HP/3COM NBX MAINTENANCE AGREEMENT

Transcription

1 HP/3COM NBX MAINTENANCE AGREEMENT This Agreement made and entered into by and between: "VENDOR" and "CUSTOMER" Preferred Technology Solutions ABC Corporation 212 W. Spring Valley Road ABC Road Richardson, TX Dallas, TX Al Coop Fax: MAINTENANCE SERVICE A. Vendor will provide to Customer, on the terms and conditions set forth in this Agreement, maintenance service for the equipment described on any Maintenance Agreement Supplement(s) signed by Customer and accepted by Vendor excluding any associated intra-system wiring. The supplement(s) when accepted by Vendor shall become an integral part of this Agreement. D. E. Vendor and Customer agree as follows: Associated infra-system wire shall be defined as customer-owned wire interconnecting the equipment and/or connecting the equipment to the network interface. Vendor s maintenance service includes, as determined by Vendor, scheduled preventive maintenance and remedial maintenance required by equipment when used under normal operating conditions. Replacement parts and equipment may, at the discretion of Vendor, be new, remanufactured or refurbished, and will be furnished on an exchange basis. The removed parts and equipment will become the property of Vendor. Customer may report a defect or failure 7 days a week, 24 hours a day, by calling the Vendor Service Center at , or by to support@preferredtechnology.com. (1) The Vendor Response Coverage Period ( Coverage Period ) is Monday through Friday, Next Business Day, 8 AM to 5 PM Central Time, for both Silver and Gold support, excluding Vendor designated holidays. Work outside these time periods is billable to the Client at the out of Coverage Period Rate noted on the Maintenance Agreeement Supplement. (2) The client's chosen Vendor Response Time ("Response Time") is indicated on the Maintenance Agreement Supplement and is either (a) Silver or (b) Gold. Silver: Vendor will make best effort to begin remote diagnosis within twenty-four (24) Response Coverage Period hours of the trouble report. Gold: Vendor will make best effort to begin remote support within four (4) Response Coverage Period hours, and will conduct On-Site support services if required during the Coverage Period. If Silver is purchased. and quicker response is required, out of coverage labor charges will apply. (3) Silver support only includes remote support. If On-Site support is required, then the Client understands that Vendor will invoice for hours associated with the On-Site support. Gold support includes remote as well as On-Site support, if required, but only during the Coverage Period. If after hours (5:00 PM to 8:00 AM CT) support is required, then the Client understands that Vendor will invoice for hours associated with the after hours remote and/or On-Site support. Vendor On-Site agreements are only in affect within 40 miles of Vendor's office in Richardson, Texas. If equipment is located beyond 60 miles, time and travel both ways will be added to all On-Site calls. Page 1 of 5

2 F. Maintenance work requested to be performed at a time or in a manner beyond the coverage selected by Customer or maintenance work required as a result of an action or condition listed in Section 8 Maintenance Not Covered may be provided subject to additional charges. G. 2. TERMS OF AGREEMENT A. This Agreement shall become effective when signed by Customer and accepted in writing by Vendor and shall continue until terminated by either party upon thirty (30) days written notice. If this Agreement is terminated without cause upon thirty (30) days notice by either party as provided herein all Supplements hereunder will continue under the terms of this Agreement as if the Agreement had not been terminated and will expire upon their first normal expiration date thereafter without renewal. Except as otherwise provided herein Maintenance Agreement Supplements shall be for a term of one (1) year from their commencement dates and shall be automatically renewed for successive one (1) year terms at the charges and on the terms and conditions in effect at the time of renewal unless either party gives the other written notice of termination at least thirty (30) days in advance of the expiration of the Maintenance Agreement Supplement. (4) Any equipment owned by Customer and collocated with similar equipment covered by an existing Supplement, including equipment acquired subsequent to the effective date of this Agreement, may upon expiration of any applicable warranty be included in maintenance provided under this Agreement. Said collocated equipment shall be subject to the agreed monthly maintenance charges. The Coverage Period for such equipment shall be coterminous with that of the existing Supplement. (5) Dispatch of Vendor service personnel to Customer s premises is limited to specific geographic areas and Vendor reserves the right to dispatch a sub-contractor technician outside Vendor s territory. In the event of a failure that cannot be corrected by a local sub-contractor, then travel to customer s site by Vendor s technicians will be at Vendor s expense. This Agreement covers the listed equipment only. This agreement does not cover Internet and or Circuit provider issues. If we find that the problem is not system related, remote and/or On-Site charges will apply. If Vendor notifies Customer of an increase in charge for maintenance, which will take effect less than thirty (30) days prior to the expiration of a Maintenance Agreement Supplement, Customer may terminate that Supplement by giving written notice any time within thirty (30) days prior to the expiration of a Maintenance Agreement Supplement. Customer may terminate that Supplement by giving written notice any time within thirty (30) days after Vendor s mailing of such notice notwithstanding its normal expiration date. The period of maintenance coverage for additions to equipment already covered by an existing Supplement will be coterminous with the existing Supplement. 3. TERMS Customer agrees to pay the charges set forth on the Supplement for the initial term and the applicable charges for any renewal term. Payment of invoice is due at the signing of the contract. Effective Maintenance Coverage does not start until the invoice for such services is paid. If client is past due on their account, Vendor has the right to suspend coverage until the account is brought back within terms. 4. TAXES Customer agrees to pay any applicable local, state and Federal taxes, however designated (excluding taxes on Vendor s net income), imposed on or based upon the provision of use of services rendered under this Agreement, direct to Vendor if customer is located in the state of Texas, or direct to appropriate taxing authority if Customer is located outside the state of Texas. 5. OWNERSHIP Customer warrants that it is the owner of any equipment covered by this Agreement or has the equipment owner s authorization to enter into this Agreement. Page 2 of 5

3 6. CUSTOMER S RESPONSIBILITIES A. Follow all Vendors installation, operation, and maintenance instructions. Provide the proper environment and electrical and telecommunications connections as specified by Vendor. Provide access to the products to enable Vendor to perform maintenance. D. Provide adequate communications facilities, workspace, and storage space for Vendor spare parts. E. Have a representative at the equipment location during any Vendor maintenance activity on the premises. F. Provide remote access to network and equipment covered by this agreement. 7. EQUIPMENT RELOCATION OR MODIFICATION Customer agrees to advise Vendor promptly of any change in the address of any equipment covered by this Agreement. If Customer moves or modifies any equipment covered by this Agreement, and in the opinion of Vendor such move or modification impedes or increases the cost of Vendor s testing or repairs, creates a safety hazard, or is likely to cause an equipment malfunction; Vendor may at its option either, 1) terminate the Supplement as it relates to subject equipment or 2) with Customer s concurrence, eliminate any safety hazard and continue to perform the maintenance. Vendor may charge Customer for any extra costs incurred because of the move or modification. Vendor reserves the right to inspect the equipment before determining whether it will terminate the Supplement as to such equipment. Vendor On-Site agreements only are in affect within 60 miles of Vendor's office in Richardson, Texas. If equipment is located beyond 60 miles, time and travel will be added to all On-Site calls. 8. MAINTENANCE NOT COVERED This Agreement does not cover maintenance required to repair damages, malfunctions, or service failures caused by: A. Customer s failure to follow Vendor s installation, operation, or maintenance instructions. Repair, modifications, movement of the equipment by anyone other than Vendor personnel, failure of a host computer, other equipment, or software not maintained by Vendor, or of removable rotating storage media. Abuse, misuse, or negligent acts. D. Lightning, fire, flood, pest damage, accident, actions of third parties and other events outside Vendor s reasonable control or not arising under normal operating conditions. Vendor may agree to perform maintenance services in such instances on a time and materials basis. 9. WARRANTIES VENDOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. EXCLUSIVE REMEDIES Customer s sole remedy against Vendor, its affiliates, or any affiliated sub-contractor or supplier for loss or damage caused by or arising in connection with the performance or non-performance or maintenance services under this Agreement, regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise, shall be the lesser of the amount of actual direct damages which are proven or the cost of the maintenance contract. This remedy shall be exclusive of all other remedies at law or in equity except for Customer s right to claim damages for bodily injury to any person caused by the negligence of Vendor. 11. LIMITATIONS Not withstanding any other provisions of this Agreement: A. Neither Vendor, its affiliates, or any subsidiaries shall be liable for any indirect, incidental, or consequential damages (including lost profits) sustained or incurred in connection with maintenance or repair work performed under this Agreement, regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise; and whether or not such damages are foreseen or unforeseen. Neither Vendor nor its affiliates, subsidiaries or subcontractors shall be liable in any way for delay, failure in performance, loss or damage due to any of the following force major conditions: fire, strike, embargo, explosion, power blackout, earthquake, volcanic action, flood, war, water, the elements, labor disputes, civil or military authority, acts of God, public enemy, inability to secure raw materials, inability to secure products, inability to secure fuel, transportation facilities, acts or omissions of carriers, or other causes beyond its reasonable control, whether or not similar to the foregoing. Vendor shall not be liable for any delay, loss, damage or equipment failure attributable to any service, product or actions of any person other than Vendor, its employees and agents. D. Any legal action arising from or in connection with maintenance or repair work performed for Customer or any other activity in connection with this Agreement must be brought within one (1) year after the cause of action arises. Page 3 of 5

4 ASSIGNMENT This Agreement may not be assigned by either party without the written consent of the other, except that Vendor may, without Customer s consent, assign this Agreement to an affiliate or subsidiary, and may assign its right to receive payments hereunder. SUBCONTRACTING Vendor may subcontract any or all of the work to be performed under this Agreement but shall retain responsibility for the work subcontracted. TERMINATION FOR CAUSE Customer may terminate or cancel any Supplement under this Agreement if Vendor fails to perform or observe any material term or condition of this Agreement with respect to such Supplement, if such failure shall continue unremedied for thirty (30) days after Vendor s receipt of notice thereof from Customer. Customer will be in default of this Agreement, and Vendor may terminate this Agreement, or any Supplements accepted hereunder, if Customer fails to pay any charge when due, or fails to perform or observe any term or condition of this Agreement, if such failure shall continue un-remedied for thirty (30) days after receipt of written notice thereof from Vendor. 15. A. D. GENERAL Any modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties, except that Vendor may, upon ninety (90) day s prior written notice to Customer, modify the terms and conditions of this Agreement, which modifications will be effective only as to renewals and new Maintenance Agreement Supplements placed by Customer, and accepted by Vendor after the effective date of such modification. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision hereof shall be valid and enforced to the fullest extent permitted by law. The waiver by either party of any breach of this Agreement by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. The failure of either party to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of the party s right to exercise the same or different rights in subsequent instances. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas and is the entire agreement between the parties with respect to the maintenance service provided hereunder. Page 4 of 5

5 1. RESPONSE COVERAGE PERIOD, RESPONSE TIME AND SUPPORT TYPE 1 YEAR BEGINNING: Select Silver or Gold Remote Support (circle one and write the date to begin coverage) Covered Product Qty Model Number Description Serial Number 1 JD695A HP NBX DIGITAL LINE CARD T1 1 JD696A HP NBX Analog Terminal Card 1 JD784A HP NBX V3000 System - Analog 1 JD788A HP NBX V3000 GTWY CHASSIS - SINGLE PWR 15 JD864A HP V G-PoE Switch 15 JD868A HP 5 port Gigabit Switch Phones not included Rate for hours outside of Coverage Period = $ COST FOR SILVER $ 3, Sales Tax: $ Total Agreement: $ 4, COST FOR GOLD $ 5, Sales Tax: $ Total Agreement: $ 5, year Agreement for all covered components listed in Supplement, on a 1 Year renewable Agreement. Customer will be billed Yearly in advance by vendor. Changes to hardware, software, and complexity could change Service Agreement. 3. SOFTWARE UPDATES A. As interim software becomes available from HP/3COM, vendor will install and configure, subject to a maximum of 2 updates per year, subject to customer related issues or customer request. This agreement covers labor to install the updates but does not include the cost (if any) of software releases or upgrades. Training on the new software is not included but can be purchased on a time and materials basis. MAINTENANCE AGREEMENT SUPPLEMENT: HP/3COM PHONE SYSTEM Vendor makes no guarantee as to the availability or functionality of HP/3COM Software. Vendor will install and convert the existing database. If software does not function correctly, we will revert to last backup. Additional onsite work beyond basic restoration may be billable. 4. PROGRAMMING AND CONFIGURATION The Vendor monthly fee provides limited programming assistance; assistance limited to questions or Vendor providing direction but not providing actual programming. Vendor will charge standard discounted programming rate for programming and standard discounted maintenance rate for administration training and to make Customer requested moves, adds or changes to the system. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date written below, and the parties acknowledge that all sections of this Agreement have been read and understood. ACCEPTED BY: Preferred Technology Solutions By: ABC Corporation By: Title: Title: Date: Date: Page 5 of 5