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1. SCOPE OF SERVICES
Innovative Communication Systems, Inc.’s responsibility with respect to its obligation to provide maintenance service under this maintenance agreement shall be limited to the customer side- point of connection between the (Customer Provided Equipment) CPE that ICS, Inc. maintains and the equipment provided by the local telephone utility and to the provision of such services for:
a. Attachment “A” – ICS Inc.’s sale of CPE to customer, installation and the maintenance services for such equipment to be provided by ICS Inc. under the maintenance plan identified below. Under the customer selected maintenance plan, ICS Inc. will provide services upon customer request in order to repair CPE malfunctions due to wear and tear resulting from normal use in accordance with standard operating instructions. b. In the event that ICS Inc. responds to customer’s request for service and customer’s claim of CPE malfunction is due to problems on the local telephone utilities side of the point of connection between the CPE and the equipment provided by the local telephone utility or due to malfunctions in equipment or software other than that covered by this maintenance agreement, customer will be responsible for additional charges for such response in accordance with ICS, Inc. prevailing rates. c. Customer may request service twenty-four (24) hours a day, seven (7) days a week by calling ICS, Inc. If customer’s problem is an emergency, ICS, Inc. will use its best efforts to respond to customer’s report of emergency malfunction within two (2) hours for PBX systems, four (4) hours for key (hybrid) and any other system to complete the appropriate repairs as reasonably practical. An emergency request for service shall be defined as any malfunction which leaves customer unable to place or receive calls through the CPE, or any other failure agreed to in writing by the parties. d. Non-emergency service request reported before 12:00 PM, ICS, Inc. shall use reasonable efforts within five (5) business hours after customer’s problem is reported. e. In response to customer’s service request, ICS may commence repair or replacement from a remote location, dispatch service personnel to customers site, ship replacement CPE as soon as practical. Customer must return defective CPE within ten (10) days or ICS shall invoice customer for the full replacement cost. ICS reserves the right to inspect all defective CPE and have final determination of the status of such CPE.
2. MAINTENANCE PLAN
Basic Plan – coverage during normal office hours, Monday – Friday from 8am to 5pm and excludes holidays. Emergency support is provided after hours.
3. HARDWARE AND SOFTWARE MAINTENANCE
Services provided under the customer’s elected maintenance plan shall include preventative and remedial software updates as required by the CPE manufacturer’s specifications by ICS, Inc. or authorized system administrator. Hardware replacement parts and products may be new or equivalent to new in performance. Such parts and products will be furnished on an exchange basis; the returned parts and products will become the property of ICS, Inc.
ICS, Inc. will perform its services in a professional manner in accordance with prevailing industry standards. ICS, Inc. is not obligated to provide replacement parts, software releases, second tier help desk support, upgrades or maintenance service resulting in CPE functionality which exceeds that expressly provided in manufacturers or suppliers’ specifications at the
time such product was installed. ICS, Inc. makes no guarantee as to parts availability on manufacturer -discontinued products. In the event a manufacturer discontinues producing any CPE or in the event the CPE has outlived the manufacturer’s suggested product life cycle, ICS, Inc. shall continue to provide maintenance services for as long as parts are readily available. In the event repair parts are not readily available, ICS, Inc. shall advise customer. Customer shall have the option to replace the CPE with a similar product at ICS, Inc.’s then prevailing rates. In the event customer declines to authorize such replacement, ICS, Inc. shall delete such CPE from this maintenance agreement and ICS, Inc. will issue, if applicable, a prorated refund for such deletion.
4. Shipping and Delivery
All shipping, transportation and delivery charges for the equipment, including expedites, shall be paid by the customer. ICS, Inc. shall use commercially reasonable efforts to deliver the equipment by the delivery date specified.
During the term of this maintenance agreement, customer will not permit any other person to maintain, repair or modify the CPE or to connect any other equipment. To the extent necessary for ICS, Inc. to perform its services under this maintenance agreement customer agrees that ICS, Inc. will be customer’s agent to represent customer in any dealings with any telephone company or government agency with respect to CPE maintenance provider hereunder. Customer assumes all ongoing responsibility of directory listings, credit cards, system security, billing arrangements and other items not related to equipment or services provided by ICS, Inc. unless expressly stated otherwise under this maintenance agreement or some other express written agreement between customer and ICS, Inc. ICS, Inc. will have the right and option of conducting equipment reviews monthly during the term of this agreement. ICS, Inc. shall then have the right to amend this agreement to cover all CPE additions and/or deletions which may have occurred and adjust the maintenance price accordingly. Any changes to the CPE listing since the inception of the agreement shall be covered at the rates stated agreement.
At the end of the term, to avoid service interruption, this maintenance agreement will automatically extend for consecutive one year terms at ICS, Inc.’s then prevailing rate for such services and continue until terminated by either party upon at least thirty (30) days written notice prior to the expiration of the then existing term. Upon extension of the maintenance plan, the maintenance services provided by ICS, Inc. shall remain unchanged (except with respect to pricing) unless both parties agree in writing to any changes at the time of extension. ICS, Inc. may only increase the price of the maintenance provided herein at: 1) the expiration of the initial term 2) the commencement of any subsequent extension term or 3) CPE is changed, upgraded or additional CPE is added to the maintenance agreement. ICS, Inc. shall provide customer with a thirty (30) day written notice of such increases.
7. Termination and Default
Either party may terminate this maintenance agreement following written notice in the event the other party is in default as to any of its material obligations here under provided that 1) the defaulting party receives notice of termination containing a reasonably complete description of the default 2) the defaulting party fails to cure such default within thirty (30) days of receiving such notice or ten (10) days of such notice if the default is non payment. In the event of customer default, ICS, Inc. has the right to suspend performance and customer shall pay all expenses associated with termination, including reasonable attorney’s fees incurred by ICS, Inc. to enforce any of its rights under the agreement and/or applicable law. Customer may elect to terminate this agreement by providing thirty (30) days written notice to ICS, Inc.. In the event customer terminates this maintenance agreement pursuant to this section, customer shall be liable for up to 6 months of the remaining term of this agreement plus any non-recoverable costs including but not limited to those amounts paid or due to third parties as incurred by ICS, Inc. directly in connection with the provisioning of such equipment and services for customer.
8. Limitation of Liability
Customer agrees that neither ICS, Inc. or its sub-contractor shall be liable for any loss or damage to the equipment, property or injury or death to the customer’s agents, employees, or other customers arising in the connection with maintenance services provided by ICS, Inc. or its subcontractors under this agreement unless such loss, injury death or damage results solely from the negligence or willful misconduct of ICS, Inc.’s officers, employees or agents or those of ICS, Inc. sub-contractor. In no event shall ICS, Inc. be liable for any general, special, incidental, or consequential damages for loss, damages, or expense, directly or indirectly arising from customer’s inability to use the equipment, either separately or in combination with any other equipment, or from any other cause.
9. Help Desk
In addition to the service related items covered in this agreement, ICS will provide unlimited Level 1 Help Desk support for non-service related items. Examples of Level 1 Help Desk items include programming buttons, programming up to 3 new extensions, changing a name, resetting a passcode and assigning DID numbers. Advanced Help Desk items including reconfiguring system programming, designing call flows and in-depth programming support for on-site administrators may incur additional charges.
This agreement shall be governed by and construed in accordance with the laws of the state of Texas. No agent, employee or representative of ICS, Inc. has any authority to bind ICS, Inc. to any affirmation, representation or warranty unless such is specifically included within this agreement. In the event of invalidity of any provision of this agreement, the parties agree that such invalidity shall not affect the validity of the remaining provisions of the agreement.
ICS, Inc. and customer further agree to substitute a valid provision that closely approximates the economic effect and intent of any invalid provision. ICS, Inc. and customer each represent that they have the power and authority to enter into this agreement and this agreement constitutes a valid and binding obligation of each party. ICS, Inc. shall not be liable or deemed to be in default of contract for any delay, interruption of service or inability to perform under the contract resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, fires, explosions, labor disputes or any similar cause beyond the reasonable control of ICS, Inc. Upon the occurrence of such event, ICS, Inc. shall use reasonable efforts to notify the customer of the nature and extent of any such condition and the period of performance shall be extended as necessary to enable ICS, Inc. to perform after the cause of delay has been removed. This agreement and all other attachments or schedules attached hereto embodies the entire agreement among the parties. There are no agreements, representations or warranties, written or legal among the parties other than those set forth or provided for in this agreement.
This agreement may not be modified or changed in whole or part except by a supplemental agreement signed by each of the parties.