Managed Services Terms & Conditions
1. MANAGED SERVICES
Managed Services Terms are additions to ComRes’ General Terms and Conditions, and apply only to customers who have signed a Sales Agreement for ComRes managed services, blocks-of-hours, or managed firewall.
2. MANAGED SERVICES DESCRIPTION
The Service(s) to be provided shall be covered by the Sales Agreement executed by the Parties, describing the requested Service(s), charges for the Service(s), and any additional terms and conditions upon which they are provided. In the event of any conflict or inconsistency, the terms and conditions set forth in the Sales Agreement shall prevail over the terms and conditions set forth herein. Unless otherwise expressly set forth in the Sales Agreement, the Services only include labor, and do NOT include hardware, software, or manufacturer software support (SWA). Exclusions to labor covered by managed services are labor to install/repair network cabling/fiber, install new devices/software, major projects such as an office re-location, or any labor that is outside of the general support and maintenance of the devices covered. Without limiting the foregoing, unless otherwise set forth in the applicable Sales Agreement, the various types of service plans that Buyer may elect to purchase include but shall not be limited to:
3. MANAGED SERVICES PLAN
Managed Services Plans are a labor-only managed services plan that covers monitoring and management of the specific system(s), devices or other Goods listed in each applicable Sales Agreement. The Sales Agreement may specify the level of coverage purchased, the scope of coverage, the hours of coverage, pricing and other specifics. Any hours of managed Services purchased in a Managed Services Plan that are not used during an applicable period may not accrue or rollover. The general coverage times is from Monday-Friday, 8-5, local time, unless otherwise specified in the Sales Agreement. Labor required outside of those times will be billed at overtime or holiday rates.
4. SOFTWARE ASSURANCE PLANS
Includes monthly or annual plans which provide manufacturer maintenance and support services for the software programs identified in the Sales Agreement, which may include, but is not limited to, major/minor updates and bug-fixes provided by the licensor of such software.
5. MANAGED FIREWALL PLAN
These can be labor only plans or may include a ComRes-provided firewall (if specified in the Sales Agreement), including labor to manage it, Software Assurance with respect to the firewall and the equipment itself (in the case of a ComRes-provided firewall).
6. BLOCK OF HOURS
This is a labor-only plan for a pre-paid block of hours. These hours do not expire until used up.
7. QUANTITIES OF DEVICES
In the case of Managed Services, the Customer is agreeing to the quantity of devices and options to be serviced that are identified in the Sales Agreement. ComRes shall audit the number of devices serviced and maintains the right to adjust the monthly billing to the correct number of devices serviced on a monthly basis, billed at the rate for each device as shown in the Sales Agreement without notice to customer. If the customer downsizes, and the actual number of devices serviced decreases, the Customer may request ComRes to reduce the number of devices covered by the applicable service plan, provided, that such reduction shall not exceed 10% of the total devices covered under the initial Sales Agreement. It is the Buyer’s responsibility to notify the Seller if the number of devices to be serviced has decreased so that ComRes may adjust billing according to the terms of the agreement. Seller has 30 days from written notification from the Buyer that the number of devices to be serviced has decreased to adjust billing.
8. SATISFACTION GUARANTY
ComRes offers new Managed Services customers a guaranty that they will be satisfied with ComRes support, which means that Buyer maintains the right to cancel a new managed services agreement within 90 days from activation of the applicable service plan, if they are not satisfied with ComRes’ service, without penalty, provided that Buyer satisfies each of the following conditions:
8.1 Buyer still owes and agrees to pay for any invoices for Goods and Services provided during the coverage time;
8.2 Buyer must give 30 days’ notice which means that if the notice for termination is delivered to ComRes on the 89th day after commencement of the Services, the Services will still continue for another 30 days, and Buyer agrees to pay for the Services at the applicable rate specified in the Sales Agreement; and
8.3 Buyer shall pay for any pro-rated portion of Software Assurance for which ComRes may have pre-paid as part of a managed services plan for items listed as Software Assurance.
Onboarding costs are not included in any managed services plans. Onboarding costs are for parts, software and labor required to implement, repair or re-design systems covered by ComRes managed services to get them to manufacturer-recommended design or customer requirements. Onboarding costs will be quoted and/or invoiced separately. In addition, if ComRes discovers during onboarding of Buyer that there is a requirement for an inordinate amount of onboarding labor, ComRes will promptly notify Buyer and provide a separate quote for this additional cost.
10. HARDWARE MAINTENANCE
In some cases, ComRes may quote a hardware maintenance plan which will cover the Buyer’s covered equipment and include replacement of that equipment. This is an optional service quoted separately and includes replacement for same or similar equipment that has failed to operate correctly by being properly maintained in an environment according to manufacturer specifications.
11. TRUCK ROLLS
ComRes managed services includes primarily remote labor for free under its managed services plans. Managed Services may include a limited number of ‘truck rolls’ for free if the customer’s location is within 60 miles of a ComRes service office.
12. RESPONSE TIMES
Response times for managed services or block-of-hours customers vary based on whether the request is during normal business hours (Monday-Friday, 8X5) or Overtime/Holiday, as well as the severity of the request. Seller shall always attempt to effect repairs or work orders remotely before dispatching an on-site technician and will determine, at its sole discretion, if Services are to be provided remotely or onsite. Seller shall respond to requests for repairs according to the following schedule:
Minor Service Request M-F, 8X5 4 hours
Major Service Request M-F, 8X5 2 hours
Minor Service Request OT/Holiday 8 hours
Major Service Request OT/Holiday 2 hours
12.1 Business Day – any day other than a Saturday, Sunday or any other day on which banking institutions in the state of Florida are not open to the public.
Major Repair Request – a Service outage to a material system affecting more than 25% of Buyer’s users.
Minor Repair Request – Any request that is not classified as a major request.
NBD – Next Business Day
12.2 Exclusions: Exclusions from coverage are:
12.2.1 Force Majeure (as defined in ComRes’ general terms and conditions);
12.2.2 Buyer’s account is more than 30 days in arrears, except for that portion of an invoice that has been contested in good faith in writing;
12.2.3 Labor coverage for equipment, cabling, software assurance or other items not specifically noted in the Sales Agreement;
12.2.4 Cabling supplied by a third party;
12.2.5 Failure by Buyer to provide Seller access to system(s) to be serviced;
12.2.6 Implementation/Project Management labor. This is labor required for the installation of new systems/devices not covered under the Sales Agreement, including, but not limited to, site re-locations or major projects (which are defined as any project that requires blocks of more than 4 hours at a time or major re-engineering of a system configuration);
12.2.7 On-site visits further than 60 miles from ComRes’ service office;
12.2.8 On-site visits to any address other than the Buyer’s principal office specified in the Sales Agreement
13. SERVICE FEE
13.1 Buyer agrees to pay the fees for the Goods and Services (“Service Fees”) set forth in the applicable Sales Agreement. In the case of a Sales Agreement with a multi-year term, ComRes, in its sole discretion, may increase the cost of the Services by an amount equal to the greater of (i) 3% of the fees for the Services in the prior twelve (12) months, or (ii) the percentage increase in the U.S. Consumer Price Index in the prior twelve (12) months. These price shall normally take effect January 1st of each calendar year, but may happen at a later date.
13.2 All fees payable to ComRes are nonrefundable, shall be made in U.S. Dollars and are exclusive of shipping fees and all applicable federal, state, or local taxes, duties or fees, which shall be payable by the Buyer, and billed separately (except with respect to such taxes that ComRes is not required to collect and remit).
13.3 If Buyer does not make payments of any amounts payable to ComRes when due under this Agreement or any Sales Agreement, then in addition to all other remedies available to ComRes at law or equity or under other provisions of this Agreement or any applicable Sales Agreement, Seller may collect interest on the sum then owing at a rate equal to the lesser of (i) 1.5% per month, or (ii) the highest legal rate, from the due date until payment is received by ComRes; and, without extending the term of this Agreement or any Sales Agreement, cease maintaining the equipment and cease performance of any other Services or other obligations undertaken in this Agreement or any Sales Agreement. Except for payment in advance for Service Fees related to monthly/annual maintenance agreements specified in the applicable Sales Agreement, unless otherwise expressly set forth in a Sales Agreement, ComRes’ payment terms are Net 30 from invoice date of all other work performed under or in connection with any Sales Agreement, including, but not limited to, Work Orders and Installation Change Authorizations.
13.4 Service rates – Buyers who have purchased Seller’s Managed Services may receive labor covered by such agreements for free. Pricing for labor outside the scope of any agreement will be invoiced according to Seller’s prevailing labor rates. Pricing and billable rates can be found at:
13.4.1 Service Order or Expedite fees are waived if Buyer subscribes to any Managed Services Plan.
13.5 Standard Rates are waived for Services that are expressly covered under the applicable Managed Services Plan purchased by Buyer, in which case standard rates would only apply to items not covered under the applicable Managed Services Plan (including, but not limited to, cabling, overage hours, etc.)
The initial term of the Services to be provided in accordance with the Sales Agreement and this Agreement shall be as set forth in the applicable Sales Agreement (the “Initial Term”). Upon the end of the term specified in the Sales Agreement, the term shall automatically renew for the same term (referred to as the “Renewal Term”) as set forth in the Sales Agreement. Subsequently at the end of each Renewal term, the term shall automatically renew for the same term as set forth in the original Sales Agreement. Either party may notify the other in writing within 30-90 days of the end of the initial or renewal term of their desire that it not automatically renew, in which case the term will convert to a monthly term, auto-renewing to a new monthly term at the end of each term. In the event of an automatic renewal, ComRes reserves the right to adjust service pricing to existing rates and to reflect any changes to the configuration of equipment covered. Any term discounts granted in the Sales Agreement maybe applicable only to the Initial Term.
15.1 Either Party (the “Notifying Party”) may terminate this Agreement upon written notice to the other Party (the “Defaulting Party”) in the event that the Defaulting Party is in breach of its obligations under this Agreement or any applicable Sales Agreement (including, without limitation, the failure to make any payment when due) and such breach continues for thirty (30) days after the Defaulting Party receives written notice from the Notifying Party specifying such breach(es) in reasonable detail.
15.2 Notwithstanding Section 7.1 of the Managed Services terms, 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.
15.3 In addition to all other rights and remedies available to ComRes under this Agreement, at law or in equity, (i) upon the termination of this Agreement (including any Sales Agreement) for any reason, Buyer shall, on demand, pay to ComRes all amounts payable owed under any Sales Agreement, including, but not limited to (a) un-billed contractual progress payments, (b) future monthly rental or maintenance billing, (c) interest on all past due amounts and (d) reasonable costs for collection (including reasonable attorneys’ fees and expenses of litigation) that ComRes may incur in collecting any unpaid amount; and (ii) if this this Agreement or any Sales Agreement is terminated for any reason other than a breach by ComRes that is not timely cured, ComRes may bill Buyer, and Buyer shall promptly pay for the entire amount of the remaining months in the then-current term of Buyer’s services plan.
15.4 Upon any termination of this Agreement, all provisions of this agreement that are applicable to enforcement of the Seller’s rights under this agreement shall survive, including but limited to paragraphs relating to collections, non-solicitation and other conditions that protect the Seller and its rights.
15.5 Return of equipment – upon termination of the agreement, Buyer shall return all rented equipment to the Seller within 30 days of termination. All returned equipment must be in working condition for equipment of its age at the time of return without damage other than normal wear and tear. Failure to return rented equipment within this time to the Buyer, or returning equipment that is damaged or not in working order, will result in the Seller billing the Buyer for replacing the rented equipment for similar equipment of that age.
16. 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 ComRes with an updated list of Buyer’s key contacts including cell phone numbers, email addresses and a list of personnel authorized to request support or receive information on their account.
ComRes Service Phone Number: 954-462-9600 (877-379-9600)
ComRes Service Email: Service@ComResUSA.com
ComRes Service Text Number: 954-462-9600
Any emergency requests for service or repair should be followed up with a call to ensure it was received.
17. FAIR INTERPRETATION
This Agreement has been prepared jointly and will not be strictly construed against either Party.
18. INDEPENDENT STATUS OF PARTIES
All work performed under this Agreement by a Party shall be performed as an independent Party and not as an agent or legal representative of the other Party. Nothing contained herein or done in pursuance of this Agreement shall imply that the parties are entering into a joint venture, partnership, or agency. Under no circumstances may either Party hold itself out to be a partner, employee, representative, franchise, distributor, servant or agent of the other Party. Neither ComRes nor Buyer may create any obligations or responsibilities, express or implied, on behalf of or in the name of the other. Each Party assumes full responsibility for the actions of its personnel while performing under this Agreement and shall be solely responsible for their supervision, daily direction and control, payment of salary (including withholding of income taxes), worker’s compensation, disability benefits and the like.