MAINTENANCE SERVICE AGREEMENT
MET Servers, a dba of Majestic International Electronic Technologies, Inc., (”MET International”), by its acceptance here of, agrees to provide, and the customer agrees to accept maintenance service for the Equipment and features listed in the “Maintenance Service Agreement – Equipment List” (herein called the “EL”), the MET International price quotation to the customer (herein called the “Quote”), or the addendum to an existing MET International Maintenance Service Agreement or Equipment List (herein called the “Addendum”) and for any Equipment and features for which such service is ordered from time to time by the customer, subject to written acceptance by MET International.
MET International provides this service through a third-party warranty service provider. By signing this contract, you allow us to share relevant order and contact information in order for the service provider to accommodate your warranty. They may share your contact information with contracted field agents to schedule repair appointments, etc.
1. TERMS OF AGREEMENT. This Agreement shall commence on the date in the Equipment List, the Quote, or the Addendum attached hereto and shall continue for an initial term of ___________ year(s) subject to renewal and termination as provided for herein. The customer upon sixty (60) days prior written notice may remove individual Equipment and/or features from this Agreement to MET International. At no time may the value of the contract become less than ninety percent (90%) of the value as of the beginning of any such term. After expiration of the initial year or any subsequent years, customer and MET International shall each have the right to terminate this Agreement by giving the other party sixty (60) day’s advance written notice prior to the expiration of the then current term of this Agreement. If such notice is not received, the Agreement is automatically extended for an additional one-year period. Each renewal of the Agreement shall be upon the same terms and conditions herein contained except that the charges for maintenance service may be changed as provided herein. However, either party may terminate this Agreement for failure of the party to comply with any of its terms and conditions.
2. RESPONSIBILITIES OF THE CUSTOMER. The customer shall maintain site environmental conditions throughout the period of this Agreement in accordance with the specifications established by the original equipment manufacturer. The customer shall also maintain a current backup copy of the operating system and other applicable software programs and data. Customer shall provide MET International with full and free access to the Equipment and a safe place in which to perform such service. If persons other than MET International service representatives repair, modify or perform any maintenance service on any item of Equipment covered by this Agreement, and as a result thereof, maintenance service by MET International is required to restore the Equipment to good operating condition, such maintenance service will be made at the applicable MET International per call rates and terms then in effect.
3. INSPECTION AND REPAIR. If the Equipment covered by this Agreement was not under MET International's maintenance service responsibility immediately prior to the commencement of maintenance services under this Agreement, it shall be subject to inspection by MET International to determine if it is in good operating condition. Until MET International has inspected the site and determined that the Equipment is in good operating condition, MET International cannot guarantee the quality or provision of its maintenance services. Any repairs or adjustments deemed necessary by MET International to bring the Equipment up to a good operating condition are outside the scope of this Agreement. Customer agrees to pay MET International its then current hourly rates for said certification, or customer has the option to bring equipment to acceptable levels at its own expense. In the event that the Equipment is not brought up to acceptable levels, MET International shall have the right to terminate this Agreement. Upon completion of its audit, MET International shall have the right to adjust the price of the maintenance services in the event that the Equipment is not in good operating condition. If the charges are increased, the customer may, with fifteen (15) days prior written notice, refuse to accept such increase and may then terminate this Agreement, unless MET International agrees to forego the price increase, in which event this Agreement will continue for the then current term. In the absence of such notice to MET International, the increased charges will become effective on the date specified by MET International
4. RESPONSIBILITIES OF MET INTERNATIONAL. For the total charges set forth in the EL (including amendments, if any) MET International shall maintain the listed Equipment in good operating condition and furnish maintenance service during the hours of coverage as defined in the EL. This maintenance service includes on-call remedial maintenance including, lubrication, adjustments and replacement of maintenance parts deemed necessary by MET International. Maintenance parts, which will be new or reconditioned to perform as new, will be furnished on an exchange basis, and the exchanged parts will become the property of MET International. Maintenance service provided under this Agreement does not assure uninterrupted operation of the equipment. MET International shall use diligent efforts and the highest standards of service to determine the source of hardware failure; if hardware cannot be replaced or if parts are no longer available, MET International shall work with the customer to define a mutually equitable solution. All services are dependent upon hardware availability on reasonable terms. MET International's obligation includes only those adjustments or repairs resulting from normal usage, wear and tear. Except for delays arising from causes beyond the control and without the fault of negligence of MET International, customer sites covered by this Agreement shall have an estimated response time as defined in the EL. All Equipment at a single location shall have a common period of maintenance service availability.
5. EXCLUSIONS FROM MET INTERNATIONAL MAINTENANCE SERVICE. The following services (inclusive of replacement of maintenance parts) are outside the scope of MET International maintenance service provided hereunder:
5.1. Electrical work external to the Equipment;
5.2. Modems/telephone lines;
5.3. Repair of damage or increase in service time due to any cause external to the Equipment adversely affecting its operability or serviceability which shall include, but not be limited to, fire, flood, water, lightning and transportation, or due to neglect or misuse;
5.4. Repair or damage or increase in service time caused by failure to continually provide a suitable installation environment including but not limited to, the failure to provide adequate electrical power, air conditioning or humidity control, or customer’s improper use, management or supervision of the Equipment, or caused by the use of the Equipment for purposes other than for which it is designed;
5.5. Furnishing platens, drums, batteries, supplies, etc. or accessories, including media such as tapes and disk packs.
5.6. Furnishing printer consumables, which include fusers, maintenance kits, rollers-feed, separation, transfer toners, ribbons, thermal print heads, design jet print head bleeder kits/lines, and scanner lamps/bulbs.
5.7. Systems engineering services or software support, such as programming, diagnosis of applications software problems, hardware or software upgrades restoration of operating systems, programs, and files or preparation of customer’s media for such files.
5.9. Excluded services noted above shall be performed by separate arrangement at MET International’s established rates then in effect.
6. INVOICES, PAYMENTS AND CHARGES
6.1. The maintenance charges provided for in this Agreement will be invoiced in advance and are due and payable upon receipt of invoice. All other charges hereunder are payable as specified in the applicable invoice for such charges. MET International reserves the right to adjust the specified charges if the Equipment specifications, attachments or features of any item or Equipment are changed after the start date. Charges for a partial month’s service will be prorated on the basis of a 30-day month. All invoices unpaid thirty days after the invoice date will have interest applied at the rate of 1.5% per month. Customer agrees to pay all costs involved in collecting overdue accounts, including reasonable attorney’s fees. MET International reserves the right to terminate maintenance service upon ten (10) days written notice to the customer in the event customer is in payment default.
6.2. If the customer requests unscheduled on-call remedial maintenance to be performed at a time that is outside the contracted period of maintenance service availability, the service will be furnished at the applicable MET International per call rates and terms then in effect. Travel time and expenses are billable in connection with such maintenance.
6.3. Rates will remain constant for the first term of this Agreement. Thereafter rates will increase five percent (5%) per year. MET International reserves the right, after the first term, to further change the charges provided for herein by giving thirty (30) days prior written notice thereof to customer. If the charges are increased beyond the five percent (5%) annual increase, the customer may, with fifteen (15) days prior written notice, refuse to accept such increase and may then terminate this agreement, unless MET International agrees to forego the increase in price greater than 5%, in which event this Agreement will continue for the then current term. In the absence of such notice to MET International, the increased charges will become effective on the date specified by MET International.
6.4. Unless otherwise designated, all charges are exclusive of all import duties, customs, federal, state, municipal, or other government excise sales, use, occupational, or like taxes which shall be the responsibility of the customer.
6.5. If this Agreement is terminated for any reason, then any unpaid maintenance fees (and associated costs, and expenses properly incurred) prior to such termination shall become immediately due and payable.
7. LIMITS OF LIABILITY. EXCEPT AS EXPRESSLY STATED HEREIN, MET INTERNATIONAL’S TOTAL LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOVER, PERTAINING TO SERVICE HEREUNDER OR THE EQUIPMENT OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY MET INTERNATIONAL’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. IN NO EVENT SHALL MET INTERNATIONALBE LIABLE IN CONTRACT LAW, TORT OR ANY OTHER THEORY OF LAW, FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, EXTRA-CONTRACTURAL, OR CONSEQUENTIAL DAMAGE PERTAINING TO SERVICE HEREUNDER OR THE EQUIPMENT OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICE DOWN-TIME COSTS OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH DAMAGE, IRRESPECTIVE OF HOW SUCH DAMAGES MAY BE CAUSED, WHETHER OR NOT BECAUSE OF NEGLIGENCE, STRICT LIABILITY, FAULT OR DELAY OF MET INTERNATIONALOR ITS BREACH OR FAILURE OF PERFORMANCE HEREUNDER.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED HEREIN, MET INTERNATIONALPROVIDES COMPUTER EQUIPMENT MAINTENANCE SERVICES ON AN “AS IS” BASIS AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
9. PERIOD OF MAINTENANCE SERVICE AVAILABILITY. The maintenance charges described herein shall entitle the customer to maintenance service availability during the hours defined on EL, Quote, or Addendum.
10. GENERAL. MET International shall not be liable for any delay in rendering any service, if the delay is due to any act of God or any matter beyond its reasonable control, including but not limited to fire, flood, earthquake, explosion, strike, labor dispute, war, riot or other civil commotion, transportation delay, labor or material shortage, customer’s subcontractor or vendor delay and government act. In the event of any such delay, the date and time of performance shall be extended for a period equal to the time lost by reason of delay. Any claim arising here from including action for breach of this Agreement must be commenced within one (1) year after the claim has been discovered or the cause of action has accrued. Customer acknowledges that MET International reserves the right to assign or subcontract to third parties certain services set forth in this Agreement. The foregoing terms and conditions shall prevail notwithstanding any variance of the terms and conditions that are submitted by the customer for the repair or maintenance of the Equipment. Customer acknowledges that this Agreement is the complete and exclusive statement of the Agreement between the parties, which supersedes all proposals or prior Agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
11. PROPRIETARY AND CONFIDENTIAL INFORMATION. Customer agrees not to disclose to any third party, by any means, any MET International proprietary data or confidential information that customer may have obtained in the performance of its duties without the prior written permission of MET International.
12. SEVERABILITY AND WAIVER. This Agreement is intended to be performed in accordance with and only to the extent permitted by applicable laws, ordinances, rules and regulations. If any of the provisions of this Agreement or the application thereof to any person or circumstance shall for any reason and to any extent be invalid or unenforceable, then the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by law.
13. GOVERNING LAW. This Agreement shall inure to the benefit of and are binding upon the parties hereto, their respective transferees, representatives, successors, heirs, assigns and affiliates and shall be governed by and construed in accordance with the laws of the State of Texas.
14. ENTIRE AGREEMENT. The undersigned acknowledge that this Agreement constitutes the entire agreement and understanding between the parties, that it supersedes all prior and contemporaneous agreements and understandings between the parties, both oral and written.