CTiQ Proactive Monitoring Customer Master Services Agreement
Definitions: Consolidated Technologies, Inc. is hereby referred to as “Vendor” within this agreement and its End User customer being referred to as “Customer” therein). The term “Licensor” refers to Nectar Services Corp.
Changes: Customer acknowledges that if Licensor requires that Vendor change any of the Required Terms, then, and in that event, (a) Vendor must make changes to its Customer Master Services Agreement that reflect the new Licensor requirements, (b) Vendor will notify its Customer thereof by a reasonably effective means, and (c) Customer agrees that such changes will be binding upon them.
A. LIMITATION OF LIABILITY. The Customer acknowledges that Vendor Licensor has no control over how a foreign administration or third party carrier establishes its rules and conditions pertaining to international telecommunications services and acknowledges that any inability or failure by Vendor’s Licensor to perform any of its obligations hereunder as a result of such rules and conditions shall be excused. Under no circumstances and under no legal theory, whether in Contract, Tort (including Negligence), Strict Liability or any other theory whatsoever, shall Vendor’s Licensor be liable for any damages that Customer may suffer from or in connection with Customer’s use of, or inability to use, Vendor’s equipment, or the Services. This limitation includes, but is not limited to, damages resulting from loss or theft of data; transmission delays or failures; service interruptions; unauthorized access or damage to records, software programs or other information or property; loss of profits; loss of goodwill; cost of cover; or any other special, incidental, consequential, direct, indirect or punitive damages, however caused. This limitation will apply even if Vendor’s Licensor has been advised of, or is aware of, the possibility of such damages. Because some States or other jurisdictions may not allow the exclusion of certain warranties or certain forms of liability, some or all of the exclusions set forth in this Agreement may not apply. If any of such exclusions are not allowed under the Laws of a particular State or other jurisdiction for any reason, then Vendor’s Licensor’s maximum liability for any type of damages with respect to Vendor’s Licensor’s network, equipment or Services shall be limited to the amount of the monthly service charges paid by the Customer to Vendor for the Services hereunder, for the twelve (12) month period prior to the occurrence of the event giving rise to such liability. Such limit shall apply to the aggregate of all claims with regard to such Services. Vendor’s Licensor does not and cannot control the quality of other parties’ networks to which Vendor or its Licensor must interconnect. Therefore, Vendor’s Licensor disclaims any and all liability that may arise from the performance, including failure, of other parties’ networks. In no event shall Vendor’s Licensor be liable for the fraudulent or illegal use of the Services by any of the Customer’s officers, employees, agents, clients or any other person using the Services through the Customer.
B. CERTAIN RULES AND LIMITATION OF USE. The Customer agrees to comply at all times with any and all applicable local, state and federal law, or the law of any country which may assert jurisdiction over the activity involved. Any content, material, message or data made available or transmitted through the Service, wherever it is sent from, viewed, received or retrieved, that is in violation of any applicable law or regulation, is strictly prohibited. The Customer shall use its best efforts to safeguard the Services provided hereunder, through the implementation of its own Internal Use Policy and Procedure to prevent use of the Services: (i) to breach a computer security system without the consent of the owner, or to gain access to a system, protected or otherwise, without the consent of its owner; (ii) to intercept or cause the interception of, or to disclose, electronic communications, including e-mails; (iii) to post or transmit data which is threatening, obscene, indecent or defamatory; (iv) to post or transmit any data which violates export control laws; or (v) to commit fraud or any other illegal activity. Furthermore, under no circumstances will the Customer take any action that could result in any harm or damage to: (a) Vendor’s Licensor’s network; (b) any other network(s); (c) Vendor’s Licensor’s premises; (d) Vendor’s or its Licensor’s equipment or software; or (e) any other Vendor or Licensor customer. In no event shall Vendor’s Licensor be responsible for either the misappropriation or illegal use of the Services by the Customer. The Customer must, at all times, conform to these Vendor Licensor’s Rules and Limitations of Use, set forth herein, and as amended from time to time. It is important that Customer review these Rules regularly to ensure that it complies with them. If, for any reason, Vendor or its Licensor learns of or suspects inappropriate or illegal use of Vendor’s or its Licensor’s facilities, network or Service, or other networks accessed through Vendor’s or its Licensor’s network, or any other violation of the Rules of Use, then Customer agrees that it will cooperate in any resulting investigation by Vendor or the appropriate authorities. If any inappropriate or illegal use is found, and if Customer fails to cooperate with any investigation of such use, or if Vendor’s Licensor deems such action necessary in its sole discretion to prevent imminent harm to the network or facilities of Vendor’s Licensor or any third party, or disruption to Vendor’s or its Licensor’s services, Vendor’s Licensor may require Vendor to immediately suspend or terminate the Service. Furthermore, upon written Notice to Customer, Vendor’s Licensor may modify or suspend the Service, as necessary, to comply with any law or regulation, as reasonably determined by Vendor’s Licensor. Customer, on behalf of itself, its affiliates, successors, assigns, officers, directors, employees and agents, agrees to indemnify, defend and hold harmless Vendor’s Licensor, successors, assigns, officers, directors, employees and agents (“Vendor Indemnified Parties”) from and against any and all liabilities, losses, expenses and claims: (i) for personal injury or property damage, (ii) arising from or relating to any content used or transmitted by Customer or any users over the Services, (iii) made against any of the Vendor Indemnified Parties by any users taking through the Customer, or (iv) arising from or relating to Customer’s or any such user’s negligent acts or omissions, willful misconduct or breach of any of Customer’s representations or obligations under this Agreement.
C. SOFTWARE LICENSE; NO RESALE; ALL RIGHTS RESERVED. Vendor’s Licensor grants to Customer, a non-licensable, non-exclusive and non-transferable license to use the Software as a Service provided for under this Agreement. Customer shall not, in any way, re-sell, license or allow any third party to use the Vendor Service and its Software without receiving Vendor’s Licensor’s prior written consent. Except for the limited license rights granted in this Section C, Vendor’s Licensor reserves all rights in the Software and the Services, and any modifications made thereto, including all title, ownership rights, intellectual property rights, trademark rights, copyrights and software rights (“Proprietary Rights”) and it shall have the exclusive right to protect and enforce its Proprietary Rights in its products and Services. In furtherance thereof, to the fullest extent possible under applicable law, the Customer agrees that it will not: (i) make any copies or duplicates of any Software without the prior written consent of Vendor’s Licensor; (ii) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to decipher or reconstruct any source code (or the underlying ideas, algorithms, structure or organization) from the Software; (iii) modify or create any derivative works of the Software (including, without limitation, translations, transformations, adaptations or other recast or altered version); (iv) use, copy, sell, lease, sub-lease, rent, loan, assign, convey or otherwise transfer the Software, except as expressly authorized under this Agreement; (v) distribute, disclose or allow use of the Software, in any format, through any time-sharing service, service bureau, network or by any other means, to or by any third parties; (vi) violate any obligations of the Confidentiality provisions contained herein; (vii) delete, alter, add to or fail to reproduce in and on any Product, Service or Software, any Trademark or Copyright or other notices appearing in or on any copy, media or package materials provided by Vendor’s Licensor directly or through Vendor; or (viii) permit or encourage any third party to do any of the foregoing. In the event that the Customer breaches any of the Software license restrictions and limitations set forth above, Vendor’s Licensor may provide written Notice to Customer directly or through Vendor that if within ten (10) business days of the Customer’s receipt of a reasonably detailed written request to cure said breach, the Customer fails to comply and cure said breach, then Vendor’s Licensor may terminate, effective immediately, the Software license granted hereunder, and shall be entitled to exercise all available and permitted rights hereunder. Upon such termination, the Customer shall immediately pay all outstanding licensing and Service fees and termination charges; and it shall cease use of the Software and Services. Vendor’s Licensor shall have the right to monitor Customer locations to confirm compliance with the foregoing and to assure that Customer is not using the Software and/or Services in excess of the quantities authorized, or at locations other than authorized. In the event such monitoring determines that Customer is using Software and/or Services in excess of the quantities authorized, Vendor and/or its Licensor may bill Customer, and Customer will be required to pay, applicable charges for the excess quantities (which may be billed retroactively to the time of first use as reasonably determined by Vendor and/or Licensor). In the event such monitoring determines that Customer is using Software and/or Services at locations other than authorized, Vendor and/or Licensor may require Customer to immediately cease such use or (at Vendor’s and/or Licensor’s option) to execute a proper order for Services at such location and to pay any applicable charges arising therefrom (which may include retroactive charges to the time of first use as reasonably determined by Vendor and/or Licensor).
D. LIMITED WARRANTY. For a period of ninety (90) days following delivery of the Software to the Customer, Vendor’s Licensor represents and warrants that the Software and Service will perform in all material respects in accordance with its published documentation, and that at the time of delivery it shall contain no virus, worm, time bomb, Trojan horse or other such disabling or damaging computer code, nor shall use of the Software and Service violate any laws or the rights of any third parties. In the event the delivered Software and Service fail to conform to the foregoing limited warranty, during the limited warranty period, Vendor’s Licensor will, at its option and expense, promptly replace or correct such Software. Subject to the foregoing limited warranty, and in all other respects, (i) the Software and Service are provided on an “AS IS” basis, and Customer’s use of the Software and Service are at Customer’s own risk; and (ii) Vendor’s Licensor does not make, and hereby disclaims any and all warranties of any kind, whether express or implied, including, but not limited to, any warranty of fitness for a particular purpose, merchantability, title or non-infringement, or any warranty arising from any course of dealing, usage or trade practice. Without limiting the foregoing, Vendor’s Licensor does not warrant that the Service will be uninterrupted, error-free or completely secure.
IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, ESSENTIAL PURPOSE. HOWEVER, THEY WILL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, PERSONAL INJURY OR BREACHES OF CTI’S LICENSE RESTRICTIONS. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS.
E. INVOICING AND PAYMENT. CTI will invoice Customer for Services in advance unless another payment option is specified in the order. Payment of undisputed invoices is due within thirty (30) days from the date of CTI’s invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with nonstandard methods of invoicing and payment. Overdue payments will be subject to a late payment charge of the lesser of 1.5% per month or the maximum rate allowed by applicable law. Unless Customer provides CTI with a tax exemption certificate, Customer is solely responsible for paying all required taxes, (including, but not limited to, property, sales, use or excise taxes with respect to the provision of CTI Equipment) except for any income tax assessed upon CTI.
F. DISPUTES — A. Any controversy or claim, whether based on contract, tort, strict liability, fraud, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement (“Dispute”) shall be resolved solely in accordance with the terms of this document. B. If a Dispute arises, the parties will endeavor to resolve the dispute through good faith negotiation within forty-five (45) days of notification of the Dispute. If the Dispute cannot be settled through good faith negotiation, CTI and you will submit the Dispute to non-binding mediation conducted by the American Arbitration Association (“AAA”) or any other mutually acceptable alternate dispute resolution organization. Each party shall bear its own expenses but those related to the compensation of the mediator shall be borne equally. The parties, their representatives, other participants and the mediator (and arbitrator, if any) shall hold the existence, content and result of mediation in confidence. If the Dispute is not resolved through mediation, claims may be brought in a state or federal court of competent jurisdiction or resolved through binding arbitration. This Agreement will be governed by and construed under the laws of the State of New York. You consent and waive your objection to the non-exclusive personal jurisdiction of and venue in the New York state courts, and the United States District Court for the District of New York for all cases and controversies under this Agreement or between we and you. C. Any Dispute you have against CTI with respect to this Agreement must be brought in accordance with this Section F within two (2) years after the cause of action arises.
G. TERM AND TERMINATION. This Agreement will be effective from the date CTI accepts the order unless terminated earlier in accordance with this Section. Unless a different term is defined in the order, CTI will provide Services for an initial term of three years. Services will be renewed automatically for successive one year terms applying the then most similar current generally available support plan offering and then current rates, unless either party gives the other written notice of its intent not to renew at least 30 days prior to the expiration of the applicable initial or renewal term. Unless otherwise specified in, Customer may terminate Services in whole or in part upon 30 days written notice subject to the cancellation fees equal to Service fees for 12 months or the remaining term, whichever is less. Either party may terminate this Agreement by written notice to the other party effective immediately upon receipt if the other party fails to cure any material breach of this Agreement within a thirty (30) day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured. B. If you fail to perform any material term or condition of this Agreement (e.g., fail to pay any charge when due) and such failure continues for thirty (30) days after receipt of written notice, you shall be in default and CTI may terminate this Agreement and exercise any available rights. Upon termination by CTI, you shall be liable for cancellation and/or termination charges and any other applicable charges.