Fill and Sign the 14 Form Telecommunications Service Agreement

-1 § 4.14 Form: Telecommunications Service Agreement AGREEMENT made this _________________________, by and between Telecommunications Service Provider ("Maintainor") and Customer. In consideration of the undertakings, covenants and agreements hereinafter put forth, the parties agree as follows: 1. Service Plan 1.1 Covered Equipment Maintainor agrees to maintain the equipment and software (the "Equipment") listed from time to time on the Schedules hereto comprising Customer's telecommunications system (the "System") and provide the services indicated from time to time on the Schedules attached hereto. 1.2 Service Personnel Each service technician used to maintain Customer's Equipment or provide services shall be a qualified Maintainor employee and shall have at least five (5) years experience with installing and maintaining telephone equipment. Service technicians unfamiliar with Customer's telephone equipment plant will crosstrain at Customer's site at Maintainor's cost for a period mutually agreeable to Customer and Maintainor, but which shall be no longer than five (5) days. In the event Customer is not satisfied with any service technician provided by Maintainor for any reasonable cause, Maintainor agrees to replace said technician upon receipt of written request stating the reason for the dissatisfaction. 1.3 Maintenance Response Obligations Maintainor shall assign a dedicated on-site technician (i.e., Customer shall be the technician's only account) during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. Such on-site technician shall provide maintenance service, without regard to the nature (i.e., emergency or routine) of the service requested, by responding immediately to a service request and rendering continuous effort to remedy the failure or defect. 1.4 Additional Maintenance Accessibility -2 In addition, Maintainor agrees that it will have a 24 hour maintenance call answering service available for the Customer's benefit. Maintainor's response to a service call received outside of the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday shall be as set forth in Section 8.2. 1.5 Software Updates Maintainor shall provide and install at its prevailing rates, any updates to the software for the Equipment, which Maintainor makes generally available. Such software shall be subject to acceptance testing as set forth herein. 2. Service Fee 2.1 Agreement Fee Customer agrees to pay the service fee for maintenance of Equipment as set forth on the Schedule. Payments shall be invoiced quarterly in advance and payment made by Customer thirty (30) days after the invoice date. Payments for other services shall be invoiced as agreed in the applicable statement of work. 2.2 Change in Equipment Any additions or deletions of Equipment on the Schedules will be reflected and adjusted pro-rata on the following quarter's billing, based on the rates agreed upon by Customer and Maintainor. 3. Term and Termination The term of this Agreement shall be for a period of one (1) year from the date of execution hereof and thereafter shall be automatically renewed for successive one year periods thereafter upon the same terms and conditions contained herein unless terminated by Customer on sixty (60) days notice prior to such renewal date or by Maintainor on sixty (60) days notice prior to any renewal data after the fourth renewal. Maintainor shall have the right to increase the service fees due to Maintainor for a renewal period by the amount of the last annual increase in union wages for its prevailing labor contract, but not to exceed 6% of the prior years fees. At least ninety (90) calendar days prior to the expiration of any annual period, Maintainor shall provide written notice of the impending expiration and any modifications in service rates for any succeeding year. -3 4. Periodic Review Periodically, the Equipment will be reviewed by Maintainor and adjustments made for expansion or reductions on an as-needed basis. Additions to or changes in the Equipment requested or required by Customer will be subject to a change in service fees agreed upon by Customer and Maintainor. 5. Exclusion 5.1 Negligence Service in connection with maintenance or repair of the Equipment caused by negligence or abuse (other than of Maintainor, its employees and agents), unexplained loss, connection to foreign power, fire, flood, wind, lightning, act of God or public enemy, or improper wiring, installation, unauthorized repair or unauthorized alteration of the Equipment, if the foregoing are by anyone other than Maintainor, or software changes or attempted software changes in the System by persons unauthorized by Maintainor, is excluded from Maintainor's obligation under this Agreement. If requested by Customer, repairs necessitated by any of the above excepted causes shall be performed by Maintainor for Customer. Customer agrees to pay for labor, replacement parts, materials and other expenses necessary for any such repairs at Maintainor's then prevailing rates for similar services and materials in the same area. 5.2 Climatic Condition The Customer is responsible for maintaining a suitable climatic condition for the equipment room housing portions of the System. Suitable climatic conditions shall include, but not be limited to, the provision of adequate electrical power, air conditioning and humidity control and other environmental requirements contained in the manufacturer's specifications. Repairs required as a result of any of the foregoing shall be made by Maintainor, upon request from Customer, at Maintainor's then current time and material rates. 6. Force Majeure If the performance by either party of any part of this Agreement is prevented, hindered, delayed, or otherwise made impractical by reason of any flood, riot, fire, strike, explosion, war or any other reasonable cause beyond the control of either party, both parties shall be excused -4 from such performance to the extent that it is prevented, hindered, or delayed by such causes. Upon the occurrence of any such events, either party shall use its best efforts to notify the other of the nature and extent of such circumstances and use best efforts to continue performance notwithstanding such cause.7. Access Customer agrees to permit and arrange full access to Maintainor's employees, subject to Customer's normal security procedures, to perform its services and will make available a reasonable amount of secure space for storage by Maintainor of such repair or maintenance parts as it deems necessary. 8. Obligations 8.1 Service Hours Maintainor shall respond to Equipment failures during the hours specified in Sections 1.3 and 1.4. 8.2 Notice Customer shall notify Maintainor in the event of a failure of any unit of Equipment, and Maintainor shall provide maintenance service therefor. Maintainor agrees to have maintenance personnel on-site during the hours other than 8:00 a.m. to 5:00 p.m. Monday through Friday, after receipt of said notice as follows: A. In the event of an emergency (as determined by Customer), Customer shall so notify Maintainor of the failure and Maintainor agrees to have maintenance personnel on site within two (2) hours after receipt of said notice. B. Service shall be provided on a "next business day" basis for all other interruptions of service. C. In the event Customer declares an emergency and Maintainor responds as set forth in A., and the malfunction is not an emergency as defined herein, Customer shall pay Maintainor's standard rates for such response. An "emergency" is defined as a failure having one or more of the following characteristics (1) any attendant console cannot place or receive calls; (2) a minimum of ten percent (10%) of all telephone or data ports cannot place or -5 receive calls; or (3) a minimum of ten percent (10%) of all trunks are inoperative. D. In the event that Maintainor fails to meet the maintenance standards set forth herein, for every hour the Equipment is inoperable in excess of the time between notification by Customer and the deadlines set out in Sections A. and B. above, Customer shall receive, in addition to any other remedies Customer may be entitled to hereunder, a credit of $____ to be applied to future maintenance invoices hereunder, such credit not to exceed $____ for each failure to so respond. 9. Equipment 9.1 Warranties Maintainor warrants that it will provide preventive and remedial maintenance for the Equipment so as to meet the standards set forth herein. The Equipment will be maintained under these standards: (a) new manufacturer's parts or new parts of equal quality will be used; (b) the Equipment will be maintained so as to be free from defects in material and workmanship, meet the manufacturers specifications therefor, and the warranties therefor set forth in any Purchase Agreement between Maintainor and Customer therefor; (c) all maintenance work will be done by qualified personnel as set forth in Section 1.2; (d) the Equipment will be inspected and adjusted periodically so as to meet these standards. Maintainor further warrants that: (a) each of its employees assigned to perform services under any Schedule shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be performed in accordance with the applicable Schedule and so as to maintain the integrity of Customer's System; (b) Customer shall receive free, good and clear title to all materials, deliverables and products developed under this Agreement (except as set forth in Section 9.3); (c) each and every deliverable, including software deliverables, contemplated by a Schedule shall conform to the specifications for same as mutually agreed to in writing by Customer and Maintainor and shall meet the functional, performance and reliability requirements of Customer as set forth on the applicable Schedule; (d) Maintainor will, at no charge to Customer, furnish such materials and services as shall be necessary to correct any defects in the operation of the Equipment to maintain the Equipment in good working order in accordance with the specifications and functional, performance and reliability requirements for same. In the event that the Equipment does not meet the warranties -6 set forth in this agreement, Maintainor shall provide at no charge, the necessary equipment, software or services required to attain the warranted levels or standards. If a unit of Equipment fails three times in any thirty (30) day period for one (1) hour or more, or for two (2) business days, for each such failure not due to external causes, Customer has the option to request replacement of such unit as soon as reasonably possible with comparable equipment or software of capacity and performance equal to or greater than the replaced unit. If the frequency and/or duration of a specific malfunction, defect, failure or nonconformity with specifications seriously impacts Customer's normal business operations, Customer may request, and Maintainor shall arrange, at no charge to Customer, for a trained factory engineering specialist to visit the site in order to assist in resolving such malfunctions, and to develop a plan of action to prevent their recurrence.9.2 Parts Availability Maintainor warrants, for a period of ten (10) years from execution hereof, to supply original manufacturer replacement parts for the Equipment listed in the Schedules. 9.3 License Unless stated otherwise on a Schedule, Maintainor grants Customer a non-exclusive license for as long as Customer uses the System to operate and maintain any software (including related documentation) provided hereunder solely to maintain and operate the System, provided Customer (i) does not allow any aspect of the software to be disclosed to a third party without Maintainor's written consent and makes reasonable efforts such that its employees are aware of this obligation; (ii) does not copy any part of the software (except for back up copies) without Maintainor's consent and does not attempt to develop any source code from the software, and (iii) returns to Maintainor or erases or destroys any software on any media being recycled or discarded and so certifies to Maintainor. Maintainor warrants it has the right to grant this license. Customer may only transfer the right to use the software to any end user who subsequently acquires the right to use the System, agrees to be bound by the terms of this license and agrees to pay any applicable fee. 10. Default -7 If Customer (1) fails to pay the amount due hereunder, when due, or, (2) breaches this Agreement, Maintainor may upon written notice to Customer (a) discontinue and refuse to service the Equipment and cancel this Agreement, or (b) furnish service on a time and materials basis, C.O.D. This remedy shall be in addition to any other remedies available to Maintainor in law or equity. 11. Liabilities WITH THE EXCEPTION OF THE WARRANTIES SET FORTH IN HEREIN OR ON A SCHEDULE HERETO, MAINTAINOR DOES NOT WARRANT THE EQUIPMENT OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS. EXCEPT FOR ITS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 14, MAINTAINOR WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CUSTOMER'S USE OF OR INABILITY TO USE THE EQUIPMENT EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT. 12. Indemnity; Insurance12.1 Indemnity Maintainor agrees to indemnify and save Customer, its officers, directors, employees, agents and representatives harmless from and against all liabilities, claims, costs, damages and expenses (including attorneys' fees) for personal injuries, death or property damage (including theft) to the extent arising or resulting from the negligence or intentional act or omission of Maintainor, its subcontractors, and the employees, agents and representatives of Maintainor and its subcontractors. Maintainor shall defend, indemnify, and hold Customer, its officers, directors, employees, agents and representatives harmless, at Maintainor's expense, against any claims, actions or suits brought against Customer based upon a claim of (1) any infringement of any patent, copyright or trade secret arising out of use of installation of any equipment, software or services furnished to Customer hereunder, or out of performance under this Agreement; or (2) against any infringement of any trademark or trade name used on the equipment or software which trademark or trade name is the property of the manufacturer. Maintainor shall pay all costs, damages and expenses -8 (including reasonable attorney's fees) in any such suit, provided Maintainor is notified promptly in writing of the suit, and Customer at Maintainor's request and expense is available to assist in the defense. Should any equipment, software or services furnished to Customer become the subject of such a claim, Maintainor shall, at its expense and option: (1) procure for Customer the right to continue uninterrupted Customer's use of the affected equipment, software or services; or (2) replace or modify the same so that they become noninfringing. If (1) or (2) are, in good faith, unavailable to Maintainor, Maintainor shall refund to Customer the full purchase price of the affected equipment, software and services related to the installation thereof and Customer shall return the equipment or software to Maintainor.12.2 Insurance Maintainor at its sole cost and expense will procure and maintain insurance policies from a New York State licensed carrier (or other such carrier or carriers as may be expressly approved in writing by Customer) with the following minimum limits and coverage: 1. Comprehensive general liability insurance for a limit of $1,000,000 each occurrence and $10,000,000 in the aggregate, including but not limited to coverage for bodily injury and property damage. 2. Statutory worker's compensation and employer's liability insurance covering all Maintainor employees associated with this Agreement. 3. Comprehensive automobile liability insurance including non- ownership and hired car coverage as well as owned vehicles to a single limit of $1,000,000 number of attendees. All insurance is to be on an occurrence basis or if on a claims made basis will cover all claims arising out of occurrences taking place during the term of this Agreement. These minimum limits and coverage are to be noted on certificate(s) of insurance naming Customer as an additional insured and delivered to Customer thirty (30) days prior to the commencement of performance pursuant to this Agreement. The certificates of insurance should also state specifically that the indemnity contained in this Agreement is covered. The insurer will give Customer thirty (30) days prior written notice of any change in or cancellation of such insurance. 13. Confidentiality and Non-Disclosure13.1 Confidentiality -9 Maintainor acknowledges that Customer, its subsidiaries and affiliated companies are the owners of valuable trade secrets, and other confidential information and license same from others. Maintainor further acknowledges that the services which Customer, its subsidiaries and/or affiliated companies performs for clients are confidential; that to enable Customer, its subsidiaries and/or affiliated companies to perform these services, its clients furnish confidential information concerning their business affairs, finances, properties, methods of operation and other data; that the good will of Customer, its subsidiaries and/or affiliated companies depends, among other things, upon its keeping such services and information confidential and that unauthorized disclosure of the same would irreparably damage Customer, its subsidiaries and/or affiliated companies; and that by reason of its duties hereunder, Maintainor may come into possession of information concerning such services or information furnished by clients, even though Maintainor does not itself take any direct part in or furnish the services performed for those clients. All such information owned by or concerning clients of Customer, its subsidiaries or affiliated companies and services rendered by Customer, its subsidiaries or affiliated companies to such client, including any information provided to or developed by Maintainor in the performance of this Agreement, is hereinafter collectively referred to as "Confidential Information". 13.2 Non-Disclosure Maintainor agrees that, except as directed by Customer, Maintainor, its subcontractors, and the employees, agents, representatives of Maintainor and its subcontractors will not at any time during or after the term of this Agreement disclose any Confidential Information to any person, or permit any person to examine or make complies of any reports or documents prepared by Maintainor or that come into Maintainor's possession or under Maintainor's control by reason of Maintainor's services hereunder, or use such Confidential Information for purposes other than as contemplated by this Agreement and that upon termination of this Agreement, Maintainor will turn over to Customer all documents, papers and other matter in Maintainor's possession or under Maintainor's control that contain or relate to such Confidential Information, including all materials and deliverables, such as working papers, reports and data, provided to, developed or prepared by Maintainor hereunder. 14. Miscellaneous -10 14.1 Governing Law This Agreement shall be governed and construed in accordance with the Laws of the State of New York. 14.2 Conflict of Law If any provision of this Agreement is in conflict with any statute or rule of law of any state of territory wherein it may be sought to be enforced, then such provision shall be deemed null and void to the extent that they may conflict therewith, but without invalidating the remaining provisions hereof and the parties agree to substitute for the provision deemed null and void, a new provision which closely parallels the economic effect and intent of the voided provision. 14.3 Entire Agreement This Agreement constitutes the entire Agreement between the parties, with respect to the subject matter contained herein, and no modification shall be valid unless made in writing, referring to this Agreement, and executed by Maintainor and Customer. 14.4 Maintainor Personnel Maintainor, in performance of any work under this Agreement, is acting as an independent contractor and shall have the exclusive control of the manner and means of performing the work. Personnel supplied by Maintainor hereunder are not Customer's employees, agents or representatives, and Maintainor assumes full responsibility for their acts. 14.5 Work Rules Unless otherwise agreed to by the parties, Maintainor's employees, agents or representatives shall observe the working hours, working rules, holiday schedules and policies of Customer while working on Customer's premises. 14.6 Assignment This Agreement shall be binding upon the parties' respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void, except that Customer may assign this -11 agreement, or any of its rights or obligations hereunder, upon written notice to Maintainor to any of its subsidiaries or affiliated companies, without the consent of Maintainor. Furthermore, no work to be performed on behalf of Maintainor hereunder shall be subcontracted to or performed on behalf of Maintainor by any third party, except upon written permission of Customer. Maintainor agrees that any assignment hereunder shall not relieve Maintainor of its obligations hereunder.14.7 Notices Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested or by confirmed facsimile transmission to the party receiving such communication at the address specified below or such other address as either party may in the future specify to the other party. 14.8 Waiver A failure of either party to exercise any right provided herein, shall not be deemed to be a waiver of any right hereunder. 14.9 Most Favored Customer Maintainor agrees to treat Customer as its most favored customer. Maintainor represents that all of the provisions of this Agreement and any Schedule are comparable to or better than the equivalent provisions being offered by Maintainor to any of its similar customers with similar systems. If Maintainor offers more favorable provisions to any other similar customer during the terms of their contract periods than under this Agreement or Schedule, such provisions shall be made available to Customer. 14.10 Compliance Maintainor's employees, agents and representatives shall comply with all applicable U.S., state and local laws and regulations and union work rules in its performance of its obligations hereunder. 14.11 Non-solicitation Unless otherwise mutually agreed to by the parties in writing, Customer agrees not to hire or solicit the employment of any personnel of the other party directly or indirectly associated with Maintainor's work effort under any term or provision of this Agreement and for a period of six (6) consecutive months thereafter. -12 14.12 Remedies The rights and remedies of both parties as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date first set forth above. TELECOMMUNICATIONS CUSTOMER SERVICE PROVIDER By: ___________________ By: ____________________ Title: __________________ Title: ______________ _____