Fill and Sign the Cp Contract Sample 3 1 13 Virginia Air Distributors Form

-1- § 4.13 Form: Equipment Maintenance Agreement with a Systems Integrator Customer Name: ______________________________________ Address: ____________________________________________ City: ____________________ State: _________ Zip: _________ Contact: _____________________ Telephone ______________ Site: _______________________________________________ Effective Date: _______________________________________ SERVICE: Base Annual Equipment Maintenance (See Attached Riders) Charge Other Services: ____________________ $ ____________ EQUIPMENT: (See Attached Riders) The parties hereto have executed this Agreement, including the terms and conditions attached hereto, as of the effective date set forth above. Customer Maintainor By: _____________________ By: _____________________ Title: ____________________ Title: ____________________ Date: ____________________ Date: ____________________ Equipment Maintenance Agreement Rider ____ EQUIPMENT: ____________________________________________________ UNIT QTY. MODEL NO. DESCRIPTION PRICE FEE ____________________________________________________ _____ ___________ _____________ _______ ______ _____ ___________ _____________ _______ ______ _____ ___________ _____________ _______ ______ -1- TOTAL FEE _______ EFFECTIVE DATE:____________________________________ SPECIAL TERMS: ____________________________________ __________________________________________________________ __________________________________________________________ ________________________________________ Customer Maintainor By: _______________________ By: _____________________ Title: ______________________ Title: ____________________ Date: ______________________ Date: ____________________ Equipment Maintenance Agreement Terms & Conditions Agreement made this ______ day of ____________ by and between Maintainor and Customer. 1. Equipment Covered The equipment for which maintenance is offered under this Agreement is the equipment and cabling for the local area network listed on the first page hereof or on the Riders hereto (the "Equipment"). 2. Maintainor Support2.1 Services Provided Maintainor agrees, for the term of this Agreement, to provide maintenance services on inoperable Equipment which are necessary to return the Equipment to good operating condition. All such maintenance shall be performed during the hours of 9:00 A.M. to 5:00 P.M. Monday through Friday, excluding Maintainor holidays (the "Principal Period of Maintenance"). Except as set forth on a Rider hereto, Maintainor will at no additional charge, provide new or equivalent used replacement parts for the Equipment on an exchange basis required as a result of normal use. Parts removed become the property of Maintainor. Service or parts required for the Equipment as a result of other than normal use (e.g., accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by Maintainor) are not included hereunder and shall be subject to Maintainor's personnel availability and charged at Maintainor's -1- prevailing rates on the date such service or repairs are performed. Service requested by Customer to be performed at times other than during the Principal Period of Maintenance shall be subject to Maintainor's personnel availability and charged to Customer at Maintainor's overtime rate on the date such service is performed. Maintainor will also provide assistance by telephone to answer urgent and immediate questions during the Principal Period of Maintenance. When in Maintainor's opinion a factory refurbishment is necessary because normal repair and parts replacement cannot keep a unit of Equipment in satisfactory operating condition, Maintainor will submit a cost estimate of needed repairs which will be in addition to the charges hereunder. If Customer does not authorize such work Maintainor may cancel or refuse to renew this Agreement for the unit of Equipment. All services to be performed hereunder may be performed by Maintainor or by third parties designated by Maintainor.2.2 Service Response Time Unless otherwise specified, Maintainor agrees to respond to any request for service either (i) before noon of the next working day after the request, to repair a network fileserver, any single user (stand-alone) computer, or a printer, if the site has only one such printer; or (ii) within two (2) working days after the request, to repair a workstation connected to a network, a tape backup unit, or one of several printers. 2.3 Force Majeure Maintainor shall not be liable to Customer for any delay or failure by Maintainor to perform its obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of Maintainor. 2.4 Excluded Services The maintenance service to be provided by Maintainor under this Agreement shall not include the following: (a) Performing services in connection with the use of the Equipment in conjunction with other equipment or software, the relocation of the Equipment, the rewiring or rerouting of cables, or the addition or removal of accessories, attachments, features, or other devices; (b) Electrical work external to the Equipment; -1- (c) Maintenance of accessories, attachments, machines, features, or devices other than the Equipment; (d) maintenance of Equipment from which the original identification marks have been removed or altered; or (e) Repair of damage resulting from (i) accident, transportation, neglect, or misuse by Customer, Customer's failure to provide the necessary facilities or specified operating supplies, or failure by Customer to meet site specifications applicable to the Equipment; (ii) causes external to the Equipment such as, but not limited to, unusual physical stress, failure or fluctuation of electrical power, air conditioning or humidity control; or (iii) any cause other than ordinary use (e.g., accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by Maintainor); (f) Furnishing expendable or consumable supplies, equipment or accessories or painting or refinishing the Equipment. (g) Maintenance of the Equipment or portions thereof which Customer has modified or repaired as set forth in Section 3 hereof or portions of the Equipment affected by such Customer modifications or repairs; (h) Reconditioning required when repair and parts replacement cannot keep the Equipment in operating condition; (i) Back-up or restoration of Customer data, information or computer programs, whether or not used in conjunction with the Equipment; (j) Except with respect to computer software covered by a separate software maintenance agreement, any computer software included as part of the Equipment shall not be the responsibility of Maintainor, except that Maintainor agrees to use reasonable efforts to coordinate any material problems in such software with the manufacturer or distributor of the Equipment to alleviate the problem; and (k) Specific requests by Customer for maintenance outside the scope of this Agreement. 3. Customer Modifications and Repairs3.1 Customer Modifications Customer shall inform Maintainor in writing of any modifications to be made by Customer or any third party to the Equipment. Maintainor shall not be responsible for maintaining Customer or third party -1- modified portions of the Equipment or portions of the Equipment affected by such modified portions.3.2 Customer Repairs Maintenance or repairs requested due to Customer's unauthorized repairs or maintenance shall be subject to Maintainor's personnel availability and billed at Maintainor's standard time and materials charges. In addition, all warranties express, implied or statutory are deemed revoked by Maintainor and waived by Customer until such repair or maintenance has been performed by Maintainor and the Equipment has been certified by Maintainor for performance. 4. Customer Support Customer agrees to use the Equipment in accordance with the operating manuals for the Equipment. Customer agrees to provide Maintainor with access to its facilities and the necessary equipment and documentation for Maintainor to perform maintenance, and with sufficient support and test time so that Maintainor is able to duplicate any problem reported, to certify that the problem is with the Equipment, to correct the problem and to certify to Customer that the problem has been corrected. Customer shall be solely responsible for its data, information and programs stored on the Equipment including the making of timely and accurate back-up copies. 5. Term This Agreement shall commence on the Effective Date and shall continue until the next December 31. Services pursuant to each rider hereof shall commence on the Effective Date set forth on such Rider and shall continue to the next December 31 (the First Term"). Thereafter, this Agreement shall be automatically renewed on January 1 of each year for a twelve (12) month period without further notice, unless this Agreement is terminated in accordance with the provisions of Section 11. Maintenance service under this Agreement shall continue (i) only so long as Customer maintains the current installed version of the Equipment, or (ii) until terminated by either party in accordance with the terms of this Agreement. 6. Price and Payment6.1 Maintenance Fee -1- Customer shall pay to Maintainor the maintenance fee for the Equipment as designated on the Riders hereto and the fee for such other services as indicated on the face hereof or on the Rider hereto. For the First Term of each Rider hereto, the maintenance fee for such rider shall be prorated. The prorated payment shall be calculated by taking the number of months or portions thereof in the First Term for such Rider and multiplying by 1/12 of the Total Fee set forth on that Rider. Thereafter, the maintenance fee for such rider shall be the Total Fee set forth on the Rider. The maintenance fee shall be payable annually in advance. After the First Term Maintainor may change the maintenance fee from time to time in accordance with its standard maintenance charges provided that Maintainor shall have given Customer sixty (60) days written notice prior to the annual term for which such revised maintenance fee shall apply. 6.2 Additional Charges With respect to (i) maintenance of the Equipment which Maintainor provides in response to a request by Customer for maintenance and which Maintainor is not obligated to provide under this Agreement, or (ii) corrections for difficulties or defects traceable to Customer's unauthorized acts, errors or system changes, Customer shall pay Maintainor for all efforts toward such services, corrections or remedies at Maintainor's then current standard time and materials charges. With respect to any repairs which are excluded from this Agreement and which are required for the Equipment to be in proper working order, Maintainor will submit a description of the work which is necessary to restore the Equipment to proper working order and the charges therefor, and will request permission to restore the Equipment to proper working order. If Maintainor is not granted the permission to perform such restoration at Customer's expense, Maintainor shall have the right to terminate all its obligations under this Agreement with respect to such damaged Equipment. 6.3 Invoices All invoices including but not limited to invoices for maintenance fees, time and materials charges, and expenses, are due fifteen (15) calendar days after receipt of invoice. If Customer fails to pay any amount due within fifteen (15) days from the receipt of the invoice, late charges of 1½%, or the maximum interest rate allowed by law, per month shall also become payable by Customer to Maintainor. In addition, failure of Customer to fully pay any invoiced -1- amount within forty-five (45) days after the receipt of the invoice shall be deemed a material breach of this Agreement and shall be sufficient cause for immediate termination hereof. If Customer fails to pay, when due, any amount payable hereunder or fails to fully perform its obligations hereunder, Customer agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by Maintainor in enforcing this Agreement including but not limited to all expenses of any legal proceeding related thereto and all reasonable attorneys' fees incurred in connection therewith. No failure by Maintainor to request any such payment or to demand any such performance or performance of any Customer obligation hereunder shall be deemed a waiver by Maintainor of Customer's obligations hereunder or a waiver of Maintainor's right to terminate this Agreement.6.4 Taxes Customer shall, in addition to the payments required hereunder, pay, or reimburse Maintainor for all sales, use, transfer or other taxes, and all duties, whether national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, taxes on net income which may be levied against Maintainor. Maintainor may add such taxes to the invoices submitted to Customer hereunder. 7. Travel Expenses The maintenance fee payable hereunder includes all travel and related charges with the exception of lodging, if required with respect to maintenance services provided for the annual maintenance fee hereunder during the Principal Period of Maintenance. All travel expenses for all services billed in addition to the annual maintenance fee shall be charged to Customer as incurred. 8. Warranty MAINTAINOR'S SOLE OBLIGATION UNDER THIS AGREEMENT WILL BE TO PROVIDE MAINTENANCE AS DE- SCRIBED IN SECTION 2 ABOVE. ALL MAINTENANCE SER- VICES ARE PROVIDED "AS IS". MAINTAINOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. -1- 9. Limitation of Liability Maintainor shall not be responsible to customer for loss of use of the equipment or for any other liabilities arising from its performance of maintenance hereunder whether such performance is by Maintainor or third parties designated by Maintainor. Maintainor shall have no liability or obligation under this Agreement with respect to Customer data, information or computer programs, whether or not stored on the Equipment. MAINTAINOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS OR THE OBLIGATIONS OF ITS AGENTS OR DESIGNEES UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF MAINTAINOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Maintainor's liability for any reason and upon any cause of action whatsoever exceed the lesser of (i) fifty percent (50%) of the then current annual maintenance fee paid hereunder or (ii) that portion of the amounts paid hereunder which is attributable to the particular unit of equipment directly involved in the liability claim. 10. Indemnity Customer shall indemnify and hold harmless Maintainor from any loss, cost or expense, including attorneys' fees, to persons or property, other than the Equipment, suffered or incurred in connection with any claim, suit or proceeding brought against Maintainor to the extent that it arises out of this Agreement or Customer's possession or use of the Equipment and services provided therefor. 11. Termination 11.1 Continuous Maintenance This Agreement is renewable in accordance with the terms of Section 5, "Term", and shall remain in effect only so long as Customer continuously contracts for or receives maintenance from Maintainor for all of the Equipment covered by this Agreement from the time of acceptance of such Equipment. If Customer discontinues such maintenance under this Agreement as to any portion of such Equipment, Maintainor may immediately terminate this entire Agreement. 11.2 Termination -1- In addition to its rights as set forth elsewhere in this Agreement, Maintainor shall have the right to terminate this Agreement upon five (5) days written notice to Customer upon: (a) the violation or breach by Customer, its officers or employees of any provision of this Agreement, including, but not limited to, payment; (b) the termination of the business of Customer; (c) the voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law with respect to Customer; or (d) Customer's becoming insolvent or making any assignment for the benefit of creditors. 11.3 Notice After the first twelve (12) months of maintenance service under this Agreement, this Agreement may be terminated by either party upon a minimum of thirty (30) days written notice prior to the expiration of any annual term. No refund will be due if Customer cancels maintenance or if Maintainor terminates this Agreement pursuant to Section 11.2 above. 12. General 12.1 Entire Agreement This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties with respect to the subject matter hereof and supersedes and merges any prior understandings or agreements, oral or written. 12.2 Assignment This Agreement shall be binding upon the parties and their respective successors and assignees. Customer may not assign this Agreement, or any of its rights, duties or obligations hereunder, in whole or in part, to any person or entity without the prior written consent of Maintainor. 12.3 No Waiver The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any other or further right hereunder. 12.4 Severability -1- If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. 12.5 Modifications This Agreement may not be modified or altered except by written instrument duly executed by both parties, and except that Maintainor may change the terms and conditions of this Agreement upon written notice to Customer sixty (60) days prior to the first day of any renewal period. 12.6 Governing Law This Agreement and performance hereunder shall be governed by the laws of the State of New York, and Customer hereby consents to the exclusive jurisdiction of the courts of the State of New York or the Federal courts sitting in New York County and waives any objection to such venue. 12.7 Limitation of Action No action regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has arisen. 12.8 Notice Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested. All notices shall be addressed to the parties at their respective addresses indicated herein and on the face hereof. 12.9 Remedies The rights and remedies of Maintainor 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.