Black Box Network Services General Terms and Conditions (“General Terms”)
applicable to furnishing of equipment and services within the U.S. operating territory of Black Box Corporation and its U.S. subsidiaries Rev. 2 (Effective September 13, 2016)
The equipment and services referenced in the applicable Customer order will only be offered to the Customer in the United States by Norstan Communications, Inc. d/b/a Black Box Network Services or the applicable direct or indirect U.S. operating subsidiary of Black Box Corporation providing equipment and services in such State (as applicable, herein collectively referred to as “Black Box”). The Agreement (as defined below) between Customer and the applicable Black Box operating entities performing service sets forth the legal rights and obligations governing Customer orders for the purchase, installation, maintenance and warranty of telecommunications, Internetworking, distributed antennae systems and/or converged equipment (“Equipment”) and/or licensed software (“Software”) (collectively, the “System”) or other related services (“Services”) at a single location or multiple locations as identified in the applicable order (collectively, the “Premises”). This Agreement consists of a Customer signed Black Box Order Form, Statement of Work (“SOW”), if applicable, and applicable Software license(s) (collectively, the “Agreement”). Customer order(s) for Equipment and/or Services, including the initial order and all subsequent orders (collectively, the “Order”), shall be incorporated into the Agreement by reference and shall become a part of the Agreement during the Term (as defined herein).
In the event of any inconsistency between the General Terms and Conditions, SOW, exhibits, attachments or Orders made a part or in accordance with the Agreement precedence shall be given to:
- General Terms and Conditions set forth herein;
- The SOW;
- Any Order executed pursuant to this Agreement; and
- Any other attachment or exhibit to this Agreement.
THESE GENERAL TERMS AND CONDITIONS MAY BE MODIFIED FROM TIME TO TIME AS REQUIRED BY LAW. CUSTOMER AGREES TO BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE PARTICULAR SERVICES CUSTOMER HAS CHOSEN OR MAY CHOOSE IN THE FUTURE. IF SUCH CHANGES ARE NOT MANDATED BY LAW, SUCH CHANGES SHALL NOT BE APPLICABLE TO CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO CASE SHALL ANY CHANGES DIMINISH ANY APPLICABLE SERVICE LEVEL AGREEMENTS ENTERED INTO AT THE TIME OF THE ORDER. CUSTOMER AGREES THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS. IF CUSTOMER PLACES AN ORDER FOR EQUIPMENT, ACCEPTS DELIVERY OF EQUIPMENT OR USES THE SERVICES, CUSTOMER IS DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS.
1.1 The term of this Agreement shall commence on the date Black Box executes the applicable Order and will continue as set forth in the Order (the “Term”), and this Agreement shall apply to any such Order, even if performance extends beyond the Term. If neither Customer nor Black Box provides the other written notice of cancellation at least thirty (30) days prior to the end of the Term, the Term of such Order will automatically renew for additional periods of one (1) year at Black Box’s then current rate(s).
2.0 PRICE AND PAYMENT TERMS
2.1 Price. The System price and/or Service fee, excluding applicable taxes, fees and shipping and the payment terms are set forth on the SOW and/or Order.
2.2 Sales and Use Taxes. Customer is responsible for all applicable taxes, shipping, handling and other charges applicable to the Equipment, Software and/or Services provided under this Agreement. Customer agrees either to pay to Black Box the amount of all applicable taxes or to provide evidence of exemption no later than the date of any Order.
2.3 Due Date. All charges, unless otherwise specified in the Order or an SOW are due thirty (30) days from the date of the invoice. Any amounts not paid when due shall bear interest at the lesser of a rate of 1.5% per month, or the maximum permitted by law.
3.0 ORDERING PROCEDURES
3.1 Orders. Customer shall sign an Order and/or SOW for Equipment, Systems and/or Services ordered during the Term. Black Box shall acknowledge acceptance of Customer’s Order by executing said Order. Black Box may acknowledge a Customer-issued purchase order as an Order; however, the parties acknowledge that a Customer’s purchase order or other similar document is for the Customer’s convenience only and if acknowledged by Black Box, these terms and conditions shall apply to the Order and any terms and conditions on the Customer purchase order shall have no effect on this Agreement, the Order or the Services provided under this Agreement.
3.2 Change Orders. When changes in the System and/or Services are requested by Customer or are otherwise necessitated as set forth in this Agreement (“Change Order”), Black Box shall promptly estimate the monetary effect and so notify Customer. If the Change Order affects the cost or time of performance under an Order or SOW, Customer and Black Box will mutually agree in writing to an equitable adjustment to the amount of which shall be payable to Black Box as set forth in the Order and/or SOW. (C) Acceptance. Equipment will be deemed accepted by Customer five (5) business days after its delivery date for drop ship orders or installation date for installed Equipment, unless Customer notifies Black Box in writing within such period of any non-conformities. Upon such notice, Black Box will promptly correct any such non-conformities to the specifications of the SOW.
4.1 Returns. Black Box will only accept return of Equipment which: (i) is returned within thirty (30) days of delivery; (ii) reflects a Return Merchandise Authorization (“RMA”) number issued by Black Box; (iii) is in its original packaging; and (iv) is in the same condition as delivered. Black Box may charge a restocking fee for Equipment Order’s cancelled prior to installation or returns unless the Equipment is defective, or delivered in error. Notwithstanding the foregoing, custom ordered Equipment is non-returnable.
5.0 RISK OF LOSS AND TITLE
5.1 Risk of Loss. Customer assumes the risk of loss of the System from the date of delivery.
5.2 Transfer of Title. Title shall pass to Customer upon full payment of the System price, including taxes, shipping, handling and other applicable charges.
6.0 SOFTWARE DEVELOPMENT
6.1 Customer acknowledges that Black Box may utilize its own software or third party software to perform certain 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.
7.0 SOFTWARE LICENSE
7.1 Direct License. If Applicable, Customer agrees to be bound by the Software publisher’s or equipment manufacturer’s Software and/or end user license agreement.
7.2 Grant of License. Absent such direct license, Black Box grants Customer a non-exclusive license to use the Software in the System for its useful life, provided Customer: (i) does not disclose information about the Software to a third party without Black Box’s prior consent; (ii) uses the System solely for Customer’s internal business purposes; (iii) does not copy any part of the Software without Black Box’s consent (except for a single copy for backup purposes only); (iv) does not attempt to develop any source code from the Software; (v) does not attempt to reverse engineer, decompile, disassemble, alter, add to, delete from, or otherwise modify the Software, except to the extent that such modification capability is an intended feature of the Software; and (vi) returns, erases or destroys any Software on any media being recycled or discarded and so certifies to Black Box. Customer may transfer the right to use the Software only to an end user who acquires the right to use the System and agrees to be bound by the terms of this license.
8.0 HAZARDOUS SUBSTANCES
8.1 Customer represents and warrants that the Premises shall be in compliance with all applicable federal, state and local laws, rules and regulations, including hazardous waste and environmental laws and/or regulations, and not contain, present, or expose Black Box employees or agents to asbestos or other hazardous materials or substances. Black Box may immediately suspend performance until Customer has corrected such condition(s) and/or terminate this Agreement with respect to such Premises without liability.
9.1 Unless otherwise set forth in an SOW or Order, the following terms shall apply:
(A) Black Box Warranty. Black Box warrants that all Equipment shall be free from defects in material or workmanship under proper and normal use and will conform to the specifications for a period of ninety (90) days from delivery, provided that if a System is installed in phases, the ninety (90) day period shall commence at the acceptance of the applicable phase, and that all Services shall be performed in a good and workmanlike manner and be free from material defects for a period of thirty (30) days from the date of performance of the Services. (B) Additional Manufacturer Warranty. In addition to the Black Box warranty in Section 9(A), all manufacturer’s end user warranties or conditions for Equipment provided hereunder are passed through to Customer. Black Box will provide reasonable assistance to Customer in presenting any such Equipment claims to the manufacturer. The Customer’s sole and exclusive remedy for any breach of a manufacturer’s warranty or conditions shall be limited to the remedies set forth in the manufacturer’s end use warranties or conditions. Black Box is required to provide Customer with the following manufacturer warranty information located at https://www.blackbox.com/en-ca/about-us/terms-conditions-of-sale. (C) Remedies. Black Box’s sole liability and obligation, and Customer’s sole and exclusive remedy, for failure by Black Box to meet any of the warranties or conditions set forth in this Section shall be, at Black Box’s option, to: (x) re-perform the defective Services, (y) repair or replace the defective Equipment; or (z) in the event that (x) and (y) are not commercially practicable, refund the fees previously paid by Customer to Black Box for the defective Services or Equipment. (D) Limitations. The warranties and conditions set forth in this Section apply solely to Customer and to no other third parties. Such warranties and conditions are not applicable to any deficient Services or Equipment where such deficiency is caused by: (i) any actions of third parties, where such actions were not expressly approved by Black Box in writing; (ii) the failure by Customer or any third party to follow Black Box’s installation, operation or maintenance instructions; (iii) any failure of third party products that were not provided or serviced by Black Box; (iv) any abuse, misuse or negligent acts of Customer or any third parties; (v) force majeure events or any other environmental causes not attributable to Black Box; or (vi) deterioration of materials which, by their nature, have a limited shelf life (including, without limitation, batteries). (E) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, BLACK BOX MAKES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OR CONDITION OF NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED. BLACK BOX MAKES NO WARRANTY FOR USE OF THE SYSTEM AS A COMPONENT IN LIFE SUPPORT DEVICES OR SYSTEMS.
10.0 LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, COST OF COVER OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES), HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRECEDING LIMITATION SHALL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 13 (CONFIDENTIALITY) OR CUSTOMER’S BREACH OF SECTION 7 (SOFTWARE LICENSE).
11.1 General. Each party shall defend, indemnify and hold harmless the other party, and its respective directors, officers, trustees, members, employees and agents from and against any third party claim, suit, action or proceeding alleging bodily injury (including death) or damage to tangible property to the extent such injury or damage is caused by the gross negligence or willful misconduct of the indemnifying party, its employees, subcontractors or suppliers in connection with the performance of Services or the unauthorized disclosure or use of any Confidential Information, as defined below, provided that such claim is promptly reported to the indemnifying party in writing.
11.2 IP Indemnification. Black Box shall indemnify Customer from and against any liabilities and damages arising out of or relating to any claim by a third party that the System or Services infringe upon any United States patent or copyright. Customer shall promptly notify Black Box in writing; give Black Box the sole right to defend and settle any suit, and, at Black Box’s request, cooperate and assist in the defense as requested by Black Box. This indemnity shall not extend to any suit or proceeding which is based upon: (i) a claim covering any combination of equipment and/or software in which the System is solely an element and such element by itself does not form a basis for the claim; (ii) a claim arising from any item furnished by Customer, including, but not limited to, systems or any portions thereof installed by a third party other than Black Box or Black Box’s representatives; (iii) a claim arising from use of components manufactured, developed or programmed to Customer’s production specifications at Customer’s request; or (iv) a claim arising from use of the components in a manner or for a purpose not contemplated by this Agreement. Should the System or its components become subject to a claim of infringement of a United States patent or copyright, Black Box may, at its option and expense: (x) procure for Customer the right to continue the uninterrupted use of the affected Equipment and/or Software; (y) replace or modify the same so that it becomes non-infringing; or (z) refund to Customer the depreciated value of the affected components on a straight line five (5) year basis from the date of acceptance, in which case Customer shall return the affected components to Black Box. Black Box’s total cumulative liability under this Section shall be limited to the System price of the affected component or System or the Service Fee giving rise to the claim together with all litigation costs, including Court awarded damages and settlement payments. This Section sets forth the Customer’s SOLE AND EXCLUSIVE REMEDY for any patent or copyright infringement claims.
12.1 The non-breaching party may terminate this Agreement and/or any outstanding SOW or Order and/or pursue its remedies in law or equity including injunctive relief (if permitted by applicable law), except as otherwise limited by this Agreement, in the event that: (i) immediately if Customer breaches Section 7.2; or (ii) a party commits a material breach of this Agreement (other than a breach for Section 7.2) and fails to cure that breach within thirty (30) days following receipt of written notice describing the breach. In addition to any other rights or remedies set forth herein, in the event Black Box terminates this Agreement or any SOW or Order placed hereunder pursuant to this Section, Customer shall promptly pay Black Box for the System and any Services provided, including all costs incurred, up to the date of termination, including any third party early termination charges.
12.2 The aggrieved party may suspend performance of its obligations under this Agreement or any Order placed hereunder during the cure period for any breach described above or if required by regulation, statute, judicial action or other applicable legal requirement.
13.1 During the Term of this Agreement, Black Box and Customer may be exposed to the other’s proprietary information (the “Confidential Information”). Each party agrees to hold in strictest confidence and not to disclose to any person or use in any way for that party’s own or another’s benefit any of the other party’s Confidential Information. The parties agree that any violation of these provisions regarding confidentiality will result in irreparable injury to the other party and agree that each shall have the right to seek a restraining order, injunction or any other remedies available at law or in equity. The parties agree to waive any bond requirement for enforcement of this provision.
14.0 FORCE MAJEURE
14.1 Except for Customer’s payment obligations hereunder, a party’s non-performance or delay shall be excused to the extent the failure or delay in performance is the result of events beyond such party’s reasonable control including, without limitation, governmental actions, civil unrest, terrorism, power surges or failure, fire, water, acts of God including without limitation, rain, floods, earthquakes or lighting.
15.1 Notices shall be in writing and will be deemed given when delivered in person, or when sent via facsimile with confirmation or overnight courier with confirmed delivery. The respective addresses of the parties for notice are: (i) to Customer: at the address indicated on the Order; or, (ii) to Black Box Network Services (with a copy to the General Counsel): Attn: Corporate Billing, at the address indicated on the Order. Customer shall notify Black Box of any changes to its address.
16.0 GENERAL PROVISIONS
16.1 Assignment. Customer shall not assign this Agreement without Black Box’s prior written consent, which shall not be unreasonably withheld.
16.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
16.3 Waiver. A party’s waiver of any default will not operate as a waiver of any contemporaneous or subsequent default.
16.4 Severability. If any Court finds any provision of this Agreement to be void, unlawful or unenforceable under any applicable statute or other controlling law, such provision shall be deemed severed and the remainder of this Agreement shall continue in full force and effect.
16.5 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its choice of laws principles.
16.6 Publicity. Neither party shall issue a news release or other form of publicity concerning the existence of the Agreement or the services without obtaining the prior written approval of the other party and Customer agrees to work in good faith with Black Box regarding any potential news release, public announcement, advertisement, or other form of publicity concerning the existence of the Agreement or the Services.
16.7 Non-Solicitation and Non-Hire. Neither party, including its subsidiaries and affiliates, shall directly or indirectly solicit, hire or contract with any of the other party’s employee(s) performing work under this Agreement during the Term of this Agreement or any Order and for one (1) year after termination or expiration of this Agreement or any Order.
16.8 Independent Contractor. Black Box and Customer are independent contractors with respect to all rights and obligations under this Agreement.
16.9 Execution. This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one instrument and the parties may rely on a facsimile signature or pdf. copy to bind the other party.
16.10 Entire Agreement and Modification. This Agreement supersedes all prior or contemporaneous proposals, communications and negotiations, both oral and written, relating to the subject matter of this Agreement and constitutes the entire agreement between Black Box and Customer with respect to the subject matter herein. No subsequent agreement among the parties concerning the services shall be effective or binding unless made in writing and executed by authorized representatives of both parties. Neither electronic mail nor instant messaging shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of the Agreement.
General Web Terms Rev.2 (Effective September 13, 2016)