CLOUD SERVICES RESELLER AGREEMENT SERVICES ADDENDUM: MANAGED SERVICES

Transcription

1 CLOUD SERVICES RESELLER AGREEMENT SERVICES ADDENDUM: MANAGED SERVICES By clicking the I HAVE READ AND ACCEPT THE TERMS OF AGREEMENT checkbox displayed below, you, CSR ( you or CSR or VAR ) acknowledge and agree to abide by the terms and conditions contained in this services addendum ( Addendum ), regarding the resale of the Managed Services and Services defined below, provided by a Westcon sub-contractor(s) ( White-label Provider ) and sold to you by Westcon Group North America, Inc. ( Distributor or Westcon ), including any of its affiliates and subsidiaries. Any prior terms and conditions of sale or agreements currently in effect between CSR and Distributor, including but not limited to the Cloud Services Reseller Agreement (the Agreement ), all of which are incorporated herein by reference remain in full force and effect. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. In the event of any conflict between this Addendum and any prior terms and conditions of sale, this Addendum shall prevail. This Addendum is in addition to and does not replace or modify any Documentation provided in connection with the Agreement. This Addendum shall be deemed effective as of the date last signed below ( Effective Date ) and may be updated upon notification to CSR. CSR and Distributor hereby agree as follows: 1. Description of Services. CSR requires certain advanced technology management and monitoring services ( Managed Services ) that Westcon will resell to CSR for resale to their clients ( End-Users ), and, CSR requires certain knowledge, services and/or consultation regarding information technology infrastructure ( Services ) that Westcon will resell to CSR for resale to End- Users. Westcon is in the business of and is willing to provide such Managed Services and Services, through its White-label Provider(s), as more specifically described in a separate Statement of Work ( SOW ) and/or Memo of Understanding ( MOU ) subject to the Agreement to be executed between Distributor and CSR. 2. Duties and Responsibilities of Westcon. Westcon s White-label Provider(s) shall undertake to provide those Managed Services and Services specified in a MOU, SOW or Project Change Request ( PCR ), which is agreed to in writing by CSR and Westcon. For clarification purposes, Westcon shall have no responsibility to perform any Managed Services and/or Services sold to CSR for resale to End-Users under this Agreement. All Westcon offered Managed Services and/or Services will be performed by a White-label Provider(s). The CSR acknowledges and agrees that Westcon is utilizing sub-contractors to perform all Services and/ or Managed Services under this Agreement and that Westcon has the sole right to change such sub-contractor(s). 3. Duties and Responsibilities of CSR. Prior to commencement of a specific MOU, SOW, or PCR, the software and hardware configuration will be verified by CSR and provided in writing to Westcon. If the configuration cannot be verified via remote access, an on-site audit may be required. In the event that an on-site audit is required, the specific process for software and hardware configuration verification will be determined by the CSR and approved by Westcon for the specific MOU, SOW or PCR that the on-site audit is required for. CSR will work

2 in good faith to determine the specific process for an on-site audit that takes into account the requirements of the Parties and End-User under the Agreement. Westcon and/or the White-label Provider(s) shall not bear the expense of an onsite audit, which shall be borne by CSR and/or End-User. In the event that Westcon is contracted to provide an on-site audit utilizing a White-label Provider(s), with prior written approval of CSR and Westcon, the on-site audit will be billable at rates determined by Westcon under a Purchase Order ( PO ) issued by CSR pursuant to this Agreement. Should any on-site audit verification indicate a change from the original Equipment (as defined in the specific MOU, SOW or PCR) list provided by CSR to Westcon, the fees set forth in the specific MOU, SOW, or PCR ( Service Fees ) will be adjusted accordingly utilizing the applicable Westcon rates. Thereafter, the software and hardware will be reviewed by Westcon ninety (90) days prior to the start of each coverage period of a specific multi-year MOU, SOW, or PCR to verify the specified Equipment listed in the applicable MOU, SOW or PSR is correct. Should the review indicate a change from the original contract Equipment list, the Services Fees shall be adjusted accordingly utilizing the current Westcon rates. 4. Acceptance of Covered Equipment. Equipment shall be housed in an environment (cooling, heating, power and accessibility remote and on-site) that meets or exceeds the published OEM requirements for such Equipment. In the event that an on-site audit is required due to possible environmental issues, the specific process for environmental compliance verification will be determined by CSR and approved by Westcon for the specific MOU, SOW or PCR that the onsite audit is required for. Westcon and/or the White-label Provider will not bear the cost of an on site audit due to possible environmental issues. CSR agrees to work in good faith to determine the specific process for an on-site audit that takes into account the requirements of the Parties and End-User. Once Westcon is apprised of the possible environmental issues by the White-label Provider, Westcon will advise CSR of any condition, which would render the Equipment ineligible for the Services hereunder. CSR shall be responsible for correcting any such condition that does not meet the published OEM requirements prior to Westcon s providing Managed Services and/or Services. 5. Service Limitations. Maintenance and support services considered outside the scope of the specific MOU, SOW or PCR include, but are not limited to, the following: (a) correction of errors not attributable to Westcon or the White-label Provider or the manufacturer; (b) electrical work external to the Equipment; (c) installation, de-installation, reinstallation, or relocation; (d) supplies, accessories, or attachments; and (e) no fault found (problem with Equipment not provided by Westcon and/or not covered under the specific MOU, SOW or PCR). In addition, Westcon does not guarantee Service performance for monitored End-User Equipment if remote access to the Equipment (e.g., via modem, VPN) is not provided. 6. Purchase Order ( PO ). Immediately upon, or prior to, execution or the renewal of a specific MOU, SOW, or PCR, CSR shall issue a PO that shall include the specific information regarding the PO number, billing amount, (monthly reoccurring fee times the number of months) term, non reoccurring charges (i.e. Service Transition Fee), bill to address End-User information (name and address), credit rating and Equipment to Westcon for purchase of the Services

3 thereunder. Westcon will have the right to withhold performance of the Services until such time as a PO, issued in conformance with the terms and conditions of this Agreement, is provided by CSR. Any preprinted terms and conditions on CSR s PO form, which are in addition to or in conflict with the terms and conditions of this Agreement, shall be null and void, even if acknowledged in writing by the Westcon. 7. Compensation and Fees. The compensation to be paid to Westcon by CSR for provided Services and/or Managed Services will be as set forth in the applicable MOU, SOW, and/or PCR. Should additional work beyond the scope of the Services or Managed Services detailed in the applicable MOU, SOW and/or PCR be requested by CSR, fees for such additional Services or Managed Services will be negotiated with Westcon prior to performing such work and will be agreed upon in writing between the Parties by utilizing a PCR or an additional SOW or MOU, as appropriate. CSR shall make payment to Westcon within fifteen (15) days from date of undisputed invoice from Westcon and/or fifteen (15) days following the completion of any Services and/or Managed Services described in any SOW, MOU, and/or PCR. Outstanding balances are subject to an interest charge of one and one-half percent (1 1/2 %) per month, or the maximum rate allowable by law, until CSR shall have satisfied in full all of its obligations to Westcon. 8. Billing. Westcon will bill CSR monthly, or as otherwise agreed for the duration of the specific MOU, SOW or PCR. Recurring billing shall begin upon start of the Services as determined by the Parties. Technical and project management effort, and equipment required to provide End-User Services ( Service Transition Management Fees ) shall be billed upon completion of service transition management in a specific MOU, SOW or PCR. Service transition management completion acceptance for a specific MOU, SOW or PCR shall be mutually agreed to by the Parties. CSR shall be invoiced at the end of the month of the current Service period for the specific MOU, SOW or PCR. 9. Delivery and Acceptance. Submission of an invoice by Westcon is confirmation by Westcon that White-label Provider has performed the Services or Managed Services, ordered pursuant to the applicable SOW and/or MOU and/or PCR. The Services and Managed Services performed by White-label Provider shall be deemed accepted by CSR as performed unless otherwise established in an applicable, mutually agreed upon SOW and/or MOU and/or PCR. 10. Term. The term of the specific MOU, SOW or PCR ( Coverage Term ) shall commence on the Actual Coverage Period (as defined in the specific MOU, SOW or PCR) start of Service date as defined in the applicable Managed Services Schedule ( Coverage Term Effective Date ) (as defined in the specific MOU, SOW or PCR) and continue in effect as set forth in applicable Schedule. CSR will notify Westcon within sixty (60) days from expiration of the Coverage Term of CSR s intent to extend the Services period of the specific MOU, SOW or PCR or to cancel Services of Equipment on the specific MOU, SOW or PCR. 11. Termination. Any and all active MOU, PCR and/or SOWs shall survive termination or expiration of the Agreement through the end date of their applicable Coverage Term. Except as specified in the applicable MOU, PCR or

4 SOW, CSR shall not have the right to terminate any MOU, PCR or SOW or its obligations to serve a particular End-User subject to any active Coverage Term hereunder. In the event of early termination of any MOU, PCR or SOW, CSR and/or End-User CSR may be subject to payment of any early termination fees ( ETFs ), as set forth above or in the specific MOU, PCR and/or SOW. In the event of an early termination of a specific MOU, SOW or PCR for any reason, which termination notice shall be provided at least ninety (90) days prior to the effective date of termination, Westcon shall be entitled, without limiting its other remedies under this Agreement, at law or equity, to recover: (a) in the event that the End-User does not cancel a MOU, SOW and/or PCR with CSR, the CSR shall pay one-hundred percent (100%) of the remaining amounts owed to Westcon by CSR for the remaining Coverage Term of a specific MOU, SOW or PCR or (b) in the event that the End-User does cancel a MOU, SOW and/or PCR with CSR, the CSR shall pay seventy-five (75%) of the remaining amounts owed to Westcon by CSR for the remaining Coverage Term for the first twelve (12) months of the Coverage Term and twenty-five (25%) of all remaining Coverage Term or ten percent (10%) of the total contract value, whichever is greater for the specific MOU, SOW or PCR. A specific MOU, SOW or PCR is non-cancelable, and may not be terminated by either Party except as set forth herein. Where third party offerings (including but not limited to Cisco maintenance, NetApp ASP, EMC VSPP, and EIQ SOC) are included as part of the Services being provided by Westcon, the portion of the specific MOU, SOW or PCR representing such third party offerings shall be strictly non-cancelable by CSR; CSR will not receive any refund for any such third party offerings, but CSR will retain all rights associated with the underlining support. 12. Default. In the event of any material breach of this Agreement by either Party which shall continue for thirty (30) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to the breaching Party by the aggrieved Party, the aggrieved Party shall be entitled at its option: (a) if the aggrieved Party is Westcon, to suspend performance of all of its obligations under the specific MOU, SOW, or PCR for so long as the breach continues uncorrected. 13. Credit and Insolvency. CSR warrants and represents that, in regards to Services; it will only work with End-Users who have completed an industry standard credit verification process, which evidences the creditworthiness of the End-User. The credit verification process shall at least include a credit reference check of each End-User prior to entering into an agreement to provide Services to such End-User. This Agreement shall terminate, without notice or penalties, (i) upon the institution by or against CSR or End-User (for a specific MOU, PCR and/or SOW) of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of CSR s or the End-User s debts, (ii) upon CSR or End-User making an assignment for the benefit of creditors, or (iii) upon CSR s or the End-User s dissolution or ceasing to do business. A specific MOU, SOW or PCR associated with a End-User shall terminate, without notice, (i) upon a CSR or End-User by or against insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either a CSR s or

5 End-User s debts, (ii) upon either a CSR or End-User making an assignment for the benefit of creditors, or (iii) upon either a CSR or End-User dissolution or ceasing to do business. The Parties acknowledge and agree that in the event of a merger, acquisition, consolidation, corporate reorganization of CSR, sale of a substantial block of CSR s stock, or the sale of all or substantially all of CSR s assets, Westcon reserves the rights to cancel this Agreement and or any specific MOU, PCR or SOW if the surviving entity does not meet or exceed the then current credit worthiness requirements of Westcon and/or if the surviving entity is a competitor to Westcon or it's White-label Provider(s). 14. Data Reconstruction. CSRs and End-Users are each responsible for maintaining their own procedures for the reconstruction of lost or altered files, backup or saving of data or programs and for actually reconstructing any lost or altered files, data or programs. Westcon and the White-label Provider(s) assume no responsibility for the protection of CSR s and/or End-Users data. Westcon and the White-label Provider(s) is not liable for damage to software or data caused by service to the computer hardware equipment. CSR agrees that it shall have the sole responsibility for safeguarding the software and data during service work performed by the White-label Provider(s). Westcon and the White-label Provider(s) is not liable for software damage due to any outside factor, (i.e. software virus.). 15. Maintenance Services. CSR will ensure that all equipment supported by Westcon will have maintenance and support services agreements provided by the applicable original equipment manufacturer (OEM). If such OEM support services are not in place, CSR acknowledges and agrees that CSRs and End- Users will only receive the applicable OEM warranty, and that CSRs and End- Users will only be able to receive hardware or software technical support, software upgrades, or replacement hardware from the OEM at the then-current OEM rates and minimum time periods. 16. Deal Registration. Westcon agrees to provide an End-User Deal Registration Program, the terms of which are located at <link is being established with the guidelines for Deal Registration>, as an incentive to CSR to register potential opportunities with Westcon. 17. Equipment Use. CSR shall ensure that its End-User s use of the Equipment will at all times comply with all applicable laws, regulations and instructions whether, written, oral or electronic. Westcon reserves the right to terminate or suspend any applicable MOU, SOW or PCR of Service if Westcon determines that such Equipment does not conform to the requirements set forth in this Agreement or if either Party receives notice from a third party that the use of the Equipment may violate any law, regulation and/or intellectual property right of such third party. 18. Ownership Rights and Restrictions. All hardware and software tools developed by and/or supplied by Westcon and the White-label Provider(s) shall remain the property of Westcon or the White-label Provider(s), respectively. Westcon and the White-label Provider(s) retain all ownership and intellectual property rights in pre-existing technology, information and know-how that may be employed in providing Services and retains the right to use, disclose, reproduce, sublicense, modify, prepare derivative works from, perform and exploit its

6 knowledge experience and know-how, including processes, ideas and techniques that may be developed or improved by Westcon and/or the Whitelabel Provider(s) in the course of providing or performing Services under this Agreement. 19. Cooperation. CSR agrees that where participation of its own staff is necessary for Services to be performed, the CSR will assign staff that possesses the appropriate skills, experience and authority for the tasks assigned to them and will be available to participate, as needed, under this Agreement. CSR agrees, at a minimum, to assign a project manger ( PM ) during the transition phase (described in the specific MOU, SOW or PCR) and a service delivery manager ( SDM ) (CSR interface to the End-User) during the Services Coverage Term. 20. Exclusivity. CSR agrees that upon executing this Agreement, Westcon shall be the exclusive provider of all non-csr delivered Managed Services and Services of CSR until the end of the Coverage Term. CSR further agrees that, during the Coverage Term, it shall not permit any of its respective subsidiaries or affiliates, and will cause its respective officers, directors, employees, agents and representatives not to, at any time directly or indirectly, (a) solicit, initiate or encourage offers from any other providers, other than Westcon, relating to Managed Services and Services; (b) participate in any negotiations regarding Managed Services and Services with any other providers; and (c) purchase Managed Services or Services from any other provider, without the prior written consent of Westcon. Exclusivity in this Section 20 is limited to those Managed Services and Services which are offered by Weston during the Coverage Term. BY CLICKING THE I HAVE READ AND ACCEPT THE TERMS OF AGREEMENT CHECKBOX DISPLAYED BELOW ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE REQUISITE AUTHORITY TO BIND SUCH ENTITY TO THIS SERVICES ADDENDUM IN WHICH CASE THE TERMS CSR, YOU, OR YOUR SHALL REFER TO SUCH COMPANY OR LEGAL ENTITY. IF YOU DO NOT HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT CLICK THE I HAVE READ AND ACCEPT THE TERMS OF AGREEMENT CHECKBOX AND DO NOT PURCHASE, SELL OR USE MANAGED SERVICES OR SERVICES UNDER ANY CIRCUMSTANCES.