Consolidated Technologies, inc
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. BILLING DISPUTES. You must notify us in writing within fifteen
days after receiving your credit or debit card statement if you dispute any CTI
charges on that statement or you will be deemed to have waived any right to
contest such charges. All notices of disputed charges should be sent to:
New Era Technology
c/o Customer Care
Billing Department
8 Slater Street
Port Chester, New York
10573
ap.ne@neweratech.com
4. CUSTOMER RESPONSIBILITIES
4.1 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. In the event that Customer does not provide access to network or any required
hardware for purposes of monitoring, Customer will continue to be charged
monitor fee. 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.