CLARKPOWELL STANDARD WARRANTY

1.        Term

Clark-Powell Associates, Inc. (referenced throughout this document as CLARKPOWELL) will provide Service coverage to CUSTOMER during the agreed period obtained in your system proposal.

2.       Change of Service Level

If the CUSTOMER requests to extend or upgrade their warranty to a CP Assurance Plan,  CLARKPOWELL will provide CUSTOMER with a new annual quote for such services and if CUSTOMER accepts the revised pricing, CLARKPOWELL will charge the invoiced amounts at the next billing cycle.

3.        Service coverage

CLARKPOWELL WILL PROVIDE SERVICE COVERAGE FOR THE PRODUCTS THAT WILL, AT A MINIMUM, INCLUDE THE FOLLOWING:

a)    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 CUSTOMER location(s) without additional cost to CUSTOMER. CUSTOMER 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 CUSTOMER contacts.  CLARKPOWELL will provide CUSTOMER 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 CUSTOMER 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).

b)    Each service request will be logged into CLARKPOWELL’s ticketing system, and CUSTOMER will be notified of major action points through to ticket resolution.

c)    CLARKPOWELL will undertake to respond to a CUSTOMER 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.

d)    Failing resolution by telephone, CLARKPOWELL undertakes to attend the CUSTOMER site within three business days. This response time is within CLARKPOWELL’s usual business hours of Mon – Fri, 08.00am – 5.00pm, excluding Holidays

4.       Exclusions

CLARKPOWELL will not be liable for any issues caused by the following. In the event that we are called out to repair an issue caused by the following, CLARKPOWELL reserve the right to invoice customer for all time and materials expended.

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 CUSTOMER while such interruption shall continue.

b)    Failure caused by abuse, misuse, or negligence.

c)    Any actual, consequential or incidental damages incurred or suffered by CUSTOMER, 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 CUSTOMER inability to properly operate the EQUIPMENT purchased from CLARKPOWELL and covered under this agreement.

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 EQUIPMENT purchased from CLARKPOWELL and covered under this agreement, 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 EQUIPMENT purchased from CLARKPOWELL and covered under this agreement.

j)     Repairs prohibited by statute, governmental regulation, or applicable other law.

k)    Physical re-installation of EQUIPMENT purchased from CLARKPOWELL and covered under this agreement 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)    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.

p)    CLARKPOWELL will not work unsupervised in any live comms or server rooms, in the event that CUSTOMER requires work in these areas, CUSTOMER will not hold CLARKPOWELL responsible for any CUSTOMER data loss, howsoever caused

q)    Repair/replacement of equipment damaged by lightning, fire, theft, gross neglect, or acts of God.

r)     Failure or fluctuation of electrical power or inadequate environmental conditions.

s)    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.

t)     Service provided at the client request outside of standard operating hours.

u)    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 CUSTOMER 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 $125 per hour, 8:00 a.m.–5:00 p.m. Monday–Friday, and $182.50 per hour after hours and weekends.

v)    Service requested by the client for rearrangement, such as additional wiring, moving other equipment or cables, or relocating equipment.

w)   Installation of new equipment or systems.

x)    Additional training requested by the client for new employees or for advanced applications.

y)    3rd Party service support contracts including, but not limited to, those required by Polycom, Cisco and Smart.

z)    Service calls found to be caused by any OFE (owner furnished equipment).

5.       Ownership

For existing installations, CUSTOMER 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. 

6.       Operation

CUSTOMER 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 CUSTOMER requires ClarkPowell service); if ClarkPowell representatives are sent to CUSTOMER's premises in response to a service call or alarm signal caused by CUSTOMER 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 CUSTOMER's expense, as to permit proper installation and operation of the system(s). 

7.       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 CUSTOMER, if any is desired; that the sums payable hereunder to ClarkPowell by CUSTOMER 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 CUSTOMER or to others located on CUSTOMER's premises.

b)    CUSTOMER 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 CUSTOMER’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)    CUSTOMER agrees that ClarkPowell shall not be liable for any of CUSTOMER'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)    CUSTOMER 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 CUSTOMER'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 CUSTOMER'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 CUSTOMER shall be limited to $250.00, which CUSTOMER 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 CUSTOMER. 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 CUSTOMER 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, CUSTOMER 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. 

8.       Successors

The Agreement is not assignable by CUSTOMER except upon the written consent of ClarkPowell, which consent will not unreasonably be withheld. 

9.       Entire Agreement

This Agreement is to govern the providing of services by ClarkPowell to CUSTOMER 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 CUSTOMER 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. 

10.    Jurisdiction

This Agreement will be governed by the laws of the State of North Carolina.