The terms below shall have the following meanings assigned to them:
“Acknowledgement” means the signed “Acknowledgement and Acceptance” set forth on the Quote.
“Additional Services” means any services set forth on the Quote that are not Managed Services.
“Affiliates” means any and all physical persons or corporations associated or connected directly or indirectly including any and all successors of same or, other equity interest.
“Agreement” means collectively this Contract, the Quote, the Additional Terms and Conditions, and all Exhibits and Attachments thereto.
“Azimuth Radio Technologies” means Azimuth Radio Technologies, Limassol Cyprus and Azimuth Radio Technologies GmbH, Hamburg, Germany and its successors. The company and / or companies or any other parties associated or connected thereto, any officer, director, employee, representative, agent, equity holders, trustee, attorney, accountant, advisors, successors, sub-contractors in any jurisdiction in which the company operates.
“Business Day” means any day that is a Monday, Tuesday, Wednesday, Thursday or Friday, except when that Day is a public holiday in the country where the service is being provided or a holiday recognized by Azimuth Radio Technologies, in which case “Business Day” means the next Business Day following the public holiday.
“Client” means the company or individual set forth on the Quote and/or their representative.
“Contract” means these Terms and Conditions.
“Day” means the normal working hours of the country where the service hereunder is being provided.
“Delivery Date” has the meaning ascribed to it in Section 5.A. herein.
“Evergreen Term” means any continuation of the Agreement, after the expiration of the Initial Term incorporating any mutually agreed amendments to the Agreement.
“Export Control Laws” means all customs and export control laws and regulations applicable to either Azimuth Radio Technologies, the Client, or any Hardware or Managed Service, as the case may be, as well as any laws and regulations governing or restricting any direct or indirect disclosure, shipment, transport, sale, or export to a foreign person, location, or government.
“Hardware” means hardware, computers, equipment, peripherals, cabling, servers, machines, components, drives, and devices.
“Hourly Fees” means the then current fees set forth by Azimuth Radio Technologies in the Quote for the provision of Hourly Services.
“Hourly Services” means any effort, service, task, or assistance provided or supplied by Azimuth Radio Technologies, including, without limitation, any design, delivery, support, engineering, installation, repair, maintenance, technical, consulting, or professional services, other than the Managed Services and the Additional Services.
“Initial Term” means the period of time beginning on the date the Client signs the Acknowledgment and continuing for the time frame set forth in the Quote.
“Loss” means losses, damages, liabilities, costs, expenses, fees, penalties, fines, and judgments (whether in tort, contract, warranty, indemnity, contribution, or otherwise).
“Managed Services” means those services outlined on the Quote.
“Monitored Services” means those services that are to be monitored by Azimuth Radio Technologies, as agreed under the Quote.
“Month” means a calendar month.
“Monthly Fee” means the monthly fee for the Managed Services set forth on the Quote or in the Fee Schedule, attached to the Quote, if any.
“Purchased Equipment” means the Hardware and Software to be purchased by the Client, as more particularly described in the Quote.
“Quote” means the list of Managed IT Services, and pricing for such services, offered by Azimuth Radio Technologies to the therein named Client.
“Restricted Programs” has the meaning ascribed to it in Section 2B(iii)(h) herein.
“Software” means operating systems, settings, scripts, code, permissions, registries, programs, software, processes, systems, files, data, records, and options.
“Term” means collectively the Initial Term and any Evergreen Term.
“Work” means any one or more of the Managed Services, Additional Services, or Hourly Services.
2. Managed Service
- Azimuth Radio Technologies Obligations. During the Term and subject to the terms and conditions contained in the Agreement, Azimuth Radio Technologies shall:
- perform the Managed Services in accordance with reasonable IT industry practices; provided, however, suchManaged Services will only be performed on the Hardware and Software described in the Quote; and if Client breaches any of its obligations under Section 2B, or the Additional Terms and Conditions, then Azimuth RadioTechnologies performance of the Managed Services will be excused until such time as Client has cured such breach, including making any repairs, at Client’s expense, to the Hardware and Software resulting from such breach; and
- periodically (but only as frequently as Azimuth Radio Technologies deems necessary in its sole and absolute discretion) check all Monitored Services for any alerts or notifications, and if Azimuth Radio Technologies receives an alert or notification as part of the Managed Services, then Azimuth Radio Technologies shall notify Client, within a reasonable time thereafter, of such alert or notification using any means of communication that Azimuth RadioTechnologies may deem acceptable.
- Client Obligation Each Day during the Term, Client shall:
- provide adequate space and facilities for any Hardware that must be installed, including but not limited to theHardware included in the Managed Services;
- permit, or cause, Azimuth Radio Technologies and / or any other companies appointed by Azimuth RadioTechnologies to be permitted to enter into and access the physical location where any Hardware (including co-located servers not in Client’s physical location) included in the Managed Services or any other Work are located;
- not do or permit its Affiliates to do any of the following:
- gain, use, or attempt to access administrator rights or privileges on any Hardware included in or associated with the Managed Services;
- block, limit, restrict, disable, override, alter, or diminish Azimuth Radio Technologies ability to remotely update the Software or provide the monitoring included in the Managed Services;
- change, use, run, install, uninstall, disable, override, alter, modify, copy, end, stop, add, delete, or remove any Software on any Hardware included in or associated with the Managed Services unless authorized by Azimuth Radio Technologies;
- change, write over, disable, uninstall, alter, override, modify, copy, end, stop, delete, or remove anySoftware that were installed by Azimuth Radio Technologies on any Hardware that is included in or associated with the Managed Services;
- use any network or Hardware in a way that unnecessarily interferes with the normal operation of suchHardware or network, or that consumes a disproportionate share of resources for such Hardware or network;
- attempt to probe, scan, penetrate, or test the vulnerability of any Hardware, Software, or network included in or associated with the Work or Azimuth Radio Technologies;
- attempt to breach the security or authentication measures, whether by passive or intrusive techniques on or for any Hardware, Software, or network included in or associated with the Managed Services;
- knowingly or recklessly install, add, use, run, or permit any viruses, errors, defects, malware, spyware, or invasive software (“Restricted Programs”) on any Hardware that is included in or associated with theManaged Services; or
- permit any Restricted Programs to be installed on any Hardware or Software that is associated, connected to, or networked with any Hardware that is included in the Managed Services;
- attempt to use or gain unauthorized access to Azimuth Radio Technologies’ or to any third party’s networks or equipment;
- interfere or attempt to interfere with service to any user, host or network related to the Work, i-Tech, or any of its Affiliates or other clients;
- restrict, inhibit, disrupt, interfere with, or otherwise cause a performance degradation of the ability of any other person (including Azimuth Radio Technologies, its Affiliates, and its other clients), regardless of intent, purpose or knowledge, to use or enjoy Azimuth Radio Technologies’ networks, Hardware, or Software(except to the extent the same is expressly intended for Client’s sole use); or
- restrict, inhibit, interfere with, disrupt, or otherwise cause a performance degradation to any Azimuth RadioTechnologies (or any of Azimuth Radio Technologies’ Affiliates) Hardware or Software.
3. Additional Service
- Azimuth Radio Technologies’ Obligations. During the Term, and subject to the terms and conditions of the Agreement,Azimuth Radio Technologies shall perform the Additional Services in accordance with reasonable IT industry practices; provided, however, such Additional Services shall only be performed on the Hardware and Software described in the Quote.If Client breaches any of the provisions contained within Section 3B of this Contract, then Azimuth Radio Technologies’ performance of the Additional Services will be excused until such time as Client has cured such breach, including making any repairs, at Client’s expense, to the Hardware and Software resulting from such breach.
- Client Obligations. During the Term, Client shall:
- provide adequate space and facilities for any Hardware that must be installed, including but not limited to theHardware included in the Additional Services;
- permit, or cause, Azimuth Radio Technologies and / or any other companies appointed by Azimuth RadioTechnologies to be permitted to enter into and access the physical location where any Hardware (including co-located servers not in Client’s physical location) included in the Additional Services or any other Work are located, and
- not do or permit its Affiliates to do any of the following:
- block, limit, restrict, disable, override, alter, or diminish Azimuth Radio Technologies’ ability to remotely update the Software or provide the monitoring included in the Managed Services;
- interfere or attempt to interfere with service to any user, host or network related to the Work, AzimuthRadio Technologies, or any of its Affiliates or other clients;
- restrict, inhibit, interfere with, disrupt, or otherwise cause a performance degradation to any Azimuth Radio Technologies (or any of Azimuth Radio Technologies’ Affiliates) Hardware or Software.
4. Purchased Equipment and Limitations.
- Delivery. Subject to the terms of the Agreement and Section 20(b) of this Contract, Azimuth Radio Technologies shall deliver the Purchased Equipment within a commercially reasonable period of time after Azimuth Radio Technologies’ receipt and configuration of such Purchased Equipment, or at such other time as mutually agreed upon by the Client andAzimuth Radio Technologies. Any quoted shipping or initial delivery dates are provided as estimates only and the date thatAzimuth Radio Technologies physically delivers the Purchased Equipment to Client shall be the “Delivery Date”.
- Purchased Equipment and Compliance with Manufacture’s Terms. Client agrees that Azimuth Radio Technologies is ordering the Purchased Equipment specifically for Cli Client shall abide by all the original equipment manufacturer’s terms of sale. Additionally, Client may not exchange, return, or seek refund from Azimuth Radio Technologies for thePurchased Equipment. If Client does not comply with all the original manufacturer’s terms of sale, then Azimuth RadioTechnologies shall be relieved of its performance obligations hereunder.
- Title. Title to the Purchased Equipment passes to Client upon shipment of such Purchased Equipment to Cli If Client selects the shipping or delivery carrier for the Purchased Equipment, Client assumes all risk of loss for such PurchasedEquipment when such carrier takes possession of such Purchased Equipment. If Azimuth Radio Technologies selects theshipping or delivery carrier for the Purchased Equipment, Client assumes all risk of loss for such Purchased Equipment when such carrier delivers such Purchased Equipment to Client’s facility (regardless of whether or not Client actually receives, inspects, signs for, discovers, is present for, or is notified of such delivery). Client must notify Azimuth Radio Technologies within seven (7) Days of the Delivery Date if such Purchased Equipment is missing, wrong, or damaged.
- Availability of Equipment and Modifications. Client acknowledges that Azimuth Radio Technologies’ suppliers and vendors are continually updating and revising their Hardware and Software availability, that the Purchased Equipment maybe come unavailable without prior notice even after an order is placed, and that the Purchased Equipment may be delivered with minor differences as long as they meet or exceed the material specifications of the Purchased Equipment. Client acknowledges that the Purchased Equipment may include reconditioned or equivalent-to-new parts or components.
- Additional Costs. Client acknowledges that taxes, shipping and handling charges (“Additional Costs”) are not included in the Purchased Equipment prices unless expressly indicated at the time of sale and that all such Additional Costs shall be paid by Client.
- Approval Prior to Purchase of Hardware and Software. If at any time during the Term, new or replacement Hardware orSoftware is needed, Client agrees to seek written approval from Azimuth Radio Technologies prior to purchasing or installing such Hardware or Software. Alternatively, Client may request to purchase such new or replacement Hardware or Software from Azimuth Radio Technologies. If Client purchases or installs new or replacement Hardware or Software without the prior written approval of Azimuth Radio Technologies, then Azimuth Radio Technologies, in its sole and absolute discretion, may either (i) terminate the Agreement; or (ii) provide Support Services for such Hardware and Software at the Hourly Fee.
- Limitations. Client acknowledges that Azimuth Radio Technologies may not be able to provide service for certainHardware and Software due to proprietary and other reason Client agrees to seek information about support and service availability offered by Azimuth Radio Technologies for all of Clients Hardware and Software.
5. Licenses, Audit, and Other Agreements.
- Power of Attorney. Azimuth Radio Technologies may enter into licenses and other agreements with third parties onClient’s behalf, as Client’s agent and attorney-in- fact for the use of Hardware and Software in conjunction with the Work(including Software updates). The Client agrees to be bound by such licenses and agreements and shall abide by their terms, regardless of whether Client executes or reviews such licenses or agreements.Client agrees to sign any additional documents as may be required by Azimuth Radio Technologies or a third party vendor to document Azimuth Radio Technologies’ ability to act on behalf of Client, including but not limited to the Limited Power ofAttorney, attached to the Quote, if any.
- License The Purchased Equipment (if any) may include Software or Hardware on which Software is pre-installed. Client agrees to all licenses and other agreements associated with such Software. The Client agrees to be bound by such licenses and agreements and shall abide by their terms, regardless of whether Client executes or reviews such licenses or agreements.
- Compliance with Intellectual Property Laws. Client shall always comply with any applicable copyright, patent and intellectual property laws, codes, rules and regulations associated with the Work, the Purchased Equipment, and anyHardware and Software associated with the Wo Client acknowledges that, unless otherwise specified therein, all licenses are non-exclusive and it shall not reverse engineer, copy, share, transmit, or modify any licensed intellectual property, or otherwise violate any such copyrights or licenses.
- Audit. Azimuth Radio Technologies may, from time to time and during normal business hours, audit the books and records of Client to verify compliance with this Section 6. Client shall cooperate with such audit and make such books and records readily available.
- Use Rights. Azimuth Radio Technologies may, from time to time, obtain, receive, or collect data or information, including system-specific data as part of its performance of the Work. Client hereby grants Azimuth Radio Technologies: (i) a worldwide, royalty-free, perpetual, non-revocable license to copy, maintain, use, compile, aggregate, distribute, display, store, process, reproduce or create derivative works of such data solely for those purposes; and (ii) a worldwide, royalty-free, perpetual, non- revocable license to copy, maintain, use, compile, aggregate, distribute, display, store, process, reproduce, or create derivative works of such data in an anonymous manner and to facilitate Azimuth Radio Technologies marketing and sales activities. Client represents and warrants that it owns and holds all rights, permissions and consents necessary to: (a) grant the foregoing licenses; and (b) use and transfer such data within and outside of the country in whichClient is located or in which the Work is performed.
6. Down Time; Data Back Up; Data Migration.
- Down Time. Client acknowledges that, from time to time, the networks, Hardware, and Software may be or become inaccessible, unusable, down, unavailable, interrupted, damaged, obsolete, or malfunctioning due to many causes, which may include, but are not limited to, weather patterns, infrastructure damage, network provider or carrier outages, Client’s facility conditions, service provider errors, above-average use or traffic levels, Hardware or Software obsolescence, utility outages, or outside interference.Client additionally acknowledges that such occurrences are normal, that accessibility or ‘up time’ is not guaranteed byAzimuth Radio Technologies, and that such occurrences may be for extended periods of time. All such occurrences are subject to the limitations of liability in the Agreement.
- B. Business Interruption. Azimuth Radio Technologies may, from time to time, make networks, Hardware, andSoftware inaccessible, unusable, unavailable, interrupted, or otherwise taken down as part of its performance of the Wo Azimuth Radio Technologies shall make commercially reasonable efforts to do so outside of normal business hours. Client additionally acknowledges that such occurrences are normal, that accessibility or ‘up time’ is not guaranteed by AzimuthRadio Technologies, and that such occurrences may be for extended periods of time. All such occurrences are subject to the limitations of liability in the Agreement.
- C. Risk of Loss of Information and Data Migration. If data migration or transfer is included in the Work, Client acknowledges that such data migration or transfer may result in data loss, degradation, distortion, damage, or other problems, and that such occurrences may be the result of many factors or causes, including (but without limitation) the following: (i) Client’s existing Hardware or Software; (ii) network outages or malfunctions; (iii) Hardware malfunctions; (iv) incompatible or unreasonable network, Hardware, or Software settings, configurations, permissions, registries, or options; (v) the obsolescence of Client’s existing systems; or (vi) other factors beyond Azimuth Radio Technologies’ control Client additionally acknowledges that such occurrences are normal, and that error or loss free data transfer or migration is not guaranteed by Azimuth Radio Technologies. All such errors and losses are subject to the limitations of liability specified in the Agreement.
- Data Back Up/Replication. If data back up or replication is included in the Work, Client acknowledges that such data back up or replication is not guaranteed to prevent or restore data loss, degradation, distortion, damage, or other problems, and that such occurrences may be the result of many factors or causes, including (but without limitation) the following: (i) Client’s existing Hardware or Software; (ii) network outages or malfunctions; (iii) Hardware malfunctions; (iv)incompatible or unreasonable network, Hardware, or Software settings, configurations, permissions, registries, or options;(v) the obsolescence of Client’s existing systems; (vi) computer hacking or other security breaches; (vii) malware, viruses, and other malicious data or Software; (viii) Client’s negligence or misplacement of files such that they are not covered by the back up or replication settings; or (ix) other factors beyond Azimuth Radio Technologies’ control. Client additionally acknowledges that such occurrences are normal, and prevention of or restoration from such occurrences is not guaranteed by Azimuth Radio Technologies. Azimuth Radio Technologies does not guarantee or warrant that such data backup or replication will have effective security measures, or that any data backed up or replicated will be secure. All such security breaches, data errors, and data losses are subject to the limitations of liability in the Agreement.
7. Email Hosting.
- Restrictions. If email hosting is included in the Quote, then Client shall not use the hosted email to:
- engage in, foster, or promote illegal, abusive, or irresponsible behaviour;
- solicit, phish, scam, or otherwise inappropriately obtain passwords or other information;
- iii. include any false, misleading, or deceptive TCP-IP packet header information;
- engage in, foster, or promote mail bombing, flooding, or deliberate attempts to overload a system;
- violate any acceptable use policies or other terms mandated by hosting services through which
- Azimuth Radio Technologies provides email hosting;
- attempt to probe, scan, penetrate or test the vulnerability of such email system or network, or to breach the security or authentication measures, whether by passive or intrusive techniques;
- publish, distribute, transmit, or store any content or link that:
- constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
- is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person’s privacy;
- creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections;
- infringes on another person’s copyright, trade or service mark, patent or other property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to Client or to Azimuth RadioTechnologies; or
- is otherwise malicious, fraudulent or may result in retaliation against Azimuth Radio Technologies by offended parties.
- Bandwidth Restrictions. Azimuth Radio Technologies may, from time to time, set restrictions on Client’s use or consumption of bandwidth, storage space, or other system resources of such hosted email systems, or Azimuth Radio Technologies’ Hardware or networks. Azimuth Radio Technologies shall give Client commercially reasonable prior notice of such restrictions, and in any event at least three (3) Days prior to such restrictions being imposed. Azimuth Radio Technologies shall not be responsible for any losses incurred due to such bandwidth restrictions being imposed.
8. User Training.
If user training is a service provided and included on the Quote (“User Training”), Client acknowledges that the User Training is only for those users who have a reasonable level of proficiency in operating systems (and computers generally), and then only for a reasonable period of time necessary to perform such training. Such training only includes basic operation and troubleshooting of the equipment and software installed by Azimuth Radio Technologies and does not include remedial or basic computer training.
9. Support Services and Exclusion
- Support Services. Azimuth Radio Technologies’ systems specialists shall provide Client with supplemental support for theHardware and Software as described in the Agreement (“Support Services”). Support Services shall be provided via telephone during Azimuth Radio Technologies ‘ regular hours of operation or, at Client’s request and subject to the availability of Azimuth Radio Technologies’ systems specialists, at Client’s Premises. Unless included as part of the ManagedServices or Additional Services, Support Services shall be billed to Client at Azimuth Radio Technologies’ standardHourly Fees then in effect and upon the terms provided herein.Notwithstanding the foregoing, Azimuth Radio Technologies shall only be responsible for providing Support Services on Software and Hardware (including telephones) for which Client has obtained active support services with the vendor of suchSoftware and Hardware.
- B. Exclusions. Client acknowledges that Azimuth Radio Technologies shall not be responsible for managing any leased or large multifunction printers (“Printers”), nor shall Azimuth Radio Technologies be responsible for disposal or maintenance of any Printers or associated items such as printer cartridges, etc.
- Monthly Fee. During the Term, Client shall pay by the first (1st) day of each Month, for services to be provided in the following month, the Monthly Fee.
- B. Purchased Equipment Client shall pay all fees, charges, expenses, and amounts due for the Purchased Equipment upon execution of the Acknowledgement.
- C. Additional Services Fee. Client shall pay all fees, charges, expenses, and amounts due for the Additional Services according to the following schedule:
- Client shall pay all hardware, software, and other product amounts upon execution of the Acknowledgement; and
- Client shall pay the remainder of such fees, charges, expenses, and amounts upon the earlier of: (A) 45 days from the date of execution of the Acknowledgement; or (B) substantial completion of the Additional Services.
- Payment Date. Client shall pay all fees, charges, expenses, and amounts accruing under the Agreement (except as otherwise provided in this Section 10) within the time and with the mode of payment as stated in the invoice received from Azimuth Radio Technologies.
- Hourly Fee. For any Hourly Services performed by Azimuth Radio Technologies for Client, Client shall pay Azimuth RadioTechnologies the Hourly Fee. Notwithstanding the foregoing, Azimuth Radio Technologies may request, as part of its acceptance of any Hourly Services, that Client pay a deposit or a pre-payment (“Advanced Payment”) prior to AzimuthRadio Technologies’ performance of such Hourly Services. If Azimuth Radio Technologies requests such AdvancedPayment, then Client shall pay the Advanced Payment at the time specified by Azimuth Radio Technologies.
- Taxes and Other Charges. Unless expressly noted otherwise, the amounts due from Client as shown on the Quote are exclusive of applicable fees, taxes, tariffs, duties, and assessments imposed by local, state, and federal authorities, which will be added to the invoiced amount if mandatory. If Client is entitled to an exemption from any governmental fees, taxes, tariffs, duties, and assessments, Client shall provide Azimuth Radio Technologies with valid and accurate tax-exemption certificates or other applicable documentation within 10 days of the date of the Contract. If Client fails to provide such certificates or documentation within such time, Client will be responsible for, and Azimuth Radio Technologies may collect, all such fees, taxes, tariffs, duties, and assessments.
- No Setoff Client may not offset, credit, or reduce any amounts due from Client, whether or not Azimuth RadioTechnologies may owe any sums to Client. Azimuth Radio Technologies is not responsible for pricing, typographical, invoicing, or other errors in any offer, quote, estimate, invoice, bill, or the Agreement, and Azimuth Radio Technologies may cancel any document or offer which contain such errors.
- Service Charges and Reinstatement Fees for Late Payment.
- If the Client fails to make any payment in a timely manner, then Azimuth Radio Technologies may charge the Client with an administrative service charge to cover the additional expenses incurred by Azimuth Radio Technologies due to non-receipt of Client’s payment.
- If the Client is paying a Monthly Fee via automatic bill pay (i.e. credit/debit card automatic draft), and the Clients credit/debit card is declined, then Azimuth Radio Technologies will have the right to suspend the Client’s account, inits sole and absolute discretion. Prior to suspending the Client’s account, Azimuth Radio Technologies will place one(1) call to the Client to try to resolve the non-payment, prior to suspension of the Client’s account. The Client will be required to pay Azimuth Radio Technologies a reinstatement fee if the Client’s account is suspended.
- Associated Fees. Unless expressly set forth in the Agreement, the amounts due from the Client for any of services provided by Azimuth Radio Technologies are exclusive of any charges, costs, fees, and expenses for:
- Any parts, equipment, or Hardware;
- Any Software, licenses, software assurances, renewals, or upgrades;
- Any shipping, handling, couriers, or postage;
- Any third-party vendor, OEM, or other manufacturer support or warranties;
- Any premise wiring services;
- Training of any person in any context;
- Travel, travel time, gas or gas mileage, per diem or accommodations, when applicable, when visiting Client offices or any other third party site on Client’s behalf;
- Any non-information technology materials needed to provide services or requested by Client, including but not limited to office supplies or media;
- Any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software or other resources, with or without administrative access to such resources, by anyone other than Azimuth Radio Technologies personnel;
- Any change or service occasioned by acts or omissions by the Client’s Affiliates, subcontractors, third party vendors, or any other third parties who may have or have had physical, logical or remote access to Client’s resources;
- Maintenance of third-party applications, software, software packages or additions, whether acquired through Azimuth Radio Technologies or any other source; or
- Any software programming, altering, scripting, or maintenance.
11. Representations and Warranties.
Client represents and warrants to Azimuth Radio Technologies that:
- Client is in good standing to transact business;
- Client has not relied upon any prior or contemporaneous proposal, term sheet, letter of intent, or other similar document in entering into the Agreement, that it has not relied upon any prior or contemporaneous written or oral representation, warranty, statement, promise, or guaranty not contained in the Agreement, that no representations, warranties, statements, promises, or guarantees exist that are not contained in the Agreement, and that it has made its own investigation into its technology requirements in making the Agreement;
- the Agreement will not cause Client to violate any law, code, ordinance or court order; Client is not purchasing thePurchased Equipment for resale or on behalf of any other person or entity;
- nothing in Client’s facility or any other location of the Hardware will prevent, restrict, or interfere with AzimuthRadio Technologies’ performance of the Work, or will damage or injure Azimuth Radio Technologies, or its Affiliates or equipment (including, but not limited to, construction defects, insect infestation, environmental hazards, fire code violations, mold, structural problems, or the existence of anything or anyone whatsoever that violates any applicable law;
- the Agreement will not violate any other agreement or restriction binding Client.
Client acknowledges and understands all the following:
- if the Quote includes any email hosting, such hosting will be performed through the use of a third party hosting service;
- additional Hardware and Software may be necessary to perform the Work, and all such Hardware andSoftware will be obtained at Client’s sole expense;
- although the Managed Services detect and protect against many threats to Client’s systems, the Managed Services are not designed to, and may not, detect or protect against all threats to Client’s networks, Hardware, and Software, including viruses, malware, spyware, bugs, data degradation, errors, problems, vulnerabilities, defects, bugs,Hardware failures or malfunctions, malicious attacks, malicious software, email scams, or other hazards;
- absolute security against all information or computer-related threats is not realistically achievable and security breach, information release or disclosure, privacy breach, or similar occurrences may occur from time to time;
- without limiting any other provision of the Agreement, any change, use, run, installation, uninstallation, disabling, override, alteration, modification, end, stoppage, addition, deletion, or removal of any Hardware orSoftware on any Hardware or Software included in the Work is at the Client’s own risk;
- the Work and the Purchased Equipment are not fault-tolerant, may fail from time to time, and are not designed or intended for use in hazardous environments requiring fail-safe performance (including, but without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the products, software or services could lead directly to death, personal injury, or severe physical or property damage);
- if Client, or a third party, possesses, requests, or accepts any administrative privileges to any of the Hardware orSoftware, Client is solely responsible for such Hardware, and Azimuth Radio Technologies may remove suchHardware from the Managed Services (without a decrease in the Monthly Fees); and
- if Client or any third party possesses, requests, or accepts any administrative privileges to any of the Hardware orSoftware, Azimuth Radio Technologies no longer has sole control of such equipment, and may not be able to identify who has operated such equipment, or what such persons have done to such equipment.
13. Liability and Indemnity
- Force Majeure. Neither party to this Agreement shall be under any liability to perform any of their obligations hereunder to the extent that its performance of such obligations is prevented, hindered, or delayed by force majeure. For the purposes of this Agreement, “Force Majeure” shall mean any event or circumstance or combination of events or circumstances whenever occurring which in each case is beyond the control of either party to this Agreement, could not be avoided, prevented, overcome or mitigated with reasonable care, prudence and diligence and materially prevents performance of a party’s obligations under this Agreement, of which either of the parties has given notice of to the other party, identifying it as causing force majeure for the purposes of this agreement, promptly upon the same occurring, such as, but not limited to, nature occurrences, acts of gods, pandemic or endemic situations.
- Limitation of Liability. Without prejudice to lit. A, Azimuth Radio Technologies shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit) and howsoever arising resulting from breach of this Agreement unless same is proved to have resulted solely from gross negligence or willful default of Azimuth Radio Technologies or their employees or agents, or sub-contractors employed by them in connection with the services hereunder, in which case (save where loss, damage, delay or expense has resulted from Azimuth Radio Technologies’ personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) Azimuth Radio Technologies’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of five (5) times the actual amount in accordance with the Quote.
- Indemnification. Except to the extent and solely for the amount therein set out that Azimuth Radio Technologies would be liable under this section, the Client hereby undertakes to keep Azimuth Radio Technologies and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them arising out of or in connection with the performance of this Agreement, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which Azimuth Radio Technologies may suffer or incur (either directly or indirectly) in the course of the performance of this Agreement.
- Clause Himalaya. It is hereby expressly agreed that no employee or agent of Azimuth Radio Technologies (including every sub-contractor from time to time employed by Azimuth Radio Technologies) shall in any circumstances whatsoever be under any liability whatsoever to the Client for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions in this section, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to Azimuth Radio Technologies or to which Azimuth Radio Technologies is entitled hereunder shall also be available and shall extend to protect every such employee or agent of Azimuth Radio Technologies acting as aforesaid and for the purpose of all the foregoing provisions of this section Azimuth Radio Technologies is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be their servants or agents from time to time (including sub-contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to this Agreement.
14. Waiver and Modification
- No waiver of any breach of these provisions will be effective unless such waiver is in writing and signed by each party to this Agreement against whom such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach.
- No alteration or amendment to any such obligation will be effective or enforceable unless made in writing in an agreed format signed by all parties to this Agreement.
- This Agreement contains and constitutes the entire agreement between the parties as to its subject matter. No other document shall be deemed to be included into or be deemed to be part of the Agreement.
15. Additional Waivers.
Without limiting the generality of the foregoing lit. C, the Client waives all rights and claims againstAzimuth Radio Technologies for all losses which arise from, or relate to any of the following:
- Client’s breach of the Agreement;
- Hardware or Software on which the Client or any third party had administrator privileges;
- The nature or condition of Client’s facilities, or that of its co-location service;
- Hardware or Software that the Client or any third party has changed, installed, uninstalled, disabled, overridden, altered, modified, ended, stopped, added, deleted, or removed; or
- Any Hardware or Software not services by Azimuth Radio Technologies.
During the Term and for a period of three years thereafter, Client shall not, directly or indirectly, solicit, offer, discuss with, approach, cause, or attempt to cause any Affiliates of Azimuth Radio Technologies to discontinue their relationship with Azimuth Radio Technologies or to become Affiliates of
17. Default, Termination, and Remedies
- Client Default. Client will be in default under the Agreement if any of the following occur:
- Client fails to make any payment of money in a timely manner;
- Client violates, permits any violation of, or acts in a manner inconsistent with, any licenses, agreements, or intellectual property rights related to the Agreement, any Hardware or Software serviced under the Agreement, or any Purchased Equipment;
- Client fails or refuses to perform each and every covenant in the Agreement;
- any representation or warranty of Client is untrue or becomes untrue during the Term;
- Client or its Affiliates commit or permit any other default under or breach of the Agreement or any other agreement between Client and Azimuth Radio Technologies; or
- Client does not provide adequate access to Client’s facilities or takes any other action that causes Azimuth Radio Technologies to not be able to perform their obligations under this Agreement;
- commences a voluntary proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in any involuntary case under any such Applicable Law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Defaulting Party or for substantially all of its property or the Defaulting Party makes any general assignment for the benefit of its creditors; or
- passes a resolution, or has proceedings commenced against it (which are not stayed within 60 days of service thereof) in the nature of bankruptcy or reorganization resulting from insolvency or for its liquidation or for the appointment of a receiver, trustee in bankruptcy or liquidator of its undertaking or assets;
- Termination by Azimuth Radio Technologies. If the Client is in default under this Agreement, then Azimuth Radio Technologies may do any one or more of the following:
- immediately stop performance of the Work (without affecting Client’s obligation to continue to pay for such Work, even if it remains unperformed);
- terminate the Agreement;
- turn off or otherwise cease any website, email, network, telephone, or other hosting or similar service;
- seek injunctive relief or specific performance regarding such default; or
- exercise any other right or remedy under the Agreement, at law, or in equity.
- Termination by Client. Client may terminate the Agreement if:
- Azimuth Radio Technologies fails to perform any of its material commitments, responsibilities or obligations under this Agreement and such failure to perform is not due to or excused by Force Majeure, and
- such failure is not cured by Azimuth Radio Technologies within 120 Days after receipt by Azimuth RadioTechnologies of written notice from Client of such failure or such longer period of time as may be reasonably required to cure such failure.
- Remedies. In the event of termination of this Agreement by Azimuth Radio Technologies:
- Client shall cease all further use of the Hardware and Software, or any portion thereof, in all forms and on all media and Client shall immediately: (i) surrender and deliver the Hardware and Software to Azimuth Radio Technologies; and
- Client shall pay all fees and amounts owed to Azimuth Radio Technologies under the Agreement, through the date of expiration of the Term.
18. Export Compliance.
- No Export and Relief from Performance Obligation. Notwithstanding anything in the Agreement to the contrary, Azimuth Radio Technologies is not obligated to perform the Work or deliver any Purchased Equipment if doing so would constitute an export under, would require licensure under, or would otherwise violate any Export Control Law. Client shall not use,disclose, ship, transport, sell, or export, directly or indirectly, any Hardware, Software, Purchased Equipment, networks, and other equipment (or any Hardware or Software on or through which the Work will be performed, as well as any component or product of the Work or any of the foregoing) that is the subject of the Agreement, to any destination or person if such disclosure, shipment, transport, sale, or export is prohibited by any Export Control Law. Client shall notify Azimuth RadioTechnologies of any export of any Purchased Equipment, products or components thereof, or any products of the Work.
- B. No Export by Client of Hardware or Software. Client, and its Affiliates, shall not use, disclose, ship, transport, sell, or export its Hardware, Software, Purchased Equipment, networks, and other equipment (or any Hardware or Software on or through which the Work will be performed, as well as any component or product of the Work or any of the foregoing) that is the subject of the Agreement in any way involving military end-customers or foreign government anywhere, including(but without limitation) any of the following:
- any foreign army, navy, air force, militia, or other agency of defence;
- defence contractors;
- agencies, corporations, or similar organizations of foreign governments;
- resellers who may sell to any of the foregoing; or
- v. foreign persons who may be associated with any of the foregoing.
- C. Record Keeping Requirements. Client, and its Affiliates, shall comply with all regulatory record keeping requirements associated with all Export Control Law Azimuth Radio Technologies may inspect the books and records of Client from time to time to confirm compliance with Export Control Laws. Upon request from Azimuth Radio Technologies, Client shall promptly provide Azimuth Radio Technologies with information pertaining to the particular end customer, the particular destination and the particular intended used of the Work, the Purchased Equipment, and all other goods and services provided by Azimuth Radio Technologies.
- Client Representation and Warranties. Client, and its Affiliates, represents and warrants that the Hardware, Software,Purchased Equipment, networks, and other equipment (or any Hardware or Software on or through which the Work will be performed) that is the subject of the Agreement is not designed with security and access management for the processing or storage of the following categories of data:
- data that is classified, including software and technical data;
- articles, services and related technical data designated as defence articles and defence services;
- data related to, or subject to any Export Control Laws; or
- other data that is subject to heightened security requirements as a result of Client’s internal policies or practices or by law.
- Use of Words, Section References. Whenever the context requires, the gender of all words used in the Agreement included the masculine, feminine, and neuter. Unless otherwise provided, all references to Sections refer to sections of theAgreement, and all references to Exhibits are to exhibits attached hereto, each of which is made a part hereof for all purposes. Unless expressly provided otherwise, the word “includes” (and all variations of its tense) and other words of specific enumeration are not limited by or to the items that follow them. The words “herein”, “hereof”, “hereunder” and words of like import refer to the Agreement as a whole and not to any particular Section or provision of the Agreement.
- Heading The headings and titles of each Section are for convenience only and do not amplify, modify, or limit such Section.
- Joint Efforts. The Agreement will be construed without regard to any presumption or rule requiring that it be construed against the party causing the Agreement or any part hereof to be drafted.
- Governing Law. The Agreement will be determined by the law as stated in the Quote of Azimuth Radio Technologies or in the invoice or any other document detailing the individual service hereunder.
- Severability. If any provision in the Agreement is invalid or unenforceable, that provision will be construed, limited, amended, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or un enforceability, and the other provisions of the Agreement will remain in full force.
- Assignment. Client may not assign the Agreement without the prior written consent of AzimuthRadio Technologies.
- No Partnership or Joint Venture. Except as expressly provided in the Agreement, Azimuth Radio Technologies is an independent contractor (not a partner, joint venture, employee, or agent) of Client. The Agreement is not a contract for personal services. Azimuth Radio Technologies may engage subcontractors to perform the Work.
- Entire Agreement. The Agreement sets forth the entire agreement between the parties regarding its subject matt If these Terms conflict with the Contract, these Terms will control. The Agreement supersedes all communications, oral or written, between the parties relating to its subject matter. Any prior or contemporaneous proposal, term sheet, letter of intent, or similar document is not binding on Azimuth Radio Technologies, and that Azimuth Radio Technologies disclaims any representations, promises, warranties, or guarantees made thereunder.
- Amendments. No modification is binding unless in writing and signed by both p
- Notices. Any notice shall be sent by hand delivery, fax, email, overnight courier, or postage pre-paid certified mail, return receipt requested, to the address or other contact of the receiving party set forth in the Contract (unless such party notifies the other of a change of address by notice in accordance with this Section at least 3 days prior).
- No Third Party Beneficiaries. Except for an Affiliate of Azimuth Radio Technologies, no third party beneficiary exists under the Agreement
- Expiration of Offer. The Quote expires as a contractual offer 10 days from the date of the Contract, unless signed and accepted by Azimuth Radio Technologies and Client within such time or otherwise extended in writing by Azimuth RadioTechnologies.
- Disputes. If a Dispute occurs that the senior representatives of the Azimuth Radio Technologies and Client have been unable, in good faith, to settle or agree upon within a period of five (5) Business Days after receipt of written notice by a party of the dispute sent by the other party, each of the parties shall nominate and commit one of its senior officers to meet at a mutually agreed time and place not later than ten (10) Business Days after receipt of that notice to attempt to resolve the dispute. If senior management has been unable to resolve the dispute within a period of five (5) Business Days after their meeting, or if the meeting has not occurred within ten (10) Business Days following the receipt of notice ofDispute, then either party may, by written notice to the other party, pursue its remedies in a court of law.