COMRES COMPLETE MANAGED SERVICES SALES AGREEMENT TERMS AND CONDITIONS

1. SERVICES – ComRes, Inc. (“Seller”), agrees to sell, and Buyer agrees to buy, the equipment (the “Goods”) and services (the “Services”) itemized on the Seller’s Service Sales Agreement, Purchase Order or other written description of services agreed to by Buyer (collectively, the “Sales Agreement”).

1.1  Managed Services: 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 will prevail over the terms and conditions set forth herein. Unless otherwise expressly set forth in the Sales Agreement, the Services only include labor for maintenance and do not include labor for cabling or work unrelated to the Services.  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:

1.1.1     Managed Services Plans – 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.

1.1.2     Software Assurance Plans – includes annual plans which provide maintenance and support services for the software programs identified in the Sales Agreement, which may include, but is not limited to, implementation of major and minor updates and bug-fixes provided by the licensor of such software.

1.1.3     Managed Firewall Plans – includes 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).

1.1.4     Block of hours – This is a labor-only plan for a pre-paid block of hours of managed services that can be purchased in a specified block or set monthly number of hours. These hours do not expire.

1.1.5     Quantities of Devices – In the case of Managed Services, the Customer is agreeing to the quantity of devices and options to be serviced 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 50% of the total devices covered initially under the Sales Agreement.

1.1.6     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:

1.1.6.1   Buyer still owes and agrees to pay for any invoices for Goods and Services provided during the coverage time;

1.1.6.2   Buyer must give 30 days’ notice which means that if the notice for termination is delivered to ComRes on the 89^th 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

1.1.6.3   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.

1.1.7.    Onboarding – 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 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.

1.2  Response Times: Response times vary based on whether the request is during normal business hours (8X5) or Overtime/Holiday,  as well as whether they are a request for repair, or work orders (changes) and the service level purchased by Buyer as set forth in the Sales Agreement.  Seller shall always attempt to effect repairs or work orders remotely before dispatching an on-site technician and will determine, in its sole discretion, if Services are to be provided remotely or onsite.   Subject to Section 1.3, Seller shall respond to requests for repairs 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.

Definitions:

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

1.3  Exclusions:  Exclusions from coverage are:

1.3.1 Force Majeure (acts of God) – Seller shall not be responsible for meeting response times for any request and the time of performance will be extended as reasonably necessary under the circumstances to the extent that Seller is prevented from performing, in whole or in part, its obligations under this Agreement as a result of acts of God, events such as hurricane, inclement weather, electrical damage, flood, riot, fire, strike, explosion, war, governmental action, telecommunication equipment or lines (provided by third parties) or regulation, or any other similar cause beyond the reasonable control of Seller;

1.3.2 Buyer’s account is more than 30 days in arrears, except for that portion of an invoice that is contested in good faith in writing;

1.3.3 Labor coverage for equipment, cabling, software assurance or other items not specifically noted in the Sales Agreement;

1.3.4 Cabling supplied by a third party;

1.3.5 Failure by Buyer to provide Seller access to system(s) to be serviced;

1.3.6 Implementation/Project Management labor (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);

1.3.7 On-site visits further than 60 miles from ComRes’ principal office;

1.3.8 On-site visits to any address other than the Buyer’s principal office specified in the Sales Agreement; and

1.3.9 Printing of labels for phones.

2. SERVICE FEE

2.1  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.

2.2  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 Buyer, and billed separately (except with respect to such taxes that ComRes is not required to collect and remit).

2.3  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.

2.4  Service rates – Pricing and billable rates can be found by clicking HERE

2.4.1     Service Order fees are waived if Buyer subscribes to any Managed Services Plan.

2.4.2     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.)

3. TERM

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”); provided that upon the end of the term specified in the Sales Agreement, this Agreement shall automatically renew for the same term as set forth in the Sales Agreement (each, a “Renewal Term;” and the Initial Term and all Renewal Terms shall collectively be referred to as the “Term”), unless wither party notifies the other party in writing of its intention not to renew the applicable Services or this Agreement. 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 shall be applicable only to the Initial Term.

4. WARRANTIES

4,1  EXCEPT FOR THE LIMITED SATISFACTION GUARANTY SET FORTH IN SECTION 1.1.6, THE GOODS AND SERVICES PROVIDED BY COMRES TO BUYER IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SALES AGREEMENT ARE PROVIDED AS IS AND WITH ALL FAULTS, AND COMRES DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS,  IMPLIED OR STATUTORY, including, but not limited to, any implied warranties (IF ANY), duties or conditions of merchantability, of fitness for a particular purpose, reliability OR availability, accuracy, results, workmanlike effort, lack of viruses, and Lack of negligence.  IN ADDITION AND WITHOUT LIMITING THE FOREGOING, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO ANY OF THE SERVICES WHICH INCLUDE COMPUTER SOFTWARE.

4.2  COMRES WILL NOT BE LIABLE TO BUYER WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS, DAMAGE, OR EXPENSE THAT INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (A) THE LOSS OR INACCURACY OF DATA; OR (B) THE PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IF SUCH COMRES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.3  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 FOR SERVICES THAT HAVE NOT YET BEEN RENDERED, LESS ANY SUMS DUE AND OWING TO COMRES.  WITHOUT LIMITING THE FOREGOING, IN NOT EVENT SHALL COMRES’ AGGREGATE LIABILITY TO BUYER PURSUANT TO THIS AGREEMENT AND ALL SALES AGREEMENTS EXCEED THE TOTAL SERVICE FEES PAID BY BUYER TO COMRES DURING THE SIX MONTH PERIOD IMMEDIATE PRECEDING THE ACT OR OMISSION THAT GIVES RISE TO SUCH LIABILITY.

5. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement 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 Agreement, nor shall any failure or delay by either party to exercise any right under this Agreement operate as a waiver of any such right, unless such waiver is in writing and signed by the party granting such waiver.

6. APPLICABLE LAW; JURISDICTION. This Contract shall be governed by the laws of the State of Florida, without regard to its conflicts of law provisions. The Parties agree that any state court or federal court located in Broward County, Florida (and the applicable appellate courts) shall have exclusive jurisdiction in any action or proceeding relating to this Agreement and/or any Sales Agreement. Each of the Parties (i) irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; (ii) irrevocably and unconditionally waives, to the fullest extent it or he may legally and effectively do so, any objection that it or he may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement and/or any Sales Agreement in any such court; and (iii) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

7. TERMINATION

7.1  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.

7.2  Notwithstanding Section 7.1, 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.

7.3  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, it being acknowledged that Buyer that each such plan is for a one (1) year term; provided, however, that in the event that Buyer received a multi-year discount, Buyer’s obligation is limited to the remaining months left in the first year of such multi-year term (if not met), any past due amounts, and the discount received for future terms that was not earned, which  amount will be invoiced and be due immediately.

7.4  Upon any termination of this Agreement, the provisions of Sections 4.2, 4.3, 6, 7 and 9 through 17 shall survive.

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 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.

*    Any emergency requests for service or repair should be followed up with a call to ensure it was received.

9. NON-SOLICITATION COVENANT. During the Term of this Agreement and for a period of two (2) years after termination of this Agreement, Buyer shall not, directly or indirectly, (i) solicit, induce, hire or engage, or attempt to solicit, induce, hire or engage any employee or subcontractor of ComRes, or (ii) solicit, induce or attempt to solicit or induce any employee or subcontractor of ComRes, to terminate his or her employment or relationship with ComRes.  This provision shall survive the termination of this Agreement for any reason.  Upon any breach or threatened breach of this Section by Buyer, in addition to and irrespective of the availability of any other right or remedies, ComRes shall be entitled to equitable relief, including without limitation injunctive relief to prevent actual or threatened breaches of this Section and to specifically enforce the terms and provisions hereof, without the necessity of proving actual damages or the inadequacy of the available remedies at law, and without posting a bond or other security; provided, however, that if a bond is required, the parties agree that a bond in the amount of $1,000 is adequate and reasonable.  Accordingly, if ComRes institutes an action against Buyer to enforce any of the restrictive covenants in this Section, Buyer waives the claim or defense in such action that an adequate remedy at law is available and Buyer agrees not to assert in any such action the claim or defense that an adequate remedy at law exists.  The remedy provided in this section is in addition to any remedy available to ComRes under this Agreement or by law or in equity, including the recovery of monetary damages.  In any action under this Agreement, the prevailing party will be entitled to recover from the other party to such action all reasonable costs, including reasonable attorneys’ fees, incurred in connection with such action.

10. 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.

11. ASSIGNMENT. Neither Party may assign or transfer its rights or obligations under this Agreement (including, without limitation any applicable Sales Agreement) without prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that ComRes may transfer its rights and obligations under this Agreement and all applicable Sales Agreements without the consent of Buyer in connection with the sale of all or substantially all of its assets.

12. ENTIRE AGREEMENT. This Agreement, all applicable Sales Agreements, ComRes’ Privacy Policy and Terms of Service (as the same may be amended from time to time) set forth the entire agreement and understanding of the Parties regarding the subject matter set forth herein, and supersede any and all previously written or oral agreements between the parties regarding the same.

13. AMENDMENT. Neither this Agreement nor any Sales Agreement may be modified or amended unless the amendment is made in writing and signed by both Parties.

14. SEVERABILITY. If any term, clause, or provision of this Agreement shall be judged to be invalid, the validity of any other term, clause, or provision shall not be affected; and such invalid term, clause, or provision shall be deemed deleted from this Agreement.  Except as otherwise expressly provided in this Agreement, no remedy in this Agreement conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute or otherwise.  No single or partial exercise by any party of any right, power or remedy under this Agreement shall preclude any other or further exercise thereof.

15. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of any successor(s) or permitted assign(s) of the parties hereto.

16. FAIR INTERPRETATION. This Agreement has been prepared jointly and will not be strictly construed against either Party.

17. 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.