Nova agrees to service and maintain the SYSTEM EQUIPMENT ("Equipment") specified in the Agreement Schedule with the following Terms and Conditions. Nova will furnish all necessary service, including parts, materials and labor, if so included under this Agreement, to maintain the Equipment in good working condition whereas service will be performed in a workmanlike manner with replacement parts of good quality. Routine service work shall be performed during Nova's normal business day working hours, which are from 8:00 am to 4:30 pm, Monday through Friday, except Holidays.
Normal maintenance, all non-emergency service, performed due to Customer's operational requirements outside of the aforesaid working hours will be billed in accordance with Nova's standard rates. Service response will normally be provided for malfunctions, which originate within the Equipment, within two (2) working days of the Customer's notification to the Nova Service Dispatcher. Emergency Service involving a total or substantial Equipment outage (i.e. where the Customer's equipment is unable to place or receive calls) will normally be provided within two (2) hours of Customer's notification.
This Agreement covers failure of the Equipment caused by normal wear and tear and does not cover other failures or damage including but not limited to acts of God, lightning, power spikes, power surges or power failures, alterations by anyone other than Nova including improper wiring, installation or repair, theft, accident, misuse, abuse, fire, wind or flood. Further, this Agreement covers labor for basic additions to, relocation or rearrangement of Equipment, but does not provide for labor to perform "Projects" (i.e. relocation to new facilities, redesign/reprogram of system, substantial additions to system, etc.). This Agreement will cover parts and labor for repairing or reprogramming of defective hardware or software.
Any programming or database reconstruction will be billed on a time and materials basis. All repair or service requested by Customer which is outside the scope of this Agreement will be furnished by Nova at applicable rates for time and materials then in effect. Service will be rendered as provided above unless prevented by causes beyond Nova's reasonable control. Nova shall have and Customer hereby grants full and unrestricted access to the premises on which the Equipment is located. Nova is not responsible for any rigid conduit or raceway required for initial installation or subsequent service and Customer agrees to supply required electrical facilities. Customer facilities shall be dry and free of dust and Customer shall provide necessary elevator service, heat, light and sanitary facilities.
Customer agrees to pay Nova the charge set forth on the Agreement Schedule, plus any applicable taxes and finance charges. Nova must have payment in hand before the maintenance agreement commences. During the maintenance term, charges shall be due and payable on the first day of the month following the effective date indicated on the Agreement Schedule. This Equipment Maintenance Agreement shall be automatically renewed from year to year thereafter, unless Customer advises Nova in writing of its intention to cancel this Agreement prior to thirty (30) days before expiration of the initial term. When so renewed, any rate increase for maintenance service will be based on Nova's prevailing rate for similar services to other customers in the same city.
If equipment is added to the covered Equipment subsequent to that which is listed on the Equipment schedule, a new charge will be computed to take into account the increased cost of servicing and maintaining the equipment added and such charges will be billed to Customer in conjunction with the terms of the maintenance period. Initial contract maintenance beyond the warranty period is considered a renewal condition and subject to any rate increases indicated above. Nova may, at its option, terminate this Agreement by giving Customer ten (10) days written notice if Customer defaults in its payment to Nova. Charges which are not paid when due shall be subject to a service charge of 1.5% per month or at the maximum rate permitted by law whichever is the lesser.
Nova's sole responsibility shall be to replace or repair, at its option, Equipment covered under this Agreement. In the performance of this Agreement, Nova shall be liable only for the expense of providing normal repair and maintenance service, but in no event be liable for any special, incidental or consequential damage of loss, damage directly or indirectly arising from Customer's inability to use the Equipment either separately or in combination with any other equipment, or for personal injury, loss or destruction of other property, or commercial loss, or from any other cause. Further, no liability will arise if performance of such service is prevented by declared government emergencies, civil disturbances, strikes or other causes beyond Nova's control.
Peripheral equipment and batteries – Software and peripheral "plug-in" items, including but not limited to paging equipment, headsets, dialers, answering machines and cordless/wireless telephones, are not covered by this Agreement and should be returned directly to the manufacturer's service center. Batteries are not covered by this Agreement. Nova will test and advise if replacement is recommended or required
In the event of onsite technical support, a trip charge may apply.
Nova shall have the right to subcontract in whole or in part of the maintenance work called for by this Agreement. However, Nova shall not be relieved of any liability under this Agreement due to subcontracting.
If other than Nova authorized representatives perform any repair, maintenance service or supplemental installation while the Equipment is under the fixed rate provision of this Agreement which, in the opinion of Nova, increases the maintenance cost thereof, Nova shall notify Customer and an equitable adjustment shall be made. If no agreement can be reached on the increased cost, Nova, as its option, may terminate this Agreement.
Customer may not assign this Agreement without the written consent of Nova.
The provisions contained in the Equipment Maintenance Agreement constitute the entire Agreement between Nova and Customer and any alteration or modification hereto must be in writing, reference this Agreement and be executed by both parties.
If any provision of this Agreement is in conflict with any statute or rule of law of any State territory where it may be sought to be enforced then such provision shall be deemed null and void to the extent that it may conflict therewith, but without invalidating the remaining provisions hereto.
If more than one Customer is named in this Agreement, the liability of each shall be joint and several.
The laws of Minnesota shall govern this Agreement.
As part of this Agreement, Nova Communications, Inc. (Nova) will provide labor to support Manufacturer Discontinued/Non-Supported Equipment, systems, and/or software. Upon a major failure, which cannot be resolved with standard labor, Nova will take one of the following steps, with Customer approval when necessary:
Major system failure – Nova will replace the Equipment, in kind, with supported release manufactured equipment if available. In the event that "in kind" equipment is not available, Nova will provide a new equivalent system at a price of 70% of the hardware list pricing. Labor necessary to install the replacement equipment will be billed at the discounted installation rate.
Minor component failure – Nova will replace the Equipment, in kind, with supported release manufactured component equipment if available. In the event that "in kind" equipment is not available, Nova will provide a new compatible component at a price of 70% of the hardware list pricing. Any labor necessary to perform the replacement will be covered as part of this Agreement and billed at no charge.
Software failure – For systems that do not have a current Software Assurance Plan or Software Upgrade and Support (SUS) plan, Nova reserves the right to charge a one time "Incident" fee for diagnostic services and support. Additional charges may also apply for necessary software upgrades to correct issues related to the failure. This Agreement does not provide for replacement software in the event that the software is no longer in production and/or not supported by the developer/manufacturer.
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