SPS WEB-BASED AGREEMENT MAY 2013

Transcription

1 TERMS AND CONDITIONS BY ACCEPTING DELIVERY OF PRODUCTS OR BY ENGAGING STRATEGIC PRODUCTS AND SERVICES, LLC AND ITS AFFILIATES ( SPS ) TO PROVIDE SERVICES, YOU AGREE TO BE BOUND BY AND ACCEPT THESE TERMS AND CONDITIONS UNLESS YOU AND SPS HAVE EXECUTED A MASTER AGREEMENT, IN WHICH CASE THAT MASTER AGREEMENT WILL GOVERN YOUR ORDER. 1. General. Only these Terms and Conditions constitute a binding contract between you and SPS ( Agreement ). SPS is an authorized reseller of certain manufacturers products and services, and SPS provides its own services ( Services ). You accept this Agreement by placing an order with SPS for hardware, software and associated documentation ( Product(s) ) and/or any Services. Product(s) are for use only in the United States in the ordinary course of your business, and not for the purpose of resale. This Agreement may change without prior notice; however, the Agreement posted on the SPS website at the time you place an order or sign a Statement of Work ( SOW ) will govern that order or SOW, unless otherwise agreed in writing by you and SPS. You may issue a purchase order for administrative purposes only, however, any terms and conditions (including preprinted terms and conditions) on your purchase order and/or check or other documents accompanying a payment shall not apply and are specifically disclaimed. This Agreement contains the entire understanding between you and SPS with respect to your order and supersedes any and all prior agreements, proposals or understandings, whether oral, written, electronic or implied, if any, between you and SPS with respect to your order. 2. Orders. Your order(s) will be stated on an SPS Purchase Agreement and/or an SPS Services Agreement (each an Order ). Orders are subject to acceptance by SPS. Orders for Maintenance Services will state the term. 3. Your Responsibilities. You must cooperate with SPS as reasonably necessary for SPS delivery of Products and Services in a timely manner. You must provide SPS with interface and other information regarding access to third party products in your network, and obtain any third party consents and licenses required to enable SPS performance under this Agreement. If you fail to meet your obligations under this section or as otherwise provided in the Agreement, SPS may delay or suspend, without penalty, its performance hereunder relating to your non-compliance. 4. Price and Payment. Product and Services Purchase- Unless otherwise set forth in a SOW or Order, you agree to pay to SPS an amount equal to 50% of the total charge on the Order. The remaining balance of Product(s) charges, plus applicable taxes, will be invoiced upon delivery of Product(s) to your location designated on the Order. The remaining balance of charges for Implementation, Installation and/or Professional Services, plus applicable taxes, will be invoiced upon completion of the installation or deliverable and your execution of the SPS Project and Service Request Completion form ( Completion Form ) or the SPS Work Order form, as applicable. Payment- You agree to pay within thirty (30) days of invoice date or be subject to paying interest on past-due amounts at the lesser of one and one-half percent (1.5%) per month, or the maximum lawful amount. 5. Software Ownership. Ownership of software associated with Product(s) remains with the software manufacturer, and you agree to fully comply with the terms and conditions of the manufacturer s software License. The Avaya Global Software License Terms is available at 6. Force Majeure. SPS will not have any liability for delays, failure in performance, or damages due to: fire, explosion, power failures, pest damage, lightning or power surges, strikes, or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, manufacturer caused equipment or art shortages, transportation facilities, or fuel or energy Page 1 of 6 V1.0

2 shortages, unavailability of communications services or network facilities, or other causes beyond its control whether or not similar to the foregoing. Your obligation to pay outstanding invoices is not waived due to a Force Majeure event. 7. Confidential Information. All confidential information ( Confidential Information ) obtained by a party in connection with this Agreement will remain the property of the disclosing party, must not be disclosed to any third party without permission (except SPS may disclose your Confidential Information to its subcontractors under this Agreement), and must be protected by the receiving party with at least the same care that it protects its own Confidential Information. Confidential Information must be used only for the purpose of performing the Services, or use of the Products or Services described in this Agreement. 8. General Warranty. Specific limited warranties for Product(s) and Services are provided in this Agreement or applicable Order. SPS warrants that Services will be carried out in a professional and workmanlike manner by qualified personnel. The warranties provided in this Agreement do not extend to any damages, malfunctions, or non-conformities caused by: (i) your use of Product(s) in violation of the license granted under the Agreement or in a manner inconsistent with the Product documentation; (ii) use of non-sps furnished equipment, software or facilities with Product(s) (except to the extent provided in the Product documentation); (iii) your failure to follow SPS installation, operation or maintenance instructions; (iv) your failure to permit SPS timely access, remote or otherwise, to Product(s); (v) your failure to implement all updates to software provided under the Agreement; (vi) any alternation or deleting of a Product s original manufacturer s serial numbers; (vii) the modification or servicing of Product(s) other than by SPS or a third party specifically authorized in writing by SPS; or (viii) your negligence or negligence of a third party, excluding subcontractors of SPS. Warranty and postwarranty Services coverage excludes cosmetic repairs, including but not limited to chips, dents, scratches, or breaks in stands, housing, switches, labels, shells, faceplates, paint or other parts of the equipment and failures and malfunctions of Product(s) or components caused by: (a) your failure to follow the manufacturer s installation, operation or maintenance instructions; (b) your abuses, misuses, or negligent acts; (c) your or third party alterations, moves, changes, programming or repairs; (d) lightning damage, unless a lightning protection device is specifically listed on the Order; (e) wiring failures, unless wiring is specifically listed on the Order; or (f) Force Majeure conditions stated herein. SPS DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SOFTWARE OR PRODUCTS. SPS DOES NOT WARRANT THAT THE PRODUCTS WILL PREVENT AND SPS WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED USE (OR CHARGES FOR SUCH USE) OF COMMON CARRIER TELECOMMUNICATION SERVICES OR OTHER CHARGES FOR FACILITIES ACCESSED THROUGH OR CONNECTED TO THE HARDWARE OR SOFTWARE. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER SPS NOR ITS LICENSORS NOR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES OR OTHERWISE RELATED TO THE AGREEMENT. SPS DOES NOT WARRANT THAT PRODUCT(S) AND SERVICES WILL PREVENT TOLL FRAUD. SPS DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES. Product Warranty, Remedies and Exclusive Remedies- SPS warrants that it is authorized to sell Product(s) hereunder and you will receive the applicable warranty provided by the Product manufacturer. Avaya manufactured Product(s) have a one (1) year warranty period from the date of your original invoice. Other manufacturers Product(s) have a warranty in accordance with that manufacturers warranty policy and will not exceed a warranty period of one (1) year. SPS at its option will repair or replace any Product components installed by SPS that do not meet the Product specifications during the warranty period specified by the manufacturer. SPS will replace inoperative Page 2 of 6 V1.0

3 components via express carrier or technician dispatch at SPS option. All defective Product(s) removed and replaced will become the property of SPS or its suppliers. Parts used to replace defective Product(s) may be new, remanufactured or refurbished. If SPS determines that a Product cannot be repaired or replaced, SPS will remove the Product and refund the Product purchase price and any pre-paid charges. If full service Maintenance Services are purchased from SPS at the point of Product(s) sale, then parts and labor will be provided at no extra charge during the warranty period. Otherwise, SPS then current labor charges will apply. SPS OBLIGATION TO REPAIR, REPLACE OR REFUND PRODUCT(S) AS SET FORTH IN THIS AGREEMENT IS YOUR EXCLUSIVE REMEDY FOR FAILURE OF PRODUCTS TO PERFORM AS WARRANTED. Warranty Returns Policy- Product(s) requiring exchange within thirty (30) days of the original invoice date will be replaced with same condition equipment. Product(s) requiring exchange after thirty (30) days of original invoice date will be replaced with refurbished or new Product. SPS will provide you either refurbished or new Product for replacement purposes if you have a SPS Services Agreement for Maintenance Services in effect. If you have a current post-warranty Avaya Maintenance Contract, Avaya will provide you a replacement Product. Services Warranty Period- The warranty period for Time and Materials ( T&M ), Implementation, Installation and/or Professional Services deliverables is thirty (30) days from the date of your execution of the Completion Form. Services Warranty, Remedies and Exclusive Remedies- During the warranty period, deliverables will conform to the requirements outlined in the SOW. If during the applicable warranty period, SPS receives your written notice describing in reasonable detail how the deliverables failed to be in conformance with the above warranty, SPS will at its option re-perform Services, or repair or replace the non-conforming deliverable or refund to you the applicable charges upon return of the non-conforming deliverables, if any. THESE REMEDIES ARE YOUR SOLE AND EXCLUIVE REMEDIES AND ARE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES YOU MAY HAVE AGAINST SPS WITH RESPECT TO THE NON- CONFORMANCE OF T&M, IMPLEMENTATION, INSTALLATION AND/OR PROFESSIONAL SERVICES. Maintenance Services Warranty; Exclusion- The warranty period for Maintenance Services is thirty (30) days from date of completion of the Maintenance Services. Any Maintenance Services defects reported during the applicable warranty period will be re-performed by SPS in a timely manner. THIS REMEDY IS YOUR SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ANY OTHE RRIGHTS OR REMEDIES YOU MAY HAVE AGAINST SPS WITH RESPECT TO THE NON-CONFORMANCE OF MAINTENANCE SERVICES. For user programming errors, or if SPS otherwise finds that no equipment problems exist ( No Trouble Found ), additional T&M Services billing may apply. 9. Indemnification and Limitation of Liability. You must indemnify and hold SPS harmless from and against any and all losses, claims, costs, damages or expenses (including reasonable attorneys fees and costs) which SPS may sustain, suffer or incur as a result of your actions or claims made under this Agreement. EXCEPT FOR PERSONAL INJURY CLAIMS OR WILLFUL MISCONDUCT AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SPS, ITS SUPPLIERS, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS ARE BE LIABLE FOR (i) ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES; (ii) ANY LOSS OF PROFITS, REVENUE, DATA, OR TOLL FRAUD; (iii) COST OF COVER; OR (iv) ANY DIRECT DAMAGES ARISING UNDER THIS AGREEMENT IN EXCESS OF THE FEES PAID FOR THE PRODUCT(S) AND SERVICES GIVING RISE TO THE CLAIM. Page 3 of 6 V1.0

4 10. Infringement Defense and Indemnification. If a third party makes a claim against you alleging that a Product as of its delivery date under the Agreement infringes a valid United States patent, copyright or trademark, then SPS will defend and indemnify you for any judgments, settlements and court awarded attorney s fees resulting from the claim. SPS defense and indemnification obligations are conditioned on the following: (i) you must promptly notify SPS of the claim in writing immediately upon being made aware of the claim and give SPS sole authority and control of the defense and (if applicable) settlement of the claim. As may be requested by SPS, you will provide all information and assistance necessary so that SPS can handle the defense or settlement of the claim. SPS will have no defense or indemnity obligations for any claim (i) if you or someone other than SPS modified the Product, or even if the Product that was modified by SPS but in accordance with your specifications or instructions; (ii) the use or combination of a Product with third party products, even if the combination is with Products manufactured by SPS suppliers and provided by SPS; and (iii) a Product that you remove from the United States. You will defend SPS against any claim and will indemnify SPS for any judgments, settlements and reasonable attorneys fees resulting from a claim to the extent the Claim is based on any of the above. THE FOREGOING STATES SPS ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. THE FOREGOING IS IN LIEU OF, AND SPS DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT. 11. Governing Law and Dispute Resolution. This Agreement will be governed by the local laws of the State of New Jersey, without giving effect to choice of law doctrines. You and SPS agree to work in good faith to resolve any disputes. If unable to resolve disputes within thirty (30) days or such other time frame that we mutually agree, then disputes will be finally resolved by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association. Proceedings will be conducted in Morristown, New Jersey, before one arbitrator selected pursuant to those rules. 12. Miscellaneous. You may not assign your rights or obligations under this Agreement. SPS may assign or subcontract all or any portion of its rights or obligations under this Agreement. You must not directly or indirectly solicit, hire or contract with SPS employees prior to one year from expiration or termination of an Order. 13. Agreement Termination. Either party may terminate performance of the Order or an applicable SOW without penalty if the other party fails to perform a material term or condition of this Agreement and does not cure such failure within thirty (30) days of written notice from the non-breaching party. Either party may terminate this Agreement for any reason upon thirty (30) days prior written notice. In the event of termination, you agree to pay invoices for any Product(s) delivered, Services performed and any expenses incurred up to the date of termination, plus termination charges, set forth in the Order or in the applicable SOW. 14. Product Terms. Delivery and Installation- SPS will deliver and install Product(s) at your location specified on the Order. You will provide at your sole expense the proper environment and electrical and telecommunications connections for Product(s) as outlined in the applicable SOW. Installation charges for Product(s), including wiring, are based on standard installation conditions unless otherwise specified on the Order. If SPS encounters non-standard installation conditions after Order acceptance, SPS will notify you in writing of any additional charges. You have the option to agree to either (1) accept revised installation charges, or (2) modify or change the installation location as specified by SPS, or (3) cancel the Order subject to Order Cancellation below. Title and Risk of Loss- Title to Product(s) will pass to you upon issuance of Product invoice. Risk of loss will pass to you upon Product(s) delivery to your location specified on the Order. Delay- If you delay delivery or installation of Product(s) by more than thirty (30) days beyond the mutually agreed date(s), SPS will invoice and you agree to pay the balance of the total charges due for Page 4 of 6 V1.0

5 Product(s), including all charges for delivery and Services performed up to the date of delay, and negotiate alternative arrangements with SPS at SPS then current charges. Product Order Cancellation- Your cancellation of the accepted Order or any portion of the Order will be subject to the following cancellation terms: Return of Product- You must request an RMA within thirty (30) days of the invoice date for the cancelled Product(s). No Product(s) returns will be accepted without a Return Material Authorization ( RMA ) requested by you and issued by SPS. All Product(s) must be returned in one hundred percent (100%) resalable condition, undamaged, factory sealed in the original manufacturer s packaging, complete with all manuals, cables, parts and accessories, with no markings of any kind. Licenses, maintenance support for hardware, software, and all other special order items are non-returnable. Applicable credit(s) will be applied to your account upon SPS receipt and inspection of Product(s). If SPS determines that Product(s) are not resalable, Product(s) will be returned to you and no credit will apply. Product(s) Ordered Without SPS Installation- You agree to pay a cancellation fee equal to fifteen percent (15%) of the total purchase price for the cancelled Product(s). Product(s) Ordered With SPS Installation and Cancelled Prior to SPS Installation- You agree to pay a cancellation fee equal to fifteen percent (15%) of the total purchase price for the cancelled Product(s) plus any charges for Services performed by SPS relating to the cancelled Product(s) prior to cancellation. Product(s) are non-returnable after installation. 15. Implementation, Installation and Professional Services Terms. Implementation, Installation and/or Professional Services may be provided as a single phase implementation or as milestone services ( Milestone Services ) set forth in a SOW. Single phase implementations will be deemed complete either when production use of the deliverable commences or upon SPS presentation of, and your acceptance confirmed by your execution of, the Completion Form. Multi-phase and/or Multi-location Milestone Services will be described in the applicable SOW and will be invoiced according to the schedule set forth in such SOW or, if no such schedule exists, invoicing will occur for each site or phase upon its completion and your acceptance confirmed by your execution of the Completion Form. Prior to performing Installation Services, SPS may elect to perform a site survey to determine any additional sitespecific implementation requirements. Upon completion of the survey, you will be notified of any additional charges relating to the installation. After such notification, you may cancel the Installation Services Order without incurring cancellation charges. Your desire to cancel must be given in writing the earlier of (i) prior to work commencing or (ii) within ten (10) days of the SPS notification. If SPS is required to redeliver Installation Services or expend capital for items such as but not limited to travel, contracted resources, cabling, equipment or software due to unreasonable delay or failure of you or your vendor to meet milestones or commitments, SPS may invoice you for additional charges resulting from such delays or failures. T&M Services T&M Services are billed at hourly or daily charges plus expense reimbursement, calculated on the basis of SPS service records and will be deemed complete either when production use of the deliverable commences or upon SPS presentation of, and your acceptance confirmed by execution of, the Completion Form. T&M Services do not include generally available hardware/software, with the exception of minor materials. Order Changes- Order changes will be made in accordance with the change control procedures referenced in the SOW, or if no such procedure exists, SPS agrees to respond promptly to your change request to identify the impact of the change on the schedule and pricing. Changes must be mutually agreed to in writing. Services Termination Either party may terminate a T&M Order upon ten (10) days advance written notification. You agree to pay the invoice for T&M Services rendered up to and through the effective date of such termination. Unless otherwise set forth in the SOW, you may terminate an Order for Installation, Implementation and/or Professional Services upon ten (10) days advance written Page 5 of 6 V1.0

6 notification and payment of invoices for (i) the charges specified in the Order for such Services up to and through the effective date of termination and (ii) all SPS incurred non-refundable out-of-pocket expenses. 16. Maintenance Services. Ordered Maintenance Services are described in the applicable Service Description Supplement which is incorporated by reference into this Agreement. If you order icon Services, you agree to comply with and be bound by the Nectar End User Software License Agreement provided by SPS. For certain Product(s), you will have the option of purchasing warranty and postwarranty services directly from the manufacturer at the time of purchase of the Product(s) under a separate agreement. The coverage option selected by you will be set forth on the Order and may apply during the warranty period. Recurring charges for Maintenance Services are invoiced in advance. Orders and Added Products- Product(s) covered by Maintenance Services at your specified location will be listed on the Order (herein referred to as Supported Products ). If you acquire additional products of the same type and manufacturer(s) as the existing Supported Products and locate them with existing Supported Products, they will be considered Added Products and will be automatically added to the Order for the remainder of the term. Added Products purchased from a party other than the manufacturer, SPS, or other authorized resellers are subject to inspection and certification by SPS at SPS then current rates. If Added Products fail certification, SPS may choose not to add them to the Supported Products. Maintenance Services Termination- The Order for recurring Maintenance Services will automatically be renewed upon expiration of the initial term for a one (1) year term at the charges and terms and conditions of SPS in effect at the time, unless either party received written notice to the contrary from the other party at least thirty (30) days prior to such renewal. You may terminate an Order for Maintenance Services upon thirty (30) days written notice and SPS will invoice and you agree to pay a termination charge. The termination charge is the amount equal to one (1) year s payment or remaining term, whichever is less. For SPS failure to perform the Maintenance Services described in the Order and applicable Service Description Supplement or any other material term or condition of this Agreement, and if such failure continues for thirty (30) days after SPS receipt of your written notice, your sole remedy will be to cancel the Order without incurring a termination charge. END OF TERMS AND CONDITIONS Page 6 of 6 V1.0