Fill and Sign the Computer Networking Services Agreement Form

- 1 - COMPUTER NETWORKING SERVICES AGREEMENT This AGREEMENT (the "Agreement") is made and entered into as of the day of, _________ (the "Effective Date") by and between _____________ , with a principal place of business at _____________________, _____________________ , _______________________, and with offices at ("Customer"). 1. SCOPE OF WORK _____________ hereby agrees to design, sell and provide, and Customer hereby agrees to purchase upon the terms and conditions set forth herein, an installed and usable Network syste m to meet Customer's needs for Customer’s business. _____________ will design, fabricate, provide, install and support said system and assume the responsibility of system integrator. _____________ shall assume responsibility for assuring that all elements of the system are integrated to permi t the uninterrupted processing of all necessary data to support Customer's business functions. Phase I of the project will include finalizing the design from detailed data provide d by Customer from which _____________ and Customer will determine all mutually acceptable performance parameters to be embodied in "Final Functional Specifications". Upon acceptance of the resulting Final Functional Specifications, a firm fixed price for the system will be determined as provided in Section 6 of this Agreement. Currently, Customer's Preliminary Functional Specifications are attache d on Exhibit A . The Final Functional Specifications shall be agreed to by the parties within twenty (20) days following the execution of this Agreement. Phase 2 of the project will consist of the fabrication, installation, testing, accept ance and support of the System. 2. THE SYSTEM _____________ agrees to supply to Customer the "Network System" which shall consist of the Computer Hardware and peripherals set forth in Exhibit B (Agreement for Sale of Data Processing Equipment) and Software, as hereinafter defined. The Network System shall meet all functional specifications detailed in the Preliminary and Final Functional Specifications.3. INSTALLATION SITE PREPARATION _____________ shall survey the Customer installation site located at (the "Installation Site") and shall specify all electrical, environmental or other engineering changes required for proper installation, maintenance and operation of the Network System. _____________ shall promptly provide Customer with written notice of such reasonable requirements as are acc eptable to Customer and shall review and approve all plans submitted by Customer, to ensure that the Installation Site's physical environment is compatible with the Network System's installation, mai ntenance and operation requirements. Customer shall be responsible for meeting the environmental requirem ents for the System at the Installation Site in accordance with the accepted plans. 4. COMPUTER HARDWARE4.1 The Sale of Computer Hardware _____________ shall sell to Customer all of the computers and information processing equipment listed in Exhibit B attached hereto (collectively, the "Computer Hardware"). _____________ - 2 - shall not make any substitute for the Computer Hardware of any other model, capacity or manufacturer without the prior written consent of Customer. 4.2 Delivery and Installation _____________ shall arrange for delivery of the Computer Hardware to the Installation Site in accordance with the Implementation Plan set forth in Exhibit C. Shipment of the Computer Hardware shall be F.O.B. Customer's receiving point at the Installation Site. _____________ shall bear the risk of loss or damage to the Computer Hardware while in transit to Customer's premises and the Installation Site. Customer shall bear all risk of loss or damage to the Computer Hardware after de livery to the Installation Site, unless such loss or damage is due to negligence or willful acts of _____________ , its employees, agents, representatives or subcontractors, or defects in the Computer Hardware. After delivery to the Installation Site, _____________ shall install the computer Hardware, as set forth in the Implementation Plan. 4.3 New Parts and Components _____________ covenants and represents that the Computer Hardware and all of its parts and components will be new and unused. 5. SOFTWARE 5.1 Software Modules The Software to be delivered hereunder shall be modular and each of the modules are i dentified and set forth in Exhibit D. 5.2 Custom Modifications / Configurations _____________ shall make certain modifications and configurations to the Software as necessary to achieve the Final Functional Specifications. The total charge for such m odifications shall be included in the System Price (as hereinafter defined). In the event the Software as m odified hereunder is accepted, then Customer shall be deemed the owner of such modifications. 6. COMPENSATION 6.1 The System Price The price for the System shall include the Computer Hardware and peripherals set forth in Exhibit B, and Software, all services and expenses necessary to configure or modify the Software to meet Customer's requirements, and all services and expenses necessary to install, test and train Customer's employees on the use of the System. The price for the System is $ and includes all of the elements set forth in Exhibits B and E (Hardware and Training). The price set forth herein shall become the firm fixed price for the development of the System ("System Price") upon Customer's acceptance of the Final Functional Specifications. During the implementation of the System, _____________ may recommend that Customer purchase additional Computer Hardware or Customer may determine that it does not require certain porti ons of the Computer Hardware. Upon mutual written agreement, the appropriate Exhibit / Schedule may be ame nded and substituted and the System Price will be changed accordingly. - 3 - 6.2 Payments Customer shall make payments to _____________ in accordance with the following Payment Schedule: (i) Upon the execution of this Agreement, the Customer shall pay a Down Payment in the amount of fifty (50%) of the total System Price; and (ii) Forty percent (40%) of the total Syst em Price is due upon the Final Acceptance date of the Network System. The Final Acceptance dat e shall be the date when _____________ can reasonably demonstrate that the Network System meets the Final Functional Specifications and has been delivered to Customer, or that date when the Customer is using the Network System in the operation of its business, whichever shall occur earlier; (iii) the re maining balance of the total System Price is due and payable thirty (30) days after the Final Acceptance date. 6.3 Subcontractors Nothing provided herein shall create any obligation on the part of Customer to pay or to see to the payment by _____________ of any monies to any subcontractor, _____________ or vendor, nor create any relationship in contract or otherwise, express or implied, between any such subcontractor, _____________ or vendor and Customer. 7. CHANGE PROCEDURES No change, modification, termination or discharge of this Agreement or any part hereof, in any form whatsoever, shall be valid or enforceable unless it is in writing and signed by both parties. _____________ , in developing the System, may make minor modifications to the Software and Final Functional Specifications if such minor modifications do not limit, diminish or affect the functional operation or use of the System or its output, or result in the System failing to comply wi th the Customer specifications contained in the Final Functional Specifications and this Agreement.8. SERVICES 8.1 Implementation Services _____________ shall provide installation, training, customization and conversion services as set forth in the Implementation Plan. These services will be undertaken by _____________ and will be included in the System Price. 8.2 Training _____________ shall provide training services in connection with the implementation of the System in accordance with the Training Schedule attached hereto as Exhibit E. The cost of training shall be included in the System Price. 8.3 Project Leaders; Personnel _____________ shall appoint a Project Leader to coordinate all activities, or any of its subcontractors' activities, in connection with the implementation of the System. The services of the Project Leader shall be included in the System Price. In the event that any em ployee of _____________ , or of any of its subcontractors, performing services hereunder is found to be unacceptable to Cust omer, Customer shall notify _____________ of such fact and _____________ shall immediately remove said employee or subcontractor from performing services for Customer and provide a qualified replacement. - 4 - 9. WARRANTIES 9.1 Warranty Period For purposes of this Agreement, "Warranty Period" shall mean the period which is ( ) month(s) from the date of the Final System Integration Acceptance. 9.2 System Warranties _____________ warrants that during the Warranty Period the System will meet the functional, performance, reliability and other business requirements and intended uses of Customer a s provided in the Final Functional Specifications and is fit for such intended uses. _____________ warrants to Customer that for the Warranty Period and for as long as there is an agreement for System ma intenance in effect between the parties, the system shall (i) be free from defects in material and workmanship and remain in good working order; and (ii) function in all respects in accordance with the Final Functi onal Specifications. 9.3 Remedies for Breach of System Warranties In the event that the System does not meet the warranties herein, _____________ shall provide, at no charge, the necessary software, hardware or services required to attain the level s or standards set forth in said warranties. 9.4 Disclaimer of Warranty THE WARRANTY SET FORTH IN PARAGRAPH 9.2 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY _____________ . _____________ EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER EXPRESS WARRANTIES AND ALL DUTIES, OBLIGATIONS AND WARRANTIES IMPLIED IN LAW, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. _____________ DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES OR THE SYSTEM WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OR USE OF THE SYSTEM, IF ANY, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SYSTEM, IF ANY, WILL BE CORRECTED. _____________ ’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF _____________ ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES AND THE SYSTEM. THE PARTIES AGREE THAT THE SYSTEM’S FAILURE TO PERFORM IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND/OR THE SYSTEM IS WITH THE CUSTOMER. _____________ MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY SOFTWARE. ANY SOFTWARE PROVIDED TO CUSTOMER BY _____________ IS EXPRESSLY PROVIDED UNDER THE TERMS AND CONDITIONS OF THE SOFTWARE VENDOR’S STANDARD SOFTWARE LICENSE. THE SYSTEM IS EXPRESSLY PROVIDED "AS IS." _____________ MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY EQUIPMENT OR HARDWARE. ANY EQUIPMENT OR HARDWARE - 5 - PROVIDED TO CUSTOMER BY _____________ IS EXPRESSLY PROVIDED UNDER THE TERMS OF HARDWARE OR THE EQUIPMENT VENDOR’S WARRANTY AGREEMENT, IF ANY.9.5. Limitation of Liability _____________ SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE AGGREGATE LIABILITY OF _____________ FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM, SHALL BE LIMITED TO THE MONIES PAID TO _____________ BY CUSTOMER FOR THE SYSTEM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF THE SERVICES HEREUNDER, CONSUMER FRAUD, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT. 10. CONFIDENTIALITY The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire information that is proprietary t o or confidential to the other party or third parties. The parties agree to hold such information in stric test confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such inform ation to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations hereunder or as otherwise agreed to herein, and to advise each of their employees, agents and representati ves of their obligations to keep such information confidential. All such confidential and proprietary information descri bed herein (including, but not limited to, business plans and data relating to each party, _____________ Proprieta ry Materials, or Customer Data) and any deliverable provided hereunder, in whatever form (incl uding, but not limited to Work Product) are hereinafter collectively referred to as "Confidentia l Information." The parties shall use reasonable efforts to assist each other in identifying and preventing a ny unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, the parti es shall use reasonable efforts to advise each other immediately in the event that either l earns or has reason to believe that any person or entity has violated or intends to violate the terms of this Agreem ent, and will reasonably cooperate in seeking injunctive relief against any such person or entity. 11. MOST FAVORED CUSTOMER . _____________ agrees to treat Customer as its most favored customer. _____________ represents that all of the prices, terms, warranties and benefits granted by _____________ he reunder are comparable to or better than the equivalent terms being offered by it to any prese nt customer of _____________ . - 6 - 12. TAXES. Unless imposition and payment thereof is being contested by Customer in good faith and by appropriate proceedings, Customer shall be responsible for all taxes, fees, assessments and ot her charges imposed by any federal, state, or local government or governmental agency resulting from this Agreement, including, without limitation privilege, excise, sales, use, occupati onal and other taxes or amounts in lieu thereof paid or payable by _____________ (other than any income, franchise, privilege or like taxes). 13. NON-SOLICITATION. Customer shall not solicit, induce, entice or otherwise hire for employment or for any ot her contractual purpose any employee or independent contractor provided to customer by _____________ . Customer agrees that any such solicitation, inducement, enticement or employme nt shall constitute a material breech of this Agreement and Customer agrees that it shall pay _____________ liqui dated damages in the amount of $25,000.00 for a violation of this non-solicitation clause. 14. GENERAL . 14.1 Force Majeure Neither party shall be liable to the other for any delay or failure to perform due to acts of God or causes beyond its reasonable control. Performance times shall be considered extended for a pe riod of time equivalent to the time lost because of any such delay. 14.2 Survival All provision of this Agreement relating to confidentiality, nondisclosure and indemnifica tion shall survive the termination of this Agreement. 14.3 No Waiver The waiver or failure of either party to exercise or enforce any fight in any respec t provided for herein shall not be deemed a waiver of any further fight hereunder. 14.4 Personnel Rules and Regulations _____________ ’s personnel will comply with Customer's work rules and security regulations while working at the Installation Site. 14.5 Independent Contractor In performance of this Agreement, _____________ is acting as an independent contractor. Personnel supplied by _____________ hereunder are not Customer's personnel or agents, and _____________ assumes full responsibility for their acts. _____________ shall be solely responsible for the payment of compensation of employees, agents, representatives and subcontractors of _____________ assigned to perform services hereunder. Customer shall not be responsible for payment of workers' compensation, disability benefits, unemployment insurance or for withholding income taxe s and social security for such individuals, but such responsibility shall be that of _____________ . - 7 - 14.6 Governing Law This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of _______________________. Any and all proceedings relating to the subject matter hereof shall be maintained in the courts of the State of _______________________ or the Fede ral District Courts in _______________________, which courts shall have exclusive jurisdiction for such purpose. 14.7 Enforceability If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. 14.8 Assignment This Agreement and the rights and duties of _____________ hereunder shall not be assigned or delegated by _____________ to any other person or entity without the prior written consent of Customer. This Agreement, or any or all of Customer's rights hereunder, may be assigned by Customer to a ny third party, transferee, successor, or assign of Customer, on notice to, but without the consent of, _____________ , and shall inure to the benefit of such third party, transferee, successor, or assign of Customer. 14.9 Entire Agreement Each party acknowledges that this Agreement is the complete and exclusive stat ement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject m atter of this Agreement. This Agreement may not be modified or altered except by a written instrument dul y executed by both parties. IN WITNESS WHEREOF , the parties hereto have signed this Agreement the date and year first written above by their duly authorized representatives. Accepted (signature) Accepted (signature) By: By: Title: Title: Date: Date: