UC Managed Services Terms and Conditions
MANAGED SERVICES TERMS AND CONDITIONS
(New Era Technology General Terms and Conditions apply to this document)
In the Terms and Conditions, the following terms shall have the following meanings:
1.1. “New Era Technology” shall mean New Era Technology.
1.2. “New Era Technology Products” means the New Era Technology branded products.
1.3. “New Era Technology Web Site” means the New Era Technology public website currently located at www.neweratech.com/nz.
1.4. “Service Period” has the meaning given to that term in Section 4 below.
1.5. “Services” means the New Era Technology branded services provided under a relevant Service Program.
1.6. “Service Programs” means those New Era Technology service program offerings defined through New Era Technology Service Descriptions that are typically made available through the New Era Technology Resource Center (PRC).
1.7. “Software” means those New Era Technology Products that are software products and any software included with New Era Technology Products.
1.8. “Software Options” means optional functionality or features of Software that may be selected at the time of purchase or at a later time, and for which New Era Technology charges separately.
1.9. “Terms and Conditions” shall have the meaning set forth in Section 1 of these Terms and Conditions.
1.10. “Update” means Software for which New Era Technology has provided fixes or minor revisions to correct errors or defects in the existing operation of the Software in accordance with the published Product specifications, and which is limited to those updates that New Era Technology generally provides to its support Services customers at no charge. Updates do not include Upgrades or Software Options.
1.11. “Upgrade” means new releases of the Software which contains enhancements improving the functionality or capabilities of the Software, which New Era Technology makes generally available to its support Services customers. Upgrades do not include Software Options.
2.1. The price for the goods and services will be as quoted in writing by New Era Technology to the customer. In the absence of a written quote, New Era Technology’s standard charge applies.
2.2. All quotes and charges are expressed as exclusive of GST and GST will be payable by the customer in addition to such payment.
2.3. All freight, couriers, travel costs, and any other charges in relation to the service provided will be in addition to the quoted price and will be payable by the customer.
2.4. Where New Era Technology organizes services with other businesses on your behalf, an additional fee may apply.
2.5. A payment of 50% of all hardware is to be made at the time of Purchase Order. The balance of the hardware will be invoiced upon equipment delivery.
2.6. Payment for all goods and services must be made by the customer to New Era Technology within 7 days following New Era Technology’s invoice. New Era Technology may at its option issue a monthly interim invoice for work where the delivery of services is over a period exceeding one month.
2.7. New Era Technology reserves the right to request part payment or complete payment upon receipt of the order.
2.8. If the customer fails to make payment on the due date New Era Technology reserves the right to impose a late penalty fee calculated at 8% of the total balance outstanding by the customer.
2.9. Any expenses, disbursements and legal costs incurred by New Era Technology in the enforcement of any rights contained in these terms of trade will be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees.
Pursuant to your purchase order, placed directly with New Era Technology, you have ordered one or more available Service Programs related to certain New Era Technology Products.
In order to receive Services under a Service Program pursuant to the Terms and Conditions, you, must submit a purchase order to New Era Technology for a validly quoted Service Program.
Such purchase order must contain, at least, the following information for each New Era Technology Product listed on the purchase order:
3.1. The Service Program you are purchasing;
3.2. The model (and serial number for renewals of Service Programs only) of the applicable New Era Technology Products;
3.3. The appropriate pricing information;
3.4. The site location(s) where the New Era Technology Products will be installed, together with a contact name, contact email address, and telephone number at the location (if applicable); and
3.5. The Service Period (if applicable). New Era Technology will determine the pricing and payment terms associated with any Service Program which you purchase.
All orders are subject to acceptance by New Era Technology, and no obligation, including a purchase order, shall be binding on New Era Technology unless and until such order is accepted by New Era Technology, or, if earlier, Services are provided to Customer.
Please note that only those New Era Technology Products listed on a valid quotation applicable to your purchase order will be covered by Service Programs under these Terms and Conditions.
Any optional services for a Services Program available to Customers for an additional fee will be invoiced separately with payment terms as specified within such Service Program.
4. SERVICE PERIOD
For those Service Programs that cover a New Era Technology Product for a defined period of time (the “Service Period”), the Service Period shall be the 12-month period (or such other period of time as specified on an Order accepted by New Era Technology) beginning on the date New Era Technology accepts your purchase order (or such other date as specified in the Service Program) for the applicable Service Program.
5. SERVICES AVAILABILITY
Unless otherwise provided in any Service Program, Services will be provided during New Era Technology’s then-current published ordinary business hours Monday through Friday, exclusive of New Era Technology holidays.
6. CUSTOMER OBLIGATIONS
You shall have the continuing obligation to keep all New Era Technology Products under a Maintenance Service Program at either the then-current Software version or previous major Software version release.
6.1. If applicable, you will provide New Era Technology personnel with access to the New Era Technology Products and adequate working space (including heat, light, ventilation, electric current and outlets) at no charge to New Era Technology.
6.2. All Customer environments must be free from all risks to health and safety (except to the extent notified to New Era Technology in writing
6.3. and specifically accepted in writing by New Era Technology).
6.4. If applicable, you will maintain, at your expense, the installation site and provide the necessary utility services for use of the New Era Technology Product in accordance with New Era Technology’s applicable published specifications.
You will be responsible for replacing, at your own expense, any and all consumable items used in connection with the New Era Technology Products, including without limitation, bulbs and batteries.
New Era Technology strongly recommends that you install and use a current, reputable anti-virus program in connection with any PC-based, open-architecture New Era Technology Product, and that you regularly update and run such anti-virus program, especially in connection with the emergence of any new viruses and/or ‘worms’.
6.5. Repair or restoration of any New Era Technology Product damaged or ‘infected’ by viruses is not covered under these Terms and Conditions or the Service Programs.
You are solely responsible for backing up your data.
6.6. New Era Technology will not under any circumstances have a duty to back up your data or to restore data that is lost in the course of New Era Technology’s provision of Services, or otherwise.
6.7. New Era Technology will not be liable for the loss of your data, whatever the reason for the loss, including without limitation as a result of New Era Technology’s negligence.
6.8. The preceding limitation applies to any cause of action, whether based in contract, tort, or any other theory.
You are solely responsible for any additional Customer obligations or responsibilities as identified in an applicable Service Program.
7. SOFTWARE UPDATES, UPGRADES AND OPTIONS
For Software covered under a Service Program, you will receive Updates and/or Upgrades as specified in the applicable Service Program description.
Updates are provided on a fix on fail basis:
7.1. That is, to obtain an available Update the customer must call New Era Technology to report a specific customer product failure (identified by New Era Technology Product serial number) exhibiting a problem, which the Update corrects.
7.2. New Era Technology will configure the Update according to the Software record of the registered New Era Technology Product.
7.3. Software Options are not provided under any Service Program and must be purchased separately in accordance with New Era Technology’s then-current pricing.
8. REPLACEMENT PARTS
Replacement parts provided pursuant to a Service Program will be either new parts or parts equivalent in performance to new parts when used with the New Era Technology Product, and are warranted for ninety (90) days from shipment or the remainder of the initial warranty period, whichever is longer.
8.1. Parts removed from New Era Technology Products for replacement will become the property of New Era Technology, and must be received back to the local New Era Technology service facility (as the same is listed on the pre-addressed return package provided by New Era Technology) within five (5) business days of receipt of the replacement part, or you will be invoiced the full list price for the replaced part.
9. SERVICE PROGRAM EXCLUSION
Service Programs do not cover any of the following:
9.1. electrical work external to the New Era Technology Product;
9.2. repair or replacement of damage to or defects in the New Era Technology Product resulting from causes external to the New Era Technology Product,
including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning, or failure of the installation site to conform to New Era Technology applicable specifications; or
9.3. resulting from use of the New Era Technology Product for other than intended purposes; or
9.4. use of the New Era Technology Product with items not provided or approved by New Era Technology; or
9.5. resulting from the performance of maintenance or the attempted repair of an item of a New Era Technology Product by persons other than New Era Technology employees or persons authorized by New Era Technology;
9.6. furnishing supplies or accessories, or painting or refinishing the New Era Technology Product;
9.7. Services in connection with the relocation of the New Era Technology Product, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by New Era Technology, including communications devices, video devices, audio devices, networks or links; and
9.8. Services in connection with computer viruses or conflicts involving software that is not installed or introduced by New Era Technology.
10. RENEWAL OF SERVICE PROGRAMS
New Era Technology will provide you with forty-five (45) days prior written notice of expiration of the Service Period for each Service Program you purchase that is renewable.
You must provide New Era Technology with written notice of your intent to cancel, renew or modify each such Service Program no less than forty-five (45) days prior to expiration of each such Service Period.
In the absence of such written notice, New Era Technology reserves the right to charge you the then-current time and material rates for any Services provided to you after the expiration of the Service Period if New Era Technology does not receive a renewal purchase order prior to expiration.
Furthermore, New Era Technology reserves the right to terminate or modify available Service Programs at any time in its sole discretion;
10.1. provided, that any such modifications will not affect any Service Programs already ordered by you and accepted by New Era Technology prior to such modifications except as mutually agreed by both parties.
If you wish to order a Service Program for a New Era Technology Product, and such system is not covered by a current Service Program, New Era Technology may require that the New Era Technology Product pass an inspection and/or re-certification by New Era Technology and/or that the New Era Technology Product be brought up to the latest software version level, both at your expense, at New Era Technology’s then-current prices.
12. INTELLECTUAL PROPERTY
Each party shall retain all right, title and interest in and to, and possession of their respective pre-existing intellectual property.
Furthermore, New Era Technology shall retain all right, title and interest in and to, and possession of, any know-how, technical information, specifications, documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of New Era Technology relating to Services performed under or in relation to a Service Program.
Any intellectual property, know-how, information or documents supplied at any time by one party to the other shall be treated as confidential and covered by the confidentiality undertaking in Section 15.
Either party may at its option terminate any applicable Service Program in whole or in part for cause:
13.1. If the other party fails to perform any material term or condition hereunder or under any applicable Service Program, and fails to remedy such failure within thirty (30) calendar days after receipt of written notice of such default;
13.2. In the event that any proceedings are commenced against the other party or such party seeks protection under bankruptcy, insolvency, or other debtor’s relief law; or
13.3. The other party becomes insolvent or dissolves.
Furthermore, New Era Technology may terminate any applicable Service Program in whole or in part for cause if any person other than a New Era Technology employee, or designated service representative, alters an New Era Technology Product without New Era Technology’s prior written consent, or in anyway renders a New Era Technology Product unsafe (adjustments to a New Era Technology Product made at the direction of New Era Technology or as
otherwise intended as set forth in the applicable Product documentation do not constitute alterations for the purposes of this Section).
13.4. Each Service Program is non-cancellable during the term of the applicable Service Period except as set forth in this Section 13.
Each party shall indemnify, defend and hold the other harmless from all claims, suits, losses, expenses, judgments and liabilities (including reasonable attorney’s fees) for personal injury or death to the extent caused by the negligence of the indemnifying party or its employees.
The indemnity shall give the indemnifying party prompt notice of and authority to defend or settle; any such claim and shall give, at the indemnifying party’s request and expense, reasonable information and assistance thereto.
15. CONFIDENTIAL INFORMATION
Each party (the “Disclosing Party”) may from time to time during the Term disclose to the other party (the “Recipient”) certain information regarding the Disclosing Party’s business, including its products, inventions, operations, methodologies, systems, processes, product development plans or intentions, know-how, designs, trade secrets, market opportunities, business or financial affairs, and technical, marketing, financial, employees, planning, and other confidential or proprietary information (“Confidential Information”).
New Era Technology’s Confidential Information includes (without limitation) the function and performance of the New Era Technology Products, the terms of this Agreement, and any other information relating to the New Era Technology Products or the sale thereof.
15.1. Confidential Information includes information disclosed orally, visually, or through any tangible medium.
16. PROTECTION OF CONFIDENTIAL INFORMATION
Recipient will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms and Conditions or to carry out the Services, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of carrying out the Services and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.
Recipient will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Recipient shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Recipient shall not disclose the Confidential Information except as expressly permitted hereunder.
17.1. The term “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein.
The Recipient shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.
17.2. However, this section shall not be deemed to grant to the Recipient a license under the Disclosing Party’s copyrights or patents.
Recipient’s obligations under Section 16 with respect to any Confidential Information of the Disclosing Party will terminate if and when Recipient can document that such information:
18.1. Was already lawfully known to Recipient at the time of disclosure by the Disclosing Party;
18.2. Was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions;
18.3. Is, or through no fault of Recipient has become, generally available to the public; or
18.4. Was independently developed by Recipient without access to, or use of, the Disclosing Party’s Confidential Information.
In addition, Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is
18.5. Approved in advance, in writing by the Disclosing Party,
18.6. Necessary for Recipient to enforce its rights under these Terms and Conditions in connection with a legal proceeding; or
18.7. Required by law or by the order or a court of similar judicial or administrative body, provided that Recipient notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.