- The Parties
Formation of Contract
1.1 As used herein, "Customer" means the person, proprietor, partnership, limited liability company, firm, corporation or other entity issuing a purchase order for Services (as defined below) and "BTI” means the BTI corporation identified and as shown on the accompanying quotation or purchase order acceptance.
- 2.1 Upon acceptance of a purchase order for Services, the parties will be bound by the provisions of this Maintenance and Support Agreement (“Agreement”). This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by authorized representatives of both parties. Any terms or conditions contained in any purchase order or other communication of Customer, which are inconsistent with the terms and conditions herein, are hereby rejected.
- The following schedules are incorporated into and form part of this Agreement:
- Schedule A: List of Maintained Products
Schedule B: Service Levels
Schedule C: Excluded Services
- 3.1 Order Acceptance: BTI reserves the right to accept or reject any purchase order from Customer. No order of Customer is binding on BTI unless BTI issues an acknowledgment of acceptance (an “Order Acceptance”) or delivers the Services under such purchase order. Acceptance of the Customer’s purchase order is made only on the express understanding and condition that the purchase order is governed by the terms and conditions set out herein.
Term/Period of Performance
- 4.1 Services: During the Term, BTI will provide maintenance and support services to the Customer at the level indicated on the maintenance quotation and in the accepted purchase order, which services are further outlined at http://www.btisystems.com/Services/Technical-Support-Services. Services, including, but not limited to, technical resources in support of product-related questions, troubleshooting, diagnostic procedures, patch and maintenance releases, return materials authorization (“RMA”), to restore and resolve network troubles will be provided by BTI for the BTI products listed in Schedule A, attached hereto as amended and supplemented from time to time (“Maintained Products”), in accordance with the severity levels set forth on Schedule B (“Service Levels”).
- 4.2 Excluded Services: The parties agree that the Excluded Services listed in Schedule C attached hereto are outside the scope of the Services and therefore are not included under the terms of this Agreement. Additionally, maintenance and support for proNXTM SLA Portal is excluded and therefore is not covered under the terms of this Agreement.
- 5.1 Term: The “Term” shall refer collectively to the Initial Term and Renewal Terms as described below.
- 5.2 Initial Term: The initial term of this Agreement will begin on the day the purchase order for the Services is accepted or such other service start date as may be agreed to in writing by the parties e (the “Service Start Date”) and will continue for a period of one year or such longer period as is specified or incorporated in the accepted purchase order for the Services (the “Initial Term”), also identified as the “Period of Performance”.
- 5.3 Renewal Term: Unless otherwise agreed in writing, Customer’s coverage will automatically renew for successive one year terms (each a “Renewal Term”) unless either party gives written notice of intent to not renew no later than 60 days prior to the expiration of the Term then in effect. Notice will be deemed effective if sent to the address set out in the preamble to this Agreement within (i) three working days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by facsimile and confirmed by receipt of transaction confirmation printout. The prices and terms of Service for a Renewal Term shall incorporate any modifications of which BTI has provided Customer written notice prior to the start of the Renewal Term. Prices are based upon purchase of the Services for the entire agreed Term. Accordingly, and notwithstanding any other provision of the Agreement, Customer may not terminate the Services for convenience during the course of the then current Term.
- 6.1 Pricing: In consideration of the Services to be provided by BTI under this Agreement, Customer agrees to pay BTI as follows:
- 6.1.a Initial Payment. With respect to the Maintained Products owned by Customer as of the Service Start Date and listed in Schedule A, Customer agrees to purchase the Services for the Initial Term (as set out above) as outlined in the quote. Payment is due within 30 days of the date of the invoice issued by BTI.
- 6.1.b Initial True-Up. Customer shall be required to true up for Maintained Products purchased within either (a) the 6 months following the Service Start Date; or alternatively (b) the 12 months following the Service Start Date, if mutually agreed to between the parties (“Initial True-Up”). The Additional Price will be determined by the formula provided below and will be invoiced by BTI. Payment for the Initial True-up is due within 30 days of the date of the invoice issued by BTI.
- 6.1.c Subsequent True-Up. With respect to Maintained Products purchased after the Service Start Date, Customer agrees to purchase the Services for a period commencing on the date of delivery of such Maintained Products until the end of the Initial Term. The price (“Additional Price”) for such Services for Maintained Products purchased during each year of this Agreement shall be prorated for the balance of the Term and shall be determined by the formula:
(A * X% * (B/365 + Y)), where
∑ is the sum of the Additional Price for Services for all items of Maintained Product purchased during that year;
A is the purchase price of each item of Maintained Product;
X is the percentage charged on Maintained Products for Services. For Maintained Products purchased after the Service Start Date, the percentage charged will be at BTI’s standard support rate in effect at the time of purchase.
B is the number of days in the period commencing on the date of delivery of each item of Maintained Product to Customer and ending on the next anniversary date of the Effective Date; and
Y is the number of years (if any) in the period commencing on the anniversary date of the Effective Date next following the date of delivery of each item of Maintained Product to Customer and ending on the last day of the Initial Term.
The Additional Price during each year of the Term (following the Initial True-Up) shall be computed on each anniversary date of the Effective Date and shall be payable in full within 30 days of the date listed on the invoice issued by BTI.
- 6.1.d Renewal Pricing. Pricing for Services of Renewal Terms shall be at BTI support pricing then in effect or at such other rate as may be agreed upon by the parties.
General Customer Responsibilities
- 7.1 Software License Terms: All software provided in connection with the Services in accordance with the terms herein are licensed subject to the same terms, restrictions, and limitations as contained in the licenses under which the original software was acquired. Applicable license terms for BTI software are located at http://www.btisystems.com/legal/eula, and by entering into this Agreement, Customer is agreeing to be bound to such license terms.
- 8.1 Customer shall be responsible to do the following:
- Pay for the Services in advance. The prices quoted do not include sales, use, excise or other taxes or delivery, handling or freight insurance charges. Taxes (excluding taxes on BTI’s income), duties, shipping, and insurance costs, as applicable, are the responsibility of Customer ((if not otherwise outlined in the Agreement) and shall be itemized on each invoice. Any amounts not received within the established time period(s) will be subject to a service charge of one and one half percent (1.5%) per month (18% per year). BTI reserves the right to suspend performance of the Services if Customer is past due in making payment to BTI under this or any other agreement between Customer and BTI.
- Purchase the Services for a minimum period of time as outlined herein.
- For each Maintained Product, the quantity specified must include absolutely all such parts found in Customer’s network.
- If Customer terminates the Agreement prior to the expiration of the Term, and then re-subscribes for Services at a later date, such Services will not be provided unless and until Customer has paid BTI any lapsed and/or outstanding reinstatement fees.
- Not enable or permit downloads access to any person other than its designated contact(s), without BTI’ prior written consent. If requesting such consent, Customer shall identify to BTI any non-employee who Customer would like to have access to the Web site, and if requested by BTI, will provide a copy of a Non-Disclosure Agreement executed between Customer and the non-employee in accordance with the confidentiality terms of the agreement pursuant to which the Maintained Products were supplied. Such agreement will provide the level of protection provided in this contract.
- Ensure that Maintained Products are installed, configured, operated and maintained in accordance with BTI applicable installation, operation, administration, and maintenance specifications.
- Ensure that Maintained Products are operating on currently supported hardware and software release(s) with implementation of BTI required Patch Release(s) and Maintenance Release(s).
- Notify BTI in writing any changes in Maintained Products including, but not limited to quantity or location of Maintained Products less than 90 days prior to the start of the Initial or Renewal Term or to any changes to the Maintained Product or any changes in the premises where the Maintained Products are located (“Sites”).
- Allow BTI, if BTI deems it necessary, to verify the accuracy of the Maintained Products status by reasonable means.
- Follow BTI documented procedure (external to the software programs) for reconstruction of lost or altered files, data, and/or programs.
- Perform initial problem diagnostics and analysis to isolate the problem to a Maintained Product.
- When contacting BTI, provide all information regarding the concerned Maintained Product which shall at a minimum include: Site, contract number, submitter name & location, callback telephone number and/or email address, system name & location, processor location, type and serial number, and alternate contact.
- Provide all information necessary for BTI to provide the Services without delay which shall at a minimum include: severity level of problem, output of any preliminary diagnostics, printed logs, already performed actions.
- Ensure availability of employees which shall have sufficient competence to assist BTI personnel. Any delay time caused by Customer shall be deleted from KPI measurements.
- If Customer has purchased Advanced Replacement services, the Customer will return the inoperable products to BTI within 15 days of the replacement product being dispatched. If the inoperable products have not been returned within 15 days or if BTI determines No Fault Found (“NFF”) in respect of product returned to BTI by Customer, then Customer agrees to return the Advanced Replacement product to BTI in “new” condition in original packaging freight prepaid if possible or Customer agrees to be invoiced by BTI for the full purchase price of the Advanced Replacement product.
General Terms and Conditions
- 9.1 Depending upon the Maintained Product, a connection to a remote site (“Remote Connection”) may be required to provide the Services. Remote Connections may be established with a BTI local site, one of the BTI technical assistance centers or premises of a third party contracted by BTI to provide support services. Customer shall provide BTI with the necessary infrastructure to complete a Remote Connection. If, due to reasons beyond the control of BTI, the Remote Connection cannot be established or is established with unsatisfactory quality or bandwidth, the KPIs specified in Schedule B shall be extended for the same period during which the Remote Connection could not be established. BTI reserves the right, and upon consent of Customer, to send skilled personnel to the Site to resolve the problem. The parties agree that separate terms and fees may apply if Remote Connection cannot be established and on-Site resolution is deemed, in the sole discretion of BTI, as necessary.
- 10.1 Limitation of Liability: IN NO EVENT SHALL BTI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE. BTI SHALL ONLY BE LIABLE FOR DIRECT DAMAGES. BTI’S TOTAL liability for aNY claim FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE BTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE shall not exceed the AMOUNTS ACTUALLY PAID BY CUSTOMER TO BTI FOR THE PRODUCT THAT IS THE SUBJECT MATTER OF THE CLAIM.
- 10.2 Confidential Information: The parties shall keep secret and confidential all business and trade secrets, methods of doing business, and other confidential information and material disclosed by or obtained in connection with this Agreement. The parties will not disclose any such material or information to any third party other than its responsible employees who require such disclosure for the proper performance of their duties hereunder. The parties will take all reasonable steps to minimize the risk of disclosure of such confidential information by employees and others.
- 10.3 Governing Law: This Agreement will be governed by and construed and all disputes arising out of or relating to this Agreement will be settled in accordance with the laws set out in the table below respective to the BTI entity that is party to the relevant purchase order and quotation, other than rules governing conflict of laws, and the parties irrevocably submit to the non-exclusive jurisdiction of the respective courts:
|BTI Systems, Inc.
||Province of Ontario, Canada, and the laws of Canada applicable therein
||Province of Ontario, Canada
|BTI Systems Corp
|Commonwealth of Massachusetts, USA
|BTI Systems UK Limited
||England and Wales
|BTI Systems (Singapore) Pte. Ltd.
The United Nations Convention on the International Sale of Goods will not apply to this Agreement or to any dispute arising therefrom.
- 10.4 Severability: In the event that any provision or part thereof is determined by a court of competent jurisdiction to be unenforceable, such provision, or part thereof, shall be deemed to be severed from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect and shall be binding upon the parties hereto as though such severed provision had not formed part of this agreement.
- 10.5 Assignment: The Customer shall not assign any order or any interest therein or any rights hereunder to any party without the prior written consent of BTI.
- 10.6 Waiver: No waiver by either party of any breach of any term or condition of the terms and conditions set out herein by the other party shall be deemed to constitute a waiver of any other breach, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. No waiver given by a party hereunder shall be binding upon such party unless expressed in writing and signed by such party.
- 10.7 Entire Agreement: This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and cancels and supersedes any and all prior and contemporaneous understandings, statements, negotiations and agreements, whether real or written, between them relating to the subject matter hereof.
- 10.8 Counterparts: This Agreement may be executed by original, scanned or facsimile signature and in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
List of Maintained Products
Maintained Products consist initially of the products listed below, and any BTI products subsequently purchased after the Service Start Date
This schedule describes the severity or Service Levels applicable to the Service(s) covered by this Agreement.
Technical Assistance Center
SR Problem Classification
SR = Service Request (trouble ticket)
BD = Business Day of applicable technical support facility
BH = Business Hours of applicable technical support facility
CD = Calendar Day
D = Day
H = Hours
M = Minutes
NBD = Next Business Day of applicable technical support facility
NT = No Target. BTI will use commercially reasonable efforts to perform the corresponding activity, if feasible at BTI’s sole discretion.
- Critical SRs can only be opened by phone
- Restore targets only apply to outage conditions (service or functionality) that can be entirely neutralized remotely.
- If Customer requires a service window (i.e. scheduled downtime of the network) to address a reported problem, the scheduled interval will not be included within the Restore time, since during the scheduled period BTI cannot perform activities.
- Target applies when solution does not require a design change or development of software code. If a design change or development of software code is required, it will be available as per the applicable hardware or software product support policy.
- This is measured as a percentage of the total number of SRs that will meet the indicated target for each classification over a rolling four quarters
- Key Performance Indicators
The key performance indicators (“KPIs”), established by BTI, are dependent on the severity or Service Level of the request as reported by Customer.
- 1.1 Definition of Service Levels
- Service Levels are defined as the condition of the system when Customer submits an SR. BTI defines three severity levels for reported problems, aligning with TL9000 R3.0 standards. Service Levels are defined as follows:
- “Critical” (also known as Severity Level 1, SL1): The system is inoperative and Customer’s inability to use the product has a critical effect on Customer’s operations. This condition is generally characterized by complete system failure and requires immediate correction. In addition, any condition that may critically impact human safety is considered a Severity Level 1 Critical problem.
- “Major” (also known as Severity Level 2, SL2): The system is partially inoperative but still usable by Customer. The inoperative portion of the product severely restricts Customer’s operations, but has a less critical effect than a Severity Level 1 condition.
- “Minor” (also known as Severity Level 3, SL3): The system is usable by Customer, with little or limited impact to the function of the system. This condition is not critical and does not severely restrict overall Customer operations.
In order to classify a request, BTI technical support personnel will confirm with Customer the impact of the reported problem to determine an appropriate classification. Where parties disagree on the classification of a particular reported problem, Customer and BTI technical contacts will discuss the classification in good faith to reach a mutually acceptable classification. In the event the parties are unable to reach agreement on the classification, the reported problem shall be classified at Customer’s assigned classification level; however, no targets or other performance indicators of any kind shall apply to such reported problem.
- 1.2 Definition of Key Performance Indicators
- “Response Time” means the time period from when Customer first notifies the BTI Technical Assistance Center of a reported problem to when a BTI expert aims to contact Customer via telephone or preferred contact method as defined when submitting the request. In the event BTI is unable to contact Customer after three attempts, the SR will be closed.
- “Restore Time” means a measure of the length of time from when BTI is contacted and an event is determined to be service or functionality affecting to the time when BTI provides the means to return a system to operational status.
- “Resolve Time” means a measure of the length of time from when Customer first notifies the BTI Technical Assistance Center to the time when a solution to address the issue is made available to Customer. This may occur simultaneously with Restore Time, unless the Restore Time is by means of a workaround suitable only for temporary use and BTI determines that a more suitable permanent solution can feasibly be provided.
Services do not include:
- The scope is only for the support of BTI hardware and software application and does not include any support for other platforms, hardware or any item not provide by BTI.
- Support for software features not named in this Agreement as a Maintained Product, that is, any features that are not present in the generally available version of the Maintained Product.
- Support for third-party software not licensed to Customer by BTI.
- Making specification changes or performing services connected with installation or relocation of the Maintained Products.
- Support for non-maintained products, whether or not they reside on the same computing hardware platform or BTI provided and hardware platform on which Maintained Products reside.
- Services are intended for Maintained Products deployed commercially in a communications network. Coverage may be extended to Maintained Products used in Customer’s own lab for testing purposes before and during commercial use in Customer’s network if such lab use is identified on the Agreement. In the event Services are provided to Maintained Products in Customer’s lab, such Services will be provided at normal business hours, on normal business days, at the local time of the place where Customer’s equipment is located (exceptions may apply) without regard to the Support Level applicable to Customer’s other Maintained Products. Respond Time-only indicators will apply. Lab support is not provided in the price for this offer.
- Assistance or service, including without limitation, modification or replacement of the Maintained Products, repair of damage, or increase in service time caused by or required as a result of any of the following:
- Failure to continually provide a suitable operational environment with all facilities prescribed by the applicable product specifications document including, but not limited to, the failure to provide, the failure of, or faulty, adequate electrical power, air conditioning, or humidity, dust control.
- Use of the Maintained Products in a manner not in accordance with its specifications, operating instructions, or license-to-use.
- Maintained Products not operating on currently supported hardware and software in the event BTI provides Patch or Maintenance Releases (hardware or software) to address a threatened or actual security breach in the Maintained Products, to replace technologies that may infringe third party intellectual property rights or for any other reason of similar significance to BTI.
- Maintenance, repairs, or other services resulting from casualty, catastrophe, natural disaster (which shall include, but not be limited to, fire, flood, earthquake, water, wind or lightning), accident, transportation difficulties, terrorism or other hostile action, neglect by Customer, negligence of Customer, or misuse by Customer.
In the event of a service interruption caused by accident, disaster, or terrorism BTI will make a commercially reasonable attempt to restore service on the Maintained Products. If, however, service is not restored within 12 hours, BTI and Customer will mutually agree on next steps to be taken, which may include the purchase of disaster recovery services to restore service. Additionally, the commercially reasonable efforts contemplated by this provision do not include the provision of new, replacement, or additional hardware or software.
- Modifications, maintenance, or repair performed by other than BTI designated personnel, including changes, modifications or alterations not authorized by BTI in the Maintained Product, the hardware, or the software environment in which the Maintained Product operates, including without limitation the introduction of updates of third party software or hardware that have not been validated by BTI.
- Attachment of unspecified or non-approved products to the Maintained Products, or failure of a processor or other equipment or software not maintained by BTI or failure of removable or rotating storage media.
- Database problems: If the condition is determined to be the result of corruption of the Maintained Product’s database, and such corruption is not the direct result of the Maintained Products, the condition will be referred back to Customer. However, if corruption is the result of, or caused by, BTI Maintained Products, BTI shall manage the resolution of the problem, at no additional charge; provided, however, BTI shall only be responsible for restoring data on the media. Customer shall be responsible for providing BTI with the data that needs to be restored.
- Other/interfacing systems problems: If the condition is determined to be caused by systems other than the Maintained Products, including, but not limited to, systems that interface with the Maintained Products, the condition will be referred to Customer for corrective action unless the other system(s) has been furnished by BTI and is covered under this Agreement, in which case BTI shall manage the resolution of the problem.
- Equipment certification, as required per BTI policy on equipment not installed by an approved BTI installer, or lapse in Maintenance coverage that spans more than 90 days, or equipment that has been moved.
- Should Customer desire Services for any used Product and/or Product which is not under warranty or has not been under a support service agreement with BTI, in effect immediately prior to the request for Service hereunder, the Product must be inspected and certified for support Service at BTI then-current rates, prior to being eligible for support Services.
- Unless otherwise specified , installation of modifications, upgrades, features, enhancements or model conversions, refinishing or refurbishing of products, TAC assistance required in support of non-BTI manufactured equipment, or direct routine TAC assistance initiated by an individual site if TAC support is provided to a Customer staffed control center and/or centralized engineering group
- Recovery of any lost data or expenses for reconstructing data lost during the performance of Maintenance Services.
- Training of Customer staff.
- Software Limitations: The following items must be purchased separately by Customer:
- Any modifications to any parts of the network which are deemed by BTI necessary to accomplish network compatibility with a Feature Release.
- Any additional products required to take advantage of any new functionality within a Feature Release.
- Any additional software licenses required to support growth in the network of hardware or software (e.g. nodes, DSL ports, subscribers, seats, etc.). Any features in a Feature Release for which an additional license or activation fee is normally required.