PROFESSIONAL SERVICES TERMS AND CONDITIONS
IF THERE IS A PRIOR WRITTEN AGREEMENT, EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF ENTERASYS NETWORKS, INC. AND CUSTOMER, TO THE EXTENT THAT THE TERMS OF THAT PRIOR AGREEMENT CONFLICT WITH THESE TERMS AND CONDITIONS (THESE “TERMS”), THE TERMS OF THAT PRIOR WRITTEN AGREEMENT SHALL GOVERN ALL PROFESSIONAL SERVICES. IN ALL OTHER INSTANCES, ALL OFFERS FOR PROFESSIONAL SERVICES ARE SUBJECT TO THESE TERMS, AND ANY PROPOSED ADDITIONS TO OR MODIFICATIONS MADE BY CUSTOMER ARE HEREBY EXPRESSLY REJECTED.
These Professional Services Terms and Conditions govern the services provided by Enterasys Networks, Inc., to Customer as set forth in one or more Professional Services Agreement together with referenced attachments thereto (hereinafter collectively the “Agreement”).
The parties agree that all orders issued for services shall not require the use of union labor, or licensed electricians, nor shall they contain any special wage requirements.
Customer may submit orders based upon the pricing and conditions set forth in the Professional Services Agreement, Statement of Work, Letter of Engagement, Request for Schedule, and/or any other document outlining the scope of services to be performed in accordance with the Agreement. Any such Statement of Work, Letter of Engagement, Request for Schedule, and/or other similar document is hereinafter referred to as the “Scope Document”.
Customer may request changes to the order and services, subject to approval by Enterasys. Changes made to the services to be rendered will be subject to reasonable added or reduced charges at the lesser of Enterasys’ then standard rates or those rates set forth in the original Scope Document. Customer’s project coordinator may verbally authorize changes to a Scope Document or authorize emergency Services provided the work being authorized is incorporated into a written change to the Scope Document prior to the completion of the services.
1. ACCEPTANCE.
Services: Acceptance of Services shall occur upon demonstration that the applicable Enterasys products perform individually and as a whole in accordance with the Scope Document. Minor omissions or substitutions in availability of certain features or equipment, or failures which do not affect the functioning of the entire system in more than a minor way, are not grounds for rejection of services. Notwithstanding the foregoing, services will be deemed to have been accepted if Customer has not advised Enterasys in writing of non-conformity (specifically identifying the particular scope and nature of nonconformity) with the Scope Document within fifteen (15) days of completion of the services. Should any services not conform to the Scope Document, Customer’s sole remedy is for Enterasys to re-perform the services.
2. RESPONSIBILITIES.
Enterasys:
Services shall be performed pursuant to the Scope Document and shall conform to all applicable federal, state and local government laws, codes, statutes and ordinances, and shall conform to the facility layout agreed to by Customer.
Enterasys employees will permit normal security inspection of equipment such as tool boxes, tool chests, parts, and cabinets, and comply with all other reasonable security measures.
Enterasys shall perform all services outlined in the Scope Document in accordance with all applicable federal, state and local government laws, codes, statutes and ordinances. Enterasys agrees to provide, at Enterasys’ expense, all necessary tools (such as, but not limited to, wire strippers, crimping tools) to perform the requested services. However, the provision of any incidental items, accessories, equipment or devices not noted specifically in the Scope Document and which may be necessary for completion of the services are the responsibility of Customer.
If, through no fault of Enterasys, extra hours are necessary to timely complete the Services, Customer shall, at its option, either (a) reimburse Enterasys for reasonable expenses directly connected with such extra hours (except to the extent provided for in the Scope Document) at Enterasys’ then standard rates, or (b) waive timely completion of the services and agree to completion in a time that includes the extra hours needed to timely complete the Services during a normal work week.
Customer:
Customer shall designate a project coordinator to interact with Enterasys during the hours that Enterasys personnel are performing the services. The project coordinator will be available by telephone on an “as needed” basis to clarify specific requirements as they occur.
Enterasys products being installed are the sole responsibility of Customer, and Customer shall be responsible for purchasing any necessary property damage or other insurance at Customer’s discretion and expense.
Customer agrees to provide Enterasys with at least two (2) sets of facilities layout plans. Customer will mark locations and identify configurations on the facilities layout plan where the services will be performed.
Customer shall provide Enterasys personnel with access to telephone, copying, facsimile devices, and a work area appropriate for managing the services. Customer shall be responsible for removing and properly disposing of all waste and debris resulting from the services.
Customer also agrees to provide, at its own expense, any additional equipment required for the services including, but not limited to, incidental items, accessories or devices not specifically provided for in the Scope Document.
Customer will make arrangements to allow Enterasys access to the premises upon which the services will occur, sufficient for Enterasys to complete the services in a timely manner. Said premises, and any equipment provided by Customer, shall be free from any unsafe conditions. Customer warrants and represents that, except as previously disclosed to Enterasys in writing, Customer is not aware of asbestos on the premises, other hazardous materials exposure, or other unsafe conditions (“Hazards”), other than those that a reasonable person would expect to find on the premises, which could cause injury to Enterasys’ employees or representatives during the normal course of their performance pursuant to the Scope Document. Furthermore, Customer agrees to immediately notify Enterasys upon becoming aware of Hazards.
In addition to the price set forth in the Agreement and/or Scope Document, Customer agrees to pay (i) all additional costs for installation and maintenance arising from any concealed conditions which (a) have not been previously disclosed to Enterasys in writing by the Customer or (b) may not be readily ascertainable by a visual inspection of the premises; and (ii) the cost of all measures taken by Enterasys or its authorized representatives to protect the health and safety of their employees working on the premises and to comply with all laws and regulations applicable to their work hereunder, including but not limited to payment of additional workers’ compensation coverage, to the extent that such measures or additional coverage are necessitated by the presence of Hazards at the premises. Enterasys will work in good faith to mitigate such costs as much as is practical without compromising the Customer’s or Enterasys’ safety or Enterasys’ commitment to comply with all applicable laws and regulations.
The presence of Hazards or of concealed conditions may adversely affect the timetable for services. Enterasys agrees to immediately notify the Customer’s project coordinator in the event that either Enterasys, its employees, or its representatives, discover any such Hazards or concealed condition. Enterasys reserves the right to discontinue performing the services, if in Enterasys sole discretion, Enterasys determines that the services can not be performed due the Hazards or concealed conditions.
3. Government Contracts.
If Customer’s purchase order is placed pursuant to a United States government contract, the government clauses required to be passed on to subcontractors are subject to review by Enterasys Networks, Inc., prior to final acceptance. Unless otherwise agreed in writing, Enterasys shall retain all right, title, and interest in any and all data to be provided pursuant to this order or contract, To the extent that any Equipment is to be supplied to the United States Government, Customer represents to Enterasys that the following paragraph shall be included in all contracts and purchase orders for Services supplied to the U.S. Government under a prime contract or to a contractor operating under a U.S. Government Contract. “Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software Clause at 252.2277013.”
4. NO WARRANTY; NO RIGHT OF RETURN.
ALL SERVICES ARE PERFORMED ON AN “AS IS” BASIS AND WITHOUT WARRANTY. ENTERASYS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND MERCHANTIBILITY.
CUSTOMER SHALL HAVE NO RIGHT TO RETURN ANY ENTERASYS PRODUCTS PURCHASED FROM ENTERASYS OR ITS CHANNEL PARTNERS ON THE BASIS OF CUSTOMER’S DISSATISFACTION WITH THE SERVICES PERFORMED OR THE RESULTS OF SUCH SERVICES.
5. LIMITATION OF LIABILITY; INDEMNIFICATION.
UNDER NO CIRCUMSTANCES WILL ENTERASYS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF ENTERASYS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF ENTERASYS, ITS DIRECTORS, OFFICERS, EMPLOYEES , AGENTS AND AFFILIATES, FOR DAMAGES HEREUNDER IS LIMITED TO THE AMOUNTS THAT CUSTOMER HAS PAID ENTERASYS UNDER THE SCOPE DOCUMENT UNDER WHICH CUSTOMER’S CLAIM AROSE.
CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS ENTERASYS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED BY THEM ARISING IN CONNECTION WITH THE PERFORMANCE OF SERVICES UNDER THE SCOPE DOCUMENT EXCEPT TO THE EXTENT RESULTING FROM ITS WILLFUL OR KNOWING MISCONDUCT.
Deliverables provided under any Scope Document and any Enterasys products purchased or licensed separately are not specifically developed, or licensed for use in any nuclear, aviation, mass transit, or medical applications or in any other inherently dangerous applications. Customer hereby agrees that Enterasys shall not be liable for any claims or damages arising from such use if Customer uses the deliverables or Enterasys products for such applications. Customer agrees to indemnify and hold Enterasys harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the deliverables or Enterasys products in such applications.
6. Term; Survival.
The term of these Professional Services Terms and Conditions shall be as set forth in the Agreement and/or Scope Document. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY.
Customer agrees to cooperate fully with Enterasys in the performance of Enterasys’ responsibilities hereunder and under any Scope Document, and it shall make available to Enterasys such information, documents, and data in its possession which Enterasys’ reasonably deems necessary to perform its obligations. All information provided to Enterasys which is proprietary or confidential in nature and so marked by Customer shall be treated by Enterasys as confidential and shall not, except to the extent necessary in its performance hereunder, be disclosed to parties outside Enterasys or Customer. Similarly, Customer shall treat as confidential all information that is proprietary or confidential in nature to Enterasys and so marked by Enterasys. Confidential information shall not include information which (a) was already known to the other party prior to its disclosure by a party hereto, or (b) was publicly available at the time of its disclosure, or subsequently becomes so without violation by either party or its obligations hereunder; or (c) is rightfully received by Enterasys or Customer from third parties without obligation of confidentiality to the other party; or (d) is independently developed by the party in receipt of such information; or (e) is required to be disclosed under law. Customer acknowledges that any breach of this section may cause Enterasys irreparable harm for which monetary damages would be inadequate, and that Enterasys shall be entitled to seek timely injunctive relief to protect Enterasys’ rights under this Agreement in addition to any and all remedies available at law.
8. OWNERSHIP OF WORK PRODUCT.
All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, creations, designs, engineering details, discoveries, techniques, inventions, processes, or works of authorship, software improvements produced, developed or created by Enterasys or its personnel during the course of rendering services to Customer shall be and shall remain the sole and exclusive property of Enterasys. Customer shall not reverse engineer, decompile, derive, or disassemble the deliverables and will take appropriate steps to prevent any third party from so doing.
9. NON-SOLICITATION.
Customer acknowledges that Enterasys provides a valuable service by identifying and assigning personnel to render services for Customer. Customer further acknowledges that Customer would receive substantial additional value, and Enterasys would be deprived of the benefits of its work force, if Customer were to directly hire Enterasys personnel after they have been introduced to Customer by Enterasys. Accordingly, Customer agrees that while Enterasys is performing services hereunder, and for a period of one (1) year following the termination of this Agreement, Customer will not solicit or offer employment to any Enterasys or Enterasys subcontractor employee(s) who have been engaged in any efforts hereunder. If Customer violates the provisions of this section, it will be liable to Enterasys for liquidated damages, not as penalty, but as a reasonable estimate of the damages incurred, in an amount equal to six (6) months' wages of the employee at the rate last paid that employee by Enterasys.
10. GOVERNING LAW.
This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles. Any legal action brought pursuant to this Agreement shall be brought only in the state or federal courts of Massachusetts and shall be initiated within a period of one (1) year following the discovery, by the party bringing such action, of the event giving rise to the cause of action.
11. ENTIRE AGREEMENT.
This Agreement, including all attachments and all Scope Document(s) attached hereto, constitutes the entire agreement between Enterasys and Customer with respect to the subject matter hereof. The terms and conditions of this Agreement supersede all previous communications, representations, understandings or agreements, either oral or written, between the parties with respect to the subject matter hereof. No other terms and conditions shall be included or implied unless agreed in writing by an authorized representative of the parties. No additional term or condition of any purchase order, acknowledgements or confirmations will be binding, unless specifically agreed to by both parties in writing. No waiver or amendment of any portion of this Agreement shall be effective unless in writing. No failure or delay on the part of a party in the exercise of any right hereunder shall be deemed to operate as a waiver thereof.
12. NOTICES.
All notices given pursuant to this Agreement shall be in writing sent by certified or registered mail (return receipt requested), overnight express service or by facsimile. All such notices shall be directed to Customer or Enterasys at the address set forth herein unless either party notifies the other in writing of a new address.
13. FORCE MAJEURE.
Neither party shall be liable or deemed in default for any delay in performance under this Agreement resulting directly or indirectly from acts of God, war, insurrection, national emergency, fires, strikes, labor disputes or any other cause beyond the reasonable control of such party.
14. GENERAL.
(a) The rights of Enterasys and obligations of Customer under this Agreement shall inure to the benefit of Enterasys’ assignees, licensors, and licensees. This Agreement is not assignable or transferable in whole or in part by Customer without the prior written consent of Enterasys. Enterasys may assign this Agreement without Customer's consent, to any subsidiary or affiliate, including a foreign sales corporation, or to any person or entity which acquires all or substantially all of the stock of Enterasys or the assets of Enterasys, or any applicable major division, unit, or subsidiary of Enterasys. Enterasys may subcontract its obligations under this Agreement provided that Enterasys shall remain ultimately liable for the performance of subcontractor.
(b) The provisions of this Agreement are severable and if any one or more of the provisions hereof are judicially determined to be invalid, illegal or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement shall be binding.