EARTEL Service Agreement The following Scope of Work pertains to EARTEL maintenance of customer owned equipment. Any statements in this section shall prevail over those in the General Terms.
I . Service
EARTEL will, at its option, either repair or replace (“Service”) any component part of the hardware (and associated software) listed on pricing proposal sheet(s) (together the “Equipment”) when it malfunctions.
Title to parts installed during the repair process will pass to Customer upon installation.
Title to parts removed during the repair process will pass to EARTEL upon removal.
2. Service Site, Term and Charge
Locations(s) listed on pricing proposal sheet(s) will be known as “Service Site.” EARTEL will provide Service at the Service Site for the Maintenance Period indicated on the pricing proposal sheet(s). Maintenance Period commences on the first EARTEL business day following receipt of order.
The Charge for service, as indicated on the pricing proposal sheet(s), is payable annually in advance. EARTEL reserves the right during the Maintenance period or any renewal period to increase the Charge for Service to reflect changes made during the Maintenance Period or any renewal period in either the type or quantity of Equipment.
3. Service Terms
Definitions -Types of Service
An emergency or major failure shall be deemed to exist when the primary answering position OR more than fifty percent of any single site’s telephones OR one hundred percent of the telephones within a group which is integral to the operation Customer’s business, is unable to make, receive or transfer call in a consistent manner, which in turn materially affects the conduct of the customer’s business.
A routine of minor failure is any condition not covered in the foregoing description of an emergency or major failure.
Emergency Service during warranty and subsequent maintenance periods shall be performed, but may be subject to additional charge as detailed in the General Terms,. see below, by EARTEL promptly, without regard to time of day or day of week, including EARTEL holidays. service personnel as are required shall be dispatched to the Service Site within four hours of customers request for Emergency Service, made to the EARTEL Service Center.
Routine Service during warranty and subsequent maintenance periods shall be performed, but may be subject to additional charges as detailed in the General Terms, see below, by EARTEL during EARTEL standard service hours (Monday through Friday, 7:00 AM to 5.00 PM, excluding EARTEL holidays). service personnel as are required shall be dispatched to the Service Site within eight EARTEL standard service hours of request for Routine Service, made to the EARTEL Service Center.
Any and all travel outside of the EARTEL standard service area (within a 50-mile radius of EARTEL Service Center) will be billed to the customer at the current time and material rates plus all applicable over time premiums.
4. Conditions of Service
EARTEL’s obligation to perform Service is conditioned upon the Equipment not having been altered, repaired or replaced by any party other than EARTEL, without EARTEL’s written consent, and the malfunction not being the result of mishandling, abuse, misuse or improper storage, Installation, maintenance or operation by other than EARTEL (including use in conjunction with equipment electrically or mechanically incompatible) and upon the Equipment not having been damaged by fire, explosion, power failure, any act of God, or by any other cause whatsoever other than acts of EARTEL employees.
5. Additional Services
Upon Customer’s request, in the form of a “Customer Order,” EARTEL will perform the installation of additions to the equipment, moves and changes of the Equipment and the features associated therewith and the repair or replacement of Equipment that has malfunctioned as the result of any of the causes described in section 4 of this section of the Scope of Work. These services (“Additional Services”) will be billed to the customer in addition to and separate from the Charge for Service and will be subject to the provisions of sections 6 and 7 of this section of the Scope of Work.
6. Force Majeure
EARTEL, nor the Customer will be responsible for delays or failures in performance resulting form acts or occurrences beyond the reasonable control of said party, including, without limitation; fire, explosion power failure, acts of God, war, revolution, civil commotion, or acts of public enemies; any law, order regulation, ordinance, or requirement of any government or legal body or any representative of any such government of legal body; or labor unrest, including, without limitation; strikes, slowdowns, picketing or boycotts. In such event, the party affected shall be excused from such performance on a day-for-day basis to the extent of such interference (and the other parties shall likewise be excused from performance of its obligations on a day-for-day basis to the extent such party’s obligations relate to the performance so interfered with.)
7. Remedies, Warranty Exclusions and Limitations of Damage
In the event of any material breach of this Scope of Work by EARTEL which shall continue for fifteen (15) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to EARTEL by the customer, the customer’s sole and exclusive remedy shall be to terminate this Maintenance Agreement by providing written notice thereof to EARTEL.
In the event the customer fails to pay the Charge for service or Additional Services when due, EARTEL shall have the right to suspend its performance under this Scope of Work upon providing written notice thereof to the customer and/or to terminate this Maintenance Agreement if the customer has not paid to EARTEL all amounts due EARTEL within fifteen (15) days of EARTEL’s written notice thereof.
In the event this Maintenance Agreement is terminated by either party, no party shall have any further obligations to the other parties except that EARTEL shall refund to the customer any portion of the Charge for Service paid for the period subsequent to the effective date of termination less any amounts then due EARTEL for Service or Additional Services.
THE PARTIES AGREE THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARE EXCLUDED FROM THIS SCOPE OF WORK AND SHALL NOT APPLY TO THE EQUIPMENT PROVIDED UNDER THIS MAINTENANCE ARGUMENT WHETHER PROVIDED BY EARTEL PURSUANT TO ITS OBLIGATION TO PROVIDE SERVICES OR TO ANY SERVICE OR BY ADDITIONAL SERVICES PERFORMED UNDER THIS MAINTENANCE AGREEMENT, EARTEL’S OBLIGATION AND CUSTOMERS SOLE AND EXCLUSIVE REMEDY IN THE EVENT EARTEL PROVIDES MALFUNCTIONING EQUIPMENT IS TO CAUSE EARTEL TO PERFORM SERVICE ON SUCH MALFUNCTIONING EQUIPMENT. EARTEL SHALL NOT BE LIABLE FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER FOR ANY BREACH OF THIS SCOPE OF WORK OR FOR ANY ACTION ARISING OUT OF ITS PERFORMANCE UNDER THIS SCOPE OF WORK.
The Charge for Service for the first and subsequent renewal periods shall be EARTEL’S then-existing Charge For Service. Customer shall apprise EARTEL, at least thirty (30) days prior to the end of the Maintenance Period or any renewal period, of Customer’s desire to renew this Maintenance Agreement, at which time EARTEL shall provide to Customer (a) written pricing proposal sheet(s) for the subsequent renewal period. If EARTEL has not received such request or if EARTEL has not received a Customer Order prior to the end of the Maintenance Period, Customer shall be deemed to have elected not to renew this Maintenance Agreement.
No assignment or sub license of or under this Maintenance Agreement, or of any rights under this Maintenance Agreement by Customer, shall relieve Customer of primary responsibility for performance of Customers obligations under this Maintenance Agreement. EARTEL reserves the right to refuse to honor any assignment or sub license which, in the opinion of its legal council, would require it to violate any U.S. export restriction, other law, or regulation. EARTEL reserves the right to subcontract any portion of its obligation under this Maintenance Agreement, but no such subcontract shall relieve EARTEL of primary responsibility for performance of EARTEL’S obligation under this Maintenance Agreement.
This scope of Work constitutes the entire agreement between EARTEL and Customer with respect to the contemplated transactions and supersedes all pervious negotiations, proposals, commitments, writings, advertisements, publications and understandings of any nature whatsoever. Unless specifically detailed in writing in Scope of Work, no other affirmations, representations or warranties concerning the System shall be enforceable by Customer or any assignee or sub licensee.