- Definitions.
1.1 Operator Support is defined as troubleshooting problems with Unitec products (“Equipment”) and Unitec software (“Software”) providing answers to questions on use of Unitec Equipment and Software (not including business or operational advice, consultation, or training).
1.2 Operator Support provides Operator with access to Unitec’s support staff via telephone at, or any other manner that Unitec designates.
1.3 Unitec’s standard Operator Support hours, which may be altered from time to time will be posted on Unitec’s web site, www.startwithunitec.com.
1.4 Unitec shall make commercially reasonable efforts to answer and respond to Operator’s calls and emails in an efficient and prompt manner, however, inquiry volumes to Unitec’s Operator Support team vary widely and Unitec makes no commitments regarding response times.
1.5 Any mutually acceptable forms of online purchase, purchase orders, sales proposals, or sales agreements shall be referred to herein as (the “Ordering Document(s)”). If a term in an Ordering Document or any other amendment, exhibit, or statement of work conflicts with a term in this agreement, the provisions of these agreement prevail unless the Ordering Document or any other amendment, exhibit, or statement of work specifically states that it will prevail over this agreement.
1.6 Operator Support does not eliminate the need for onsite maintenance, support, and troubleshooting provided by an authorized Unitec Distributor.
- Supported Locations and Products. The parties shall mutually agree on the Locations and Products to be supported by Operator Support, listed in Ordering Document.
- Warranty and Limitations. Operator Support is provided AS IS with NO WARRANTY. Further, Unitec shall not be liable for issues and/or claims arising out of: (i) errors, omissions, malfunctions, or communication failures resulting from Unitec software or equipment, and/or issues arising out of other software or equipment whether or not provided by Unitec; (ii) errors or omissions occurring in Unitec’s Operator Support team, (iii) Unitec’s failure to train, inadequate training, or errant training; (iv) errors or omissions made by Unitec personnel, its subcontractors, the Customer’s onsite service provider, and/or the Customer personnel; and (v) any other issues resulting from Unitec’s errors or omissions or otherwise.
- Operator Responsibilities.
4.1 Scope of Engagement. Operator selects Locations for Operator Support. Operator Support is provided, deployed and enabled hereunder are not a substitute for Operator’s prudent business practices, its customer relationship management, break-fix maintenance, proper insurance coverage, network security and privacy protections, and Operator’s compliance with applicable laws and industry and regulatory requirements. - Term of Agreement.
5.1 Term. The base term shall be for one thirty (30) day term (the “Base Term”).
5.2 Termination.a) Operator Termination. No termination is permitting within the Base Term or any renewal term however the Agreement may be terminated with written notice at any time with three (3) business days before the end of the then applicable Base Term or renewal term.
b) Unitec Termination. Unitec may terminate Operator Support at the conclusion of any Base Term or any renewal term.
- Fees.
6.1 Payment Obligation. At all times Operator will timely pay all fees and charges in accordance with the terms of this 30 Day OSA.
6.2 Fees. Fees for Operator Support are per month per site. Fees are based on:a) Operator Support is being rendered during standard Operator Support hours. If Operator requests and Unitec provides Operator Support outside of the standard hours stated above, Operator will pay Unitec’s then prevailing overtime rates in addition to the fee for such Services. For requests beyond the scope of Operator Support and/or for any time spent by Unitec personnel waiting for access to Operator’s Locations, equipment, services, data or material, Operator will pay Unitec’s then prevailing rates, and such amounts will be in addition to the applicable Fee.
b) Unitec being able to use its regular employees or contractors to perform Operator Support. If union labor or prevailing wage requirements are applicable, Operator agrees to pay any additional expenses that Unitec may incur because of such local conditions.
6.3 Additional Fees. Unitec and Operator agree that the above referenced Fees may not include all costs and expenses to cover Operator Support. In the event that Unitec provides any out of scope services as set forth in the applicable Service offering exhibit, Unitec shall provide such out of scope services at Unitec’s then current time and material rates and Operator will be invoiced following completion of the out of scope service. The Fee excludes travel and living expenses of Unitec personnel rendering Operator Support, and Operator will reimburse Unitec therefor upon receipt of Unitec’s invoice.
6.4 Payment Terms. Payment shall be made in advance via credit card. - Taxes. Operator is solely responsible for payment of all taxes including but not limited to sales, use, value added or any other tax that would apply to the Service to be performed by Unitec.
- Obsolete Equipment. If Unitec reasonably determines that any Equipment, other equipment and/or the configuration of products at a Location are obsolete or not otherwise capable of supporting Operator Support because of age, compatibility, or other reason or condition, upon thirty (30) days advance written notice from Unitec, Operator shall either replace the obsolete Equipment or the parties shall remove the Location from Operator Support. Removal of the Equipment does not relieve Operator of its obligation to pay the applicable Fees associated with Operator Support for the remainder of the then-current term.
- Warranty. SUPPORT SERVICES ARE PROVIDED AS-IS AND WITHOUT WARRANTY. SUPPLIER DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARE DISCLAIMED. SUPPLIER DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SERVICES.
- Intellectual Property.
10.1 Unitec IP. Operator acknowledges and agrees that Unitec owns all right, title and interest in its Operator Support, Equipment and Software including but not limited to all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights therein and Operator agrees that it has no right, title or interest in Unitec’s Operator Support, Equipment or Software or any copies thereof except as provided herein. Operator further acknowledges that the “look and feel” of Unitec’s Equipment and Software, meaning, the structure, data sequencing, customer interface, screens, and layout of the audiovisual components as reasonably perceived by users, including, but not limited to, the color combinations, button shapes, and all other graphical and navigational elements, the design for which was dictated by artistic and aesthetic considerations and not by utilitarian or mechanical ones, are also proprietary to Unitec and fully protected under U.S. and international copyright and trademark laws.
10.2 Protecting Unitec IP. Operator will not and will not enable others to make alterations to Unitec Hardware, Software or Operator Support, including but not limited to disassembling, reverse engineering, or decompiling any services, documentation, and/or Unitec’s Equipment or Software.
10.3 Use of Trademarks. Each Party agrees not to use the trade names, registered or unregistered trademarks, logos or any other proprietary marks or designations of the other Party or the other Party’s affiliates, agents or subcontractors for any purpose or in any medium (including, without limitation, internet or other means of electronic or wireless communications) without the prior written consent of the other Party or the holder of the trademark or logo rights.
10.4 Derivative Works. Derivative works of Unitec-owned Software will be governed by the terms of this 30 Day OSA. Such derivative works may include modifications to Software developed or provided by Unitec during the provision of Operator Support, including without limitation software interfaces and extensions, and any related documentation. Notwithstanding the foregoing, in the event that Operator Support include (i) the delivery to Operator of derivative works that are developed, modified or configured by Unitec in accordance with Operator’s requirements, instructions or specifications, or (ii) the delivery or use of any software which Operator has provided, requested or specified that Unitec deliver or use, or (iii) delivery of software for which Operator has no signed license with Unitec, or (iv) delivery of any non Unitec-owned Software, Unitec makes no warranties concerning such software or related services, and disclaims any warranty that such software or services can be used without infringing the rights of third parties, and Operator will defend, indemnify and hold Unitec harmless from any intellectual property infringement claim related to such software or services. - Indemnification. OPERATOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS UNITEC AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AFFILIATES, CONTRACTORS, OPERATORS, AND EMPLOYEES AS WELL AS EACH OF THEIR SUCCESSORS AND PERMITTED ASSIGNS (THE “UNITEC GROUP”) FROM AND SHALL PAY ON BEHALF OF OR REIMBURSE UNITEC FOR ANY LIABILITIES, OBLIGATIONS, CLAIMS, SUITS, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) RELATING TO OR ARISING OUT OF ANY BREACH OF OR NONCONFORMANCE WITH THE TERMS AND CONDITIONS OF THIS 30 DAY OSA BY THE OPERATOR INCLUDING, WITHOUT LIMITATION, THE OBLIGATION OF THE OPERATOR TO PAY WHEN DUE THE AMOUNTS DESCRIBED HEREIN OR BASED UPON OR RELATING TO THE OPERATION OF THE OPERATOR’S BUSINESS. OPERATOR WILL, AT ITS SOLE EXPENSE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE UNITEC GROUP FROM AND AGAINST ALL COSTS, DAMAGES, CLAIMS, EXPENSES, INJURIES, JUDGMENTS, LIABILITIES, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY, “LOSSES”) TO THE EXTENT RESULTING FROM A CLAIM, SUIT, ACTION, OR PROCEEDING (EACH, A “CLAIM”) BROUGHT BY ANY THIRD PARTY AGAINST THE UNITEC GROUP RESULTING IN A DETERMINATION BY A COURT OR ARBITRATOR OF COMPETENT JURISDICTION THAT THE SOFTWARE INTERFACES AND EXTENSIONS, AND ANY RELATED DOCUMENTATION PROVIDED BY OPERATOR TO UNITEC HEREUNDER INFRINGE A UNITED STATES PATENT, TRADEMARK, OR ANY COPYRIGHT OR MISAPPROPRIATES ANY TRADE SECRET OF SUCH THIRD PARTY.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, UNITEC SHALL NOT BE LIABLE FOR, AND OPERATOR HEREBY WAIVES ANY CLAIM AGAINST UNITEC FOR LOST PROFITS, INCREASED EXPENSE OF OPERATION, LOST OPPORTUNITY, ECONOMIC DAMAGES OF ANY KIND, AND/OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, OR THIRD PARTY CRIMINAL ACTS, THAT ARE ASSOCIATED DIRECTLY OR INDIRECTLY WITH THE HARDWARE, SOFTWARE, SUBSCRIPTION SERVICES, AND SERVICES AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, STRICT LIABILITY, FUNDAMENTAL BREACH, FAILURE OF ESSENTIAL PURPOSE OR OTHER FORM OF ACTION. REGARDLESS OF THE FORM OF ACTION AND THE PERSON OR ENTITY BRINGING SUCH ACTION, UNITEC’S LIABILITY TO OPERATOR HEREUNDER SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE PAYMENTS MADE BY OPERATOR TO UNITEC FOR THE HARDWARE, SOFTWARE, SUBSCRIPTION SERVICES, AND SERVICES UNDER THIS 30 Day OSA FOR THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE ACTION GIVING RISE TO THE CLAIM.
- Termination.
13.1 Termination Without Cause. Addressed in Section 3 above.
13.2 Termination for Cause. Upon ten (10) days’ advance written notice, Unitec expressly reserves the right to disable Service if Operator has: (i) suspended its business operations (ii) become the subject to any bankruptcy or insolvency proceeding under any Federal or state statute, (iii) sold or transferred substantially all of its assets, or (iv) materially breached the terms of any provision of this agreement, any Ordering Document, amendment, exhibit, or statement of work entered into by the Parties. Operator hereby waives any claims or objections relating to or arising out of the exercise of such rights by Unitec.
13.3 Termination Resulting from Changes to Laws. If Unitec, in its opinion, is prevented from performing a Service hereunder by applicable law or regulation, Unitec may terminate this service and/or any of the services without cause and without further obligation immediately upon written notice to Operator.
13.4 Effect of Termination.a) In addition to any other rights or remedies available to Unitec:
(1) Unitec shall retain all amounts paid by Operator for Operator Support rendered; and
(2) Operator will be responsible to pay all amounts due for Operator Support performed prior to the date of termination; and
(3) Operator shall promptly return to Unitec all copies, in whole or in part, in any form, including partial copies or modifications of Software or Equipment provided by Unitec to enable Operator Support.
- Default and Remedies.
14.1 Defaults by Operator. Operator shall be considered in default under these terms if any one or more of the following shall occur:a) Operator fails to timely pay any Fees or other sums due to Unitec under these terms when due;
b) Operator breaches any non-monetary term or obligation hereof and does not fully cure such breach or failure upon request; or
c) Operator files a petition for or is subject to an involuntary action for relief under any bankruptcy, insolvency or reorganization legislation, or seeks or be subjected to an action for the appointment of a receiver of any part of its assets or property or makes a general assignment for the benefit of creditors, suspends business or becomes insolvent.
14.2 Remedies Available to Unitec. In the event of any default by Operator, Unitec at its sole discretion may elect any one or more of the following remedies:a) Terminate this Agreement in whole or in part;
b) Immediately stop performing or suspend the performance of any and/or all of the services hereunder; and
c) Have the right to seek such other damages or remedies that may be available at law or in equity. <
14.3 Default by Unitec. Unitec shall be considered in default under this 30 Day OSA if any one or more of the following shall occur:a) Unitec breaches a material term of this agreement with respect to its performance of Operator Support and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from Operator; or
b) Unitec files a petition for or is subject to an involuntary action for relief under any applicable bankruptcy, insolvency or reorganization legislation, or seeks or is subject to an action for the appointment of a receiver of all of its assets or property or makes a general assignment for the benefit of creditors, suspends business, or becomes insolvent.
14.4 Remedies Available to Operator. In the event of any default by Unitec, as set forth above, Operator at its sole discretion may elect any one or more of the following remedies:a) Terminate this Agreement in whole or in part; or
b) Subject to the limitation of liability provisions set forth in Section 13, seek such other direct damages or remedies that may be available to Operator at law or in equity.
14.5 Waiver. A Party’s action or failure to act on one remedy shall not be a waiver of any other remedy or a release of the other Party from any other liability hereunder. As it relates to Unitec, nothing herein shall be deemed to prejudice Unitec’s right to recover damages for unpaid sums due hereunder. A Party’s remedies shall be in addition to all other remedies provided by law and may be exercised concurrently or consecutively. - Confidentiality. “Confidential Information” means all information that is disclosed by either Party in connection with this 30 Day OSA, any Ordering Document, amendment, exhibit, or statement of work entered into by the Parties and (i) is of such a nature as to be reasonably identified as confidential in nature at the time of disclosure; or (ii) which the disclosing Party has otherwise exercised commercially reasonable efforts to identify as confidential in nature at the time of disclosure. Confidential Information shall not include information that the receiving Party can prove: (a) was generally available to the public at the time it received through no fault of the receiving Party and without breach of this agreement, (b) was known to it, without any restriction or obligation of confidentiality, prior to disclosure by the disclosing Party, (c) is disclosed with the prior written approval of the disclosing Party, (d) was independently developed by the receiving Party without any use of the Confidential Information of the disclosing Party, or (e) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party, which has the right to disclose such information without any obligation of confidentiality with respect thereto. Each Party shall use the Confidential Information of the other Party solely in the performance of its obligations under this Agreement, any Ordering Document, amendment, exhibit, or statement of work entered into by the Parties and not disclose it, except to its authorized employees, officers, directors, legal counsel, accountants and necessary subcontractors (provided that they are bound by a duty of confidentiality no less restrictive than the duty imposed by this Section 16). Without limiting the foregoing, each Party shall treat the other Party’s Confidential Information with at least the same degree of care it uses to prevent the disclosure of its own Confidential Information, but in no event less than reasonable care. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure by it of the other Party’s Confidential Information. Each party recognizes and acknowledges that if it breaches the provisions of this Section 16, damages owed to the non-breaching party would be difficult, if not impossible, to ascertain. Because of the immediate and irreparable damage and loss that may be caused to the non-breaching party for which it would have no adequate remedy, each party agrees that the non-breaching party, in addition to, and without limiting any other remedy or right it may have, shall be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach.
- Additional Terms and Conditions.
16.1 Force Majeure. No failure or omission of either Party, other than failure to make payments when due as required herein, shall give rise to a claim against that Party, or be deemed to be a breach of this agreement, to the extent that, and for so long as, performance thereof is delayed or prevented by any cause, except financial, reasonably beyond its control, including without limitation: fire, explosion, riot, strike, labor dispute, order, regulation, requirement of any governmental authority or person purporting to act thereunder, acts of God, and/or acts of war, terrorism or of public enemy. If a Party is delayed or prevented from meeting its obligations hereunder, it shall make commercially reasonable efforts to remove the source of the delay and to mitigate the effects thereof; provided, however, that it shall not be required to settle strikes or lockouts or government claims by acceding to any demands when, in its sole and unfettered discretion, it would be inappropriate to do so.
16.2 Dispute Resolution. In addition to any other applicable provision of this Agreement, the parties will make initial informal efforts to resolve any claim or controversy arising out of or relating to this Agreement or an alleged breach hereof. The parties will start with an informal meeting between an executive or officer of each Party. If the informal meeting fails to reach an amenable result for both Parties, the dispute will progress to formal mediation. If mediation is unsuccessful, the parties may initiate litigation in accordance with the terms herein. Notwithstanding the foregoing, the parties shall be permitted to initiate an action for equitable relief prior to engaging in mediation or informal meetings.
16.3 Network Sponsorship / Memberships. Operator must coordinate through Unitec or Unitec’s designated point of contact to ensure Operator maintains all EFT Network memberships and sponsorships that Unitec utilizes to perform certain services.
16.4 Regulations. Operator shall comply with all applicable Federal, State and local laws relating to the use of the Equipment and/or Software and the operation of its business and shall promptly advise Unitec of any laws and regulations which may impact Unitec’s performance of Operator Support at an Operator Location.
16.5 Press Releases and Information Disclosures. Although the terms of this agreement will be treated as confidential by the Parties, Operator agrees that Unitec may issue a press release and/or other marketing communications announcing this new relationship and highlighting the scope of the Service Unitec will be providing to Operator.
16.6 Notice. All notices, consents, requests and demands to or upon the parties which are required or permitted hereunder shall be in writing which shall include email to the addresses the Parties agree on and document as the primary contacts.
16.7 Assignment. Neither Party shall assign this 30 Day OSA or any portion hereof without the prior written consent of the other Party, which will not be unreasonably withheld. Notwithstanding the above however, Unitec may (i) assign this 30 Day OSA in whole or in part to a subsidiary of Unitec or another corporate affiliate that is controlled by Unitec, or (iii) subcontract performance of some or all the services to a third party selected by Unitec in its sole and exclusive judgment.
16.8 Applicable Law. This 30 Day OSA shall be interpreted in accordance with the law of the State of Ohio without regard to any conflict of laws provisions thereof. The Parties hereby consent and agree to submit to the exclusive jurisdiction of the Federal District Court for the Northern District of Ohio or the State courts of Common Pleas sitting in Stark or Summit County, Ohio. The Parties mutually agree that they will not raise, in connection with any suit, action or proceeding brought in any of the above referenced Courts, any defense or objection based upon lack of jurisdiction, improper venue, inconvenience of forum or the like.
16.9 Survival. The provisions of Sections 3,4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, and 16shall remain in force and effect after the termination of this 30 Day OSA.
16.10 Ancillary Documents. Operator agrees to execute and deliver such instruments and take such actions as Unitec may from time to time request to effectuate the purpose and carry out Operator Support. Failure of Operator to comply with the foregoing will relieve Unitec from any obligation to perform Operator Support hereunder.
16.11 Entire Terms. This agreement together with any other documents incorporated by reference or amendment, constitute the entire agreement of the Parties as to the subject matter hereof and there are no other promises, representations, terms, conditions or obligations other than those contained in such documents. This 30 Day OSA supersedes all prior communications, representations or agreements, oral or written, between the Parties with respect to the subject matter hereof.
16.12 Severability. If any provision of this agreement shall at any time be deemed to any extent to be invalid or illegal under any applicable statute, law, rule or regulation then to such extent the affected provision shall be deemed to be omitted herefrom, and all other provisions of this agreement shall remain valid and in full force and effect.
