications, technical manuals, user instructions or other documentation supplied by Avalon.
"Equipment" the equipment detailed in the Order Form.
*P Rights" any copyright, patent, registered design, trademark or other intellectual property right (or applications thereof) of whatever nature subsisting anywhere in the world.
"Manufacturer" the manufacturer of Equipment.
"Order Form" an order form referable to this agreement which described the Equipment and Services and confirms certain details of this Agreement.
"Price" the price to be paid by the Customer in respect of the Equipment as specified in Order Form.
"Proper Use" the use of Equipment strictly in accordance with Documentation and/or any instructions or recommendations notified by Avalon from time to time.
*RP means the retail Price Index being the general index of retail prices published by the Office for National Statistics each month in respect of all items.
"Services" the services identified in the Agreement to be supplied by Avalon in consideration of related Charges.
Service Charge" the price of Services stated in an Order Form and as subsequently varied in accordance with this Agreement. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension
plication or re-enactment and includes any subordinate legislation for the time being in force made under it. Words in the singular include the plural and, in the plural, include the singular
Headings do not affect the interpretation of these Conditions.
1. Application of Conditions
1.1 Subject to any variation under clause 1.3 the Agreement shall be on these Conditions to the exclusion of all other terms and conditions including any terms or conditions which the Customer purports to apply under any purchase order, confirmation
of order, specification or other document.
1.2 No terms and conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Agreement simply as a result of such document being referred to in this
Agreement. 1.3 These conditions apply to all Avalon's sales and any variation to these Conditions and any representation about the Equipment or Services shall have no effect unless expressly agreed in writing and signed by a director of Avalon. The Customer
acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Avalon which is not set out in the Agreement. Nothing in these Conditions shall exclude or limit Avalon's liability for fraudulent
misrepresentation. 1.4 Each order or acceptance of a quotation by the Customer from Avalon shall be deemed to be an offer by the Customer.to proceed subject to these Conditions
1.5 Where Avalon are supplying equipment that it intended to be the subject of afinance agreement any such offer is subject to successful credit clearance and acceptance of transfer of title from Avalon to the finance provider.
2. Scope of Agreement
2.1 In consideration of the payment made by the Customer of Charges and any other sums due from Customer, Avalon shall supply the Equipment and Services as described in this Agreement.
2.2 Avalon shall carry out the obligations set out in clause 2.1 with reasonable skill and care in accordance with an Order Form.
2.3 Unless expressly agreed in writing by Avalon time for performance of any obligation by Avalon shall not be of the essence of this Agreement.
2.4 The Customer acknowledges that Avalon will supply the Equipment and Services at the request of the Customer and that it is the customer's responsibility to determine whether the Equipment and Services are suitable for its requirement.
3. Terms of Payment
3.1 in consideration of Avalon supplying Equipment and Services, the Customer shall pay to Avalon the Charges subject to the terms of this Agreement.
3.2 Payment of sums due from the Customer to Avalon shall be made with fourteen (14) days of the receipt of an invoice from Avalon. All payments hereunder shall be made in US Dollars.
3.3 Charges are expressed exclusive of all duties and sales taxes which shall be paid by the Customer at the rate and in the manner provided by the law governing this Agreement.
3.4 Avalon reserves the right to increase the price payable in respect of Equipment to reflect any increase in cost to Avalon which is due to any factor beyond Avalon's control (such as, without limitation, any foreign exchange fluctuation, currency
regulation, alteration of duties & tariffs) provided Avalon notifies the Customer at any time (an invoice will constitute sufficient notice).
3.5 Avalon reserves the right to increase Service Charges payable in respect of Services and/or the CPC on each anniversary of this Agreement up to ten percent (1096) or, if greater, by a percentage equal to the percentage increase in RPI over the
preceding 12 months. Avalon reserves the right to increase the price payable in respect of Parts, Toners or Ink and any and all other consumables, that are deemed necessary to run your device/devices to reflect any increase in cost to Avalon which is due
to any factor beyond Avalon's control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties & tariffs) provided Avalon notifies the Customer at any time (an invoice will constitute sufficient notice). If your
service charge which is for labor, parts and consumables is embedded within your lease agreement, we can increase the cost of such amount by way of a separate charge as an addition to cover us for any such increases as hereto mentioned in this clause.
3.6 If Customer fails to pay any sum by the due date Avalon reserves the right to charge interest on the outstanding amount at the rate of five percent (5%) above CHASE bank base rate per month calculated at a dally rate from the date the payment
became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same).
3.7 Both parties acknowledge that time for payment of Charges is of the essence of this Agreement. Notwithstanding clause 3.6, if the Customer fails to pay any sum by the due date Avalon may at its option, and without prejudice to any other remedy at
any time after payment has become due, terminate or suspend performance of this agreement.
3.8 lf Avalon shall terminate this agreement for any reason, any sums (including interest for the late payment) will immediately become payable in full.
3.9 In addition, the following provisions apply in respect of Service Charges.
3.9.1 Where the Equipment comprises a facsimile machine Avalon will invoice the Customer for the Service Charge annually in advance for each year of this Agreement.
3.9.2 Where the Equipment comprises photocopier(s) or printer(s).
3.9.2.1 The Customer shall pay Service Charge specified in the Order Form or, if greater, the CPC multiplied by the CBBV.
3.9.2.2 Avalon shall invoice the Customer quarterly in advance or more frequently if the Customer's actual usage of the Equipment exceeds or in Avalon's opinion is reasonably likely to exceed the agreed Allowances.
3.9.2.3 If at any time the Customer's actual usage of the Equipment exceeds the Allowances, Avalon shall invoice the Customer for the excess copies the Customer has taken (but not paid for in advance) and for those which Avalon reasonably estimates
the Customer will take during the period to be covered by the invoice.
3.9.2.4 The Customer agrees to supply Avalon accurate meter readings by whatever means Avalon determines, immediately upon Avalon's request to enable Avalon to calculate the Service Charge and to estimate future usage and to set invoicing period.
3.9.2.5 In the event meter readings are not provided by the Customer, Avalon reserves the right to estimate the meter readings and charge an administration charge of twenty-five dollars ($25) for each item of Equipment.
3.10 If you do not decide to pay by ACH, all prices quoted in view of services provided will be increased by 5% to cover the extra administration caused.
4. Delivery & Collection
4.1 Delivery and installation of Equipment shall be made at the delivery address.
4.2 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. Avalon shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer's failure
to provide Avalon with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. If delivery will be before or after the delivery date indicated in an Order Form Avalon will use reasonable endeavors to give
Customer no less than 24 hours notice of the actual delivery date.
4.3 Upon delivery Customer shall make available to Avalon (or Avalon's delivery agent) free of charge such labor and equipment as is required to effect delivery and installation of Equipment at the Delivery Address. Upon Completion of delivery ano
installation Customer shall be solely responsible for the removal and disposal of all packing cases and other containers in which Equipment was delivered and for making good any cleaning the premises.
4.4 Unless Customer notifies Avalon in writing or material fault within the equipment within 24 hours following installation, the customer shall be deemed to have accepted the equipment. The customer agrees that 24 hours is a reasonable period for the
purpose of inspecting the equipment and testing for the same material faults.
4.5 The customer agrees to pay Avalon for the collection of each item of equipment at the end of a lease or on termination of this agreement at a cost of $350.00 + Sales Tax.
4.6 The customer shall be responsible at its own cost for installing and maintaining such power telecommunications as necessary to operate the Equipment.
4.7 Upon collection of each item of equipment, there are the following options regarding the protection of data stored on a hard drive. Where the equipment is to be made available for reuse by either Avalon or return to a finance company, the hard drive
can be retained by the user at a cost of $1,000 + Sales Tax. The equipment is to be recycled, following the end of an agreement, the user can decide whether to retain the hard drive at a cost of $250 + Sale Tax, or to have it destroyed (certification will be
provided) at a cost of $450 + Sales Tax.
5. Risk and Ownership of Equipment.
5.1 Unless otherwise, specified in Order Form all equipment supplied pursuant to this agreement is leased to the Customer. It is the Customer's responsibility to agree appropriate arrangements for third party finance as required by the Customer.
5.2 Risk in Equipment shall pass to Customer upon delivery.
5.3 In respect of equipment that is leased to the customer, the equipment, will remain the property of Avalon or any third-party finance company to which Avalon has transferred ownership ('Owner") at all times and the customer shall deliver the
equipment to Avalon upon termination or expiry of this agreement. In the event of a failure by the customer to do so, Avalon and or the owner shall (without prejudice to any other legal remedies it may have) be entitled to enter the delivery address or
any premises under the customers control (without notice to the customer) and remove equipment. With effect from delivery, the customer upon request by Avalon, ensure the equipment for its full replacement value with such insurance company as
Avalon shall approve (such approval not to be reasonably withheld) and shall provide a copy of the insurance certificate to Avalon on request.
5.4 In respect of equipment sold to the customer, title to equipment shall not pass to customer until the date that charges (and any additional sums-payable by the customer pursuant to this agreement) and sales tax thereon have been paid in full to
Avalon.
5.5 (Except in respect of equipment, which title has passed to the customer pursuant to this Agreement) the customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber equipment and the
relationship between Avalon and the customer in respect of equipment, including any proceeds of sale or other consideration there shall be a fiduciary one.
5.6 If the Customer fails to affect payment in full of all sums due hereunder by the due date, then Avalon (without prejudice to any other legal remedies it may have) shall at any time thereafter, being entitled to enter upon the delivery address or any
premises under customers control (without notice to customer) and remove the equipment.
5.7 If in breach of this clause 5, the Customer sell (i) Equipment that is leased, or (i) Equipment that is sold prior to title passing to the Customer then any proceeds of sale and respect thereof and all rights arising under or in respect of said sale shall be
held (in the case of the proceeds of sale in a separate account) by Customer as trustee for Avalon or the owner.
6. Warranties and Liability
6.1 Avalon warrants that the equipment will be in good working order at the time of delivery and will be free from defects in materials and workmanship for a period of three months from the date of delivery.
6.2 Avalon shall be under no liability under the warranty in Condition 6.1 in respect of any defect arising from fair wear and tear, misuse, abuse, the use of unsustainable, consumables, or failure to follow written instructions relating to the equipment, or
any alteration or repair to the equipment without Avalon's approval.
7. Services
7.1 Avalon shall supply the services for the period set out in an Order Form or otherwise (if no such period is set out in an Order Form) for a minimum period of 60 months. There after Avalon shall supply the services for successive 12-month. Subject to
terminations by either party giving not less than 90 days prior written notice, such notice not to have effect earlier than the end of any agreed period.
7.2 During the term of this Agreement Avalon agrees to supply such labor and replacement parts as are reasonably necessary in Avalon's opinion to repair or remedy, any defect in or failure of the Equipment (except as otherwise excluded from this
Agreement).

73 On each occasion that Avalon receives a request for contracted services from the customer due to a failure of the equipment, Avalon shall endeavor to respond within four working hours (Monday to Friday 9 AM - 5 PM).
7.4 Service calls will be made at the delivery address only, unless otherwise agreed by Avalon.
7.5 Service Charges shall not include:
7.5.1 The workshop refurbishment of the Equipment or
7.5.2 the supply of any consumable items (which shall where the equipment comprises a facsimile machine, include without limitation verification, stamps, ink, drum and developer units and for all equipment show include without limitation paper,
staples, and waste toner); or
7.5.3 Any replacement parts where the machine has been installed for more than 36 months, which shall be payable in addition by the customer at Avalon's prevailing rates which are available on request.
7.6 Where the equipment constitutes a copier/print device and toner has expressly been included with the service charge, Avalon agrees to supply black toner, up to a density of 6% and color toner up to a density.of 20% based on all four colors.
Thereafter toner usage above this agreed density will be chargeable.
7.7 Services does not include any maintenance necessary by the following for which Avalon reserves the right to levy additional charges:
7.7.1 design defect in the equipment or faulty manufacturer, materials, or workmanship.
7.7.2 fault or defect occurring in any equipment not supplied and/or supported by Avalon,
7.7.3 use of Equipment outside Proper Use.
7.7.4 accident, fault, act or omission of any person other than Avalon. Cover will be provided by Avalon in respect of these calls and charged alongside the meter volumes as required under this contract. Such cover will be provided at the designated
prevailing rate per month and per machine.
7.7.5 use of Equipment in excess or any maximum usage specified by the Manufacturer.
7.7.6 failure of electrical power, air conditioning, humidity, or other environmental controls;
7.7.7 electrical work external to any Equipment.
7.7.8 damage by vandalism, fire, water, or adverse weather conditions.
7.7.9 movement or relocation of the equipment, not performed or on behalf of Avalon.
7.7.10 furnishing of the equipment with accessories or attachments, painting, or finishing the equipment or removing accessories, or attachments;
7.7.11 breach of the Customer obligations in this Agreement.
7.7.12 equipment, accessories, attachments, machines, systems, or other devices, not referred to an in Order Form;
7.7.13 rectification of lost or computed data arising for any reason other than Avalon's own negligence.
7.7.14 services rendered more difficulty because of any changes, alterations, additions, modifications, or variations to Customer Facilities;
7.7.15 a failure of Customer to maintain comprehensive and fully operational back-up of all customer data; and diagnosis and/or rectification of problems, not associated with equipment, supported by Avalon under this Agreement.
7.7.16 diagnosis and/or rectification of problems, not associated with equipment, supported by Avalon under this Agreement.
7.8 Avalon reserves the right to withdraw services in respect of equipment (or any part of equipment) if that equipment is moved, repaired or modified other than by Avalon or with Avalon's prior written consent. Services on such equipment show zoom
as soon as maintenance acceptability tests have been carried out at the expense of customer and satisfied in Avalon's discretion.
7.9 Where no network connectivity charge has been levied from installation, after 3 months and IT maintenance charge of $25 per month will be charged per installed machine, to cover printer board, network connection, card, and software
updates/service support.
7.10 Service provided for term of agreement.
7.11 Avalon will retain title to all toner, developer, drums, fuser rollers etc, until they are consumed by the equipment in the regular copy/ print process. In the even of cancellation the customer shall return all the items on demand to ICU.
7.12 Avalon will be permitted by the customer to install meter tracking software, to supply and monitor the machine to allow toner replacement alerts and to collect meter readings.
8. Change Control
8.1 If either party identifies a requirement for a change to the equipment or services, it shall send a change request to the other party detailing the change requirements
8.2 If sent by Avalon, the change request shall state the effect such a change shall have upon the equipment, services and changes. If sent by a customer, the receipt of the change request by Avalon will constitute a request to Avalon to state and writin
the effect such a change shall have upon the equipment, services and charges. Avalon shall use the reasonable endeavors to supply such detail within seven (7) working days from receipt of change request. Where a change to charges is required, the
additional cost shall be confirmed in writing by Avalon. The parties will then decide whether to implement the change. If the change is implemented, the amended equipment, service and charges (as applicable) then become the equipment, services and
charges for the purpose of this agreement. in the event that new inventions, designs or processes evolved in performance of or as a result of this agreement, customer acknowledges that the same shall be the property of Avalon unless otherwise agreed
in writing by Avalon.
9. Warranties and Liability
9.1 Except as expressly provided in this agreement, no warranty, condition, undertaking or term, expressed or implied, statutory or otherwise, as to the condition, quality, performance, or fitness for purpose of any goods or services (including without
limitation. Equipment and services) provided under will be assumed by Avalon and except as expressly provided in the agreement as such warranties, conditions, undertaking and conditions are hereby excluded.
9.2 Neither party excludes or limits liability to the other party for death or personal injury or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
9.3 The liability of Avalon in respect of breaches of this agreement or of any other duty to customer or for negligence in connection with the subject matter of this agreement shall be limited to the aggregate value of charges due to Avalon under this
a g r e e m e n e
9.4 Subject always to clause 9.3, in no event shall either party be liable to the other party for any of the following however and whenever arising:
9.5 Each party agrees that the limitations of liability contained in this clause 9 have been discussed, negotiated and agreed between the parties in the context of the other provisions of this agreement and satisfied the requirement of reasonableness
within the meaning of sub-section 2(2) and Section 11 of the Unfair Contract Conditions Act 1977.
9.6 The parties expressly agree that should any limitation or provision contained in this Agreement be held to be invalid under any applicable statue or rule of law shall to that extent be deemed omitted but if any party thereby becomes liable for loss or
damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
10. Force Majeure
Neither party will be under any liability to the other for, damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lockouts and industrial disputes, fire, explosion, earthquake, acts of God, flood,
drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted boy ("Force Majeure"), provided always that both parties will use all reasonable endeavors (but without an obligation to incur
cost) to minimize the period of disruption caused by the Force Majeure.
11.Termination and Suspension
11.1 Either party may forthwith terminate this Agreement by written notice to the other if any of the following events occur:
11.1.1 If either party commits any breach of the Agreement or fails to remedy such breach within thirty (30) days after receiving written notice requiring remedy.
11.1.2 If either party becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide
reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertaking or if the party is unable to pay its debts in accordance with the law relating to this agreement.
11.1.3 A Force Majeure continues for a period of more than 3 months.
11.2 Avalon shall be entitled to terminate this Agreement forthwith on written notice to the Customer:
11.2.1 if the equipment is serviced by any party other than Avalon or an Avalon approved contractor
11.2.2 if the Customer misuses or abuses the Equipment
11.2.3 if any installment or the Price or Service Charge or any other sum due under this Agreement is unpaid for fourteen days or more.
11.3 Without prejudice to any right of termination either party shall be entitled by immediate notice to suspend performance of some, or all the Services specified in this Agreement upon the occurrence of circumstances specified in clause 11.1, and the
agreement will in any event be deemed suspended in the event of Force Majeure.
11.4 Termination or suspension of this Agreement will be without prejudice to any accrued rights or obligations of either party.
11.5 In the event that the Customer terminates this Agreement (other than in accordance with 11.1) or Avalon terminates this Agreement in accordance with clause 11.2 at any time before the expiry of the period referred to in clause 7.1 allowing for a ten
percent (10%) annual increase in charges and calculated on the contracted volumes in an average monthly use based on the prior twelve months whichever is greater.
12. Confidential Information
12.1 All information, data, drawing, specifications, documentation, software listings, source or object code which Avalon may have imparted and may from time to time impart to Customer relating to this Agreement in whatever media is proprietary a
fidential. Customer herby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of the Agreement disclose the same whether directly or
indirectly to any third party without prior written consent of Avalon.
12.2 The foregoing provisions shall not prevent the disclosure or use by Customer of any information which is or hereafter through no fault of Customer becomes public knowledge or to the extent permitted by law.
13. Entire Agreement
13.1 The Agreement:
13.2 The remedies available to the parties are exclusively those available under this Agreement.
13.3 The parties acknowledge that they have expressly negotiated and agreed the terms of this clause 13.
14. General
14.1 No amendment to this Agreement shall be binding unless made in writing and signed by both the Customer and Avalon's authorized representative
14.2 The Customer shall not sub-contract, assign, charge or otherwise transfer to a third party any of its rights or obligations hereunder without the prior written consent of Avalon. Avalon may at any time assign, transfer, charge, or deal in any other
manner with this Agreement or any of its rights under it.
14.3 No waiver of any breach of the other party's obligations hereunder shall represent a waiver of the waiving party's rights hereunder or of any subsequent breach.
14.4 The parties respectively shall and shall procure that any other necessary party shall execute and do all such documents, acts and things as may reasonably be required on or after completion of this Agreement for securing each of the obligations of
the parties under this Agreement. None of the provisions of this Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties)
14.5 Act 1999 on a person who is not named as a party to this Agreement.
14.6 Any notice to effect suspension or termination of the whole or part of this Agreement:
(f) shall be made in writing and either delivered personally or sent by first class recorded delivery to the party to whom the notice is addressed at its address as set out in this Agreement or such other address as one party may specify by notice in writing
to the other
(il) in the absence of evidence of earlier receipt notice shall be deemed to have been duly given:
If delivered personally, when left at the address referred to in clause 15.4 (i).
If sent by first class recorded delivery, at the time recorded by the delivery agent.
14.7 For the avoidance of doubt electronic mail shall be deemed e want per tre be three the express requirements for delivery of notices under clause 14.6
14.8 If any provisions of this Agreement is held to be void or unenforceable in the whole or in part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision
14.9 The Agreement shall be binding on and shall continue for the benefit of the permitted successors and permitted assigns (as the case may be) of each party hereto.
14,10 All provisions of this Agreement shall so far as they are capable of being performed and observed in full force and effect notwithstanding any expiry or earlier termination.
14.11 The Customer shall pay Avalon's legal costs and expenses
14.12 Avalon Group and Avalon Solutions and Support are both trading styles of Avalon Imaging Systems Limited
15. Applicable Law
15.1 The Agreement shall be governed by and construed in accordance with United States Law and each party to this Agreement submits to the exclusive jurisdiction of the United States courts.
Elevated Group is the DBA name of Avalon Technology Solutions LLC