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| This Agreement is entered into by and between the customer (“Customer”) and Cambridge Computer Services Inc. (“CCS”). Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of CCS shall be construed as an inference to the contrary. If Customer has submitted a purchase order for technical support to CCS, CCS’s acceptance is expressly conditional on Customer’s assent to these terms to the exclusion of all other terms; if these terms are considered an offer by CCS, acceptance is expressly limited to these terms. |
| 1. |
Definitions. The following terms shall have the meaning defined herein. |
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1.1. |
“Agreement” means this agreement, which incorporates these terms and conditions. |
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1.2. |
“Business Day” means from 9:00 a.m. to 5:00 p.m. eastern time Monday through Friday, except for US government holidays and the day after Thanksgiving. |
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1.3. |
“Problem” means an error in the Product that causes it not to conform materially to the applicable user documentation provided by manufacturer. |
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1.4. |
“Product” or “Products” means the computer software or hardware set forth in the applicable invoice from CCS, including any updates or upgrades provided to Customer by the applicable manufacturer. |
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1.5. |
“Technical Support” means the remote technical support provided by CCS personnel. |
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1.6. |
“Term” means the term of this Agreement as such term is indicated on the applicable invoice from CCS, or if no term is indicated, then the term shall be for one year from the date of the applicable invoice. |
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1.7. |
“Workaround” means a temporary solution or fix that restores operational capability without severely compromising the performance of the Products or integrity of the operating system or data. Workarounds may include changes to configuration parameters or operational processes. |
| 2. |
General Terms |
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2.1. |
Payment Terms and Taxes |
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2.1.1. |
Payment Terms. Customer agrees that CCS’s obligations hereunder are contingent upon Customer’s payment of fees to CCS during the Term of this Agreement. Invoices are due and payable thirty (30) days from date of invoice. In the event that any invoice is not paid when due, Customer will be subject to a late fee at the rate of one and one-half percent (1.5%) per month on the outstanding amount or the maximum rate permitted by law, whichever is less. |
| 2.1.2. |
Taxes, Customs, and Duties. Customer will be responsible for taxes, customs or duties arising from the provision of Technical Support under this Agreement except for taxes upon CCS’s net income. |
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2.2. |
License and Ownership |
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2.2.1. |
Rights of CCS. Title to all work product created by CCS under the terms of the Agreement will remain the property of CCS. To the extent that Customer’s employees, agents, or contractors participate in creating any modifications to the Products, Customer assigns all intellectual property rights to such information, inventions, ideas, discoveries, or other matter provided to CCS under the Agreement, except where CCS is advised otherwise by Customer, in advance, that information provided to CCS constitutes Customer’s existing intellectual property. |
| 2.2.2. |
License Grant. For Workarounds for which CCS owns the intellectual property rights, CCS will grant Customer a non-exclusive license, without right of sublicense, to use the Workarounds solely for Customer’s own business purposes but not for marketing, distribution, or resale. |
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2.3. |
Protection of Confidential Information. Each party will protect the other’s confidential information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information, but in no event less than a reasonable degree of care. |
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2.4. |
Renewal, Term, and Termination |
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2.4.1. |
Renewal. The Agreement is renewable for additional one (1) year terms upon thirty (30) days’ written notice by Customer and mutual agreement of the parties. |
| 2.4.2. |
Renewal Fees. Technical Support fees apply to any renewal period of the Agreement and will be determined by CCS at the time of renewal. |
| 2.4.3. |
Renewal After Lapse. If there is a lapse in the Technical Support term, CCS will reinstate the Technical Support only after Customer pays all Technical Support fees that would have been due during the period of the lapse, plus a reasonable lapse administration fee. |
| 2.4.4. |
Termination. CCS may suspend or terminate services if Customer breaches any provision of the Agreement, and if such breach is not remedied within thirty (30) days after Customer receives written notice of the breach. CCS may terminate the Agreement upon the filing by or against Customer of any action under any applicable bankruptcy or insolvency law. |
| 2.4.5. |
Survival of Terms. The following terms will survive any expiration or termination of the Agreement: Definitions; Payment Terms and Taxes; License and Ownership; Protection of Confidential Information; Warranty Disclaimer; Limitation of Liability; Enforcement of Agreement; and Entire Agreement. |
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2.5. |
Limited Warranty, Warranty Disclaimers |
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2.5.1. |
Limited Services Warranty. All work performed hereunder will be in a professional and workmanlike manner. |
| 2.5.2. |
Warranty Disclaimer. Other than the limited warranty provided above, all work performed hereunder will be “as is” without warranty of any kind. CCS does not provide a guarantee to fix any reported Problems or provide fixes within a predefined time frame. CCS hereby disclaims all warranties express or implied, statutory, or otherwise, including without limitation any implied warranties of merchantability, fitness for a particular purpose, and noninfringement. |
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2.6. |
Limitation of Liability. CCS’s entire liability arising from or relating to this Agreement, under any legal theory (whether in contract, tort, indemnity, or otherwise), will be limited to the amounts paid by Customer for the Technical Support for the applicable year. |
| 2.7. |
Enforcement of Agreement |
| 2.7.1. |
Governing Law. The Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to the principles of conflict of laws. The parties hereto consent to the exclusive jurisdiction and venue of the federal and state courts of the Commonwealth of Massachusetts located in Suffolk County, and expressly waive any objection to the jurisdiction or convenience of such courts. |
| 2.7.2. |
Force Majeure. Neither party will be liable under this Agreement for its nonperformance, other than of payment, if caused by strikes, shortages, riots, fire, flood, storm, earthquakes, acts of God, inability to obtain or unavailability of labor, scheduling conflicts, power outages, hostilities, terrorism, or any causes beyond its reasonable control. |
| 2.7.3. |
Waiver. Failure by either party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision. |
| 2.7.4. |
Allocation of Risk. This Agreement defines a mutually agreed-upon allocation of risk, and the Technical Support price reflects such allocation of risk. |
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2.8. |
Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties concerning the subject matter hereof and may be amended only in a writing signed by authorized representatives of both parties. The headings of the sections of this Agreement are for convenience of reference only and shall not be considered in construing this Agreement. No terms on any purchase order from Customer shall in any way modify, replace, or supersede the terms of this Agreement. |
| 3. |
Technical Support |
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3.1. |
Scope of Support. Technical Support will be provided only to Customer only if Customer has valid technical support from the manufacturer of the Product(s) and is current on all payments due to CCS. Customer-requested visits to Customer’s site by CCS are not included in the scope of the Agreement and, if agreed to by CCS, will be charged separately at the then-current rate plus travel and living expenses. |
| 3.2. |
CCS Responsibilities |
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3.2.1. |
Support. CCS will receive and track Problems via telephone or e-mail. CCS will use commercially reasonable efforts to provide Customer with Technical Support consisting only of telephone or e-mail assistance and fixes. |
| 3.2.2. |
Service Level Objectives. During the Term, as applicable, CCS will use commercially reasonable efforts to meet the following service level objectives and response times. |
| Severity Level |
Initial Callback |
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Problem Resolution |
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1
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≤ 1 Business Day |
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Continuous Business Days |
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2
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≤ 1 Business Day |
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As required Business Days |
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3
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≤ Next Business Day |
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As required Business Days |
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4
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≤ 2 Business Days |
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As required Business Days |
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3.2.3. |
Limitations of Support. CCS does not support: (i) modified or damaged Products or any portion of the Products incorporated with or into other products; (ii) Products, including without limitation versions of software, that are not supported by their manufacturer(s); (iii) problems caused by Customer’s negligence, abuse or misapplication, use of the Products other than as is specified in the applicable user documentation, or other causes beyond the control of CCS or the manufacturer(s) of the Products; (iv) the installation of the Products; (v) the writing or debugging of scripts; (vi) data recovery from corrupted media; or (vii) case-work outside this support program’s service level objectives; or (viii) problems caused by any hardware or software that is not supported by CCS hereunder. CCS will not be responsible for the cost of any changes to Customer’s hardware or software which may be necessary to use the Products due to a Workaround or manufacturer-provided update. |
| 3.3. |
Customer’s Responsibilities. During the Term of this Agreement, Customer will: |
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3.3.1. |
Problem Reporting. Provide CCS with a complete and concise description, including all pertinent details, of the Problem, Product name and version, and relevant operating system or platform information. |
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3.3.2. |
Problem Notification. Notify CCS of Problems in accordance with the then-current CCS problem reporting procedures. |
| 3.3.3. |
E-mail use. As reasonably requested by CCS, use e-mail for all technical communication, including notification of problems and subsequent communication concerning the resolution of such Problems. |
| 3.3.4. |
Access to Information. Subject to Customer’s reasonable security requirements, provide CCS with access to and use of all information and system facilities, including user IDs and passwords, reasonably determined necessary by CCS to provide timely support pursuant to the terms herein. |
| 3.4. |
Other Errors. If CCS determines that a problem reported by Customer may not be due to Products, CCS will so notify Customer, who then may either: (i) request CCS to proceed with problem determination at Customer’s expense on a time and materials basis at CCS’s then-current rate plus travel and living expenses; or (ii) advise CCS that Customer does not wish the problem pursued at its expense, in which case CCS may elect, at its sole discretion, not to pursue the problem without liability therefor. |
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