LEG002/Iss02/02-14 TERMS AND CONDITIONS OF

Transcription

TERMS AND CONDITIONS OF BUSINESS
Company agrees to comply with the terms and conditions contained herein and of the policies reflected by such Exhibits as Enables IT
may update them from time to time in the Statement of Work; Service Level Agreement and Service Contract.
The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase services and/or products
from Enables IT to be mutually agreed upon by the parties. This Agreement, including all Exhibits, Statements of Work, Service Level
Agreements and Service Contracts constitutes the entire agreement between Enables IT and Customer with regard to the Services to
be performed and/or products to be provided by Enables IT to Customer and supersedes all prior agreements, understandings,
statements, proposals, and representations, whether written or oral, between the parties.
The terms of this Agreement will take precedence in the event of any inconsistency between it and the Exhibits and any other
documents comprising Enables IT’s agreement with Customer, unless specifically stated in the Statement of Work and identifying the
section(s) that will control.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties hereby agree as follows:
Services and Products Provided. Enables IT shall provide Customer with services as specified in the Statement of
1.
Work/Service Contract and as specified in any subsequent mutually agreed written statements of work (each, a “Statement of Work”)
which specifically incorporate this Agreement (the “Services”), and subject to the terms and conditions set forth in the applicable
Exhibits. Enables IT shall sell and Customer shall purchase any goods, hardware, software and materials which Enables IT is to supply
and/or manufacture in connection with the Services (the “Products”) as specified in any Statement of Work or described in any order
from Customer to Enables IT for Products that Enables IT accepts in writing (a “Purchase Order”).
Fees, Expenses, and Payment. Customer shall pay Enables IT the fees specified in (or calculated in accordance with the
2.
fees or rates set forth in) the applicable Statement of Work/Service Contract, in the manner set forth in the applicable Exhibit. Enables
IT will be reimbursed, at cost actually incurred, for expenses that have been approved in advance by Customer. Customer is
responsible for all taxes, duties, and customs fees imposed on or with respect to the Services, excluding taxes based on Enables IT’s
income. Customer may purchase additional Services offered by Enables IT from time to time on terms and conditions mutually agreed
to in writing. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the
rate of eight (8) percent per month or fraction thereof until paid.
3.
Term and Termination.
3.1
Term. This Agreement will commence as of the Effective Date and will continue for the Period agreed (“Initial
Term”). Each Statement of Work will become effective when duly executed by both parties and will continue in effect until the
expiration of the applicable Statements of Work term, unless terminated as permitted hereunder.
3.2
Renewal. Prior to the end of the Initial Term, Customer may elect to extend the Initial Term for one (1) or more
year(s) by sending written notice to Enables IT. If Customer does not make such election, this Agreement shall renew automatically for
successive one (1) month terms (a “Monthly Term”). In the event the agreement is subject to Monthly Terms, Enables IT may increase
any reoccurring monthly charges set forth in a statement of work by fifteen percent (15%) per year upon thirty (30) days prior written
notices.
3.3
Termination.
(a)
Customer may notify Enables IT in writing at least ninety (90) days prior to the end of the Initial Term of its
election not to renew this Agreement, in which case this Agreement shall terminate at the end of such Initial Term. In the event the
Agreement is subject to Monthly Terms, Customer may terminate this Agreement for any reason upon ninety (90) days prior written notice
delivered to Enables IT.
(b)
Either party may terminate this Agreement at any time, upon written notice, if the other party materially
breaches any of its obligations under this Agreement and such breach is not remedied within twenty (20) days after written notice thereof by
the other party. Failure by Customer (whether under this or any other agreement between Customer and Enables IT) to make any payment
due and payable to Enables IT is expressly deemed a material breach.
(c)
This Agreement terminates automatically, with no further action of either party, if Company is adjudicated
bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in
the normal course of business or if a receiver is appointed on account of Company’s insolvency.
(d)
Termination of this Agreement shall not limit either party from pursuing other remedies available to it,
including injunctive relief. On termination of this Agreement for any reason, (i) Customer shall immediately pay to Enables IT all of Enables
IT’s outstanding unpaid invoices and interest in and, in respect of Services supplied but for which no invoice has been submitted, Enables IT
shall submit an invoice, which shall be payable by the Customer immediately on receipt; and (ii) Customer shall return any Products which
have not been paid for, and if Customer fails to do so, then Enables IT may enter the Customer’s premises and take possession of them.
Any provisions of this Agreement that must survive termination to fulfill its essential purpose will survive termination of this Agreement.
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4.
Confidential Information.
4.1
During the course of the parties’ relationship, they may have access to each other’s Confidential Information.
“Confidential Information” means any information that is disclosed by one party (the “Discloser”) to the other (the “Recipient”),
which, at the time it is disclosed, in any form, is identified or designated by the Discloser as “confidential or proprietary” or reasonably
should be known by the Recipient to be proprietary or confidential information of the Discloser. “Confidential Information” includes, but
is not limited to, with respect to either party, information relating to the business and affairs of such party, including without limitation
research, development, products, methods of manufacture, trade secrets, business plans, customers, finances and personnel data,
this Agreement (including the terms, conditions and pricing contained herein), and any information generated in the performance of
Services under this Agreement. Notwithstanding, “Confidential Information” shall not include any information that (a) was rightfully in
the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from the
Discloser; (b) is or becomes generally known to the public through no fault or breach on the part the Recipient or any person to who
the Recipient disclosed such information; (c) is obtained by the Recipient in good faith from a third party having the right to disclose it
without an obligation of confidentiality; or (d) is independently developed by the Recipient without the use of Confidential Information.
4.2
The Recipient shall protect the Discloser’s Confidential Information with at least the same degree of care and
confidentiality, but not less than a reasonable standard of care, which the Recipient utilizes for its own information which it does not
wish disclosed to the public. The Recipient shall not, either during the term of this Agreement or thereafter, use or disclose the
Confidential Information without the prior written consent of the Discloser, except: (a) as specifically permitted in this Agreement; or (b)
for the purpose of performing its obligations or enforcing its rights under this Agreement, provided that such disclosures are made only
to those employees, consultants, contractors, professional advisors or third party service providers with a direct business need to
know and who have agreed in writing to confidentiality provisions that provide the Discloser with at least as much protection as those
contained herein. Notwithstanding the foregoing, if the Recipient is required to disclose Confidential Information pursuant to a
requirement of applicable law, Recipient shall provide the Discloser with prompt written notice of any such requirement sufficient to
permit the Discloser to seek and obtain appropriate protective orders prior to such disclosure by Recipient.
5.
Representations and Warranties.
5.1
Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under
this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to
perform as required by this Agreement. Further, both parties represent and warrant to the other: (ii) that the execution and/or
performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is
bound; and (ii) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with
this Agreement.
5.2
Customer warrants to Enables IT, and agrees that during the term of this Agreement it will ensure that (a)
Customer is the owner or valid licensee of any data and/or content Customer shall provide or make available to Enables IT in
connection with the Services (“Content”), and that Customer has secured all necessary licenses, consents, permissions, waivers and
releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses
contained therein, without any obligation by Enables IT to pay any fees, residuals, guild payments or other compensation of any kind to
any person; (b) Customer’s use, publication and display of the Content will not, to the knowledge of Customer, infringe any copyright,
patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of
privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or
common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules
and regulations and will use the Services only for lawful purposes; and (d) Customer will use reasonable commercial efforts to ensure
that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
5.3
Enables IT warrants that (i) the Services will be performed in a workmanlike manner and in material accordance
with the Service Level Terms, (ii) neither the Products nor the Service will infringe the proprietary rights of any third party, and (iii) the
Services will conform with generally prevailing industry standards. Customer must report any material deficiencies in the Products or
Services to Enables IT in writing within ninety (90) days of Customer’s discovery of the deficiency. Enables IT shall keep in force with a
reputable insurance company appropriate insurance to cover for potential losses relating to the Products, Services, and Enables IT’s
equipment. TO THE MAXIMUM EXTENT ENFORCEABLE UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND ANY EXHIBIT, ENABLES IT AND ITS AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED. ENABLES IT DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED
WARRANTIES AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, ACCURACY, OR FITNESS FOR ANY
PARTICULAR PURPOSE, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE
OF DEALING.
6.
Limitation of Liabilities.
EXCEPT AS DESCRIBED IN THIS AGREEMENT OR ANY EXHIBIT, ENABLES IT SHALL NOT BE LIABLE TO CUSTOMER FOR HARM
CAUSED BY OR RELATED TO CUSTOMER’S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CAUSED BY ENABLES IT’S
NEGLIGENCE OR WILLFUL MISCONDUCT.
IN NO EVENT WILL ENABLES IT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY
CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT
WILL ENABLES IT AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY,
INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE
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OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT
LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS
OF CAUSE, EVEN IF ENABLES IT OR ENABLES IT’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE
APPLICATION OF THE PROVISIONS OF THIS SECTION 6, ENABLES IT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT
PERMISSIBLE.
7.
Ownership.
7.1
Enables IT or its licensor holds all rights, title and interest in all Services and all intellectual property, including
other rights related to intangible property, unless otherwise indicated in a Statement of Work. Customer acknowledges and agrees that
no title or interest in such intellectual property rights is being transferred to it.
7.2
Each party shall own all rights, title and interest in, any and all of its ideas, concepts, techniques, know-how,
programs, systems, methods, methodologies, procedures, and processes that it acquired or developed prior to this Agreement, and
neither party will acquire any right, title, or interest by virtue of its performance under this Agreement in the intellectual property rights
of the other party.
7.2
To the extent Enables IT develops and delivers any software or other code to Customer in order to provide the
Services, Enables IT shall own all right, title and interest, and any and all intellectual property rights, in and to all such software, and to
any modifications or enhancements which either party may make to such software (the “Software”). Subject to the terms and
conditions of this Agreement, Enables IT hereby grants to Customer a limited, non-transferable, non-assignable, indivisible, nonseverable, non-exclusive, non-sublicensable right and license to use the Software until the Agreement is terminated, but only in
connection with Services.
7.3
Customer hereby grants to Enables IT a limited, non-exclusive, royalty-free, worldwide right and license during the
term of this Agreement to do the following, only to the extent necessary to perform the Services as specified herein: (a) digitize,
convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit,
distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back-up copies of the
Content. Except for the foregoing limited rights, Enables IT does not acquire any right, title or interest in or to any Content, all of which
will remain solely with Customer.
7.4
Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to
Enables IT relating to the Services will be treated as being non-confidential and non-proprietary. Enables IT may use, disclose or
publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
7.5
Enables IT’s trademarks, trade names, service marks, logos, other names and marks, and related product and
service names, design marks and slogans are the sole and exclusive property of Enables IT. Customer will not use any of the
foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Enables IT.
8.
Indemnification.
8.1
Enables IT Indemnification. Enables IT shall indemnify, defend and hold harmless Customer and its subsidiaries
and affiliates, and their respective directors, officers, employees and agents, from and against all claims, liabilities, actions, demands,
settlements, damages, costs, fees and losses of any type, including reasonable attorneys’ and professionals’ fees and costs, arising
from any third party claim or suit that is based on any negligent act or omission or willful conduct of Enables IT’s employees, sublicensees
or contractors and which results in: (i) any bodily injury, sickness, disease or death; or (ii) any injury or destruction to tangible or intangible
property (including computer programs and data) or any loss of use resulting therefrom.
8.2
Customer agrees to indemnify and hold Enables IT, its licensors and each such party’s parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim by any
third party (i) that use of the Content infringes the rights of, or has caused harm to, a third party, or (ii) based on any breach of
Customer’s representations and warranties under this Agreement.
8.3
Each party’s obligation to indemnify the other is conditioned on the party seeking indemnification (i) providing the
other party prompt written notice of the claim (ii) giving the other party sole control of the defense and settlement of the claim (provided
that other party may not settle or defend any claim unless it unconditionally releases the party seeking indemnification of all liability),
(iii) providing the other party all available information and reasonable assistance, and (iv) not having compromised or settled such
claim. If Enables IT determines that the Service does or is likely to infringe any patent, trademark or copyright or misappropriate the
trade secret of a third party, Enables IT may at its option: (i) procure at no cost to Customer the right to continue to use the Service in
accordance with this Agreement; (ii) replace or modify the Service so that it no longer infringes or misappropriates, and thereafter
substantially conforms to the requirements hereof; or (iii) terminate this Agreement and refund any fees prepaid by Customer for future
use of the Service. This Section 8 states Enables IT’s entire liability to Customer for any infringement of any third party rights.
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9.
General Terms.
9.1
Relationship; No Third Party Beneficiaries. Each party is an independent contractor and each party’s personnel
are not employees or agents of the other party for federal, state or other tax purposes or any other purposes whatsoever. Personnel of
one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the
other party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or
otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one party an agent of the other party. There
are no third party beneficiaries, actual or intended, under this Agreement.
9.2
Noninterference with Business. During the term of this Agreement and for one year after its termination,
Customer agrees not to interfere with the business of Enables IT in any manner. By way of example and not of limitation, Customer
agrees not to solicit or induce any employee, independent contractor or other personnel to terminate or breach an employment,
contractual or other relationship with Enables IT.
9.3
Subcontractors. Enables IT may subcontract any of the Services to be provided hereunder to qualified third
parties, provided that any such third party shall be subject to all of the obligations of Enables IT specified in this Agreement
9.4
Notices. All formal notices and other communications required or permitted hereunder shall be in writing and shall
be mailed by certified or registered mail, postage prepaid, delivered either by hand or by messenger, or transmitted by electronic mail,
electronic facsimile to the address on the signature page of this Agreement, or at such other address as either party shall have
furnished to the other in writing. All such notices and other written communications shall be effective (i) if mailed, seven (7) days after
mailing, (ii) if delivered, upon delivery, or (iii) if e-mailed or faxed, within one (1) business day after transmission, provided that the
notifying party has written verification of receipt.
9.5
Assignment. Customer may not assign or delegate its rights or obligations under this Agreement without the other
party’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective
successors and permitted assigns.
9.6
Governing Law; Venue. This Agreement will be governed by and construed in accordance with the substantive
laws of the State of California without regard to conflict of law principles. Any action relating to the Agreement will be brought in the
Superior Court of the County of Santa Clara, California, or if under federal jurisdiction, in the U.S. District Court for the Northern District
of California and the parties hereby submit to the jurisdiction of such courts, and waive any venue objections thereto.
9.7
Severability and Waiver. In the event any provision of this Agreement is held to be invalid or unenforceable, the
valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver
(express or implied) by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent
default or breach.
9.8
Entire Agreement; Amendment. This Agreement together with all Exhibits attached hereto constitute the entire,
final, complete and exclusive agreement between the parties and supersedes all previous agreements or representations, written or
oral, and all printed provisions or subordinate Customer documents, including purchase orders, with respect to the Software, the
services specified herein, and the licensing and providing of same under this Agreement. This Agreement may not be modified or
amended except in a writing signed by a duly authorized representative of each party. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which shall constitute together one and the same document. In the event
of any conflict in the documents which constitute this Agreement, the order of precedence will be (i) the provisions of any Statement of
Work; (ii) the provisions of this Agreement document; (iii) the provisions of the remainder of the Exhibits; and (iv) provisions in the
applicable Purchase Order (as defined in any applicable Exhibit).
9.9
Attorneys’ Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced
or instituted to enforce or interpret any of the terms or provisions of this Agreement (excluding any mediation required under this
Agreement), the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert
witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein,
“prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the
sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the
action.
9.10
Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one single agreement between the parties. Headings are for convenience only and are not to be
considered in construing or interpreting this Agreement.
9.11
Force Majeure. Enables IT will not be liable for and will not be responsible to Customer for any delay or failure to
perform under this Agreement if such delay or failure results from fire, explosion, labor dispute, earthquake, casualty or accident, lack
of or failure of transportation facilities and/or services, lack of or failure of telecommunications facilities and/or services including
internet services, virus attacks, hacking attempts, epidemic, flood, drought, war, revolution, civil commotion, blockade or embargo, act
of God, any inability to obtain any requisite license, permit or authorization, any regulation or other prohibition on the part of any
governmental authority, or any other cause whatsoever, whether similar or dissimilar to those enumerated, beyond the reasonable
control of Enables IT.
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9.12
Survival. All terms and provisions of this Agreement, including any and all exhibits, addenda and amendments
hereto, which by their nature are intended to survive any termination or expiration of this Agreement, shall so survive.
Managed Hosting Services Terms and Conditions
1.
Services.
1.1
The Services. Enables IT shall provide Customer with the Services set forth in the Service Contract, and the
Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and
sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant, uninterrupted
basis, and (ii) the integrity and security of the Services.
1.2
Maintenance. For optimal performance it is necessary to perform routine maintenance. Such maintenance often
requires taking the Services offline, typically performed during off-peak hours. Enables IT will give Customer advance notice wherever
possible.
1.3
Technical Advice. The Services may include technical advice in relation to the Products and Services, any
documentation delivered in connection therewith. Such technical advice will be available during the hours of 9.00am and 5.30pm EST
Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work and Customer shall nominate the
Named Individuals set forth in the Statement of Work to whom Enables IT may be required to provide advice. These employees may
require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with technical advice within the response time
detailed in the Service Level Terms. Technical advice may be delivered by telephone or email and may be included as an additional
service. A particular incident may require a temporary workaround solution to return the Services to a functioning state.
1.4
Managed Backup. Enables IT recommend that Customer test the managed backup service promptly following the
Effective Date and periodically thereafter to determine if it capturing data adequately.
2.
Fees; Charges and Payment.
2.1
In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Service
Contract in advance of services being provided. No payment shall be considered made until received by Enables IT.
2.2
Customer shall provide all such information as Enables IT shall consider necessary to enable Enables IT to carry
out its obligations under the Agreement. If and to the extent that Enables IT shall be delayed in the performance of such obligations by
the failure of Customer to provide such information and/or access as aforementioned, then Enables IT shall be entitled to recover from
Customer any additional costs that Enables IT may incur by reason of such delay or at Enables IT’s sole discretion to terminate this
Agreement.
2.3
Enables IT shall be entitled to fees at its then current rates in the following circumstances:
(a)
Where resolution of an underlying problem may require additional service which may fall outside of this
Agreement, and/or
(b)
Where, in Enables IT’s sole discretion, more than a reasonable level of Service is being provided to Customer
as a result of untrained personnel operating the Product, and/or
(c)
Providing Services where, in the opinion of Enables IT, Customer has not complied with technical or
environmental installation conditions as specified by the Product manufacturer or Enables IT, and/or
(d)
Providing Services in respect of Products which can no longer be maintained in good working order,
(e)
Any changes or modifications to Enables IT’s equipment resulting from technical or regulatory changes by the
relevant authorities or regulatory bodies, and/or
(f)
Where products or services are requested or otherwise required by Customer which are not specifically within
the Products or Services to be provided under the Service Contract, and/or
(g)
Where additional technical resource above and beyond the standard remote hands is required.
2.4
Where possible Enables IT will fix our prices with third party suppliers, however where this has not been possible
and third party costs are increased Enables IT may pass this cost on to Customer. In the case of software licensing increases that
cannot be fixed, these charges will be reflected in Customer costs.
3.
Data.
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3.1
Customer shall own any Content, email, data, information or material submitted by Customer to the hosted
environment in the course of using the hosted environment (collectively, “Customer Data”). Enables IT shall allow access to such
data only by Customer and only through secure connectivity.
3.2
Enables IT will not retain any of Customer’s Data after it ceases to provide Services to Customer, including but not
limited to data residing in structured directories, databases, email and other systems.
3.3
Enables IT shall not be liable for any costs related to the migration of Customer data to another provider.
3.4
Where Customer’s Services include data replication on a geographically separate site, the rate of data transfer will
vary depending on the amount of data and its type and bandwidth fluctuations meaning that at any given time the secondary site may
not be completely up to date and in the event of a failover to the secondary site, data not yet transferred will be lost.
4.
Acceptable Use Policy. Customer must at all times conform to Enables IT’s Acceptable Use Policy set out in these Terms
and Conditions, as modified or amended from time to time.
5.
Customer Obligations.
5.1
Customer shall agree to:
(a)
Respond to Enables IT’s requests to aid remote resolution of the problem, such as a detailed explanation,
provision of information such as log/configuration files, apply software patches or upgrades, make
recommended configuration changes and allowing remote access, where agreed;
(b)
Ensure that all its communication details which are provided to Enables IT are at all times true, current,
accurate and complete and Customer shall promptly notify Enables IT of any such alterations thereto from
time to time and Customer acknowledges that Enables IT shall not be liable for any costs, damages or loss
which Customer may suffer or incur as a result of failure to notify such changes to Enables IT;
(c)
Ensure that it has all necessary consents, permissions and licenses to make use of the Services including
without limit registration under any applicable law related to the processing of data or the provision of other
electronic communications;
(d)
Immediately notify Enables IT if it becomes aware of any unauthorized use of all or any of the Services;
(e)
Not use the Services or allow them to be used for the publication, linking to, issue or display of any material
which in the absolute discretion of Enables IT may harm Enables IT or any of its Customers or bring Enables
IT into disrepute or may call into question any action taken by Enables IT on Customer’s behalf;
(f)
Ensure that all material on any web site operated by Customer from time to time or communicated through
such site is checked for viruses and other harmful code;
(g)
Ensure that all passwords are at all times kept confidential, used properly and not disclosed to unauthorized
people and if Customer has any reason to believe that any password has become known to someone not
authorized to use it or if any password is being or is likely to be used in an unauthorized way or of any other
breach of security then Customer shall inform Enables IT immediately;
(h)
Not use the Services in any way that leads to a risk of or causes an excessive load on the network provided
by Enables IT in connection with the Services;
(i)
Upon third party requests, allow Enables IT access to Customer’s data to check for any infringements of
Customer’s obligations under this Agreement, and, when the situation necessitates, to remove or disable any
such infringements from time to time.
5.2
Where Services have been rendered or costs incurred as a result of a breach of any of the foregoing, Enables IT
reserves the right to render reasonable charges for the same.
5.3
Customer will be legally liable for maintaining, acquiring and providing the appropriate licensing agreements for all
software installed by Customer.
5.4
Customer acknowledges and accepts that to allow Enables IT to properly provide the Services it must cooperate
with Enables IT as required by Enables IT.
5.5
Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how
the Internet functions and what types of use are and are not acceptable.
5.6
Customer agrees that it shall make no alteration or modification to any software or hardware which is administered
by Enables IT and is covered by the Agreement without prior written approval of Enables IT. Any unauthorized alterations or
modifications will entitle Enables IT to terminate the Agreement immediately.
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5.7
In the event that Customer changes the location of the Product from the initial installation site specified in the
Statement of Work/Service Contract, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees
that any such change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the
new location is further than the previous location from Enables IT support center.
6.
Enables IT’s Warranties and Liability.
6.1
Third Party Products and Services. Enables IT warrants that all software installed by Enables IT in relation to the
fulfillment of the included Services will be licensed accordingly. Enables IT shall not be liable for any services or products supplied by a
third party.
6.2
Enables IT is not responsible for any delay, malfunction, non-performance and/or other degradation of
performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and
specifications requested or implemented by Customer whether or not beyond those already supplied.
Colocation Terms and Conditions
1.
Services.
1.1
The Services. Enables IT shall provide Customer with the Services set forth in the Statement of Work/Service
Contract, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required
by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant,
uninterrupted basis, and (ii) the integrity and security of the Services.
1.2
Maintenance. For optimal performance it is necessary to perform routine maintenance. Such maintenance often
requires taking the Services offline, typically performed during off-peak hours. For such maintenance Enables IT will give the client
least forty eight hours' advance written notice. Emergency Maintenance shall take place where Enables IT detect or otherwise suspect
an imminent failure and have no alternative than to take immediate corrective action. Any Maintenance Events which occur during
Normal Business Hours, or which occur with less than 48 hours' notice, and have not been notified in advance (Emergency
Maintenance Events), shall be considered to be Down Time for the purpose of the service availability measurement.
1.3
Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract and Customer
shall nominate the Named Individuals set forth in the Statement of Work to whom Enables IT may be required to provide advice. These
employees may require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with technical advice within
the response time detailed in the Service Level Terms. Technical advice may be delivered by telephone or email and may be included
as an additional service. A particular incident may require a temporary workaround solution to return the Services to a functioning
state.
1.4
The Colocation Space.
(a)
The Agreement is a services agreement and is not intended to and will not constitute a lease of any real
or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest
in the Colocation Space or other Enables IT premises, and Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulation or ordinances.
(b)
The Colocation Space is provided on an “As Is” basis and Customer may use the space only for the
purposes of maintaining and operating Customer equipment as necessary to support local access communications facilities and links
to third parties.
(c)
Access will be available on a 24 hour basis in accordance with Enables IT’s Security and Access
Policies, copies of which are available to Customer upon request.
Only Named Individuals (and persons escorted by Named
Individuals) will be permitted to enter the Colocation Space. For good cause, Enables IT may suspend the right of any Customer
representative or escorted persons to visit the Enables IT premises and/or the Colocation Space. Customer is responsible for any and
all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation space under any
circumstances.
(d)
At the request of Customer, Enables IT may assist Customer in performing light duties such as rebooting
of equipment, pressing reset of readily accessible buttons, reconfiguration of non-restricted cables with push-on type connectors,
assisting to locate and correct circuit problems, subject to additional fees at its then current rates.
(e)
Enables IT will assist in security breach detection and identification, but shall not be liable for any
inability, failure or mistake in doing so
(f)
operated by Enables IT.
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“Colocation Space” shall mean the accommodation of equipment owned by Customer at a data center
7
2.
2.1
In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Statement of
Work/Service Contract in advance of services being provided. No payment shall be considered made until received by Enables IT.
2.2
Agreement.
2.3
Enables IT shall be entitled to fees at its then current rates in the following circumstances:
(a)
Agreement, and/or
(b)
(c)
(d)
(e)
relevant authorities or regulatory bodies, and/or
(f)
the Products or Services to be provided under the Statement of Work/Service Contract, and/or
(g)
Where additional technical resource above and beyond the standard remote hands is required.
2.4
3.
Data.
3.1
Customer shall own any Content, email, data, information or material submitted by Customer to the Colocation
Space in the course of using the Colocation Space (collectively, “Customer Data”). Enables IT shall allow access to such data only by
Customer and only through secure connectivity.
3.2
Enables IT will not retain any of Customer’s Data after it ceases to provide Services to Customer, including but not
limited to data residing in structured directories, databases, email and other systems.
3.3
Enables IT shall not be liable for any costs related to the migration of Customer data to another provider.
4.
Acceptable Use Policy. Customer must at all times conform to Enables IT’s Acceptable Use Policy set out in these Terms
and Conditions.
5.
Customer Obligations.
5.1
5.2
In relation to use of the Services, Customer shall indemnify and hold Enables IT harmless against:
(a)
damages, losses and expenses arising as a result of any action or claim that Customer’s equipment infringes
any intellectual property rights of a third party;
(b)
All loss and damage to Enables IT equipment, including the Enables IT’s data center, caused by Customer or
by an act or omission of Customer or any of its directors, officer, employees, representatives or subcontractors;
(c)
All loss and damage arising out of Customer use of the Services to transmit Data for any unlawful purpose,
including without limitation fraud, invasion of privacy, obscenity, defamation or interrupt or interfere with other
network users; and/or
(d)
Any costs, damages or loss which Customer may suffer or incur as a result of failure to notify changes to
Enables IT.
Customer shall:
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(a)
Be responsible for the general care of the equipment, ensuring it is installed, tested, maintained, operated
and transported in accordance with the manufacturer’s specifications, manuals or documentation, at
Customer’s sole risk;
(b)
Customer will provide Enables IT with two (2) days written notification when wishing to install or remove a
piece of equipment. (This does not include replacing a piece of equipment with a similar piece of equipment).
Before authorizing the removal of any significant Customer equipment, Enables IT’s accounting department
will verify that Customer has no payments due to Enables IT. Once Enables IT authorizes removal of
Customer equipment, Customer will remove such Customer equipment and will be solely responsible to leave
area in good operating condition at its own expense;
(c)
Be responsible for ordering all Internet, local and long-distance lines from carriers where these are not already
provided by Enables IT and ordering any and all necessary cross-connects from Enables IT. Customer will be
solely responsible for such circuits and for all payments due to the carriers. Customer will notify the carrier
directly when Customer wishes to terminate or modify such circuit. Customer understands that Enables IT
does not own or control these services and that Enables IT is not responsible or liable for performance (or
non-performance) of such services;
(d)
Ensure that Customer equipment does not interfere with or adversely affect the Services or Enables IT’s
equipment;
(e)
Ensure that it has all necessary consents, permissions and licenses to make use of the Services including
without limit registration under any applicable law related to the processing of data or the provision of other
electronic communications;
(f)
Immediately notify Enables IT if it becomes aware of any unauthorized use of all or any of the Services;
(g)
Ensure that all material is checked for and free of all viruses and other harmful or malicious code;
(h)
Ensure that all passwords are at all times kept confidential, used properly and not disclosed to unauthorized
people and if Customer has any reason to believe that any password has become known to someone not
authorized to use it or if any password is being or is likely to be used in an unauthorized way or of any other
breach of security then Customer shall inform Enables IT immediately;
(i)
Not use the Services in any way that leads to a risk of or causes an excessive load on the network provided
by Enables IT in connection with the Services; and
(j)
Upon third party requests, allow Enables IT access to Customer’s data to check for any infringements of
Customer’s obligations under this Agreement and when the situation necessitates, to remove or disable any
such infringements.
5.3
5.3
software installed by Customer.
5.4
Customer acknowledges and accepts that to allow Enables IT to properly provide the Services it must cooperate
with Enables IT as required by Enables IT.
5.5
Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how
the Internet functions and what types of use are and are not acceptable.
5.6
Customer will keep in full force and effect during the term of this Agreement with a reputable insurance company,
appropriate insurances to cover potential losses or liability under an Agreement, including but not limited to cover for all Customer
equipment, workers’ compensation, employer’s liability, and commercial general liability in an amount not less than that necessary to
compensate Customer and its customers for complete failure of Service.
5.7
Customer agrees that Customer and its agents and representatives shall not pursue any claims against Enables IT
for any liability Enables IT may have under or relating to this Agreement unless and until Customer or its employee, as applicable first
makes claims against Customer’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Customer shall
employ best efforts to name Enables IT as an additional insured on all general liability insurance.
5.8
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5.9
In the event that Customer changes the location of the Product from the Installation Site Address specified in the
Statement of Work, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees that any such
change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the new location is
further than the previous location from Enables IT support center.
6.
6.1
third party.
6.2
Enables IT is not responsible for any delay, malfunction, non-performance and/or other degradation of
performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and
specifications requested or implemented by Customer whether or not beyond those already supplied.
6.3
Enables IT shall not arbitrarily or capriciously require Customer to relocate Customer equipment; however, upon
ninety (90) days written notice or, in the event of any emergency, Enables IT may require Customer to relocate Customer equipment;
provided however, the site of relocation shall afford comparable environmental conditions for Customer’s equipment and comparable
accessibility to Customer’s equipment. In the event that Enables IT requires Customer to relocate Customer equipment, all costs shall
be borne by Enables IT.
6.4
Enables IT disclaims all liabilities in connection with the following: (i) incompatibility of the site with any of
Customer’s equipment, software or telecommunications links; (ii) loss of material uploaded; (iii) downtime or unavailability occurring
during an Enables IT service window when Customer is notified in advance; and (iv) any force majeure event set forth in the
Agreement.
6.5
Enables IT does not guarantee security of Customer equipment or of the Colocation Space. Enables IT requires
that Customer and its employees comply with all Colocation security procedures as defined on Enables IT’s Security and Access
Policies (available upon request by Customer) in order to maximize the security of the Enables IT premises.
Support Terms and Conditions
1.
Services.
1.1
The Services. Enables IT shall provide Customer with the Services set forth in the Statement of Work/Service
Contract, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required
by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant,
uninterrupted basis, and (ii) the integrity and security of the Services.
1.2
Service Hours. The Services will be available during the hours of 9.00am and 5.30pm EST Monday to Friday,
excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract (the “Service Hours”). Additionally,
services may be provided outside the Service Hours subject to agreement at additional charges for such work.
1.3
Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract and Customer
shall nominate the Named Individuals set forth in the Statement of Work/Service Contract to whom Enables IT may be required to
provide advice. These employees may require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with
technical advice within the response time detailed in the Service Level Terms. Technical advice may be delivered by telephone or email
and may be included as an additional service. A particular incident may require a temporary workaround solution to return the
Services to a functioning state.
1.4
Products. Enables IT will provide the Services for Products or Product releases currently supported by the Product
originator. Enables IT can offer support for other releases (earlier or Beta) only on a reasonable basis.
1.5
Maintenance. Where equipment hardware maintenance has been purchased by Customer as set forth in the
Statement of Work/Service Contract, the following applies:
(a)
Any replacement parts will become the property of Customer upon payment and all faulty parts will become
the property of Enables IT. Only standard parts of equal quality and compatible revision level to those
replaced shall be used by Enables IT to effect repairs.
(b)
Enables IT reserves the right to supply new, second hand or reconditioned replacement parts in the
performance of the Services.
(c)
Enables IT does not warrant that the Services will cause the equipment to operate without interruption or
error.
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1.6
longer be valid
Any pre-paid days have to be scheduled within twelve (12) months of the order date, after this date they will no
1.7
Customer Specific Business Software Applications. To the extent any Customer-specific business software
applications have been specifically listed in the Statement of Work/Service Contract, such applications are included within the Service.
Enables IT will provide application connectivity and testing Services for those Customer-specific applications. Service for all Customerspecific applications will be provided on a discretionary basis. Enables IT may cease support for any Customer-specific applications at
any time giving Customer no less than 30 days’ written notice, should in the opinion of Enables IT, the Customer-specific applications
unreasonably impact upon the overall performance of the Service.
2.
2.1
In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Statement of
Work/Service Contract in advance of services being provided. Customer shall pay the price of all subsequent invoices within fourteen
(14) days of the date of the invoice in full. No payment shall be considered made until received by Enables IT.
2.2
Agreement.
2.3
The obligations of Enables IT to provide Services shall not extend to and Enables IT shall be entitled to fees at its
then current rates in the following circumstances:
(a)
Agreement, and/or
(b)
(c)
(d)
(e)
relevant authorities or regulatory bodies, and/or,
(f)
the Products or Services to be provided under the Statement of Work/Service Contract, and/or
(g)
In the event that Customer requires the Services to be carried out outside the Service Hours above, and/or
(h)
Where in the interests of the majority of customers, we reserve the right to charge excessive users of the
service an additional fee prior to support being provided, and /or
(i)
Where on-site escalation is required, expenses will be charged separately and travel time will be invoiced at
the Enables IT standard rate per hour unless otherwise agreed or where pre-paid days have been agreed to,
the time will be taken from them, and/or
(j)
Providing Services where in the reasonable opinion of Enables IT they are impractical to perform due to
alterations in the locations of the Product specified attached or connected to any other device or equipment
not approved in writing by Enables IT prior to such connection and/or,
(k)
Providing Services required as a direct or indirect result of damage caused by accident, disaster (which shall
include but not be limited to fire, flood, water, wind and lightning) transportation, neglect, nuisance, electrical
current or voltage fluctuations, and/or;
(l)
Providing Services required as a result of radiation affecting the hardware or software attached or
unauthorized attempts to repair, upgrade, maintain, relocate or modify the Products or equipment and/or;
(m) Diagnosis and/or rectification of problems not associated with the Products and/or;
(n)
Providing Services for Products that are outside the manufacturer’s life cycle will be provided on a reasonable
basis and/or;
(o)
Hardware or software configuration changes, upgrades, repairs or modifications made or attempted by
Customer not notified or agreed with Enables IT and/or;
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(p)
Services, labor or materials associated with the relocation of any equipment or labor and travelling expenses
resulting from requests of Customer for Service when Enables IT’s equipment is subsequently found to be
operating correctly and/or appears to be inoperative owing to incorrect or failure of circuits and or services
provided by a telecommunications provider, or failure of other host equipment or failure of other devices
directly or indirectly connected to Enables IT’s equipment.
2.4
3.
Customer Warranties and Obligations.
3.1
Customer warrants and agrees that Enables IT is the owner of the Product (or where the Product is leased or hire
purchased, that the user has consented to this Agreement) and that Customer has full power and authority to enter into this agreement
and that Customer permits and consents to Enables IT performing the Services.
3.2
the Services:
3.3
Customer agrees, throughout the term of this agreement, to procure/provide for/to Enables IT, where applicable to
(a)
Such access to the place of use as Enables IT shall reasonably require discharging its Services;
(b)
At the place of use, such facilities as Enables IT shall reasonably require to discharge its operations (including
without limitation adequate workspace, telephone access and office furniture and equipment).
(c)
All reasonable precautions to protect the health and safety of Enables IT’s employees, agents and subcontractors while on site.
(d)
The equipment and supply of all documentation and other information necessary for Enables IT to diagnose
any fault in the Product.
Customer agrees that it shall:
(a)
Be responsible for the general care of the Enables IT’s equipment, ensuring it is maintained, operated and
transported in accordance with the manufacturer’s specifications, manuals or documentation;
(b)
Not permit the Enables IT’s equipment to be used or operated by other than properly qualified operators
employed by or under Customer’s control;
(c)
Respond to Enables IT’s requests to aid remote resolution of the problem, such as a detailed explanation,
provision of information such as log/configuration files, apply software patches or upgrades, make
recommended configuration changes and allowing remote access, where agreed;
(d)
Provide Enables IT with access to appropriate knowledgeable employees and to all documentation,
diagnostics programs, operating systems, utilities and application programs necessary to enable correct
diagnosis and resolve reported problems.
(e)
Ensure that personnel of Enables IT working on or near potentially hazardous equipment, whether due to the
temporary or permanent state of the electrical system or the nature of the work to be carried out, will be
accompanied by another competent person at all times whilst doing so.
5.2
5.3
software installed by Customer. If as a consequence of Service being provided, software, other than that installed by Enables IT for the
purpose of facilitating remote connection and the delivery of Service, is installed, configured or in any way utilized, Customer is
responsible for having the appropriate license for the intended use of that software. Customer will be required to provide valid
software licensing upon request. Enables IT may cease Service for any non-licensed software at any time.
5.6
5.7
In the event that Customer changes the location of the Product from the initial installation site address specified in
the Statement of Work, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees that any such
change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the new location is
further than the previous location from Enables IT support center.
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6.
6.1
third party.
6.2
All remote support is given in good faith on a best endeavors basis and not on a guaranteed fix basis. Customer
recognizes that there is a limitation to the service level that can be given remotely.
Project Terms and Conditions
1.
Products and Services.
1.1
The Services. Enables IT shall provide Customer with the Services (including the installment of the Products or
any parts for them) set forth in the Statement of Work, and the Services shall be completed in a professional, workmanlike manner,
with the degree of skill and care that is required by good, and sound professional procedures. Enables IT will use its best efforts to
ensure (i) the Services are provided on a constant, uninterrupted basis, and (ii) the integrity and security of the Services. a.
Prior to commencing the Services the project manager or coordinator, on behalf of Enables IT, will agree the dates for the
Services to be undertaken with Customer and confirm this via email. When a Statement of Work is issued as part of the project
implementation process the service dates will be defined and agreed within this document.
1.2
The Products. Enables IT shall sell and Customer shall purchase any goods, hardware, software and materials
which Enables IT is to supply and/or manufacture in connection with the Services, set forth as “Products” in the Statement of Work or
described in any Purchase Order.
2.
(a)
The provisions of the Agreement, the Statement of Work and any Terms and Conditions referenced therein
shall prevail over any conflicting provisions in any purchase order, acceptance notice or other document.
(b)
No variation to these Conditions shall be binding unless the parties sign a written agreement which changes
the Products and Services to be provided.
(c)
Any advice or recommendation given by Enables IT or its employees or agents to Customer or its employees
or agents as to the storage, application or use of the Products which is not confirmed in writing by Enables IT
is followed or acted upon entirely at Customer’s own risk, and accordingly Enables IT shall not be liable for
any such advice or recommendation which is not so confirmed. Customer acknowledges that it has not relied
on any statement, promise or representation made or given by or on behalf of Enables IT which is not set out
in the Agreement.
(d)
Any typographical, clerical or other error or omission in any sales literature, price list, proposal, quote, invoice
the Statement of Work, or other document or information issued by Enables IT shall be subject to correction
without any liability on the part of Enables IT. Customer acknowledges that it has not relied on any
statement, promise or representation made or given by or on behalf of Enables IT which is not set out in the
Contract
Price; Invoice, and Terms of Payment.
2.1
Price.
(a)
The price of the Products and/or Services shall be Enables IT quoted price and confirmed on the Statement
of Work and/or Purchase Order. All prices quoted are valid for 14 days only, unless stated differently in a
written quote or proposal, issued in writing by Enables IT.
(b)
Where Enables IT has agreed a fixed price and provision date for Services then such price will remain fixed
until that provision date. However, any change in delivery dates, quantities or specifications for the Products
and/or Services which is requested by Customer, or any D. “Delay” shall mean any delay in the time
schedules set forth in the Statement of Work caused by any instructions of Customer or failure of Customer
to give Enables IT adequate information or instructions may result in further reasonable charges.
(c)
The price is exclusive of any applicable taxes, duties and customs fees, which Customer shall be additionally
liable to pay to Enables IT.
(d)
Enables IT reserves the right, by giving notice to Customer at any time before delivery, to increase the price of
the Products and/or Services to reflect any increase in the cost to Enables IT which is due to any factor
beyond the control of Enables IT (such as, without limitation, any foreign exchange fluctuation, currency
regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of
manufacture), any change in delivery dates, quantities or specifications for the Products and/or Services
which is requested by Customer, or any Delay.
(e)
Enables IT reserves the right to charge fees in addition to the price if:
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(f)
(i)
Customer requires the Services to be provided outside the hours of 9.00am and 5.30pm EST
Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of
Work, and/or;
(ii)
Where in Enables IT’s opinion, more than a reasonable level of Services is being provided as a
result of Customer’s untrained personnel operating the equipment and/or;
(iii)
In Enables IT’s sole discretion additional time or expense is incurred as a result of Customer’s lack
of instructions, the inaccuracy of the information supplied or any other cause attributable to
Customer, and/or;
(iv)
Where Customer fails to perform any items in clause 2.1(f) below.
In the event that Enables IT collects good, materials or other equipment from Customer, for example for a
trade in (the “Trade-In Goods”), then Customer shall be responsible for:
(i)
Decommissioning the Trade-In Goods including deleting any data, advising the Enables IT of any
potential security risks, and;
(ii)
Packing the Trade-In Goods in suitable containers, and;
(iii)
Making all the Trade-In Goods available for collection within a pre agreed time.
2.2
Invoices. Products and associated manufactures support will be invoiced upon receipt of Purchase Order. All
Services will be invoiced on completion or on a work done basis up to the end of the calendar month, whichever is the earlier, unless
otherwise agreed in the applicable Statement of Work. In the instance where there has been any Delay of more than one month,
resulting in Enables IT not being able to perform further Services then Enables IT may invoice for work completed to date.
2.3
Terms of Payment.
(a)
Customer shall pay the price of the Products and/or Services within 14 days of the date of Enables IT’s
invoice in full and cleared funds (without any deduction or right of set off whatsoever). Enables IT shall be
entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the
Products has not passed to Customer. Receipts for payment will be issued only upon request.
(b)
If Customer fails to make any payment on the due date then, without prejudice to any other right or remedy
available to Enables IT, Enables IT shall be entitled to cancel the Agreement and/or applicable Statement of
Work or Purchase Order, or suspend any further deliveries of Products and/or Services to Customer;
2.4
3.
Orders and Specifications.
3.1
No order submitted by Customer shall be deemed to be accepted by Enables IT unless and until confirmed by a
formal Purchase Order signed by Enables IT authorized representative.
3.2
Customer shall be responsible to Enables IT for ensuring the accuracy of the terms of any order (including any
applicable specifications) submitted by Customer, supplying Enables IT with all necessary data and other information, and for giving
Enables IT any necessary information relating to the Products within a sufficient time to enable Enables IT to perform the Agreement in
accordance with its terms. Customer shall ensure the accuracy of all data and information. Customer shall co-operate with Enables IT
in all matters relating to the Products and Services
3.3
The quantity, quality and description of and any specification for the Products and/or Services shall be those set
out in the Statement of Work and Purchase Order.
3.4
If the Products are to be manufactured or any process is to be applied to the Products or Services provided by
Enables IT in accordance with a specification submitted by Customer, Customer shall indemnify Enables IT against all loss, damages,
costs and expenses awarded against or incurred by Enables IT in connection with or paid or agreed to be paid by Enables IT in
settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of
any other person which results from Enables IT’s use of Customer’s specifications.
3.4
Customer shall at its own expense supply Enables IT with all necessary data and other information to enable
Enables IT to perform the Contract. Customer shall ensure the accuracy of all data and information.
4.
Cancellation or Change to Orders.
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4.1
No Purchase Order which has been accepted by Enables IT may be cancelled by Customer except with prior
written agreement from Enables IT and on terms that Customer shall indemnify Enables IT in full against all loss (including loss of
profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by Enables IT as a result of
such cancellation.
4.2
In the event that Customer wishes to amend or cancel any confirmed scheduled Service date within 14 days of the
scheduled date then Customer shall be liable to an amendment charge at the current scale of charges per day amended or cancelled
effected. This will be reduced where Enables IT can utilize the engineer(s) on alternative equivalent chargeable work with another
customer.
4.3
Enables IT shall have the right to make any changes to the Products or Services which are necessary to comply
with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Products or Services, and
Enables IT shall notify Customer in any such event.
5.
Delivery.
5.1
Any dates quoted for delivery of the Products and/or Services are approximate only and Enables IT shall not be
liable for any Delay in delivery of the Products and/or Services however caused. Time for delivery shall not be of the essence of the
Agreement unless previously agreed by Enables IT in writing. The Products may be delivered by Enables IT in advance of the quoted
delivery date upon giving reasonable notice to Customer.
5.2
Where the Products and/or Services are to be delivered in installments, each delivery shall constitute a separate
contract and failure by Enables IT to deliver any one or more of the installments in accordance with these terms and conditions or
otherwise set forth in the applicable Statement of Work or Purchase Order, or any claim in accordance with these terms and conditions
or any claim by Customer in respect of any one or more installments shall not entitle Customer to treat the Agreement as a whole as
repudiated.
5.3
If Customer fails to take delivery of the Products on the agreed dates, or fails to give Enables IT adequate delivery
instructions or fails to make necessary arrangements for accepting delivery at the time stated for delivery (otherwise than by reason of
any cause beyond Customer’s reasonable control or by reason of Enables IT’s fault) then, without prejudice to any other right or
remedy available to Enables IT, Enables IT may store the Products until actual delivery and charge Customer for the reasonable costs
(including insurance) of storage and other expenses incurred and time expended.
5.4
Failure by Customer to pay for part delivery of Products and/or Services when payment is due shall entitle Enables
IT to withhold further delivery of Products and/or Services.
5.5
Enables IT reserves the right to refuse to take delivery of Products returned by Customer if Customer has not first
obtained a good return number issued by Enables IT to Customer and such number is not displayed on the packaging of the Products
returned.
5.6
Enables IT shall be entitled to levy a 2% handling charge on Products returned if ordered in error or are no longer
required by Customer for whatever reason.
6.
Risk and Property.
6.1
Risk of damage to or loss of the Products shall pass to Customer:
(a)
In the case of Products to be delivered at Enables IT’s premises, at the time when Enables IT notifies
Customer that the Products are available for collection or;
(b)
In the case of Products to be delivered otherwise than at Enables IT’s premises, at the time of delivery or, if
Customer wrongfully fails to take delivery of the products, the time when Enables IT has tendered delivery of
the Goods.
6.2
Notwithstanding delivery and the passing of risk in the Products, or any other provision of these terms and
conditions or otherwise set forth in the Agreement, the property in the Products shall not pass to Customer until Enables IT has
received in cash or cleared funds payment in full of the price of the Products and all other goods or services agreed to be sold by
Enables IT to Customer for which payment is then due.
6.3
Until such time as the property in the Products passes to Customer, Customer shall hold the Products as Enables
IT’s fiduciary agent and bailee, and shall keep the Products separate from those of Customer and third parties and properly stored,
protected and insured and identified as Enables IT’s property, but Customer shall be entitled to use the Products in the ordinary
course of its business.
6.4
Until such time as the property in the Products passes to Customer (and provided the Products are still in
existence and have not been resold), Enables IT shall be entitled at any time to require Customer to deliver up the Products to Enables
IT and, if Customer fails to do so forthwith, to enter upon any premises of Customer or any third party where the Products are stored
and repossess the Products and in doing so Enables IT shall have no liability to Customer or any third party for loss of data, software
or other information belonging to Customer or a third party.
LEG002/Iss02/02-14
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6.5
Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the
Products which remain the property of Enables IT, but if Customer does so all moneys owing by Customer to Enables IT shall (without
prejudice to any other right or remedy of Enables IT) forthwith become due and payable.
7.
Warranties and Liabilities.
7.1
In respect of Products not manufactured by Enables IT or Services delivered by a third party company, Customer
shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to Enables IT. Where Customer has
purchased Products only (i.e. not as part of a project) then the risk of the Products not performing to Customer’s requirements lies with
Customer and any claim must be taken up by the Customer with the manufacturer directly.
7.2
Enables IT shall be under no liability in respect of any defect in the Products and/or Services arising from any
drawing, design or specification supplied by Customer.
7.3
Enables IT shall be under no liability in respect of any defect arising from normal wear and tear, willful damage,
negligence, abnormal working conditions, failure to follow Enables IT’s instructions (whether oral or in writing), misuse or alteration or
repair of the Products without Enables IT’s approval. This will also lead to the invalidation of any support provided for under any
agreement and statement of work with Enables IT.
7.4
Enables IT shall be under no liability (i) in respect of loss of data, or (ii) under any warranty, condition or guarantee
if the price for the Products and/or Services has not been paid by the due date for payment
7.5
For Products manufactured by Enables IT, Enables IT warrants that such Products will conform to and/or achieve
the claims made for them in Enables IT’s literature. Enables IT does not warrant that the Services will cause the equipment to operate
without interruption or error.
7.6
Any claim by Customer which is based on any defect in the quality or condition of the Products and/or Services or
their failure to correspond with specifications shall be notified to Enables IT within 7 days, otherwise Customer shall not be entitled to
reject the Products and/or Services and Enables IT shall have no liability for such defect or failure, and Customer shall be bound to pay
the price as if the Products and/or Services had been delivered in accordance with the Agreement.
ACCEPTABLE USE POLICY
This Acceptable Use Policy is intended to help protect Enables IT’s customers, and the Internet community, from the inappropriate use
of the Internet. A customer’s use of our service constitutes acceptance of this Acceptable Use Policy. Enables IT reserves the right to
revise and update this Acceptable Use Policy from time to time.
1.
Customer must at all times conform its use to this Acceptable Use Policy and comply with all applicable federal, state and
international law.
2. Customer agrees not to:
3.
(a)
Transmit, or otherwise permit any unsolicited or unauthorized advertising or promotional material or any other form
of similar marketing material (SPAM), or make available tools or methods to send such unauthorized SPAM;
(b)
Publish or otherwise distribute warez, copy written or other illegal material. The onus is on Customer to prove
ownership of rights to publish the material, not on Enables IT to prove Customer does not; or
(c)
Exceed reasonable bandwidth usage, determined solely at Enables IT’s discretion.
Material published to or transmitted through the Services must not:
(a)
Be defamatory of any person;
(b)
Be obscene, offensive or inflammatory;
(c)
Contain any adult material, such as pornography or otherwise lewd or obscene content. The definition of adult
material shall be at the sole discretion of Enables IT;
(d)
Display any photograph, film, video, picture, or computer generated image or picture, whether made or produced
by electronic, mechanical, or other means depicting child pornography as defined in the United Nations
Convention on the Rights of the Child;
(e)
Infringe any copyright or trade mark or other intellectual property rights of any nature;
(f)
Be likely to deceive any person;
(g)
Be threatening, abusive or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
(h)
Misrepresent Customer’s identity or affiliation with any person or organization; or
LEG002/Iss02/02-14
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(i)
Publish, link to, issue or display any material which in the absolute discretion of Enables IT may harm Enables IT or
any of its Customers or bring Enables IT into disrepute or may call into question any action taken by Enables IT on
Customer’s behalf.
3. If Enables IT has any reasons to suspect any illegal action or action in breach of the clauses contained within this condition,
Customer shall cooperate in any resulting investigation.
4. If Customer fails to cooperate with any investigations, or fails to immediately rectify any illegal or improper use, Enables IT may
immediately suspend Services.
5. Determination of failure to comply with Enables IT’s Acceptable Use Policy is determined at the sole discretion of Enables IT.
6. In the event of failures to comply with this Acceptable Use Policy, Enables IT reserves the right to:
(a)
Immediately, temporarily or permanently suspend Services;
(b)
Issue a warning to Customer;
(c)
Issue legal proceedings against Customer for reimbursement of all costs on an indemnity basis, including but
not limited to reasonable legal and administrative costs, damages, losses and expenses arising as a result of
action or claim; or
(d)
Disclose such information to law enforcement authorities as reasonably necessary.
LEG002/Iss02/02-14
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LEG002/Iss02/02-14 TERMS AND CONDITIONS OF

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