CLARKPOWELL Standard Warranty
Clark-Powell Associates, Inc. (referenced throughout this document as CLARKPOWELL) will provide Service coverage to [Client] during the agreed period and offer such services as specified in CLARKPOWELL’s service offerings (Section 5). CLARKPOWELL may provide Service coverage for the Products for up to five (5) years after the initial equipment purchase. CLARKPOWELL will make every effort to repair equipment over 5 years of age, but CLARKPOWELL reserves the right to refuse service if the equipment is deemed to be beyond economical repair or unsupported by the original manufacturer. CLARKPOWELL will give written notice to the designated representative of [Client], option to renew Service coverage at least sixty (60) days and no more than ninety (90) days prior to expiration of the current Service Level Agreement coverage term and such notice may be in the form of an invoice for Service coverage for the next Service Level Agreement coverage term. Notwithstanding the foregoing, payment by [Client] for any such Service Level Agreement coverage will not be due until the first day of such term.
2. Effect of Termination of Service coverage
Client will provide CLARKPOWELL within sixty (60) days written notice of Service coverage termination the reasons for such termination. CLARKPOWELL will provide [Client] within sixty (60) days written notice of Service coverage termination stating the reasons for such termination. Within sixty (60) days after the effective date of any termination of Service coverage, CLARKPOWELL will refund the pro rata portion of the Service Level Agreement coverage fees corresponding to the period of time remaining in the Service Level Agreement coverage at the time of termination. Termination of Service coverage for particular Products will not automatically terminate Service coverage for any other Products under the same or a different Hardware Schedule.
3. Change of Service Level
If [Client] requests to change their current service coverage level (Section 4), CLARKPOWELL will provide [Client] with a new annual quote for such services and if [Client] accepts the revised pricing, CLARKPOWELL will change the invoiced amounts at the next billing cycle.
In the event that [Client] desires to reinstate Service coverage after a period in which [Client] allowed such Service coverage to lapse, [Client] may reinstate Service coverage provided [Client] pays CLARKPOWELL a mutually agreed upon fee for the Service coverage for the Renewal Service coverage Term.
5. Service coverage
CLARKPOWELL will provide Service coverage for the Products that will, at a minimum, include the following:
a) Preventive Maintenance to be performed periodically as per (Section 5), for the selected service coverage level
b) Unlimited remedial maintenance, to include on-site and off-site labor and cost of repairs as required.
c) Unlimited toll free telephone consultation, available Monday – Friday from 8:00AM to 5:00PM Eastern Standard Time (excluding holidays), regarding the installation, use and trouble-shooting of the Products and, if such telephone consultation cannot satisfactorily resolve all installation, use and troubleshooting issues, then on-site consultation at [Client] location(s) without additional cost to [Client]. [Client] undertakes to provide a willing and active site contact that can follow directions by telephone to assist CLARKPOWELL in determining the exact nature of the issue in an effort to better prepare us in the event a visit to site becomes necessary. Requests for service calls to CLARKPOWELL may be made by an unlimited number of [Client] contacts. CLARKPOWELL will provide [Client] contact with a unique ticket number for each service call. In the event that CLARKPOWELL is called to site without the benefit of telephone investigation with a willing and active [Client] representative, or in the event that CLARKPOWELL discovers the issue is user error, and not a fault of the system under service coverage, then CLARKPOWELL reserves the right to charge for the time and materials expended in visiting the site (including travel time).
d) Requests for service will be time stamped, and this time will be the starting point for the response times listed in (Section 5)
e) Each service request will be logged into CLARKPOWELL’s ticketing system, and [Client] will be notified of major action points through to ticket resolution.
f) CLARKPOWELL will undertake to respond to a [Client] request for service with a telephone call from a technician within 2 hours of notification (Mon – Fri, 08.00am – 5.00pm, excluding Holidays). Should a site visit be required for resolution, ClarkPowell's technicians shall have full and free access upon their arrival to the equipment covered under this Agreement to provide service thereon. We have assumed that all of our on-site activities, including noisy operations, can be undertaken during these hours.
g) Failing resolution by telephone, CLARKPOWELL undertakes to attend the [Client] site within the selected service level response time listed in (Section 5). The response times listed are within CLARKPOWELL’s usual business hours of Mon – Fri, 08.00am – 5.00pm, excluding Holidays
h) CLARKPOWELL will provide a periodical report on service coverage performance, to be determined by the selected level of service coverage listed in (Section 5).
6. Preventive Maintenance
CLARKPOWELL will perform Preventive Maintenance to ensure the Hardware operates in accordance with the Documentation. The frequency and scheduling of Preventive Maintenance will be dependent upon the service coverage level selected and listed in (Section 5). A preventative maintenance visit will include optimization of the system components, cleaning of mechanical devices and a QA check on all system operations.
a) Failure due to or caused by fire; as a result of utility Services, poor unconditioned or fluctuating electrical power; air-conditioning or humidity control; computer virus; natural and environmental causes such as earthquake, tornado, lightning, corrosion, flood; acts of war or terrorism; acts of God or by any event beyond the control of ClarkPowell. ClarkPowell will not be required to furnish service to [Client] while such interruption shall continue.
b) Failure caused by abuse, misuse, or negligence.
c) Any actual, consequential or incidental damages incurred or suffered by [Client], directly or indirectly, or for economic loss, including, but not limited to inconvenience, common carrier delay or material damage, loss of profits, loss of business revenue, loss of time, loss of equipment use, or any other economic loss of any kind whatsoever.
d) Failure or perceived failure if no mechanical or electrical failure was found, or was due to [Client] inability to properly operate the COVERED EQUIPMENT (Attachment A)
e) Control system or other software programming changes to facilitate control functions not available at the commencement of the AGREEMENT.
f) Maintenance of accessories, attachments or other devices / systems not listed in Attachment A.
g) Failures or faults caused by structural, mechanical, electrical, plumbing systems or devices not installed by CLARKPOWELL and not specifically covered under this AGREEMENT.
h) Inability of the COVERED EQUIPMENT, due to the manufacturing design of a product, or products, or the integration of the system, to perform in a manner other than for what it was designed.
i) Any condition that existed prior to the start date of this AGREEMENT that would have been obvious during a pre-inspection of the COVERED EQUIPMENT.
j) Repairs prohibited by statute, governmental regulation, or applicable other law.
k) Physical re-installation of COVERED EQUIPMENT from its original installed configuration.
l) Back-up and restoration of data.
m) Replacement parts that are not available or discontinued.
n) Work performed outside of CLARKPOWELL normal business hours.
o) Repair of equipment deemed UN-REPAIRABLE: CLARKPOWELL will make every attempt to repair covered equipment by investing repair labor up to the point where the Service technician deems the labor may exceed the depreciated value of that said piece of gear. The depreciated equipment value shall be determined by searching for comparable equipment in working condition, sourced through reputable used equipment brokers. In the case where CLARKPOWELL deems the equipment un-repairable, CLARKPOWELL will arrange for purchase of replacement equipment through a used equipment broker at CLARKPOWELL cost and include the equipment under the existing contract. In the event there are no serviceable used replacements available, new replacement equipment must be purchased by [Client], but CLARKPOWELL will install this replacement equipment at no charge to [Client], so long as the replacement equipment has been purchased through CLARKPOWELL sales.
p) ISDN and/or IP networking problems related to video conferencing systems: CLARKPOWELL is not responsible for trouble shooting local or long distance ISDN carrier problems or IP networking problems. Should the requirement arise that necessitates CLARKPOWELL’S involvement in diagnosing ISDN/IP network problems, CLARKPOWELL will provide this Service on a time and material basis.
q) CLARKPOWELL will not work unsupervised in any live comms or server rooms, in the event that [Client] requires work in these areas, [Client] will not hold CLARKPOWELL responsible for any [Client] data loss, howsoever caused
r) Systems not previously installed by ClarkPowell or previously covered under a ClarkPowell SLA will need to be tested and repaired to ClarkPowell serviceability standards prior to coverage in the SLA.
s) Repair/replacement of equipment damaged by lightning, fire, theft, gross neglect, or acts of God.
t) Failure or fluctuation of electrical power or inadequate environmental conditions.
u) On-site or off-site labor that becomes necessary as a result of client or 3rd-party actions that either: (a) disregarded or did not follow phone protocol outlined above; (b) amounted to gross misuse of the AV Systems, in light of the manufacturer(s)’ intended uses; (c) went beyond the reasonable attempts of non-trained technicians to correct for operational errors to the point of careless and incompetent repairs that caused detrimental effect(s) to the AV systems.
v) Service provided at the client request outside of standard operating hours.
w) On-site calls (a) in which the equipment was not the cause of the reported trouble, (b) where no trouble was found, (c) where the call was due to [Client] or its representative improperly following operating instructions for the equipment, or (d) pre-event system inspections / set-ups that require a ClarkPowell technician to remain on-site for longer the two (2) hours will be billed separate and apart from the obligations of this Agreement at the rates of $120 per hour, 8:00 a.m.–5:00 p.m. Monday–Friday, and $180 per hour after hours and weekends.
x) Service requested by the client for rearrangement, such as additional wiring, moving other equipment or cables, or relocating equipment.
y) Installation of new equipment or systems.
z) Additional training requested by the client for new employees or for advanced applications.
aa) 3rd Party service support contracts including, but not limited to, those required by Polycom, Cisco and Smart.
CLARKPOWELL will maintain consumables in types and amounts required to perform the Service coverage as listed in (Section 5).
For existing installations, [Client] represents that it is the owner of the equipment to be serviced under this Agreement, or, if not the owner, has authority from the owner to include such equipment under this Agreement. For replacement equipment or consumables purchased by client and held at the client’s site, no responsibility will be imposed upon CLARKPOWELL, unless it is held within our sole and complete control.
[Client] represents and agrees to properly test and set the system to off on every closing and to properly turn on the system on each opening (if applicable); to test any detection device, or other electronic equipment designated in the Proposal prior to setting the system for closed periods and to notify ClarkPowell promptly if such equipment fails to respond to the test; to use the equipment properly and follow proper operating procedures (if [Client] requires ClarkPowell service); if ClarkPowell representatives are sent to [Client]'s premises in response to a service call or alarm signal caused by [Client] improperly following operating instructions or failing to close or properly secure a protected point, to pay an additional service charge at the prevailing rate per occurrence; and that all walls, doors, skylight, windows or other elements of the premises as now constructed or to be constructed are or will be placed and maintained in such condition, at [Client]'s expense, as to permit proper installation and operation of the system(s).
12. Liquidated Damages
a) CLARKPOWELL’S LIMITS OF LIABILITY: It is understood that ClarkPowell is not an insurer; that insurance for whatever reason or purpose and in whatever amount shall be obtained by [Client], if any is desired; that the sums payable hereunder to ClarkPowell by [Client] are based upon the value of services offered and the scope of liability undertaken and such sums are not related to the value of property belonging to [Client] or to others located on [Client]'s premises.
b) [Client] does not seek indemnity by this Agreement from ClarkPowell and specifically waives any rights for indemnity for any damages or losses caused by hazards to [Client]’s employees, invitees, guests, or property.
c) CLARKPOWELL MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT THE SYSTEMS IT INSTALLS OR THE SERVICES IT FURNISHES WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEMS AND SERVICES ARE DESIGNED TO DETECT.
d) [Client] agrees that ClarkPowell shall not be liable for any of [Client]'s losses or damages, irrespective of origin, to person or property, whether directly or indirectly caused by performance or nonperformance of obligations imposed by this agreement or by negligent acts or omissions of ClarkPowell, its agents or employees.
e) [Client] does hereby waive and release any rights of recovery against ClarkPowell that it may have hereunder. It is agreed that it is impractical and impossible to fix actual damages which may arise from situations where there may be a failure of services provided, due to the uncertain value of [Client]'s property or the property of others kept on the protected premises which may be lost, stolen, destroyed, damaged or otherwise affected by occurrences which the system is designed to detect or avert.
f) Due to the inability of ClarkPowell to establish a causal connection between systems or service problems and [Client]'s possible loss, it is further agreed that if ClarkPowell should become liable for any losses or damages attributable to a failure of systems or services in any respect, its total liability to [Client] shall be limited to $250.00, which [Client] agrees is reasonable. The payment of this amount shall be ClarkPowell's sole and exclusive liability regardless of the amount of loss or damage incurred by [Client]. No suit or action shall be brought against ClarkPowell more than one (1) year after the accrual of the cause of action therefore.
g) Since it is agreed that [Client] retains the sole responsibility of the life and safety of all persons in the protected premises, and for protecting against losses to its own property or the property of others in the protected premises, [Client] agrees to indemnify, defend and hold harmless ClarkPowell from any and all such claims and lawsuits including the payment of all damages, expenses, costs, and attorney fees incurred by ClarkPowell, its employees and agents, from and against all claims, lawsuits and losses, by persons not a party to this Agreement, against ClarkPowell for failure of its equipment or services in any respect, alleged to be caused by the improper operation of the system, whether due to malfunctioning or non-functioning of the system, or by the negligence, active or passive, of ClarkPowell.
The Agreement is not assignable by [Client] except upon the written consent of ClarkPowell, which consent will not unreasonably be withheld.
14. Entire Agreement
This Agreement is to govern the providing of services by ClarkPowell to [Client] as described herein. Nothing in this Agreement is to be construed as creating a lease or a leasehold agreement between the parties. This Agreement is not binding unless approved in writing by an authorized representative of ClarkPowell. If approval is not obtained, the only liability of ClarkPowell shall be to return to [Client] the amount, if any, paid to ClarkPowell upon the signing of the Agreement by its Sales Representative. This writing, together with any individually signed acceptance of Proposals, rider, other attachments pertaining to this Agreement is intended by the parties as the final expression of their agreement with respect to the subject matter contained herein and also as the complete and exclusive statement of the terms and such Agreement, notwithstanding any prior, contemporaneous or subsequent purchase order or other document relating to said subject matter. There is no course of dealing or usage of the trade what would supplement or conflict with its terms. This Agreement may only be amended in writing signed by both parties.
This Agreement will be governed by the laws of the State of North Carolina.