ORDER AGREEMENT TERMS AND CONDITIONS
This Order Agreement Terms and Conditions (“Agreement”) is effective as of the Effective Date by and between FACE-2-FACE TELECOMMUNICATIONS, 5381 Sugar Camp Road, Milford, Ohio 45150, and Customer. Through this Agreement, Customer may place a single order or multiple orders for telecommunications, inter-networking, and/or converged equipment (“Equipment”) and/or installation and maintenance services for a single location or multiple locations and Face-2-Face Telecommunications may at its option accept such order(s) and install and /or maintain the equipment.
Face-2-Face Telecommunications and Customer expressly agree that the terms and conditions contained in this Agreement shall govern all aspects of a Customer’s order for Equipment and associated software (together, the “System”) and/or maintenance services described in Section 13 herein (“Maintenance”). The specifics of a Customer’s order shall be listed on the Estimate. For orders involving multiple locations and/or multiple Systems, the parties’ rights and obligations herein shall apply to each individual location and/or System independently and Customer’s obligation to pay shall not be contingent upon the performance of Face-2-Face Telecommunications in relation to another location or the installation of another System. This Agreement allocates the risk of the System’s operation between Face-2-Face Telecommunications and the Customer, an allocation that is recognized by both parties and is reflected in the Cash Price and Service Fee.
2) PRICE AND PAYMENT TERMS.
(a) The price of a System, including price of Equipment, software licensing fee, installation (when ordered by Customer) and warranty, but excluding any applicable Maintenance, shipping, or taxes, (the “Cash Price”) and the applicable payment terms shall be set forth on the applicable Estimate. The annual price or the price for a Maintenance term less than twelve (12) months of any applicable Maintenance shall be set forth on the applicable Estimate (“Service Fee”). Any Service Fee is due annually in advance, unless otherwise stated in the applicable Estimate. Shipping charges, if any, are due when invoiced. Customer shall be responsible for paying all applicable sales and use taxes on all charges/fees. When applicable, the down payment and a signed Estimate must be returned to the Face-2-Face Telecommunications account manager. “Delivery” occurs when Face-2-Face Telecommunications tenders equipment for delivery to the Customer site (the “Premises”). “Cutover” occurs when the equipment is connected to the network, activated and functioning to provide basic service, excepting minor variances in performance of the System which do not materially impair basic service.
(b) All charges, other than the Cash Price, authorized by this Agreement or the applicable Estimate or subsequent authorization of Customer including applicable taxes, will be invoiced according to Face-2-Face Telecommunication’s standard practice when incurred and will be due and payable thirty (30) days from invoice date. All payments of Cash Price or any other charges will be subject to a late payment service charge of one and one half percent (1.5%) per month (or as limited by applicable law) on payments in arrears for more than thirty (30) days after the due date. Customer shall verify its sales and use tax status listed on the Estimate and if Customer claims exempt status, it shall, upon the execution of this Agreement and on an annual basis thereafter, provide Face-2-Face Telecommunications with valid tax exemption certificates for every state in which it claims such status. Failure to provide such certificates will cause Face-2-Face Telecommunications to invoice Customer as taxable.
(c) In the event Customer finances any part or all of an Order through a third party leasing entity, Face-2-Face Telecommunications will accept payment from Customer’s selected leasing entity on behalf of Customer. However, Customer shall remain jointly and severely liable for the payment obligations hereunder.
When the installation of a System has been performed and completed by Face-2-Face Telecommunications, Face-2-Face Telecommunications will test the System in preparation for Cutover. When the System is cutover and has operated satisfactory to Customer for a period of fourteen (14) calendar days, it will be deemed accepted by Customer (“Acceptance”) unless Customer has provided Face-2-Face Telecommunications with written notice within that time period setting forth deficiencies in operation. If Customer has provided such notice, Face-2-Face Telecommunications will correct the listed deficiencies at which time Customer shall promptly certify in writing its acceptance of the System. Upon Acceptance, Customer shall promptly execute a Certificate of Delivery and Acceptance as provided by Face-2-Face Telecommunications. For jobs with multiple phases a separate Certificate of Delivery and Acceptance will be required upon Acceptance of each phase.
4) ORDERING PROCEDURES.
The purchase and sale of any Equipment or the provision of Maintenance services shall be subject to the following ordering procedures:
(a) Whenever Customer desires to place a new order for a System or Maintenance, Customer and Face-2-Face Telecommunications will each sign an applicable Estimate and include any relevant information with the necessary attachments such as System configuration and applicable pricing. Each properly executed Estimate and its attachment(s) shall become a part of this Agreement and be incorporated herein as if attached hereto.
(b) Estimates will be used by Face-2-Face Telecommunications to provide price and System and/or Maintenance information. Customer must notify Face-2-Face Telecommunications whether a Customer generated purchase order is required for all transactions with Face-2-Face Telecommunications. Customer understands and agrees that by informing Face-2-Face Telecommunications a PO is required, Customer is obligated to issue a purchase order authorizing the execution of the Estimate or other ordering document as described in Sections 5 and 15 below.
(c) Within thirty (30) days of Customer’s receipt of the Estimate, Customer shall notify Face-2-Face Telecommunications whether Customer accepts Face-2-Face Telecommunication’s offer to sell Customer the applicable System or Maintenance by signing the Estimate with its applicable attachments and returning it to Face-2-Face Telecommunications. If the Estimate is not signed and returned within thirty – (30) days of its receipt by Customer, Face-2-Face Telecommunication’s offer automatically expires.
(d) If Customer issues a purchase order or similar document to Face-2-Face Telecommunications in accordance with Section 4(b) above, Face-2-Face Telecommunications may accept the purchase order from Customer; however, IT IS EXPRESSLY AGREED THAT ANY TERMS AND CONDITIONS ON SUCH A FORM WHICH ARE CONTRARY TO THE TERMS OF THIS AGREEMENT, OR WHICH ADD TERMS OR CONDITIONS BEYOND THOSE CONTEMPLATED IN THIS AGREEMENT OR ITS ATTACHMENTS, WILL BE NULL, VOID, AND OF NO EFFECT. FURTHERMORE, AN Estimate WILL ACCOMPANY ORDERS PLACED UNDER A PURCHASE ORDER AND ALL TERMS AND CONDITIONS CONTAINED ON THE Estimate SHALL BE DEEMED INCORPORATED INTO ANY PURCHASE ORDER ISSUED BY CUSTOMER.
(e) For new System and Upgrade purchases, a scope of work shall be attached to the applicable Estimate setting forth the specific technical requirements, and when applicable, the manufacturer’s specifications (“Scope of Work”). The Scope of Work shall not act as an amendment to the terms and conditions contemplated in this Agreement or the applicable Estimate. In the event of a conflict between the Scope of Work and this Agreement, this Agreement shall control.
(f) Cash Price Payment Terms: For the purchase of Systems including installation from Face-2-Face Telecommunications that have a Cash Price greater than or equal to $20,000, Customer shall pay 25% of Cash Price on signing of the applicable Estimate, 60% of Cash Price on the date of Delivery and 15% of the Cash Price on the date of Cutover. For the purchase of Systems including installation from Face-2-Face Telecommunications and all other purchases including installation from Face-2-Face Telecommunications that have a Cash Price of less than $20,000, Customer shall pay 50% of Cash Price on signing of this Estimate and the balance on the date of Cutover. For the purchase of Systems without installation from Face-2-Face Telecommunications Interconnects, Ltd., Customer shall pay 50% of Cash Price on signing of this Estimate and the balance on the date of Delivery.
(a) Any moves, adds, changes, or deletions that adjust the station, port or router count as well as upgrades, new equipment, and new peripheral devices (“Modifications”) to the System shall be made by a written agreement of the parties on an Estimate. Such form may include: Face-2-Face Telecommunication’s Job Change Order (“JCO”) before Cutover and Face-2-Face Telecommunication’s Customer Service Order (“CSO”) after Cutover. The terms of this Agreement, including any limited System warranty as stated on the applicable Estimate, will apply to any such written agreement for an addition or deletion and equipment purchased or software licensed there under. Such warranty will terminate not later than the Warranty Period set forth in this Agreement for the original System or the then current annual term for Maintenance of that System. An authorized representative of each party must sign a JCO or CSO before Face-2-Face Telecommunications will schedule any additional work or order additional equipment or software. A restocking fee may be charged for any returned component that has been delivered to the Premises; such fee will be invoiced as an additional charge. In the event Customer cancels or terminates an Estimate or any part thereof, Face-2-Face Telecommunications shall be entitled to recover all reasonable costs incurred by Face-2-Face Telecommunications in the preparation for and any actual performance under the Estimate as reasonably determined by Face-2-Face Telecommunications. The Cash Price of the System (including milestone date progress payments), Delivery and Cutover may be subject to adjustment in the event of any mutually agreeable addition or deletion.
(b) If, at Customer’s request, Face-2-Face Telecommunications delivers additional Equipment, software, or Maintenance, or provides time and materials maintenance or other incidental services relating to the System, the terms of this Agreement will govern.
6) CLAIMS, QUERIES AND RETURNS.
With respect to purchases on an Estimate for Equipment without installation, no claims with regard to shortages, discrepancies, or damage to components of Equipment will be accepted by Face-2-Face Telecommunications unless Customer notifies Face-2-Face Telecommunications in writing within fourteen (14) calendar days of Delivery. Face-2-Face Telecommunications shall have no liability with respect to damage or shortages caused by the acts or omissions of the Customer or of a party other than Face-2-Face Telecommunications. If a claim is validly made under this Section which may entitle the Customer to return an Equipment component, Face-2-Face Telecommunications shall not be bound to accept such return or exchange component unless the Customer complies strictly with Face-2-Face Telecommunication’s return procedures as set forth in this Section, which may be modified by Face-2-Face Telecommunications from time to time on written notice. In order to return a component, a Return Merchandise Authorization (“RMA”) number must first be obtained from Face-2-Face Telecommunications and must appear on all shipping labels of components to be returned. Components must be returned in the same condition as originally delivered and in original box/carton.
7) LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL FACE-2-FACE TELECOMMUNICATIONS AND ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR: (i)ANY INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES; (ii) CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COMMERCIAL LOSS OF ANY KIND WHICH INCLUDES LOSS OF BUSINESS, PROFITS, REVENUE OR SAVINGS, AND LOSS OF DATA OR MESSAGES, OR (iii) ANY DAMAGES OF ANY KIND RESULTING FROM UNAUTHORIZED USE OF OR INTRUSION INTO THE SYSTEM, INCLUDING TOLL FRAUD. THIS PROVISION APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND WHETHER FACE-2-FACE TELECOMMUNICATIONS OR ITS SUPPLIERS OR ITS SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
(b) If the System or any component thereof supports Voice Over IP protocol (telephony over transmission control protocol/internet protocol, VoIP), the Customer may experience certain compromises in performance, reliability and security, even when the System performs as warranted. These compromises may become more acute if Customer fails to follow Face-2-Face Telecommunication’s or the manufacturer’s recommendations for configuration, operation and use of the System. CUSTOMER ACKNOWLEDGES THAT IT IS AWARE OF THESE RISKS AND THAT IT HAS DETERMINED THEY ARE ACCEPTABLE FOR ITS APPLICATION OF THE SYSTEM AND CUSTOMER WILL NOT ASSERT ANY CLAIM AGAINST FACE-2-FACE TELECOMMUNICATIONS FOR SUCH COMPROMISES. CUSTOMER ALSO ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (i) ENSURING THAT ITS NETWORKS AND SYSTEMS ARE ADEQUATELY SECURED AGAINST UNAUTHORIZED INTRUSION, AND (ii) BACKING UP ITS DATA AND FILES.
(c) Face-2-Face Telecommunications shall be liable for any physical damage it causes to the System. The customer’s sole remedy for such physical damage shall be limited to repair by Face-2-Face Telecommunications of the System or component thereof, or if the System or component cannot be repaired, replacement by Face-2-Face Telecommunications with a comparable System or component, and is otherwise limited as set forth in Section 7(a) and (b) above.
8) SOFTWARE LICENSE.
(a) Certain manufacturers require that their own software license(s) be attached to this Agreement, the applicable Estimate or included with the equipment. To the extent such license is attached or included with the equipment, it shall be attached to the applicable Estimate and incorporated therein or given to Customer upon installation of the System. If no such license is attached or provided, then Face-2-Face Telecommunications grants Customer a non-exclusive license for the useful life of the System to use the software (including related documentation) solely to maintain and operate the System, provided Customer: (i) does not allow any aspect of the software to be disclosed to a third party without Face-2-Face Telecommunication’s prior written consent and makes reasonable efforts to ensure that its employees are aware of this obligation; (ii) uses the System solely for Customer’s internal business purposes; (iii) does not copy any part of the software without Face-2-Face Telecommunication’s prior written consent and does not attempt to develop any source code from the software; and (iv) returns to Face-2-Face Telecommunications or erases or destroys any software on any media being recycled or discarded and so certifies to Face-2-Face Telecommunications. Customer may only transfer the right to use the software to any end user who subsequently acquires the right to use the System, subject to the prior written approval by Face-2-Face Telecommunications, such approval may not be withheld unreasonably.
(b) All title to, ownership of and all proprietary rights (including, but not limited to, patent rights, copyrights, trade secrets or other intellectual property rights) in and to the software, other than the limited rights expressly granted to Customer herein, shall remain vested in Face-2-Face Telecommunications or its third party suppliers.
(c) Notwithstanding any other provision of this Agreement, failure by Customer, its agents or contractors to comply with the terms of this Section 8 shall be deemed a material breach of this Agreement, entitling Face-2-Face Telecommunications to immediately terminate this Agreement and all of Customer’s rights and privileges with respect to the licensed software, and to obtain injunctive and other relief necessary to protect Face-2-Face Telecommunications from any potential damage resulting from such breach.
On such a termination, all obligations of the Customer to make payments shall survive the termination of this Agreement.
9) RISK OF LOSS, TITLE AND SECURITY INTEREST.
Customer assumes the risk of loss to the System from the date of Delivery. Until the Cash Price is paid in full, Customer will maintain adequate insurance against fire, theft or other loss for the System’s full insurable value with Face-2-Face Telecommunications named as loss payee in an amount equal to the unpaid balance of the Cash Price. Title in the Equipment will pass on full payment of the Cash Price plus all applicable sales and use taxes. Customer will be responsible for any personal property taxes assessed on any portion of the System. Face-2-Face Telecommunications reserves and Customer grants Face-2-Face Telecommunications a security interest in the System in the amount pursuant to this Agreement. Face-2-Face Telecommunications shall be entitled to file one or more financing statements (UCC-1) to reflect such security interest. Upon payment in full and the request of Customer, Face-2-Face Telecommunications will promptly file to remove such interest. If an Estimate specifies an Upgrade to an Existing System, title and ownership to any equipment replaced during installation of the Upgrade shall be transferred to and vest in Face-2-Face Telecommunications.
10) INSTALLATION AND SERVICES.
(a) Customer agrees to permit and arrange full access to the Premises necessary for Face-2-Face Telecommunications to perform the services set forth in this Agreement and will make available a reasonable amount of secure space with locks for storage by Face-2-Face Telecommunications of the System or repair parts as necessary. Customer will fulfill those responsibilities designated to it in the Scope of Work.
(b) Customer will provide: (i) access, easements and consents necessary to install or service the System; (ii) necessary floor plans, space for the System and accessible wiring locations free of asbestos and other environmental hazards per government regulations; (iii) dedicated electric source, circuits, power and isolated ground; (iv) suitable operating environment (including isolated ground, air conditioning, humidity, heat and security) per manufacturer’s specifications which specifications will be provided to Customer by Face-2-Face Telecommunications upon request; (v) switch room access to all carrier circuit facilities; and (vi) raceway, conduit, holes and wire ways. Customer shall hold Face-2-Face Telecommunications harmless from any and all liability for injury to wires, conduits, pipes, mains, sewers or other similar property that is not accurately detailed or accounted for in Customer supplied prints. If conditions at the Premises alter routine installation and Face-2-Face Telecommunications was not aware of such conditions at the time an Estimate was executed, Customer shall be billed for any additional expense related thereto at Face-2-Face Telecommunication’s then current time and material charges. Face-2-Face Telecommunications will remove all litter generated during the work and will ensure that the installation area is restored to the condition that existed prior to installation but will not be responsible for removing old phones or cabling.
(c) Customer represents and warrants that the Premises and conditions to be encountered by Face-2-Face Telecommunications at the Premises and in areas where work is to be performed shall: (i) be in compliance with all applicable federal, state and local laws, rules and regulations; (ii) be safe and non-hazardous; and (iii) not contain, present, or expose Face-2-Face Telecommunications representatives to hazardous materials or hazardous substances. In the event of breach of the foregoing, in addition to all other remedies, Face-2-Face Telecommunications may immediately suspend work until Customer has promptly corrected such condition(s) at Customer’s expense. In the event Customer cannot or does not correct such condition(s), it will be at Face-2-Face Telecommunication’s option as to whether to recommence performance or terminate the Estimate with respect to such Premises. Any termination by Face-2-Face Telecommunications because of its reasonable opinion that an unsafe environmental condition exists will not be deemed a breach of this Agreement or a default under it and no liability for such decision will attach.
(d) Unless otherwise stated on the Estimate or an attachment thereto, installation of the System will be performed during the normal working hours of 8:00 a.m.-5:00 p.m., Monday through Friday, site local time, excluding Face-2-Face Telecommunication’s holidays. Any delay or downtime resulting from Customer act or omission shall be the responsibility of Customer and shall be billed at Face-2-Face Telecommunication’s then current charges.
(e) If, for the purpose of Equipment testing or configuration, Face-2-Face Telecommunications must schedule return visits or experiences same-day downtime due to unavailability of Customer facilities, unavailability of third party equipment or service providers, or circuit outages, provisioning delays, etc., Face-2-Face Telecommunications shall have the right to bill Customer for Face-2-Face Telecommunication’s affected workers at Face-2-Face Telecommunication’s then current charges for labor.
(f) If an Estimate specifies an Upgrade to an Existing System, which is not then being maintained by Face-2-Face Telecommunications under a current agreement, Face-2-Face Telecommunications may require that the Existing System be brought into compliance with the manufacturer’s specifications before installing the Upgrade. Customer will pay Face-2-Face Telecommunications at Face-2-Face Telecommunication’s then current charge for any work performed or materials provided in bringing the Existing System into compliance.
(g) Face-2-Face Telecommunications will provide such training as may be described in the Scope of Work.
11) LIMITED WARRANTY.
(a) FOR SYSTEMS INSTALLED BY FACE-2-FACE TELECOMMUNICATIONS, FOR THE TERM, IF ANY, AS SET FORTH ON THE APPLICABLE Estimate (THE “WARRANTY PERIOD”), THE WARRANTY AS SET FORTH IN THE Estimate SHALL APPLY. SOME MANUFACTURERS PROVIDE LIMITED WARRANTIES DIRECTLY TO THE CUSTOMER. Face-2-Face Telecommunications SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY WARRANTY PROVIDED BY THE MANUFACTURER DIRECTLY TO THE CUSTOMER.
(b) For Systems installed by Face-2-Face Telecommunications, Customer’s SOLE AND EXCLUSIVE REMEDY for breach of any warranty provided by Face-2-Face Telecommunications on the applicable Estimate is limited to Face-2-Face Telecommunication’s performance as set forth in Sections 12(a) and (b) below and performance of warranty service during the Warranty Period will not extend or restart the Warranty Period. If, however, it is determined that such remedy fails of its essential purpose, then Face-2-Face Telecommunication’s entire liability for such breach is limited to payment by Face-2-Face Telecommunications of Customer’s actual damages in an amount not to exceed: (i) for items covered by 13(a) below, the purchase price for the Equipment related to the claim or (ii) for items covered by 13(b) below, the price paid for the services related to the claim.
(c) FOR SYSTEMS NOT INSTALLED BY FACE-2-FACE TELECOMMUNICATIONS, FOR THE TERM, IF ANY, AS SET FORTH ON THE APPLICABLE Estimate (“DELIVERED WARRANTY PERIOD”), FACE-2-FACE TELECOMMUNICATIONS WARRANTS THAT THE SYSTEM WILL BE FREE FROM DEFECTS IN MATERIALS. FACE-2-FACE TELECOMMUNICATIONS DOES NOT EXTEND ANY WARRANTY TO DEFECTS OR ERRORS IN INSTALLATION BY CUSTOMER OR A THIRD PARTY. IF WARRANTY WORK IS NECESSARY, FACE-2-FACE TELECOMMUNICATIONS WILL ACCEPT RETURN OF THE MALFUNCTIONING COMPONENTS OF THE SYSTEM FOR REPAIR OR REPLACEMENT IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 12(c). IF REQUESTED, FACE-2-FACE TELECOMMUNICATIONS WILL REPAIR THE SYSTEM IN PLACE AT CUSTOMER’S EXPENSE AND AT FACE-2-FACE TELECOMMUNICATION’S CURRENT CHARGES.
(d) For Systems not installed by Face-2-Face Telecommunications, Customer’s SOLE AND EXCLUSIVE REMEDY for breach of any warranty provided by Face-2-Face Telecommunications on the applicable Estimate is limited to Face-2-Face Telecommunication’s performance as set forth in Sections 11(c) and 12(c). Face-2-Face Telecommunication’s liability shall cease at the end of the Delivered Warranty Period including liability for manufacturing defects not discovered within the Delivered Warranty Period.
(e) THE WARRANTY PROVIDED BY THIS SECTION 11 IS IN LIEU OF ALL OTHER EXPRESS WARRANTIES. THIS AGREEMENT EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FACE-2-FACE TELECOMMUNICATIONS DISCLAIMS ANY WARRANTY TO PREVENT UNAUTHORIZED USE OF OR INTRUSION INTO THE SYSTEM INCLUDING TOLL FRAUD.
12) WARRANTY PERIOD SERVICE.
(a) During the Warranty Period, if warranty work is necessary for a System which included the installation of Equipment by Face-2-Face Telecommunications, Face-2-Face Telecommunications will, at its option: (i) repair the System in place or (ii) accept return of components for repair or replacement. Such repair or replacement, including both parts and labor, will be at Face-2-Face Telecommunication’s expense. Repair and replacement parts may be new or reconditioned to be the functional equivalent of new. Any parts replaced by Face-2-Face Telecommunications will become the property of Face-2-Face Telecommunications. Face-2-Face Telecommunications will respond remotely or on-site as necessary to requests to perform service for a service affecting outage of the System resulting in the failure of twenty percent (20%) or more of all stations and/or trunks or the failure of the attendant console (“Emergency Service”) within two (2) hours of receipt of notice from Customer requesting such service without regard to time of day or day of the week. All other outages are classified as non-emergency. Face-2-Face Telecommunications will respond to requests to perform non-emergency service outage within twenty-four (24) hours of the receipt of the request, except when the request for such service is made on or the day before a weekend day or a Face-2-Face Telecommunications holiday, in which case Face-2-Face Telecommunications will respond by the next business day. Face-2-Face Telecommunications will perform Service calls made beyond Face-2-Face Telecommunication’s normal working hours for non-emergency service upon Customer request at Face-2-Face Telecommunication’s then current charge.
(b) During the Warranty Period, if warranty work is necessary on a System for which Face-2-Face Telecommunications did not install any Equipment, Face-2-Face Telecommunications will respond remotely or on-site as deemed necessary by Face-2-Face Telecommunications to Customer requests within twenty-four (24) hours of the receipt of the request, except when the request for such service is made on or the day before a weekend or a Face-2-Face Telecommunications holiday, in which case Face-2-Face Telecommunications will respond by the next business day.
(c) During the Delivered Warranty Period, if warranty work is necessary for a System ordered from Face-2-Face Telecommunications but not installed by Face-2-Face Telecommunications, Face-2-Face Telecommunications will provide a depot parts return service for the components of the System covered by the manufacturer’s warranty including shipping, receiving and tracking of orders. Customer acknowledges that the installation, repair, or modification of the System by persons who are not manufacturer certified technicians may void the manufacturer’s warranty of the parts and may result in a denial of software support services from the manufacturer. The express waiver of Face-2-Face Telecommunication’s labor warranty is at the request of Customer. Face-2-Face Telecommunications will provide labor as needed at Face-2-Face Telecommunication’s then current charges for service and Maintenance of the
System at Customer’s request.
(d) Upon the expiration of the Warranty Period, Face-2-Face Telecommunications shall provide Maintenance on Systems installed by Face-2-Face Telecommunications in accordance with the following Sections 13-16 at Face-2-Face Telecommunication’s then current charges.
(e) Customer shall provide written notice of all requests for warranty work pursuant to this Section 12. The written notice shall include a description of the warranty work requested and of the problems experienced by Customer.
(f) If an Estimate specifies an Upgrade to an Existing System, then for purposes of Sections 7(c), 12(d), 13, 14, 15, and 16 of this Agreement, “System” is interpreted to mean “the Existing System as upgraded by the System.”
13) MAINTENANCE OBLIGATIONS.
(a) Upon the expiration of the Warranty Period on a particular System in accordance with Section 12(d) above, or upon the execution of an Estimate for Maintenance, Face-2-Face Telecommunication’s Maintenance obligations shall be as defined in this Section and the applicable service plan attachment outlining the maintenance obligations of Face-2-Face Telecommunications and Customer (“Service Plan”) (together, “Maintenance”). Pursuant to this Agreement, Face-2-Face Telecommunications shall respond to System failures, either on-site or remotely, as necessary, per the conditions specified under the Service Plan chosen. Maintenance service for Equipment shall consist of furnishing all parts and labor necessary to maintain the System in good operating condition. Repair and replacement parts may be new or reconditioned to be the functional equivalent of new. Maintenance service for software will include provision of all maintenance releases and patches, which are issued at no cost by the manufacturer to correct problems which Customer has encountered in the performance of the software. Service calls made beyond the hours set forth in the Service Plan shall be performed by Face-2-Face Telecommunications upon Customer’s request at Face-2-Face Telecommunication’s then current charges.
(b) If Face-2-Face Telecommunications is requested to offer Maintenance at sites where the System was not sold and installed by Face-2-Face Telecommunications, Face-2-Face Telecommunications may require that the System be brought up to manufacturer’s current specifications before performing any Maintenance under this Agreement. Customer will pay Face-2-Face Telecommunications at Face-2-Face Telecommunication’s then current charges for any work performed or materials provided in bringing the System into conformance. In the interim, Face-2-Face Telecommunications will provide maintenance services at such site on a time and material basis at Face-2-Face Telecommunication’s then current charges.
14) MAINTENANCE TERM.
Unless stated otherwise on the Estimate, Face-2-Face Telecommunications shall provide Maintenance on the Systems installed by Face-2-Face Telecommunications for a term of one (1) year (the “Initial Term”) from effective date of this Agreement.
15) SERVICE FEE ADJUSTMENTS.
Modifications may be added to Maintenance by written agreement of the parties; such agreement shall set forth the additional items of Equipment and software, quantity, description, serial number and part number and the necessary adjustment to the Service Fee, based on Face-2-Face Telecommunication’s then current charges. Face-2-Face Telecommunications will include Modifications performed by a party other than Face-2-Face Telecommunications only if Customer’s modified System is certified at Customer’s expense to be in accordance with manufacturer’s standards for service and maintenance. Any Modifications performed by Face-2-Face Telecommunications require a separate agreement such as the Face-2-Face Telecommunications CSO. Customer hereby acknowledges that Modifications, including software upgrades, performed or supplied by unauthorized distributors may result in a denial of software support services from the manufacturer of the System. Maintenance service for Modifications shall be subject to the terms and conditions of this Agreement and be coterminous with the term of Maintenance for the System itself.
16) WARRANTY AND MAINTENANCE EXCLUSIONS.
(a) Warranty Period Service and Maintenance provided under this Agreement exclude repairs or replacements necessitated by: (i) Force Majeure conditions, as defined in this Agreement or any other cause not attributable to Face-2-Face Telecommunications (not including a defect in the System); (ii) Customer’s failure to follow applicable operation, maintenance, or environmental requirements described in any of the manufacturer’s manuals or product bulletins, Face-2-Face Telecommunications manuals, and other materials provided to Customer; (iii) Customer’s additions, alterations, modifications, enhancements or repairs to, or disassembly of, the System (itself or using a third party) without Face-2-Face Telecommunications’ written consent; (iv) mishandling, abuse, misuses or damage to the System by Customer or a third party; (v) relocation of the System without Face-2-Face Telecommunications’ written consent (other than telephone instruments relocated in accordance with the manufacturer’s specifications); (vi) any condition or damage caused by the accident, negligence or an intentional act of any party other than Face-2-Face Telecommunications; or (vii) failures or changes required resulting from the local exchange company, interexchange carrier, the power company or other transmission providers. If any excluded cause occurs, Face-2-Face Telecommunications may, at its option, either perform repairs at Customer’s request at Face-2-Face Telecommunications’ then current charges, or cancel its Maintenance obligations for the applicable System.
(b) Warranty Period Service and Maintenance provided under this Agreement exclude the following services: (i) electrical work external to the System; (ii) such service which is impractical to Face-2-Face Telecommunications’ service representatives to render because of alterations to the equipment or its connection by mechanical or electrical means to other devices, or because of alterations to operating systems; (iii) systems engineering services, programming, and operations procedures of any sort; or (iv) service calls which result in “no trouble found” in the System. Any such other services shall be performed only upon Customer’s written request, at Face-2-Face Telecommunications’ then-current charges.
(c) When Face-2-Face Telecommunications determines that a System component can no longer be effectively maintained for any reason, including but not limited to, usage, environmental conditions, or lack of readily available parts, Face-2-Face Telecommunications shall inform Customer that the component must be refurbished or replaced. These actions, when required, shall be performed at the option of Face-2-Face Telecommunications with the Customer’s signed approval, at Face-2-Face Telecommunications’ then current service rates and costs of parts. Should the Customer elect not to have refurbishment work performed when required, Face-2-Face Telecommunications shall immediately cancel Maintenance coverage under this Agreement for that specific piece of equipment and refund to Customer any applicable unearned portion of the Service Fee. Maintenance after such cancellation shall be provided only on a time and material basis at Face-2-Face Telecommunications’ then current charges.
17) INDEMNIFICATION. Solely as to Systems purchased from and installed by Face-2-Face Telecommunications under a Estimate, Face-2-Face Telecommunications shall defend and indemnify Customer against any claims or suits brought against Customer based upon a claim of infringement of any United States copyright, trademark or patent arising out of the use of the System. A condition precedent to Face-2-Face Telecommunications’ obligation stated above shall be that Customer shall have fully complied with the requirements of this Agreement with respect to retention of, assignment of, and/or sublicense of the right to use the software. Face-2-Face Telecommunications shall pay costs and damages in any such suit, provided Face-2-Face Telecommunications is notified promptly in writing of the suit, Customer gives Face-2-Face Telecommunications or the equipment supplier the sole right to defend and settle any suit and Customer, at Face-2-Face Telecommunications’ request, is available to cooperate and assist in the defense. This indemnity does not extend to: (i) any suit or proceeding which is based upon a claim covering any combination of equipment and/or software in which the System is solely an element and such element does not form a basis for the claim; or (ii) any item furnished by Customer, including, but not limited to, Systems or any portions thereof installed by a vendor other than Face-2-Face Telecommunications. Should the System become subject to a claim of infringement of a United States copyright, trademark or patent, Face-2-Face Telecommunications may, at its expense and option: (i) procure for Customer the right to continue uninterrupted, Customer’s use of the affected Equipment and/or software; or (ii) replace or modify the same so that it becomes non-infringing; or (iii) refund to Customer the depreciated value of the affected items as carried on the books of Customer for tax purposes, on the date of any injunction, if applicable, in which case Customer shall return the affected items to Face-2-Face Telecommunications. In no event shall Face-2-Face Telecommunications’ liability under this subsection 17(b) exceed the Cash Price of the affected System. This indemnity shall not apply to any claims arising out of use of affected items manufactured at Customer’s request to Customer’s production specifications or out of use of the affected items in a manner or for a purpose not contemplated by this Agreement. Customer’s SOLE AND EXCLUSIVE REMEDY against Face-2-Face Telecommunications with regard to such a copyright, trademark or patent infringement claims shall be as set forth above.
(a) If any material breach of this Agreement continues uncorrected for more than twenty (20) days after written notice from the aggrieved party describing the breach, the aggrieved party shall be entitled to declare a default under this Agreement and pursue any and all remedies available at law or equity except as specifically limited elsewhere in this Agreement. Notwithstanding, Customer’s failure to make timely payments pursuant to the terms and conditions of this Agreement shall be deemed a material breach of this Agreement. In relation to such payments, time is of the essence.
(b) If Customer refuses to permit Face-2-Face Telecommunications to perform its obligations under this Agreement or any Estimate hereunder, or terminates or cancels this Agreement or any Estimate hereunder, Face-2-Face Telecommunications, in addition to the remedies provided for in this Agreement or available at law or in equity, shall be entitled to retain all monies paid by Customer and recover additional monies, if necessary, to cover all reasonable costs incurred by Face-2-Face Telecommunications in preparation for and any actual performance under this Agreement, including, but not limited to, commissions owed, labor expended, shipping, handling, storage costs and restocking fees.
19) FORCE MAJEURE.
Face-2-Face Telecommunications shall not be liable for any adjustments or suspension of performance, failure of performance or any damages without limitation resulting from any of the following: strikes or labor disputes, work stoppages, fire, explosions, water, the elements, acts of God (including, without limitation, earthquakes, rains, floods or lightning), acts of civil or military authorities or public enemy, performance or availability of suppliers, subcontractors, power company, communications services or network facilities other than Face-2-Face Telecommunications, including but not limited to the local exchange company or other carrier, unauthorized use of the System, or other causes beyond Face-2-Face Telecommunications’ control whether or not similar to the foregoing.
(a) All disputes pursuant to this Agreement shall be settled by arbitration in Hamilton County, Ohio before the Center for Dispute Resolution in Cincinnati, Ohio. Arbitration may be commenced at any time by any party hereto giving written notice to the other party to a dispute that such dispute has been referred to arbitration under this Section 20. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice referred to above, each party shall select one arbitrator. The two arbitrators selected by the parties shall select a third arbitrator and the three arbitrators shall serve as the arbitration panel. Any award rendered by the arbitrator, or arbitrators, whichever the case, shall be conclusive and binding upon the parties hereto; provided, however, that any such award shall be accompanied by a written opinion giving the reasons for the award. This provision for arbitration shall be specifically enforceable by the parties and the decision of the arbitrators in accordance herewith shall be final and binding and there shall be no right of appeal therefrom. Each party shall pay its own expenses of arbitration and the expenses of the arbitrators shall be equally shared; provided, however, that if in the opinion of the arbitrators any claim for indemnification or any defense or objection thereto was unreasonable, the arbitrators may assess, as part of the award, all or any part of the arbitration expenses of the other party (including reasonable attorneys’ fees) and of the arbitrators against the party raising such unreasonable claim, defense or objection.
(b) To the extent that arbitration may not be legally permitted hereunder and the parties to any dispute hereunder may not at the time of such dispute mutually agree to submit such dispute to arbitration any party may commence a civil action in a court located in Hamilton County, Ohio, of appropriate jurisdiction to solve disputes hereunder. Nothing contained in this Section 20 shall prevent the parties from settling any dispute by mutual agreement at any time.
(a) Face-2-Face Telecommunications reserves the right to subcontract any and all of the work to be performed by it under this Agreement.
(b) This Agreement is not assignable by Customer without the prior written consent of Face-2-Face Telecommunications. Such consent of Face-2-Face Telecommunications may be withheld for any reason. Any attempt to assign any of the rights, duties or obligations under this Agreement without such consent will, at Face-2-Face Telecommunications’ option, be deemed void or a material default or accepted in Face-2-Face Telecommunications’ sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(c) The waiver by either party of any default will not operate as a waiver of any subsequent default. No act or failure to act by either party will waive any right contained in this Agreement. Any waiver by either party must be in writing and signed by such party to be effective.
(d) Face-2-Face Telecommunications’ obligations under this Agreement are contingent upon a credit report satisfactory to Face-2-Face Telecommunications.
(e) If any court holds any portion of this Agreement unenforceable, the remaining language shall not be affected.
(f) The rights and obligations of the parties as set forth herein may only be altered by a written amendment or modification executed by an authorized representative of both parties, referencing this Agreement, and expressly stating the intention to modify such rights and obligations. No course of dealing or usage of trade by or between the parties shall be deemed to constitute any modification or amendment of the terms of this Agreement.
(g) No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the termination of this Agreement.
(h) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio applied without reference to choice of laws.
(i) Customer’s signature on a facsimile transmission of an Estimate or any amendment or attachment thereto, when sent from Customer’s office to Face-2-Face Telecommunications, may be relied upon by Face-2-Face Telecommunications in lieu of an inked signature and shall be binding on Customer and satisfy any applicable Statute of Frauds. Face-2-Face Telecommunications’ copy of such facsimile transmission shall serve as the original of any such document.
(j) This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(k) Customer agrees that neither it nor any of its affiliates will solicit any of the Face-2-Face Telecommunications employees providing services pursuant to this Agreement with offers of employment during the term of this Agreement and for a period of one (1) year after expiration of this Agreement.
(l) In the event of any conflict between the terms and conditions of this Agreement, an Estimate, Face-2-Face Telecommunications’ form attachments, and any other attachment, including Customer’s request for proposal or similar document, this Agreement shall control; provided, that with respect to software license issues, the manufacturer’s software license document referenced in Section 8(a) shall control.
(m) THIS AGREEMENT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS PROPOSALS, COMMUNICATIONS AND NEGOTIATIONS, BOTH ORAL AND WRITTEN, AND CONSTITUTES THE ENTIRE AGREEMENT BETWEEN FACE-2-FACE TELECOMMUNICATIONS AND CUSTOMER WITH RESPECT TO ORDERS PLACED UNDER THIS AGREEMENT. ANY REPRESENTATIONS, WARRANTIES OR STATEMENTS MADE BY AN EMPLOYEE, SALESPERSON OR AGENT OF FACE-2-FACE TELECOMMUNICATIONS AND NOT EXPRESSED IN THIS AGREEMENT ARE NOT BINDING UPON FACE-2-FACE TELECOMMUNICATIONS. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, HAS RECEIVED AND REVIEWED ANY AND ALL DOCUMENTS REFERENCED IN IT, UNDERSTANDS IT, AND IS BOUND BY ITS TERMS.
This MAINTENANCE AGREEMENT (“Agreement”) start date as detailed on invoice, and is solidified by invoice payment, by and between Face-2-Face Telecommunications, an Ohio limited liability company, and the client listed on invoice (“Subscriber”).
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. MAINTENANCE SERVICES: Face-2-Face Telecommunications shall for a period detailed on Addendum B, from the date of invoice have the sole and exclusive right and obligation to service and maintain the equipment detailed on invoicing (“Equipment”). Such services shall include keeping the Equipment in good order and repair and furnishing all material and labor necessary for that purpose, replacement of any part of the Equipment which may prove to be defective, and otherwise keeping the Equipment in proper condition for use, excluding, however, service and maintenance of “tie lines” or any other equipment which is the property or responsibility of the telephone company having jurisdiction thereover under a separate agreement with Subscriber or under law.
2. GENERAL LIMITATIONS: None of the following are included in the services or maintenance to be provided hereunder:
(i) diagnosis or support of systems interfacing with Equipment;
(ii) support of user-defined applications;
(iii) making corrections to user-defined reports;
(iv) data recovery services;
(v) services associated with relocation of the Equipment;
(vi) support of capacity and other use limitations under which they were licensed by the manufacturer;
(vii) support of the Equipment that have had their serial numbers altered, defaced or deleted; and
(viii) maintenance or repair resulting from any of the following:
(A) neglect, misuse, power failures or surges, fault or negligence of Subscriber or causes external to the Equipment, or “Acts of God”;
(B) Subscriber’s failure to implement new releases of software provided as part of the services;
(C) Equipment that has been changed, modified or altered by Subscriber or third party;
(D) changes to the environment in which the Equipment was installed;
(E) Subscriber’s failure to follow the manufacturer’s installation, operation or maintenance instructions;
(F) any condition or damage caused by accident, negligence or an intentional act of any party other than Face-2-Face Telecommunications
(G) force majeure conditions. If Face-2-Face Telecommunications’ services are required for such non-included services, the same shall be subject of a separate agreement for which Face-2-Face Telecommunications, and when Subscriber’s in-house resources have been exhausted, Face-2-Face Telecommunications shall have a right of first refusal to perform the same.
3. PAYMENT TERMS: Payment terms are described in the attached Addendum B. Subscriber’s failure to make timely payments pursuant to the terms and conditions of this Agreement shall be deemed a material breach of this Agreement. The outstanding balance of any payments not made within thirty (30) days of the due date of such payment shall bear interest at the rate of 1.5% compounded monthly until paid in full. In relation to such payments, time is of the essence. On Subscriber’s failure to make timely payments or the termination of this Agreement prior to the term set forth in Section 1, all unpaid payments set forth on Addendum B, at the option of Face-2-Face Telecommunications, may be accelerated and become immediately due and payable.
4. RENEWAL: This Agreement is renewable under the terms and conditions described in Addendum B.
5. SUSPENSION OF OBLIGATION OF FACE-2-FACE TELECOMMUNICATIONS: In the event Face-2-Face Telecommunications, is prevented from performing its obligations in accordance with this Agreement by circumstances beyond its control, including without limitation, labor disturbances, strikes, lockouts, fire, explosion, water, flood, acts of God, war or other hostilities, civic commotion, governmental acts, orders or regulations, inability or difficulty in obtaining parts, supplies, labor, or refusal of Subscriber’s landlord or any public utility or telephone company to cooperate with Face-2-Face Telecommunications, obligations under this Agreement shall be suspended during the period of such disability without liability to the Subscriber.
6. WARRANTIES AND LIMITATIONS: Face-2-Face Telecommunications, warrants to Subscriber that the services will be carried out in a professional and workmanlike manner by qualified personnel. If the services have not been so performed and Subscriber shall be obligated to notify Face-2-Face Telecommunications, in writing in reasonable detail within thirty (30) days after the performance of the services, then Face-2-Face Telecommunications, will, at its sole option, re-perform the services, correct the deficiencies or render a prorated refund based on the original charge for the deficient services. If Subscriber fails to provide such notice to Face-2-Face Telecommunications, as provided above, the Subscriber shall be deemed to have waived the warranty provided for in this Section 6.
7. 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, INCLUDING 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 FESS 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 FACE-2-FACE COMMUNICATIONS’ LICENSE RESTRICTIONS.
8. ADDITIONAL CHARGES: Extension bridges, removals, renovations, moves, additions, and any other changes in the Equipment shall be undertaken exclusively by Face-2-Face Telecommunications, its agents, servants, and employees, only after Subscriber’s in-house resources have been exhausted. Charges for labor, parts, and materials relating thereto shall be at Face-2-Face Telecommunications’ rates then prevailing and shall be paid for in addition to any sums due under any other Section of this Agreement. Subscriber will notify Face-2-Face Telecommunications thirty (30) days in advance of moves of any of the Equipment. Additional charges may apply if Face-2-Face Telecommunications incurs additional costs in providing services as a result of Subscriber’s move of the Equipment.
9. END OF SUPPORT: Face-2-Face Telecommunications may discontinue or limit the scope of this Agreement for any Equipment that a third party manufacturer has declared “end of life,” “end of service,” “end of support,” “manufacturer discontinue” or similar designation (“End of Support”) from time to time. Face-2-Face Telecommunications will endeavor to provide End of Support notifications to Subscriber in advance of the End of Support date. The discontinuance or limitation in scope will be effective as of the effective date of the manufacturer’s End of Support notice and, if discontinued, the applicable Equipment will be removed and rates will be adjusted accordingly. To the extent Face-2-Face Telecommunications makes available services for End of Support Equipment (“Extended Support”), the description of specific services included in Extended Support and applicable fees will be available at the time of Face-2-Face Telecommunications’ notice. Upon thirty (30) days notice, Face-2-Face Telecommunications may terminate Extended Support for any and/or all End of Support Equipment.
10. SOFTWARE LICENSE TERMS: Updates that may be provided as part of this Agreement will be provided subject to the license grant and restrictions contained in the original agreement under which the applicable software was licensed to Subscriber. Where no such license exists, updates will be provided subject to Face-2-Face Telecommunications’ then current license terms and restrictions for generally available product(s) most similar to the applicable Equipment. Such terms and conditions will be available up request.
11. ADDED PRODUCTS: If Subscriber subsequently acquires additional products of the same types and/or manufacturer(s) covered by this Agreement (“Added Products”) and co-locates Added Products with the Equipment, such Added Products shall be covered under this Agreement automatically for the remainder of the term of this Agreement. Fees for services provided for Added Products will be Face-2-Face Telecommunications’ then current fees for services and shall commence accruing as of the date the Added Products are first co-located.
12. DEFECT REPORTS: Subscriber will document and report malfunctions of the Equipment to Face-2-Face Telecommunications in a reasonably detailed manner promptly after discovery (“Defect Reports”). Defect Reports must provide all of the following: (i) caller’s name, location and company; (ii) call-back telephone number; (iii) the system type and configuration, including the Equipment and interfacing products; (iv) a brief description and history of the malfunction and any efforts to solve it by Subscriber; and (v) remote dial-in access to the Equipment. All such Defect Reports shall be provided by Subscriber in writing.
13. SUBSCRIBER RESPONSIBILITIES: Subscriber shall cooperate with Face-2-Face Telecommunications as reasonably necessary for Face-2-Face Telecommunications’ performance of its obligations under this Agreement, including doing such things as:
(i) providing Face-2-Face Telecommunications with full, free and safe access to its premises and facilities reasonably necessary for the provision of services;
(ii) providing necessary telephone numbers and internet connectivity and passwords to enable remote access to the Equipment; and
(iii) providing Face-2-Face Telecommunications with interface and other information regarding access to third party products at Subscriber’s expense.
(iv) Subscriber is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices.
(v) All covered equipment must be surge suppressed and fed power through a Universal Power Supply. (UPS)
14. ARBITRATION: All Disputes will be finally resolved by binding arbitration before one arbitrator, selected pursuant to the Commercial Rules of the American Arbitration Association (“AAA”). The arbitrator so appointed will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions. The arbitrator will have authority only to award compensatory damages within the scope of the limitations of Sections 6 and 7 and will not award punitive or exemplary damages. The arbitrator will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of mediation and arbitration in confidence. This provision for arbitration shall be specifically enforceable by the parties and the decision of the arbitrator in accordance herewith shall be final and binding and there shall be no right of appeal therefrom.
15. ASSIGNMENT: Neither party shall transfer or assign this Agreement, or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which consent will not unreasonably be withheld.
16. ENTIRE AGREEMENT: This Agreement embodies the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, agreements, and understanding between the parties.
17. AMENDMENTS: This Agreement shall not be amended except by a writing, signed by both parties, containing the restated/additional section(s).
18. GOVERNING LAW: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Ohio and the parties consent to the exclusive jurisdiction of the State and Federal courts in Clermont County, Ohio.
19. INDEPENDENT CONTRACTOR: Each party to this Agreement is an independent contractor and neither shall have the right to control the methods and means by which the other party or any of its employees, agents or subcontractors conducts its independent business operations. Each of the parties acknowledge that the parties do not have a business relationship other than that of an independent contractor including, but not limited to, a relationship as a partner and/or a joint venturer.
20. HEADINGS FOR CONVENIENCE ONLY: The insertions of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
21. SEVERABILITY: In the event that any part, article, section, paragraph or clause of this Agreement shall be held to be indefinite, invalid or otherwise unenforceable, the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect.
22. BINDING EFFECT: This Agreement shall be binding upon the parties and their respective affiliates, members, officers, directors, employees, successors and assigns and inure to the benefit of the parties, and their respective successors and permitted assigns.
23. FORCE MAJEURE. Face-2-Face Telecommunications shall not be liable for any adjustments or suspension of performance, failure of performance or any damages without limitation resulting from any of the following: strikes or labor disputes, work stoppages, fire, explosions, water, the elements, acts of God (including, without limitation, earthquakes, rains, floods or lightning), acts of civil or military authorities or public enemy, performance or availability of suppliers, subcontractors, power company, communications services or network facilities other than Face-2-Face Telecommunications, including but not limited to the local exchange company or other carrier or other causes beyond Face-2-Face Telecommunications’ control whether or not similar to the foregoing.
24. WAIVER: No waiver (express or implied) of any rights, remedies or powers hereunder shall be effective unless in writing and signed by the party waiving the same. No wavier of any default hereunder shall be deemed to be a waiver of any other then existing or subsequent default.
EXECUTED by the parties hereto on the day, month and year first above written.
1. MAINTENANCE CONTRACT PERIOD
Maintenance Period shall be month-to-month, unless otherwise notated on invoice.
2. PAYMENT TERMS
Total price per month, under terms of this contract, applies to service requests during normal business hours
(Monday through Friday, 8:00 A.M. to 4:30 P.M.). An overtime differential will be billed separately
for service calls requiring work performed outside of normal business hours.
The contract will be billed yearly, in advance, for the upcoming year starting from the “Effective Date.” All amounts due
under this contract are payable within twenty (20) business days of billing date. No discounts are in effect. Payments not received by the next billing date are subject to service charges at the minimum rate of 1.5% per month (18% annually) or the maximum rate allowed by law.
Accounts delinquent in payment beyond sixty calendar (60) days are subject to cancellation. In addition to all unpaid monies due to Face-2-Face Telecommunications the subscriber shall be fully liable for all costs of collection and attorney’s fees.
Multi-year contracts shall be adjusted annually to reflect changes in equipment quantities.
Renewal is subject to price revisions, changes and/or revised configurations. In the event either party decides not to renew this agreement following its expiration date, the party declining renewal must notify the other party in writing no less than thirty (30) days prior to the expiration date of this agreement.
4. SERVICE RESPONSE
Response to trouble during business hours:
Two (2) hour response to emergency.
Four (4) hour response to non-emergency.
Response to trouble during non-business hours:
Two (2) to Four (4) hour response to emergency.
Four (4) to Eight (8) hour response to non-emergency.
Non-emergency call out to be billed at current prevailing rates with a minimum of Four (4) hours.
Emergencies are defined as:
A. Total system inoperative, or
B. Five Percent (5%) of stations inoperative.
C. Twenty Percent (20%) of lines inoperative.
Moves, Adds, & Change Requests (MACs) Rates:
Face-2-Face Telecommunications will strive to have any active MAC orders completed within 10 business days.
Current ONSITE MAC rates for customers with Maintenance Agreements are as follows:
A. Normal Business Hours = $100.00/hour (Minimum .25 hour)
B. After-Hours & Saturdays = $150.00/hour (Minimum 1 hours)
C. Sundays & Holidays = $200.00/hour (Minimum 4 hours)
NORMAL BUSINESS HOURS REMOTE MOVES OR CHANGES ARE INCLUDED FREE OF CHARGE.