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PEAK-RYZEX TERMS AND CONDITIONS
These Terms and Conditions for Hardware Maintenance and Support Services form the general agreement ("Agreement") between the parties hereto. Peak-Ryzex shall provide to Customer such maintenance and support services ("Maintenance Services") purchased by Customer for the Hardware identified in a quote (an "Order"). Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. SCOPE OF SERVICES. Peak-Ryzex hereby agrees to provide to Customer for each Term (as hereinafter defined) the Maintenance Services at each designated site for which Customer pays to Peak-Ryzex the applicable maintenance fees. Peak-Ryzex will be available to Customer Monday through Friday 8AM-5PM, local time at Customer's location, excluding Peak-Ryzex holidays by telephone at 800-PEAKFIX or through the Internet at www.peak-ryzex.com. For an additional fee (or as indicated on an Order), Customer may select 24x5 or 24x7 support for Onsite and Telephone Support. Customer has selected one or more of the following Maintenance Service(s), as indicated on an Order:
"Depot Service" Peak-Ryzex shall provide Maintenance Services at Peak-Ryzex's maintenance facilities or manufacturer location. Customer shall contact Peak-Ryzex and place a request for Maintenance Services, at which time Peak-Ryzex will provide Customer with a Notification Number. Customer shall be responsible for shipping the Hardware (at Customer's expense) requiring service to Peak-Ryzex's maintenance facility, the address of which Peak-Ryzex will supply to Customer. Customer shall include with the Hardware a detailed description of the problems with the Hardware and shall display the Notification Number on the exterior of the shipping package for the Hardware. Peak-Ryzex shall repair the Hardware and return the Hardware via ground delivery at Peak-Ryzex's expense unless otherwise agreed in the Order to the address supplied to Peak-Ryzex by Customer, within the timeframe set forth in an Order. As indicated on the Order, Customer may purchase (at Customer's expense) a replacement unit(s) of the Hardware for storage at Peak-Ryzex's depot location ("Hot Spares"). Upon Customer's notification that it requires the Hot Spare, Peak-Ryzex will return the Hardware to Customer (at Peak-Ryzex's expense) via next day delivery. For Depot Service on Motorola Hardware only, the terms and conditions of this Agreement and Attachment are hereby replaced with the Peak-Ryzex Technologies, Inc. Terms and Conditions for Depot Service for Motorola Hardware located at:
"Onsite Service" Peak-Ryzex shall provide Maintenance Services at Customer's locations where the Hardware is located, as indicated on an Order. Customer shall contact Peak-Ryzex and place a request for Maintenance Services, such request to include a detailed description of the problems with the Hardware, its location and such other information as requested by the Peak-Ryzex support representative. Peak-Ryzex will dispatch a service technician to the Customer's site to perform the Maintenance Services by the next business day or within the timeframe set forth in the Order. Fees for Onsite Service in accordance with this section are inclusive of any travel, lodging and related expenses. Customer shall provide such access to Customer's facilities as Peak-Ryzex may reasonably request, during Customer's normal business hours or as otherwise agreed upon by the parties. Peak-Ryzex shall observe all reasonable access, health, safety and security requirements of Customer of which Peak-Ryzex is informed in writing in advance and that are not inconsistent with Peak-Ryzex's own business practices. Customer shall make available to Peak-Ryzex appropriate Customer personnel familiar with Customer's equipment, software and/or applications. Customer shall provide the following for Onsite Service: electric power for portable electric tools, sufficient light where possible, safe access to the Hardware, appropriate Media and reasonable cooperation from Customer's employees. Customer acknowledges that Peak-Ryzex is not liable for any hardware, software, or any other items or services provided to Customer by any persons other than Peak-Ryzex, except as set forth in the Agreement. Customer shall promptly notify Peak-Ryzex of any anticipated delays or deficiencies in Customer's responsibilities and shall provide prompt assistance in resolving any such delays or deficiencies to Peak-Ryzex's reasonable satisfaction. Peak-Ryzex reserves the right to stop work until Customer remedies such delays or deficiencies to Peak-Ryzex's reasonable satisfaction.
"Telephone Support" Peak-Ryzex shall provide Maintenance Services to Customer via telephone. Customer shall call Peak-Ryzex at 800-PEAKFIX and place a request for Maintenance Services, such request to include a detailed description of the problems with the Hardware, its location and such other information as requested by the Peak-Ryzex support representative. Peak-Ryzex shall provide Customer with a telephone response within four (4) hours during support time following first notification of a problem.
Peak-Ryzex shall have the right to perform pre-contract inspections of Hardware within thirty (30) days of the effective date of the Agreement or the addition of Hardware to the Agreement. Peak-Ryzex shall invoice Customer for any parts used by Peak-Ryzex during the pre-contract inspections. In the event that Peak-Ryzex does not perform pre-contract inspections, Peak-Ryzex reserves the right to invoice Customer for any parts used by Peak-Ryzex where the first service call is within thirty (30) days from either the effective date of this Agreement or from the addition of Hardware to this Agreement. Peak-Ryzex reserves the right to discontinue providing Maintenance Services for any Hardware for which it cannot obtain an adequate supply of spare parts and supplies through commercially reasonable means. Where possible, Peak-Ryzex will provide Customer with thirty (30) days prior written notice of its intent to discontinue providing Maintenance Services for such Hardware and upon the discontinuation Peak-Ryzex shall adjust the Maintenance Fees accordingly. In the event that the Hardware specifications shown on an Order are inaccurate or incomplete, Peak-Ryzex will adjust the Maintenance Fees to reflect the accurate specifications of the Hardware and Peak-Ryzex will invoice Customer for the corrected Hardware specifications retroactive to the Effective Date (or the date at which the Hardware became covered by the Maintenance Services).
2. Additional Services. Maintenance Services do not include the following Additional Services: (A) site preparation and maintenance of a proper environment, (B) set up and installation of Hardware, (C) moving Hardware, (D) painting or refurbishing Hardware, (E) adding, changing or removing features or options or making other functional changes to Hardware, (F) providing consumable supplies such as paper, ribbons and print heads ("Media"), even if consumed while providing maintenance services, (G) systems engineering services, programming services, consulting services, software maintenance and support services and operational procedures of any sort, and (H) maintenance, repair or replacement of parts or Hardware, when such services are required because of abuse, misuse, accident, neglect, usage in an improper environment, not in accordance with manufacturer's specifications for the Hardware, or in excess of an item's duty cycle or other loss or damage to Hardware due to any insurable loss or any cause or causes external to the Hardware. Any Additional Services which Customer requests and Peak-Ryzex agrees to perform pursuant to this Agreement will be billed on a time and materials basis subject to Peak-Ryzex's then-current applicable rates. Associated actual and reasonable expenses include travel, lodging and project expenses incurred by Peak-Ryzex in the performance of the Additional Services.
3. PARTS. Peak-Ryzex will replace parts on an exchange basis only. Peak-Ryzex reserves the right to use remanufactured or refurbished parts. Such parts shall be deemed to be the equivalent to new parts when installed in the Hardware. All parts sent to Peak-Ryzex by Customer on an exchange basis shall become the property of Peak-Ryzex.
4. TERM. Peak-Ryzex shall provide Maintenance Services to Customer on a 12-month annual basis (the "Term") upon payment in full for all Maintenance Services fees for the Term. The initial Term for the Maintenance Services shall commence following the expiration of any warranty period that may be specified in the Order (the "Initial Term"). Customer may add Hardware to Maintenance Services by signing Peak-Ryzex's Order which may be in the form of a Peak-Ryzex quote or Peak-Ryzex's Equipment Add Form. The term for any Hardware added under Maintenance Services during the Term shall be coterminous with the expiration of the current Term. Customer may remove any Hardware from the Maintenance Services by providing written notice to Peak-Ryzex within thirty (30) days of the commencement of the Term. This Agreement shall renew automatically in consecutive one-year increments unless either party notifies the other in writing thirty (30) days before the renewal Term that it intends not to renew. Peak-Ryzex will contact Customer prior to the renewal Term to obtain Customer's purchase order, as applicable.
5. DEFAULT. If either Customer or Peak-Ryzex is in material default of its obligations under this Agreement, the non-breaching party shall have the right to deliver to the breaching party written notice specifying that a breach has occurred and providing in detail the particulars of the alleged breach. The party in breach shall have thirty (30) days to cure the alleged breach (ten days if the alleged breach relates to the payment of any amounts due hereunder) or such other period as may be agreed to in writing by the parties. If such breach is not cured within such period, then the non-breaching party shall be entitled to exercise all of its rights and remedies at law and in equity, including the right to terminate this Agreement if such non-performance constitutes a material breach of this Agreement.
6. BILLING AND PAYMENT. Unless otherwise set forth in an Order, Peak-Ryzex shall invoice Customer for the Initial Term upon execution of this Agreement and Customer shall pay Peak-Ryzex in full immediately upon receipt of invoice. Customer shall pay all applicable taxes excluding taxes based on Peak-Ryzex's income, or provide satisfactory proof of exemption. If Customer fails to make payments when due and such failure continues after Peak-Ryzex notifies Customer of such failure, Peak-Ryzex may refuse to perform any further Services or deliver any further Hardware. If Customer fails to make payments when due, Peak-Ryzex may charge Customer interest on the overdue amounts, from the date such amount became due at the lesser of the rate of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law. Peak-Ryzex reserves the right to revoke any credit extended to Customer at any time for good and sufficient cause. Forty-five (45) days prior to the end of the Initial Term and any renewal Terms, Peak-Ryzex will issue to Customer a quote providing the Maintenance Fees for the following Term. Customer shall respond to Peak-Ryzex within ten (10) days of the date of the quote with its intent to renew or discontinue Maintenance Services for the following Term. In the event that Customer indicates its intent to renew for the following Term, Peak-Ryzex shall invoice Customer up to thirty (30) days prior to the end of the current Term and Customer shall pay Peak-Ryzex upon receipt of Peak-Ryzex's invoice. In the event that Customer requires the issuance of a purchase order, Customer shall issue the purchase order to Peak-Ryzex for the renewal Term prior to the expiration of the current Term.
Customer may request that Peak-Ryzex provide Maintenance Services at additional locations, which shall be subject to additional fees. Maintenance Fees are exclusive of any telephone or Internet charges incurred if remote access is required, or any shipping charges incurred when Peak-Ryzex is required to send materials to Customer. Peak-Ryzex shall invoice Customer for such expenses on a monthly basis and Customer shall pay Peak-Ryzex upon receipt of Peak-Ryzex's invoice.
7. HIRING OF EMPLOYEES. Neither party shall solicit or recruit for employment (other than by general advertising), any person who was an employee of the other party during the provision of the Maintenance Services and for a period of one (1) year thereafter, without the other party's written consent. Any violation of this section shall be deemed a material breach hereof and the non-breaching party may immediately terminate this Agreement.
8. Independent Contractor. Peak-Ryzex will manage its personnel and be free to exercise independent judgment as to the manner and method of performance of the Maintenance Services. Peak-Ryzex is an independent contractor and nothing herein will be deemed to make one party the agent of the other.
9. Confidential Information. Each party agrees not to permit unauthorized access to and to take reasonable steps to protect the confidentiality of the other party's information, marked "confidential," "proprietary," or with a similar legend indicating its sensitive nature. Customer agrees to treat as confidential information all Peak-Ryzex techniques, processes methods and know-how observed at Customer's facilities. Customer acknowledges that all processes, materials and data used or furnished by Peak-Ryzex pursuant to this Agreement have been developed at great expense to Peak-Ryzex, contain trade secrets of Peak-Ryzex, are the sole property of Peak-Ryzex and shall be kept confidential by Customer. The obligations of the party receiving the confidential information ("Recipient") shall not apply to any portion of the confidential information: (i) which was rightfully known or becomes rightfully known to Recipient without confidential restrictions from a source other than the disclosing party; (ii) which was or becomes publicly available or a matter of public knowledge generally, through no fault of Recipient; (iii) which is approved by the disclosing party, in writing, for disclosure without restrictions; (iv) which is independently developed by Recipient; (v) which is generalized know-how or skills; or (vi) which Recipient is legally compelled to disclose; provided that Recipient has given the disclosing party reasonable notice and opportunity to contest such compulsive disclosure, and Recipient requests that the Confidential Information disclosed be treated as confidential.
10. Warranty. Peak-Ryzex warrants that it will render the Maintenance Services in a good and workmanlike manner. In the event of any material failure to meet such standard, Customer's exclusive remedy and Peak-Ryzex's sole responsibility shall be for Peak-Ryzex to re-perform the Maintenance Services or, if in Peak-Ryzex's discretion it is not commercially reasonable to re-perform the Maintenance Services, provide Customer with a refund of the Maintenance Fees paid by Customer for the current Term. Peak-Ryzex's obligations and liability under this warranty are conditioned upon the receipt of prompt notice of defects as to parts and/or workmanship from Customer. Timely completion of Maintenance Services by Peak-Ryzex is subject to the timely satisfaction by Customer of any Customer obligation or requirement. This warranty shall be void if the Hardware is damaged or rendered unusable by the willful act, negligence and/or tampering of persons other than Peak-Ryzex. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PEAK-RYZEX DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
11. INDEMNITY. Each party agrees to indemnify, defend and hold harmless the other party for any liabilities, costs, losses, damages and expenses (including reasonable attorneys fees actually incurred) arising from any claim or action against or incurred by the other party for any claim for personal injury or real or tangible property damage, to the extent such damages are caused by the action or inaction of indemnifying party's personnel while Peak-Ryzex is performing Maintenance Services at Customer's facility; provided, however, such obligations and liability are contingent upon: (a) the indemnified party providing the indemnifying party with prompt, written notice of a claim or threat of claim hereunder; (b) the indemnifying party having full control of the settlement and/or defense of the claim; (c) the indemnified party providing the indemnifying party the assistance necessary to settle and defend the claim, and (d) the indemnifying party not entering into any settlement or compromise which admits the fault of, or necessitates payment by, the indemnified party without the consent of the indemnified party.
12. Limitation of Liability. Peak-Ryzex's liability for any and all claims, including claims of contract, negligence and strict liability, shall not exceed the amounts paid and payable by Customer to Peak-Ryzex for the Services giving rise to the claim. Peak-Ryzex shall have no responsibility for defects in hardware, software or services supplied by persons other than Peak-Ryzex or for modifications to any hardware or software manufactured by persons other than Peak-Ryzex. IN NO EVENT SHALL PEAK-RYZEX BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, AND LOSS OF PROFITS. THESE LIMITATION OF DAMAGES AND REMEDIES CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AND MEASURE OF DAMAGES. THESE LIMITATIONS OF DAMAGES AND REMEDIES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
13. Force Majeure. Notwithstanding anything in this Agreement to the contrary, Peak-Ryzex shall not be liable for any delay or failure to provide the Services hereunder, if the delay or failure is caused by war, terrorist attacks, riots, civil commotion, fire, flood, earthquake or any act of God, delay by subcontractor or the failure of any third party subcontractor, or third party hardware, software, network system equipment, wiring, electrical systems or utilities, or other causes beyond Peak-Ryzex's reasonable control. If any third party subcontractor providing service or hardware with respect to this Agreement, ceases to provide such services or hardware, and Peak-Ryzex cannot find a suitable replacement vendor, then Peak-Ryzex shall have the right to terminate the Agreement by providing thirty (30) days prior written notice to Customer.
14. MISCELLANEOUS. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign or otherwise transfer this Agreement without the prior express written consent of the other party, such consent not to be unreasonably withheld; provided however, either party may assign this Agreement without the other party's consent incidental to a merger, reorganization, change of control, or sale of all or substantially all of its assets or the assets of a division. (b) This Agreement supersedes and merges all prior proposals, understandings and agreements, oral and written, between the parties relating to the subject matter of this Agreement and may not be modified or altered except by written instrument duly executed by both parties. Customer agrees that this Agreement exclusively governs and controls the rights of the parties so that any purchase order or other writing Customer may submit to Peak-Ryzex shall only be for Customer's convenience. Any additional or differing terms, whether or not materially different, set forth in any communication from Customer are hereby expressly rejected. (c) No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. (d) Section headings are for convenience only and do not form a part of this Agreement. (e) The invalidity or unenforceability of one or more provisions of this Agreement shall not affect the enforceability of any other provision, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. (f) This Agreement shall be governed by the internal laws of the State of Maryland, without regard to its conflict of law provisions. The United Nations Convention for the International Sale of Goods shall not apply. (g) All notices hereunder shall be in writing, sent by certified mail, or overnight delivery service addressed to the parties at their respective addresses set forth on the Order. (h) Customer hereby grants to Peak-Ryzex, its affiliates, successors, and assigns, all rights to reference Customer and/or its logos, including quotes, photos taken or illustrations from Customer, for advertising and marketing purposes, including but not limited to case studies, print advertisements, reference in Peak-Ryzex marketing materials, press releases, Internet postings and other publications electronic or printed which are produced in the ordinary course of business.