CTI SUPPORT PLANS STANDARD TERMS & CONDITIONS (5-JG-LIC9)
GENERAL CONDITIONS OF SUPPORT PLANS AND MANAGED SERVICES. The undersigned Customer agrees that these General Conditions of Support Plans and Managed Services (the “Agreement”) will govern the purchase of certain Services (defined below) by Customer from Consolidated Technologies, Inc. (“CTI”).
1. ORDER, PROVISION AND SCOPE OF SERVICES
1.1 Order and Provision of Services. In return for the payment of the fees specified in the order, CTI will provide the services options for Supported Products or Supported Systems at Supported Sites, as described further in this Agreement and the SPA (“Services”). In the event of a conflict between the SPA and this Agreement, the terms of this Agreement will control. The “Support Plan Agreement” or “SPA” is the CTI Support Plan Agreement then current as of the date of CTI’s acceptance of an order for Services and available to Customer upon request. As used in this Agreement, “SPA” may refer, as applicable, to either the Support Plan Agreement or, where the parties have executed a statement of work describing specific Services to be provided by CTI, to the statement of work. “Supported Products” are: (i) hardware or software products identified in the order; and (ii) Added Products (defined in Section 1.8). Supported Products may include non-CTI provided products to the extent they are specified in the order. “Supported Systems” are a group of products or networks specified in the order. “Supported Sites” are locations specified in the order. Where CTI provides hardware or software for Customer’s use as part of the Services but retains ownership of them, including replacement parts for them, these are referred to as “CTI Equipment”. Orders are subject to acceptance by CTI. CTI may accept an order by beginning to perform the Services. Terms and conditions contained in Customer purchase orders or other Customer documents will have no effect. 1.2 Monitoring. CTI may electronically monitor Supported Products and Supported Systems for the following purposes: (i) remote diagnostics and corrective actions; (ii) to determine system configuration and applicable charges; (iii) to verify compliance with applicable software license terms and restrictions; (iv) when providing managed Services, to assess Customer needs for additional products or Services; (v) as otherwise provided in the SPA. 1.3 Error Correction. Some Services options may include correction of Errors. An “Error” means a failure of a Supported Product to conform in all material respects to the manufacturer’s specifications that were currently applicable when the Supported Product was purchased or licensed. 1.4 Updates. Where the selected Services option includes the provision of Updates, CTI will make Updates available to Customer as the manufacturer makes them generally available to its other customers. An “Update” is a change in software that typically provides maintenance correction only. It typically is designated as a change in the digit to the right of the second decimal point (e.g. n.y.[z]). CTI will provide Updates via a website, email or post mail, at CTI’s option. Updates may be remotely installed by CTI or delivered to Customer for self-installation. 1.5 End of Support. Manufacturers may discontinue or limit the scope of Services for Supported Products that Manufacturer has declared “end of life,” “end of service,” “end of support,” “manufacture discontinue” or similar designation (“End of Support”). Customer may access Manufacturer’s user support website’s for End of Support notifications. Most Manufacturers post End of Support notifications for their products at least six (6) months in advance of the End of Support date. End of Support will be effective as of the effective date of the End of Support notice. Manufacturers also may provide End of Support notices by email to email addresses that Customer has registered with them. If Services are discontinued for a Supported Product, it will be removed from the order and rates will be adjusted accordingly. For certain products subject to End of Support, CTI may continue to offer a limited set of Services (“Extended Support”). Where CTI has chosen to do this, the description of Extended Support available and related fees will be available at the time of CTI’s notice. These notices will communicate information such as Extended Support eligibility, extended support alerts related to parts shortages, and end of Services coverage eligibility (including Extended Support). 1.6 Replacement Hardware. Replacement hardware provided as part of Services may be new, factory reconditioned, refurbished, re-manufactured or functionally equivalent. It will be furnished only on an exchange basis. Returned hardware that has been replaced by CTI, will become CTI’s property. 1.7 Added Products. If Customer acquires additional products of the same type and manufacturer(s) as the existing Supported Products and locates them with existing Supported Products at a Supported Site, they will be considered “Added Products”, and will be added to the order automatically for the remainder of the term. Added Products purchased from a party other than the manufacturer or an authorized reseller are subject to certification by CTI at CTI’s then current rates. If Added Products fail certification, CTI may choose not to add them to the Supported Products. 1.8 General Limitations. Unless the SPA provides otherwise, CTI will provide software Services only for the unaltered current release of the software and the prior release. The following items are included in the Services only if the SPA specifically includes them: (i) support of user-defined applications; (ii) support of Supported Products that have been modified by a party other than CTI (except for installation of standard, self-installed Updates provided by the manufacturer); (iii) making corrections to user-defined reports; (iv)data recovery services; (v) services associated with relocation of Supported Products; (vi) correction of Errors arising from causes external to the Supported Products (such as power failures or surges); and (vii) Services for Supported Products that have been misused, used in breach of their license restrictions, improperly installed or configured, or that have had their serial numbers altered, defaced or deleted.
2. 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.
3. CUSTOMER RESPONSIBILITIES 3.1 General. Customer will cooperate with CTI as reasonably necessary for CTI’s performance of its obligations, such as: (i) providing CTI with full, free and safe access to its facilities; (ii) providing telephone numbers, network addresses and passwords necessary for remote access; and (iii) providing interface information for Supported Products and necessary third party consents and licenses to access them. All items will be provided by Customer at Customer’s expense. If CTI provides an Update or other new release of software as part of the Services, Customer will implement it promptly. 3.2 Moves of Supported Products. Customer will notify CTI in advance before moving Supported Products. Only CTI may move CTI Equipment. CTI may charge additional amounts to recover additional costs in providing the Services as a result of moved Supported Products. 3.3 Vendor Management. Where CTI is to instruct or request products or services on Customer’s behalf from third party vendors under Customer’s supply contracts with the third party vendors (“Vendor Management”), Customer will provide CTI upon request a letter of agency or similar document, in form reasonably satisfactory to CTI, permitting CTI to perform the Vendor Management. Where the third party vendor’s consent is required for CTI to be able to perform Vendor Management in a timely manner, Customer will obtain the written consent of the vendor and provide CTI a copy of it upon request. 3.4 Third Party Hosting. In the event one or more network address(es) to be monitored by CTI are associated with systems owned, managed, and/or hosted by a third party service provider (“Host”), Customer will: (i) notify CTI of the Host prior to commencement of the Services; (ii) obtain the Host’s advance written consent for CTI to perform the Services on the Host’s computer systems and provide CTI with a copy of the consent upon request; and (iii) facilitate necessary communications between CTI and the Host in connection with the Services. 3.5 Access to Personal Data. Where Customer instructs CTI to access any employee, customer or other individual’s personal data contained in any Supported Product or Supported System, or to provide Customer or a third party identified by Customer with access, Customer will indemnify CTI and its officers, directors, employees, subcontractors and affiliates against, and hold each of them harmless from, any and all liabilities, costs, damages, judgments and expenses (including reasonable attorney’s fees and costs) arising out of the CTI SUPPORT PLANS STANDARD TERMS & CONDITIONS (5-JG-LIC9) accessing or providing access in accordance with Customer’s instructions.
4. TITLE AND RISK OF LOSS TO EQUIPMENT. Title to CTI Equipment, whether new or replacement CTI Equipment, will remain with CTI or its suppliers and will not pass to Customer. Title to other CTI-installed replacement hardware provided as part of Services will pass to Customer when installed. Title to all other hardware provided as part of Services will pass to Customer when it arrives at the Supported Site. CTI may, without notice to Customer, assign, pledge, transfer or otherwise convey any or all of CTI’s right, title and interest in CTI Equipment. Customer will bear the risk of loss, theft, destruction or damage to CTI Equipment except for losses caused by CTI.
5. SOFTWARE LICENSE. Where Services include provision of patches, Updates or feature upgrades for Supported Products (“New Software”), they will be provided subject to the license grant and restrictions contained in the original agreement under which Customer licensed the original software from CTI. Where there is no existing license from CTI, New Software will be provided subject to the manufacturers then current license terms and restrictions for the New Software. New Software may include components provided by third party suppliers that are subject to their own end user license agreements. Customer may install and use these components in accordance with the terms and conditions of the “shrinkwrap” or “clickwrap” end user license agreement accompanying them.
6. CONFIDENTIAL INFORMATION. “Confidential Information” means either party’s business and/or technical information, pricing, discounts and any other information or data, regardless of whether in tangible or other form if marked or otherwise expressly identified in writing as confidential. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within 30 days after disclosure. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination and disclosure; (iii) was known by the receiving party prior to its receipt and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by the receiving party without use of the disclosing party’s’ Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided the receiving party provides prompt written notification to the disclosing party of the pending disclosure so the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party should the disclosing party attempt to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under this Agreement. The confidentiality obligations of each party will survive expiration or termination of the Agreement. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information, including copies, in tangible form in that party’s possession or under its control, including Confidential Information stored on any medium. Upon request, a party will certify in writing its compliance with this Section.
7. WARRANTIES. A. CTI warrants to Customer that Services will be carried out in a professional and workmanlike manner by qualified personnel. If the Services have not been so performed and CTI receives Customer’s detailed request to cure a non-conformance within 30 days of its occurrence, CTI will re-perform those Services. This remedy will be Customer’s sole and exclusive remedy and will be in lieu of any other rights or remedies Customer may have against CTI with respect to the non-conformance of Services. B. The warranty period shall begin on the Delivery Date for Customer-installed Products. CTI’s standard warranty period will apply if none is specified. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER CTI NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES. IN PARTICULAR, THERE IS NO WARRANTY THAT ALL SECURITY THREATS AND VULNERABILITIES IN A SUPPORTED PRODUCT, SUPPORTED SYSTEM OR NETWORK WILL BE DETECTED OR THAT SERVICES WILL RENDER THEM SAFE FROM SECURITY BREACHES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CTI DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY. 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, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR 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.
9. 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 9 within two (2) years after the cause of action arises.
10. 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 one year. 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 the SPA, Customer may terminate maintenance Services in whole or in part upon 30 days written notice subject to the cancellation fees equal to maintenance Services fees for 12 months or the remaining term, whichever is less. For prepaid agreements, CTI will refund or credit the pro rata price of the remaining term less the applicable termination charge. 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.
11. MISCELLANEOUS. CTI may assign this Agreement or any associated order to any of its affiliated entities or to any entity to which CTI may sell, transfer, convey, assign or lease all or substantially all of the assets used in connection with its performance under this Agreement. CTI may subcontract any or all of its obligations, but CTI SUPPORT PLANS STANDARD TERMS & CONDITIONS (5-JG-LIC9) will retain responsibility for them. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, fire, flood, act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities. The failure of either party to assert any of its rights under this Agreement is not a waiver by that party of its right later to enforce this Agreement in accordance with its terms. This Agreement constitutes the entire understanding of the parties with respect to its subject matter and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between them relating to that subject matter. It will not be contradicted or supplemented by any prior course of dealing between the parties. All notices under this Agreement and any modifications or amendments to this Agreement must be in writing.