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1.0 PRODUCT AND SERVICES
1.1 Product Description. In addition to the Canadian General Terms and Conditions set forth at (http://ca.blackbox.com/about/terms-and-conditions-of-sale.aspx) (“Canadian General Terms”), these Canadian Additional Terms for Maintenance, Support, Professional & Managed Services, as identified herein, set forth the supplementary legal rights and obligations governing Customer orders for the purchase of Black Box maintenance, support services, professional services and managed services. Black Box agrees to furnish such requested maintenance, support, professional and/or managed services, including ConvergenceCareSM Services, (hereinafter referred to as “Maintenance” or “Managed Services” or collectively “Service” or “Services”) for the System.
2.1 Capitalized terms not otherwise defined herein shall have the meaning given them in the Canadian General Terms and selected Service Plans.
2.2 The System and its location(s) (the “Premises”) are described in the Order and/or applicable SOW.
3.0 SERVICES TERM
3.1 Black Box will provide Services for the term defined on an executed Order and/or SOW and in accordance with the terms of the applicable Service Plan.
4.1 If Customer requests an upgrade to an existing system not maintained by Black Box under a current agreement, Black Box may require that the existing system be brought into compliance with the manufacturer’s specifications before installing any requested upgrade. Black Box will invoice Customer at its then current time and materials rate for any work performed by Black Box to bring the existing system into compliance. If Customer orders an upgrade to an existing system, then “System” shall mean “the existing system as upgraded by Black Box” for purposes of this Agreement.
5.0 SERVICE FEE ADJUSTMENTS
5.1 Black Box may increase the Service Fee for Customer requested additions to or moves of components of the System and additions or changes to the configuration of the System, a component of the System, including any upgrades and new peripheral devices or any other changes to the Services (“Modifications”). Black Box will maintain modifications performed by a party other than Black Box only if Customer’s modified system is verified by Black Box at Customer’s expense to be operating in accordance with manufacturer’s standards for service and maintenance. Customer agrees to pay Black Box’s then current time and materials rates for such verification efforts in the event Black Box agrees to maintain such modifications.
6.0 CUSTOMER RESPONSIBILITIES
6.1 Customer will:
(i) allow Black Box access to the Premises necessary for the performance of work;
(ii) comply with all local codes, including, the National Electrical Code;
(iii) authorize Black Box, at Customer’s expense, to make service requests upon third parties for System interconnection requirements;
(iv) cooperate with Black Box’s requests for assistance in testing;
(v) be responsible for providing adequate back-up of data and for restoring data to a repaired System;
(vi) immediately notify Black Box of any anticipated delay in facility availability;
(vii) be responsible for implementation and maintenance of security features for defense of the System against unauthorized intrusion or long distance calling, e.g., toll fraud, and Customer will be solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the System;
(viii) provide remote access to its equipment for remote diagnostics and in the event that the Customer fails to provide such remote access or demands an immediate dispatch, Black Box may bill Customer a service call fee for any such service calls;
(ix) document and report Equipment malfunctions after discovery; and
(x) pay, at Black Box’s then current time and material rates, for any expenses related to delays resulting from conditions at the Premises.
7.0 MAINTENANCE OBLIGATIONS
7.1 Black Box’s Maintenance obligations are set forth in this Section, the SOW and/or the Service Plan (if applicable), attached to each Order. Black Box shall respond to System failures, either on-site or remotely, pursuant to the applicable SOW and/or Service Plan. Maintenance, unless otherwise stated in the SOW or applicable Service Plan, shall include furnishing parts and labor necessary to maintain the System in good operating condition in accordance with the manufacturer’s specifications for service and maintenance. Repair and replacement parts may be new or reconditioned to be the functional equivalent of new.
8.0 SOFTWARE DEPLOYMENT
8.1 Customer acknowledges that Black Box may utilize third party software to perform the Services, e.g., managed or professional services, as set forth in the SOW and that in some instances such software may be placed on Customer’s servers during the Term. Furthermore, Customer acknowledges that Black Box is not providing a license to Customer to use such software as it is only provided as a feature of the Services. At either the Agreement or an applicable Order’s expiration or termination, all such software shall be deleted and/or removed from Customer’s server.
9.1 In the event Customer defaults under these terms or any Order placed hereunder, Customer’s prepayment shall be nonrefundable. In the event Customer defaults under these terms or any Order placed hereunder, and Customer has not prepaid for the entire term of the Order, in addition to paying Black Box for all costs incurred in providing the Services up to the date of termination, including any third party early termination charges, Customer is liable for the amount equal to the three (3) times the monthly Service Fee.
10.0 LIMITED WARRANTIES
10.1 BLACK BOX WARRANTS AND CONDITIONS THAT WORK PERFORMED UNDER THIS AGREEMENT SHALL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER AND BE FREE FROM MATERIAL DEFECTS FOR A PERIOD OF THIRTY (30) DAYS FROM DATE OF PERFORMANCE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTY OR CONDITION SHALL BE CORRECTION OF THE DEFECT BY BLACK BOX AT BLACK BOX’S EXPENSE.
10.2 For Managed Services Only. Black Box makes no warranty or condition that the Managed Services will be uninterrupted or error-free. Customer acknowledges, and agrees to inform its end users, that the Managed Services are not a guaranty against malicious code, deleterious routines, and other techniques and tools employed by computer “hackers” and other third parties to create security exposures. BLACK BOX MAKES NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, THAT ALL SECURITY THREATS AND VULNERABILITIES WILL BE DETECTED OR THAT THE SERVICES WILL RENDER A CUSTOMER’S OR END USER’S NETWORK AND COMPUTER SYSTEMS SAFE FROM INTRUSIONS AND OTHER SECURITY BREACHES.
10.3 For Anti-Virus File Update Services Only.
10.3.1 All Software installed and supported by Black Box are provided by third party Software publishers or equipment manufacturers pursuant to license agreements or other arrangements between such third parties and the end user. Black Box disclaims any responsibility for or liability related to the Software. Any questions complaints or claims related to the Software and Service should be directed to the appropriate company responsible for developing the Software.
10.3.2 Black Box makes no representations, warranties or conditions as to the truth, accuracy or completeness of any statements, information or materials concerning the Software publishers or equipment manufacturers’ Software that is installed and supported by Black Box.
10.3.3 ALL SUCH INFORMATION, SERVICE/SOFTWARE, AND PRODUCTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. BLACK BOX AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS WITH REGARD TO THIS INFORMATION, SERVICE/SOFTWARE, AND PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.
11.0 LIMITATION OF LIABILITY
11.1 Customer understands that, should it make any changes to its firewall or VPN equipment or Managed Services outside the scope of the selected Managed Services Service Plan(s), such changes may result in a lower level of security and may allow unsecured access to its network. In the event of any such change(s), Customer acknowledges and agrees that it shall assume all risks and liabilities associated with or resulting from any such change(s). CUSTOMER ACKNOWLEDGES THAT DATA TRANSMISSION SECURITY SERVICES SUCH AS THOSE PROVIDED UNDER THIS AGREEMENT ARE NOT FOOLPROOF AND, THEREFORE, ARE NOT GUARANTEED. IN ADDITION TO THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, NEITHER BLACK BOX NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGE TO DATA) RELATING TO OR ARISING FROM THE USE OF THE MANAGED SERVICES PROVIDED HEREUNDER.
11.2 For Anti-Virus File Update Services Only. CUSTOMER AGREES THAT BLACK BOX SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE USE OF BLACK BOX PROVIDED SERVICE/SOFTWARE. CUSTOMER AGREES THAT BLACK BOX IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. CUSTOMER AGREES THAT BLACK BOX IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN A BLACK BOX PROVIDED SERVICE/SOFTWARE.
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