Agreement made by and between TECNICA BUSINESS SYSTEMS (“TECNICA”) and Customer.
1. Equipment Covered. The hardware (“Equipment”) and software (“System”) for which maintenance and support is offered under this agreement is listed on the hardware and software rider hereto
2. TECNICA Support
2.1 Service Provided. TECNICA Agrees, for the term of this agreement, to provide, in accordance with the service category selected maintenance and support services on inoperable Equipment and System which are necessary to return the Equipment or System to acceptable operating conditions. All such maintenance or support shall be performed during the hours applicable to the service category selected, excluding holidays (the “principal period of maintenance and support”); extended hour coverage, including holidays will be provided at the TECNICA service rates in effect at the time the service is provided. TECNICA will provide new or reconditioned replacement parts for the Equipment required as a result of normal use. Parts removed become the property of TECNICA, service or parts required for the Equipment as a result of other than normal use (e.g. accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by TECNICA), and ordinary consumable items or items which have a fixed or determinable useful life (e.g. toners, ribbons, fuser assembly units and the like), are not included hereunder and shall be subject to TECNICA’s personnel availability and charged at TECNICA’s prevailing rates on the date such service, replacements or repairs are performed. Service requested by Customer to be performed at times other than during the principal period of maintenance and support shall be subject to TECNICA’s personnel availability and charged to Customer at TECNICA’s rate in effect on the date such service is performed. TECNICA will also provide assistance by telephone to answer urgent and immediate questions during the principal period of maintenance and support. When in TECNICA’s opinion a refurbishment or replacement is necessary because normal repair, adjustments and parts replacement cannot keep a unit or piece of Equipment in satisfactory operating condition, TECNICA will submit a cost estimate of needed repairs or replacements which will be in addition to the charges hereunder. If Customer does not authorize such work or purchase the replacement, TECNICA may cancel or refuse to renew this agreement for the unit, the piece of Equipment, or the overall System. All services to be performed hereunder may be performed by TECNICA or by third parties designated by TECNICA.
2.2 Service and Support Response Time. TECNICA agrees to use reasonable efforts to provide the service required by this agreement in a prompt manner. However, TECNICA shall not be responsible for any damages or liability either directly or indirectly caused by delays in furnishing service; length of down-time; temporary unavailability of servicepersonnel for any reason whatsoever, or for any consequential damages resulting there from.
2.3 Force Majeure. TECNICA shall not be liable to Customer for any delay or failure by TECNICA to perform its obligations under this agreement if such delay or failures are from any cause or causes beyond the direct or indirect control of TECNICA.
2.4 Excluded Services. The maintenance service to be provided by TECNICA under this agreement shall not include (among other things) the following:
A. Performing services in connection with the use of the Equipment or Systems in conjunction with other Equipment or software (not specifically listed under this agreement), the relocation of the Equipment, the rewiring or rerouting of the cables, or the addition or removal of accessories, attachments, features, or other devices;
B. Electrical work external to the Equipment or System;
C. Maintenance of accessories, attachments, features, or other devices;
D. Maintenance of Equipment from which the original identification marks have been removed or altered;
E. Repair of damage resulting from: (i) accident, transportation, neglect, or misuse by Customer. Customer’s failure to provide the necessary facilities or specified operating supplies, or failure by Customer to meet site or installation specifications applicable to the Equipment or System; (ii) Causes external to the Equipment or System such as, but not limited to, unusual physical stress, failure or fluctuation of electrical power, air conditioning or humidity control; or (iii) any cause other than ordinary use (e.g. accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by TECNICA);
F. Furnishing expendable or consumable supplies, including toners, drums and paper products, equipment or accessories, or painting or refinishing the Equipment;
G. Routine cleaning and maintenance, including, but not limited to, periodic cleaning of print heads on filters, periodic cleaning and maintenance of laser printers and preventative maintenance;
H. Maintenance of the Equipment or System or portions thereof which Customer has modified, altered or repaired as set forth in section 3 hereof or portions of the Equipment or System affected by such Customer modifications, alterations or repairs;
I. Reconditioning required when repair and parts replacement cannot keep the Equipment or System in operating condition;
J. Back-up or restoration of Customer data information or computer programs, whether or not used in conjunction with the Equipment or System;
K. Except with respect to specific computer software covered by this support service agreement, any other computer software used by Customer shall not be the responsibility of TECNICA; and
L. Specific requests by Customer for maintenance or support outside the scope of this agreement.
M. Service required complying with any changes in any laws or regulations promulgated by any governmental body.
3. Customer Modifications and Repairs.
3.1 Customer Modifications. Customer shall inform TECNICA in writing of any modifications or alterations to be made by Customer or any third party to the Equipment or System. TECNICA shall not be responsible for maintaining Customer or third party modified or altered portions of the Equipment, System or portions of the same if affected by such modified or altered portions. TECNICA will not be responsible for any data loss or interruptions to business including interruption caused by 3rd party vendors contracted or not contracted by Customer but allowed to access system in any manner locally or remotely.
3.2 Customer Repairs. Maintenance or repairs requested due to Customer’s unauthorized repairs, alterations or maintenance shall be subject to TECNICA’s personnel availability and billed at TECNICA’s standard rates and materials charges, for non-contract customers as the same may be in effect on the date such services are rendered. In addition, all warranties, expressed, implied or statutory, if any, as may be applicable are deemed revoked by TECNICA and waived by Customer until such repair, maintenance or support has been performed by TECNICA and the Equipment or System has been approved by TECNICA for continued operation under this Agreement
4. Customer Support. Customer agrees to use the Equipment and operate the System, including all covered network software, strictly in accordance with the applicable manuals. Customer agrees to provide TECNICA with full access to its facilities and the necessary equipment and documentation for TECNICA to perform maintenance and provide support, and with sufficient assistance and test time so that TECNICA is able to duplicate any problem reported, to determine the source of the problem, to address, as TECNICA deems appropriate, the problem and to report to Customer that the problem has been appropriately addressed. Customer shall be solely responsible for its data, information and programs stored on the Equipment or within the System, including the making of timely and accurate backup copies. TECNICA shall have no liability or responsibility to maintain or restore data, information and programs. All license software, Operating System, Application Software, Drivers and Interfaces are the property of the original author of the application and the customer acknowledges that he/she does not owned the software. AllSoftwarelicensesprovidedbyTECNICAare supported by TECNICA as its original integrator and as such only TECNICA will be able to provide continued upgrades and corrections to imperfections under a predetermine maintenance agreement fee.
5. Term. This Agreement shall commence on the Effective Date and shall continue until the first anniversary thereof (the “Initial Term”). Thereafter, this Agreement shall renew automatically on each anniversary of the Effective Date for a twelve (12) month period without further notice, unless this Agreement is terminated in accordance with the provisions of Section 11. Maintenance and support service under this Agreement shall continue: (i) only so long as Customer maintains the current installed version of the Equipment and System, as provided in the Hardware and Software Rider; or (ii) until terminated by either party in accordance with the terms of this Agreement.
6. Price and Payment.
6.1 Maintenance Fee. Customer shall pay TECNICA the fees for the maintenance and support services rendered in connection with the Equipment and System and the fee for such other services as indicated on the face hereof or on any rider hereto. For the Initial Term of this Agreement, the fee for such maintenance and support shall be the Total Fee set forth on the Hardware and Software Rider. Following the Initial Term, and for each renewal term thereafter TECNICA may change the maintenance and support fees and its billing rates, in accordance with its then customary charges, provided that TECNICA shall have first given Customer thirty (30) days written notice of any increase in the fees. Until such time as the renewal fees have been paid by Customer, TECNICA shall have no liability to provide any further services or support hereunder.
6.2 Additional Charges. Customer shall pay TECNICA for all such services at TECNICA’s then current standard time and materials charges with respect to: (i) maintenance or support of the Equipment or System which TECNICA provides in response to a request by Customer for maintenance or support and which is not covered by this Agreement; or (ii) service traceable to Customer’s unauthorized acts, errors or system changes. With respect to any repairs which are excluded from this Agreement and which are required for the Equipment or System to be in proper working order, TECNICA will submit a description of the work which is necessary to restore the Equipment or System to proper working order and the charges therefore, and will request permission to restore the Equipment or System to proper working order. If TECNICA is not granted the permission to perform such restoration at Customer’s expense, TECNICA shall have the right to terminate all its obligations under this Agreement with respect to such damaged Equipment or System.
6.3 Invoices. All invoices including but not limited to invoices for maintenance and support fees, time and materials charges and expenses are due upon Customer’s receipt of an invoice from TECNICA, or as otherwise agreed by TECNICA (e.g. net 30 days)./ If Customer fails to pay any amount due within ten (10) days after its due date, late charges of 11⁄2%, or the maximum interest rate allowed by law, per month shall also become payable to TECNICA. In addition, failure of Customer to fully pay any invoiced amount within thirty (30) days after the receipt of the invoice shall be deemed a material breach of this Agreement and thereafter TECNICA may (i) terminate this Agreement; or (ii) without terminating this Agreement, suspend all further services, until such time as all amounts owed hereunder are paid in full; or (iii) render services at the non- contract rates then in effect with payment due at the time the services are rendered. If Customer fails to pay, when due, any amount payable hereunder, or fails to fully perform its obligations hereunder, or otherwise breaches or defaults in performing any of its duties or obligations under this Agreement, Customer agrees to pay, in addition to any amount past due, plus interest accrued thereon, all expenses incurred by TECNICA in enforcing this Agreement, including, but not limited to, all legal fees and costs at pre- trial, trial and appellate levels. No failure by TECNICA to request any such payment or to demand any such performance or performance of any Customer obligation hereunder shall be deemed a waiver by TECNICA of Customer’s obligations hereunder or a waiver of TECNICA’s right to terminate this Agreement.
6.4 Taxes. Customer shall, in addition to the payments required hereunder, pay, or reimburse TECNICA for all sales , use, transfers or other taxes, and all duties, whether national, state or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, taxes on net income which may be levied against TECNICA. TECNICA may add such taxes to the invoices submitted to Customer hereunder, to be paid by Customer upon the due date thereof.
7. Travel Expenses. The fees payable hereunder include all travel charges to Customer’s site, as specified herein (excluding overnight lodging and service to locations located more than thirty (30) miles travel distance from TECNICA), if required or related to the maintenance and support services contracted hereunder during the Principal Period of Maintenance and Support. All travel expenses for all services billed outside the Support Service Agreement shall be charged to the Customer, as incurred.
8. Warranty. TECNICA’S SOLE OBLIGATION UNDER THIS AGREEMENT WILL BE TO PROVIDE MAINTENANCE OR SUPPORT IN ACCORDANCE WITH THE SERVICE CATEGORY SELECTED AS SET FORTH HEREIN. CUSTOMERS OBLIGATIONS AS STATED ELSEWHERE IN THIS AGREEMENT WILL INCLUDE THE USE OF CERTIFIED CONSUMABLE PRODUCTS WHEN APPLICABLE IN ORDER TO CONTINUE THE WARRANTY OR EXTENDED WARRANTIES PROVIDED BY THE MANUFACTURER AND OR TENICA. ALL MAINTENANCE AND SUPPORT SERVICES ARE PROVIDED “AS IS”. TECNICA MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL LOOK SOLELY TO THE MANUFACTURER AS TO WARRANTIES, IF ANY, ON PARTS, PRODUCTS OR EQUIPMENT PURCHASED THROUGH TECNICA DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT.
9. Limitation of Liability. TECNICA shall not be responsible to Customer for loss of use of the Equipment, the System, related software, or for any other liabilities arising from its performance of maintenance or support services hereunder, whether such performance or support is by TECNICA or any third party designated by TECNICA. TECNICA shall have no liability or obligation under this agreement with respect to Customer data, information or computer programs, whether or not stored on the Equipment or used in connection with the System. It is the customers’ responsibility to ensure that products delivered meet his or hers specifications and functional requirements. TECNICA SHALL HA VE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS OR THE OBLIGATIONS OF ITS AGENTS OR DESIGNEES UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF TECNICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TECNICA IS NOT RESPONSIBLE FOR NEGLIGENCE BY CUSTOMER OR ITS EMPLOYEES CAUSING IMPROPER USE OF SYSTEM AND NOT MEETING LOCAL, STATE, FEDERAL, OR CONDITIONS IMPOSED BY INSTITUTIONS NOT CONTRACTED BY TECNICA BUSINESS SYSTEMS; INCLUDING COMPLIANCE ISSUES RELATED TO SYSTEM USE AND ITS RELATED SECURITY INFRASTRUCTURE. In no event shall TECNICA’s liability for no reason and upon any cause of action whatsoever exceed the lesser of: (i) the then current annual fee paid hereunder, or (ii) that portion of the amounts paid hereunder which is directly attributable to the particular unit of equipment system or software directly involved in the liability claim.
10. Indemnity. Customer shall indemnify and hold harmless TECNICA from any loss, cost or expense including attorney’s fees at pre-trial, trial and all appellate levels, and whether suit or arbitration be instituted or not, to persons or property suffered or incurred in connection with any claim, suit or proceeding brought by TECNICA arising out of, in relation to, or in any manner connected with this Agreement or Customer’s possession or use of the Equipment, the System and the services provided therefore hereunder.
INCLUDING BUT NOT LIMITED TO LIABILITIES RELATED TO STANDARDS IMPOSSED BY GOVERNMENTAL OR INSTITUTIONS IN GENERAL THAT ARE NOT COMPLIED BY THE END USER.
11.1 Continuous Maintenance. This Agreement is renewable in accordance with the terms of section five (5), “Term”, and shall remain in effect only so long as Customer continuously contracts for or receives maintenance and support from TECNICA, for all of the Equipment and the System covered by this Agreement from the time of acceptance of same. If Customer discontinues such maintenance or support under this Agreement as to any portion of such Equipment or System, TECNICA may immediately terminate this entire Agreement without further obligation to Customer. Unless notified in writing by Customer with a 90 days written notice this agreement is automatically renewed.
11.2 Termination. In addition to its rights as set forth elsewhere in this Agreement, TECNICA shall have the right to terminate this Agreement immediately upon notice to Customer upon: (i) the violation or breach by Customer, its officers or employees of any provision of this Agreement as solely determined by TECNICA, including, without limitation, failure to pay any amounts due as provided for herein or otherwise; (ii) the termination, unwinding or re- organization of the business of Customer, (iii) the voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law directly or indirectly with respect to Customer; or (iv) Customer’s becoming insolvent or making any assignment for the benefit of creditors.
11.3 Notice. After the first twelve (12) months of maintenance or support services under the Agreement, this Agreement may be terminated by either party upon a minimum of thirty (30) days written notice prior to the expiration of any annual term. No refund will be due if the Customer cancels any of the services provided for herein or if TECNICA terminates this Agreement pursuant to Section 11.2 above.
12.1 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties with respect to the subject matter hereof and supersedes any prior understanding or agreements, oral or written. Any equipment, system or software not specifically listed herein or in a Rider thereto as may hereinafter be modified in accordance with the terms hereof, shall not be covered
12.2 Assignment. This Agreement shall be binding upon the parties and their respective successors and assigns. Customer may not assign this Agreement or any of its rights, duties or obligations hereunder, in whole or in part, to any person or entity without the prior written consent of TECNICA which is within the sole and absolute discretion of TECNICA to grant or deny.
12.3 Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain in full force and effect.
12.4 Modifications. This Agreement may not be modified or altered except by written instrument duly executed by both parties, and except that TECNICA may change the terms and conditions of this Agreement upon written notice to Customer thirty (30) days prior to the first day of any renewal period, and may change the fees due and payable hereunder as provided for herein.
12.5 Sites. This document shall be construed for all purposes as a Florida document and shall be interpreted and enforced in accordance with the laws of the State of Florida. All lawsuits or other proceedings related to this Agreement or the transactions herein described shall be commenced and held in Dade County, Florida.
12.6 Consent To Arbitration, Jurisdiction and Venue; Waiver Of Jury Trial. The parties hereby agree in consent to arbitrate any and all disputes, breeches, violations, or interpretations of this Agreement, as well as any other disputes, alleged violations and other matters arising out of or relating to this Agreement with an arbitrator of the American Arbitration Association (AAA) in Dade County, Florida. For purposes of such arbitration’s, AAA’s then prevailing rules and procedures will apply. However, the parties shall have the right to discovery under the Florida Rules of civil procedure. For any purposes not governed by arbitration, if any: (i) the parties hereby consent to personal jurisdiction and venue, for any action arising out of a breech or threatened breech of this Agreement, in the United States District Court for the Southern District of Florida, or in the Circuit Court in and for Dade County, Florida; (ii) the parties agree that any action arising under this Agreement or out of the relationship established by this Agreement shall be brought only and exclusively in the United States District Court for the Southern District of Florida, or in the Circuit Court in and for Dade County, Florida; and (iii) the parties hereby agree that any controversy which may arise under this Agreement or out of the relationship established by this Agreement would evolve complicated and difficult factual and legal issues, and that, therefore, any action brought by either party against the other, whether arising out of this Agreement or otherwise, shall be determined by a Judge sitting without a jury.
TECNICA AND CUSTOMER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY AND INSTEAD AGREE TO ARBITRATION (OR DETERMINATION BY A JUDGE WITHOUT A JURY, IF APPLICABLE) AS SET FORTH ABOVE IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER DOCUMENTS OR INSTRUMENTS HERETOFOR OR HEREAFTER EXECUTED OR DELIVERED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR IN RELATION TO THE RELATIONSHIP ESTABLISHED HEREUNDER, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR TECNICA ENTERING INTO THIS AGREEMENT.
12.7 No Rule of Construction. The parties acknowledge that all parties here to and their counsel, if applicable, have read and fully negotiated all the language used in this Agreement. The parties acknowledge that because all parties and their counsel participated or had the right to participate in negotiating and drafting this Agreement, no rule of construction shall apply to this Agreement which construes ambiguous or unclear language in favor or against any party.
12.8 Limitation of Action. No action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has arisen.
12.9 Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given: (i) if by hand delivery, upon receipt thereof; or (ii) if mailed, three (3) days after deposit in the US mail, postage pre-paid, certified mail, return receipt requested. All notices shall be addressed to the parties at their respective addresses indicated herein and on the face hereof.
12.10 Remedies. The rights and remedies of TECNICA set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity.
12.11 Waiver. No term or provision hereof shall be deemed waived and no breech excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.
13.1 Disclosure. Customer shall not disclose the proprietary and confidential information (“Information”), including trade secrets, if any, provided by TECNICA to Customer directly or indirectly in connection with the services provided for by TECNICA.
13.2 Precautions. Customer shall take all necessary and prudent precautions to prevent such disclosure of any such Information.
13.3 Notification. In the event of the loss of any item containing such Information, Customer shall promptly notify TECNICA in writing of such loss, describing the nature and extent of the loss with as much specificity as possible.