1. SERVICE – ComRes, Inc. (Seller), agrees to sell, and Buyer agrees to buy, the equipment (the “Goods”) and services itemized on the Seller’s Service Sales Agreement
(a) Maintenance Services: Seller shall provide managed data services on the attached list of telephone system hardware, software and labor. This is a labor-only maintenance plan unless otherwise noted specifically in any executed sales order. Customer shall have selected one of several types of plans including Bronze, Silver or Gold.
(b) Response Time: Response times vary based on whether the request is during normal business hours (9X5) or Overtime/Holiday, as well as whether they are a request for repair, or work orders (changes). Seller shall always attempt to effect repairs or work orders remotely before dispatching an on-site technician. Seller shall respond according to the following schedule:
* Response times not guaranteed for Force Majeure (acts of God) – Response is prevented, delayed, or otherwise made impractical by reason of any hurricane, inclement weather, flood, riot, fire, strike, explosion, war, governmental action, or regulation, or any other similar cause beyond the reasonable control of Seller.
Major Repair Request – Service outage affecting more than 25% users or critical applications
Minor Request – Any request that is not classified as a major request
NBD – Next Business Day
(c) Exclusions: Exclusions from coverage are:
(1) Force Majeure (acts of God) – Seller shall not be responsible for meeting response times for any request that results from events such as hurricane, inclement weather, electrical damage, flood, riot, fire, strike, explosion, war, governmental action, or regulation, or any other similar cause beyond the reasonable control of Seller.
(2) Buyer’s account is more than 30 days in arrears, unless an invoice is contested in good faith
(3) Coverage for equipment or other items not specifically noted in the managed services agreement
(4) Cabling supplied by a third party.
(5) Failure by Buyer to provide Seller access to system to be serviced
(6) Equipment or software assurance, unless specifically noted in the managed services plan purchased
(7) On-site visits outside the ComRes local service area defined as 60 miles from ComRes office address
(8) On-site visits to any address other than the primary Customer address serviced by this agreement
2. SERVICE FEE
(a) Buyer agrees to pay a service fee agreed to in a separately executed ComRes Managed Services Agreement.
(b) The service fee does not include federal, state, or local taxes, which may be applicable and billed additionally.
(c) If Buyer does not make payments on account to Seller of any amount payable under ComRes’ payment terms, then in addition to all the remedies available to Seller at law or equity or under other provisions of this Agreement, Seller may collect interest on the sum then owing at the rate of 1.5% per month from the due date until payment by Buyer; and, without extending the term of this agreement, cease maintaining the equipment and cease performance of any other obligation undertaken in this agreement. ComRes payment terms are Net 30 from invoice date of all Work Orders and Installation Change Authorizations, payment in advance for monthly/annual maintenance agreements.
The term of this Agreement shall be defined in a separately executed ComRes Service Sales Agreement. Upon the end of the term of this agreement, this agreement shall automatically renew on an annual basis at ComRes prevailing month-to-month maintenance rates unless notified in writing by Buyer. In the event of an automatic renewal, Seller reserves the right to adjust service pricing to existing rates and to reflect any changes to the configuration of equipment covered.
3.1 Early Termination
3.1.1 If the customer moves outside the servicing area of a ComRes local office (considered to be within 60 miles of a ComRes office) or if the customer closes all offices served by this agreement, the customer shall be able to terminate any managed services agreement without penalty by notifying ComRes in writing and providing proof of the office re-location or closings.
3.1.2 In the event of early termination of a ComRes Complete Managed Data Services Agreement, the customer shall owe all past dues amounts and any associated collection costs if necessary. Additionally, ComRes shall charge an early termination fee equal to the difference between what the Buyer paid for the service based on the term of the agreement and what would have been paid for the service for the reduced term. For example, if the Buyer received free implementation and a 10% monthly discount for services base on a 3-year term agreement, but terminates the agreement after only 14 months, the Buyer shall be charged the difference in what discounts they received for the 3-year term versus what they would have received under a 1-year term agreement (e.g. ComRes would re-rate the payments to 0% discount based on a 1-year term and charge for any waived implementation fees).
(a) SELLER EXTENDS NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO BUYER FOR THE SERVICES PROVIDED BY THIS AGREEMENT.
(b) SELLER WILL NOT BE LIABLE TO BUYER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S USE (OR INABILITY TO USE), OR A THIRD PARTY’S UNAUTHORIZED USE, OF THE SYSTEM OR ITS COMPONENTS, EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT, OR FOR COMMERCIAL LOSS OF ANY KIND, REGARDLESS OF WHETHER SELLER OR ITS SUBCONTRACTORS HAD BEEN ADVISED OF SUCH POSSIBILITY.
(c) IN ALL SITUATIONS INVOLVING PERFORMANCE OR NONPERFORMANCE BY SELLER UNDER THIS AGREEMENT, BUYER’S SOLE AND EXCLUSIVE REMEDY IS (1) TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SELLER, AND (2) TO RECEIVE A PRO RATA REFUND OF ANY PRE-PAID MAINTENANCE SERVICE CHARGES, LESS ANY SUMS DUE AND OWING SELLER.
5. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
6. APPLICABLE LAW. This Contract shall be governed by the laws of the State of Florida and the parties agree that venue for any action arising from or based upon this agreement shall be brought in Broward County, Florida.
(a) If either party is in default of its obligations under this Agreement and such default continues for thirty (30) days after written notice is given by the party not in default, such non-defaulting party may (in addition to all other rights and remedies provided in this Agreement or by law) terminate this Agreement.
(b) Notwithstanding (a) above, if either party becomes insolvent, enters voluntary or involuntary bankruptcy, or takes any measures generally designed for the relief of debtors, then the other party may (in addition to all rights and remedies provided in this Agreement or by law) terminate this Agreement immediately without notice.
8. MAINTENANCE PROCEDURE CONTACTS
The following is a list of critical contacts for the Buyer to request service. It is the Buyer’s responsibility to provide the Seller with an updated list of Buyer’s key contacts including cell phone numbers, email addresses and a list of personnel authorized to request support.
* Any emergency requests for service or repair should be followed up with a call to ensure it was received.
9. DEFAULT. The occurrence of any of the following shall constitute a material default under this Contract – a) the failure to make a required payment when due, b) the failure of the Buyer or Seller to fulfill the obligations within this agreement.
10. REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may elect to terminate this Contract if the default is not cured within 10 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. If the Seller terminates this agreement for reason of default, the Seller maintains the right to demand immediate payment for money owed under any sales agreement or work order, including a) un-billed contractual progress payments and b) future monthly rental or maintenance billing owed under a sales agreement. The Buyer agrees to pay for a) interest on all late payments for money owed under all sales and work order agreements at the maximum rate allowed by law until paid and b) reasonable costs for collection and c) reasonable costs of attorneys’ fees and expenses of litigation that the Seller may incur in collecting any unpaid amount.
11. NON-SOLICITATION COVENANT. During the period of this agreement and for a period of 2 years after termination of this agreement, Buyer shall not directly or indirectly solicit, induce or attempt to induce any employee or subcontractor of Seller, to terminate his or her employment or relationship with Seller. Seller agrees that it shall not directly or indirectly solicit, induce or attempt to induce any employee of Buyer to terminate his or her employment with Buyer. This provision shall survive the termination of this agreement for the period stated herein. A violation by the either party of this paragraph shall be deemed a material violation of this Agreement and will justify legal and/or equitable relief specifically including injunctive relief; it being recognized by the parties that damage will be incurred for which there is no adequate legal remedy by law. If such a violation occurs and a party seeks legal remedy resulting in an injunction or judgment the prevailing party shall be able to recover all reasonable attorney’s fees and legal expenses incurred.
12. NOTICES. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for by the addressee.
13. ASSIGNMENT. Neither party may assign or transfer this Contract without prior written consent of the other party, which consent shall not be unreasonably withheld.
14. ENTIRE CONTRACT. This Contract contains the entire agreement of the parties regarding the subject matter of this Contract, and there are no other promises or conditions in any other agreement whether oral or written which have not merged into this agreement, unless done so in writing in the form of a Sales agreement (including all associated addenda, schedules or attachments) or Work Order that associates itself with this Term and Conditions agreement.
15. AMENDMENT. This Contract may be modified or amended if the amendment is made in writing and signed by both parties. All services/equipment provided shall be listed on documents named as Sales Agreements, Amendments, Attachments, Installation Change Authorization forms or Work Order Forms.
16. SEVERABILITY. If any provision of this Contract shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
17. CONFIGURATION CHANGES. The Buyer agrees that ComRes shall be able to change what is billed for services on a monthly basis based on any changes to the number or types of systems or devices that are covered under any managed services agreement.
17.1 For example, if the Buyer has purchased a ComRes Complete Managed Data Services plan covering 15 PC’s, and then adds a 16th PC in the 3rd month of the agreement, ComRes shall change the number of managed PC’s to 16 in its monthly bill without notice to Buyer. The number of devices may increase or decrease on a monthly basis based on what is being serviced, but shall not go below the number of devices contracted in any original ComRes Complete Managed Data Services Agreement.
17.2. In no case shall the number of devices managed by the Seller be reduced to less than was contracted in any original ComRes Complete Managed Data Services Agreement.
14. SERVICE LIMITATIONS. In addition to other limitations and conditions set forth in this Agreement, the following service and support limitations are expressed:
- Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this agreement. Comres Inc. will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
- Except as otherwise stated in any signed ComRes Complete Managed Data Services Agreement or any subsequent addendum to such agreement, all hardware Server, Network Device and Software upgrades are outside the scope of this agreement.
- Manufacturer warranty parts and labor/services are outside the scope of this agreement. Comres will provide services and labor to obtain and install the products via the manufacturer’s warranty when applicable.
- Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. Comres Inc.’s support services within this agreement are predicated upon the Client’s support and commitment to providing time/scheduling for network device reboots with its staff and/or users support.
- Application software support is limited to the manufacturer’s products as provided for in any software assurance or support agreement the Buyer may have with those manufacturers.
- Virus mitigation within the scope of this agreement is predicated on Client satisfying recommended backup schemes and having appropriate Anti-Virus Software with current updates.
- This agreement and support services herein are contingent on Client’s permission of Comres Inc. having secure remote access into Client’s network (eg. VPN, Citrix/AccessIT, Telnet, SSH, RAS or other solution expressly approved by ComRes.
15. INDEMNIFICATION. Client hereby agrees to indemnify and defend at its sole expense: Comres Inc., its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client’s use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, Client agrees to pay any judgment and costs associated with such claim.