Master Services Agreement-Onsite
TERM – This Agreement is entered into between MAGNEXT Ltd. dba MagStor (MAGSTOR) and Customer herein referred to as “Customer”. The term of this Agreement shall continue until either party provides at least ninety (90) days written notification to the other party. Prior to the anniversary of any contract, MAGSTOR shall provide Customer with an updated quotation showing equipment covered, coverage dates, price, SLA, etc. and a contract renewal form. Upon receipt of the renewal form by MAGSTOR, the contract will renew with the same terms and conditions.
MAINTENANCE SERVICE AVAILABILITY - MAGSTOR agrees to provide on-call remedial service, repairs and replacement of unserviceable parts (“Maintenance Service”) in accordance with the contracted Service Level Agreement (“SLA”). Equipment parts will be furnished on an exchange basis when installed by MAGSTOR service personnel. Parts will be new or reconditioned and equivalent to new in performance when used in the existing equipment. Equipment parts, which have been removed and replaced, become the property of MAGSTOR. If MAGSTOR is not allowed to remove any replaced parts from the Customer’s site for data security or any other reasons, MAGSTOR reserve the right to charge for any replacement parts fitted to the Customer’s equipment. If MAGSTOR cannot obtain an adequate supply of replacement parts for, or otherwise satisfactorily maintain any piece of equipment serviced hereunder, MAGSTOR has the sole discretion to choose any of the following options: 1) discontinue providing service for the equipment as of the date the Customer is notified; 2) place the equipment on a best effort SLA; or 3) upgrade the equipment following written approval of the Customer. If option 3 is elected, MAGSTOR will purchase new or reconditioned and equivalent to new in performance equipment. The Customer agrees to reimburse MAGSTOR in full for the cost of the equipment, plus shipping and handling. This does not include a fee for installation of the equipment. If the Customer requests MAGSTOR to install the equipment, a separate charge for labor will be furnished at MAGSTOR's time and material (“T&M”) hourly rates then in effect. MAGSTOR shall install machine updates, patches and firmware to the extent that they are freely available to MAGSTOR or legally obtainable by the end-user. MAGSTOR will not be held responsible should the end-user’s licensing agreements with the OEMs restrict access to updates or application of patches and/or firmware.
CHARGES - Maintenance Service charges provided for in this Agreement COMMENCE ON THE EFFECTIVE DATE STATED ON THE QUOTATION AND ARE PAYABLE IN ADVANCE. All charges specified are those currently in effect and are subject to change upon thirty (30) days prior written notice to the Customer by MAGSTOR. If charges are changed, the Customer may, on the effective date of such change, withdraw from service any item of equipment affected by such change, by delivering written notice to MAGSTOR prior to the effective date of such change. Otherwise, the change shall become effective upon the date specified in the notice. If the Customer requests Maintenance Service outside of the original SLA, such Maintenance Service, if available, will be furnished at MAGSTOR's T&M hourly rates then in effect. Travel time and expenses are billable in connection with such T&M Service. The minimum charge in connection with such T&M Service shall be two (2) hours including travel time.
LATE PAYMENT - If the Customer fails to pay any charges when due, Customer agrees that MAGSTOR will have the right to assess, and the Customer will pay, a late payment charge of 1.5% per month, but not in excess of the maximum rate permitted by law. Any billing frequency changes will affect the discount schedule, if any, set forth in this Agreement. MAGSTOR reserves the right to withhold services until Customer’s payments to MAGSTOR are current and no monies are due to MAGSTOR by the Customer.
TAXES – Any fee for taxes, however designated or charged under this Agreement, on the services rendered hereunder, or on parts supplied pursuant hereto, including state and local privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by MAGSTOR in respect of the foregoing, exclusive however, of taxes based on net income, shall be charged to the Customer as an additional fee.
DEFAULT - If the Customer does not make timely payments to MAGSTOR hereunder, or breaches any terms of this Agreement, MAGSTOR may, in addition to any other legal remedies it may have, immediately terminate the Maintenance Service. MAGSTOR shall have the right, in addition to any other rights MAGSTOR may have hereunder or at law, to enter Customer's premises and remove MAGSTOR's equipment, material and supplies from Customer's premises, and Customer agrees to surrender and deliver possession thereof. Customer will be invoiced for any MAGSTOR equipment that is destroyed, damaged or unreturned at cost or the current replacement value, whichever is higher.
EXCLUSIONS - The following are not included under this Agreement as Maintenance Service: Installation, de-installation, reinstallation or moving the equipment listed under this Agreement; adding, changing, removing features or options, or making functional changes to the equipment; providing consumable or operating supplies or materials, including but not limited to print heads, shuttle assemblies, cables, batteries1 , media, toner or ink cartridges; repair of equipment damage including, without limitation, damage resulting from accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication lines failure, failure of foreign interconnect equipment, or caused by modifications, alterations or additions of items not provided by MAGSTOR to the listed equipment; maintenance or repair required caused by misuse, abuse or neglect, or other loss or damage from causes external to the equipment; reconditioning or factory refurbishment of equipment when normal repair and parts replacement cannot keep the equipment in satisfactory operating condition as determined by MAGSTOR; software or firmware service or any repair of any equipment failure caused by inappropriate software or firmware programming, system software or application software support; and system engineering services, programming, and operating procedures.
MANUFACTURER’S SPECIFICATIONS – MAGSTOR reserve the right to make additional charges or terminate the contract if MAGSTOR determines any equipment is continually being operated outside the manufacturer’s specifications, specified operating or environmental conditions, or, is subject to excessive usage. MAGSTOR reserves the right to withdraw from this Agreement, or apply additional charges for any equipment which in MAGSTOR's opinion, may be in repetitive need for repairs because of misuse, excessive use, or any other cause.
MEDIA – It is the Customer’s responsibility to ensure their media is managed and bad media is removed from their operation. If MAGSTOR determines that faulty/bad media is the cause of equipment failure, MAGSTOR reserve the right to issue additional charges for the cost of repair of the equipment, or, terminate this Agreement.
EQUIPMENT FUNCTIONALITY – The Customer’s equipment must be in a fully functional state before this Agreement commences. In the event MAGSTOR receives a service call within the first 30 days, and, determines the issue requiring service occurred prior to the commencement of this Agreement, the service call will be billed separately at MAGSTOR’s current T&M rates.
ADMINISTRATIVE OPERATIONS In situations where the Customer requests MAGSTOR perform functions which are the responsibility of the Customer, including but not limited to operational and/or administrative operations, either at a manned or unmanned site, MAGSTOR shall reserve the right to charge the Customer for any services so provided at MAGSTOR’s current T&M rates.
ACCESS TO EQUIPMENT – The Customer agrees to provide MAGSTOR with full and free access to the equipment to provide service thereon. The equipment must be located in safe position and correctly installed in accordance with the manufacturer’s specifications. Equipment must be fully accessible for the engineer to carry out the repair without potential danger to safety.
PRESITE INSPECTION - MAGSTOR reserves the right to perform a pre-site inspection before or at commencement of this Agreement, in order to obtain accurate specifications and configurations of the equipment. If MAGSTOR is not permitted to carry out such an inspection, MAGSTOR reserves the right to charge the Customer for part failures until this information is available.
UNAUTHORIZED REPAIR If persons other than MAGSTOR, or its authorized agents, perform equipment maintenance or repairs, repair of any damage caused thereby shall be made by MAGSTOR and billed to the Customer at MAGSTOR's applicable T&M rates then in effect. Such charges shall not be levied where MAGSTOR provides a Customer with a replacement part and the part is replaced by the Customer or the Customer’s designated agent with MAGSTOR’s express authorization.
ADDITIONAL EQUIPMENT - Additional items of equipment may be added to this Agreement upon acceptance by MAGSTOR and execution of an MAGSTOR addendum form that states the location of the additional items of equipment, model type, serial number, effective date of the commencement of Maintenance Service and total charges for such equipment.
RESPONSIBILITY FOR DATA PROTECTION - CUSTOMER ACKNOWLEDGES THAT AT ALL TIMES IT IS THE CUSTOMER'S SOLE RESPONSIBILITY, SPECIFICALLY DURING ALL CUSTOMER SERVICE FUNCTIONS PERFORMED BY MAGSTOR, TO PROTECT THE COMPUTER SYSTEM DATA BASE, FILES AND SOFTWARE, FROM ALL POSSIBLE LOSSES, INCLUDING, BUT NOT LIMITED TO, POWER FAILURES, HARDWARE FAILURES, SOFTWARE PROBLEMS, EXTERNAL INFLUENCES, AND INADVERTENT MISTAKES, SUCH AS OPERATOR ERRORS, OR ANY OTHER CAUSE BY MAINTAINING COPIES, THROUGH THE USE OF VERIFIED DAILY FILE SAVES STORED ON AND OFF SITE, AND SUCH OTHER ADDITIONAL METHODS OF PROTECTION AS MAY BE AVAILABLE FOR THE COMPUTER SYSTEM DATA BASE, FILES AND SOFTWARE.
LIMITATION OF LIABILITY - CUSTOMER AGREES THAT MAGSTOR'S TOTAL LIABILITY HEREUNDER SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT, AT THE OPTION OF MAGSTOR, OF ANY EQUIPMENT MAINTAINED HEREUNDER DAMAGED THROUGH THE NEGLIGENCE OF MAGSTOR OR ITS AGENTS. IN NO EVENT SHALL MAGSTOR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF WHATEVER KIND OR NATURE AND HOWEVER CAUSED, EVEN IF MAGSTOR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE OF EQUIPMENT, EQUIPMENT RENTAL COSTS, LOSS OF DATA, COSTS OF RECREATING LOST DATA, LOSS OF STORED MEMORY, PRODUCTIVITY LOSS, LOST PROFITS, DOWNTIME COSTS, LOST BUSINESS, LOST SAVINGS, OR OTHER ECONOMIC LOSS OR DAMAGES, OR LIABILITY TO THIRD PARTIES, HOWEVER CAUSED, WHETHER BASED UPON BREACH OF WARRANTY CLAIMS, THE NEGLIGENCE OF MAGSTOR OR ITS AGENTS, OR ANY OTHER TORT, OR OTHERWISE.
DISCLAIMER OF WARRANTY - MAGSTOR MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, WITH RESPECT TO THE SUBJECT MATTER HEREOF, MAINTENANCE TO BE PERFORMED PURSUANT TO THE TERMS HEREOF, OR PARTS TO BE SUPPLIED HEREUNDER. CUSTOMER MASTER SERVICES AGREEMENT TERMS AND CONDITIONS
GENERAL – MAGSTOR reserves the right to adjust the specified Maintenance Charges if the specifications, attachments, or features of any item of equipment are changed after the commencement date of this Agreement. MAGSTOR shall have the right to appoint an independent service organization or organizations as its authorized service agent for the performance of Maintenance Service pursuant to this Agreement, or to assign all or part of this Agreement to any person or organization. Customer may not assign, all or any part of this Agreement without the express written consent of MAGSTOR. Customer represents that Customer is the owner of the equipment subject to this Agreement or, if not the owner, Customer has the authority to enter into this Agreement. Customer agrees to pay MAGSTOR for any services not specifically provided for herein requested by Customer. For such services, Customer shall be billed separately in accordance with MAGSTOR's current T&M rates. Notices concerning this Agreement shall be sent to the addresses shown at the bottom of this Agreement. This Agreement shall be governed by the laws of the State of California and constitutes the entire Agreement between MAGSTOR and the Customer with respect to the furnishing of by MAGSTOR of Maintenance Services. Any action to enforce this Agreement shall be venued in any court in the State of California having jurisdiction over the dispute. If any claim or controversy arises out of this Agreement, the prevailing party shall be entitled to reimbursement of all attorney’s fees, costs, expert fees, and related litigation costs. The term "Agreement" as used herein includes any future amendments, modifications or supplements made in accordance herewith. Neither Customer, MAGSTOR, nor an affiliate of either, shall directly solicit the employment of any present employee of the other until six (6) months after the earlier of (a) the termination of such Employee's employment, or (b) six (6) months after the termination of this Agreement, unless by written consent of both Parties. The Parties agree that the loss of such employee would result in irreparable harm.
FORCE MAJEURE - MAGSTOR shall not be liable to Customer for delay or failure to perform MAGSTOR's obligations under this Agreement if such delay or failure arises from any cause or causes beyond the control of MAGSTOR, including but not limited to labor disputes, strikes, other labor or industrial disturbances, acts of God, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, embargoes, blockages, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or temporary unavailability of qualified service personnel at MAGSTOR's office resulting from service call(s) received before the Customer's service call.
1 Billable Batteries include, but not limited to, RAID controllers, UPS and disk arrays. System board or mother board CMOS batteries will be replaced at no charge to the customer. All billable batteries will be replaced on a T&M basis.