This Equipment Maintenance Addendum (“Addendum”) covers telephone systems (“Products”) of original equipment manufacturers (“OEM”) procured by Customer through CBTS or its affiliates or certified by CBTS or its affiliates. This Addendum supplements the terms of the Master Services, Products, and License Agreement.
1. Service Description. CBTS shall provide maintenance services under this Addendum as a complement to the OEM’s warranty and post warranty coverage by providing repair personnel manage problem determination and resolution (“Maintenance”). In the event on-site assistance is required, as determined by CBTS repair personnel, a technician will be dispatched from the Cincinnati local service location to arrive on-site within the commitment time that is based on the coverage agreement. If parts are required, CBTS repaid personnel will be dispatched to arrive within the commitment time that is based on the coverage agreement.
2. Coverage Area. Maintenance coverage is available for Products that are within 200 miles Cincinnati, OH service facilities. Locations outside the Cincinnati service area will be covered by CBTS’ partner network with the intent to meet the same time frame, but cannot be guaranteed.
3. Contract Period. Unless otherwise stated elsewhere, Maintenance coverage begins on the date when the system is either installed, upgraded or onboarded or on the effective date defined in the Maintenance Bill of Materials, whichever is later, and continues for an initial term as specified on the Maintenance Bill of Materials. At the end of the initial term, Maintenance shall be automatically renewed for successive one (1) year terms at the charges and under the terms and conditions applicable to CBTS’ standard one (1) year maintenance agreement at the time of renewal, unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the expiration of any initial or renewal term. CBTS reserves the right to provide Customer with at least thirty (30) days advance notice that maintenance for specific Products will be discontinued. CBTS will provide a pro-rated refund to Customer for any pre-paid maintenance that is terminated due to product obsolescence, lack of spare parts, etc.
4.1 Maintenance includes hardware maintenance as deemed appropriate by CBTS and remedial maintenance, including new or refurbished replacement parts, required for Products used under normal operating conditions. Replacement parts and products may be new, remanufactured or refurbished. Replacement parts may include parts with equal or better value or features than the replaced part. Any removed parts and/or Products will become the property of CBTS.
4.2 CBTS’ Maintenance coverage is for Products and does not include OEM software support. OEM software support must be purchased separately. CBTS hardware maintenance and OEM support should be co-terminus at the beginning of the contract period. In the event that they are not, Customer is responsible for maintaining both support agreements with CBTS through the end of the last contract coverage to expire. If Customer does not purchase the required support CBTS will not be able to open tickets with the OEM to resolve software related issues. CBTS will use best effort to resolve may need to postpone efforts until OEM support is purchased. If software support is required by the OEM to resolve the issue, CBTS will add the cost to Customer bill if it is not purchased separately.
4.3 Firmware upgrades are the responsibility of Customer unless necessary to resolve a maintenance issue. Application of firmware patches will be at the sole discretion of CBTS to resolve an issue that prevents the system from working as designed. Labor charges may otherwise apply.
4.4 Maintenance requiring software reprogramming is included in the event of equipment failure due to normal wear and tear. Software reprogramming of the system will be completed to the point of a valid backup of the configuration provided to CBTS by Customer. System backups are the responsibility of Customer. Any programming required beyond restoring the backup configuration of the system will billed back to Customer at the applicable T&M rate.
4.5 Maintenance coverage will be in accordance with the options Customer has selected for the applicable Product on the Maintenance Bill of Materials (e.g., 24×7, 8×5, etc.).
4.6 If Customer subsequently purchases products (“Added Products”) from CBTS or its affiliates and co-locates those Added Products with existing Products or such Added Products become integral components of a system currently covered by maintenance, the Added Products will automatically be covered under Maintenance at the same level of coverage effective upon the OEM‘s warranty expiration. Added Products purchased from a party other than CBTS or its affiliates are subject to certification by CBTS at its then-current rates prior to being eligible for coverage under this Maintenance. If such Added Products fail certification, they must be repaired or replaced at Customer’s expense to become eligible for maintenance. Maintenance for Added Products will be at CBTS’ then-current rates, and coverage will be co-terminous with the coverage for the existing Products. CBTS may, at its discretion, electronically monitor Customer’s system for the purpose of collecting and recording the configuration of and the number and types of Products in Customer’s system. Such monitoring will serve two principal purposes: (1) the information will permit more accurate remote diagnostics and corrective actions; and (2) the information will be used twice a year, before the renewal date of annual Maintenance, or the yearly anniversary date of multi-year Maintenance, to determine applicable charges. Products identified in the annual data collection will be treated as Added Products as defined above. Customer will cooperate with CBTS in such data collection, including making remote access available to CBTS for this purpose.
4.7 Equipment not installed by CBTS, or equipment where the warranty is transferred by Customer to CBTS must be installed in compliance with the OEM’s recommended operating environment, including but not limited to, temperature, power conditioning, safety, accessibility for service, etc. CBTS may recommend corrections or improvements to operating environments or the PBX configuration. Failure to comply with CBTS’ recommended corrections or improvements may cause CBTS to reject the specific part or equipment and remove it from the Maintenance service.
4.8 CBTS may access Customer’s system and remotely monitor the supported Products for the purpose of performing repairs to Products during maintenance situations. This includes: (i) to perform remote diagnostics and corrective actions; (ii) to determine system configuration and applicable charges; (iii) to verify compliance with applicable software license terms and restrictions; (iv) to assess Customer needs for additional Products or Services to address or resolve performance issues; (v) as otherwise needed to help Customer with new applications or upgrades to solve business problems. Customer will cooperate with CBTS in such situations by making remote access available to CBTS for this purpose. Customer will provide, at Customer’s expense, remote access capabilities into the switch that will be used solely for this purpose.
4.9 Customer agrees to notify CBTS prior to moving a Product from the location where it was installed. Additional charges may apply if CBTS incurs additional costs in providing maintenance as a result of the move.
4.10 Consumable products are not covered by this Maintenance. Consumable products include but are not limited to batteries (including UPS batteries), headsets, cables, mounting brackets or items that are general stockable or disposable and which have a limited life cycle.
4.11 In the event that OEM support for Customer equipment or software covered under this Maintenance become end of support, discontinued or otherwise become unavailable, CBTS’ obligation to continue to provide Services shall be limited to making commercially reasonable efforts to repair or replace any failed or damaged parts or components, including but not limited to obtaining repaired or refurbished parts or components and will not include providing any upgrade(s) or enhancement(s) or system replacements. Any labor charges associated with such commercially reasonable efforts shall continue to be covered by the fees specified in this Maintenance.
4.12 If CBTS determines that the issues are a result of conditions outside those items covered under Maintenance, Customer will be responsible for the time spent by CBTS to discover and help resolve those issues and billable at prevailing rates. These may be issues in as a result of carrier issues or outages, customer network configuration changes or issues caused by third party applications not covered by this Maintenance.
5. Response Times. The response time objective for field engineer dispatch to a given site within 200 miles of the Cincinnati service locations for a major or critical outage is four (4) hours or less. After a trouble ticket is opened with the CBTS Voice Support Desk, the trouble will be diagnosed and resolved remotely whenever possible. For any troubles that cannot be cleared remotely, the response interval will be calculated from the time the ticket is put up for dispatch until field engineer arrival onsite. In the event that CBTS misses five (5) dispatch commitments as detailed above within a calendar year, Customer will have the option to terminate the remainder of the Maintenance contract with thirty (30) days written notice. Field engineers will be dispatched after hours only after confirmation from Customer that the site is accessible. Customer locations outside of the 200 mile limit of the Cincinnati service locations will have the same intent of a four (4) hour response objective but cannot be guaranteed due to our partner network availability.
6. Outage Definitions. Outages or Support tickets are classified utilizing. CBTS follows Information Technology Infrastructure Library (ITIL) practices based on the following definitions:
6.1 Severity Level 1: Total outage of PBX, critical adjuncts and all trunking no matter what type (Digital, IP or Analog).
6.2 Severity Level 2: Degradation of PBX, PBX adjuncts and trunking. Examples of Major outages include 25% of trunks or stations out of service, 25% of data peripherals are out of service, 25% of special service network capabilities out of service, Attendant Console out of service, controller or processor failures.
6.3 Severity Level 3: Does not affect overall system integrity or performance (one user down or replace of a handset)
7. No Warranty; Service Limitations and Exclusions.
7.1 CBTS, ITS AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR MAINTENANCE, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT CLAIMS.
7.2 Maintenance does not cover repair for damages or malfunctions caused by: (i) unauthorized modification to a Product; (ii) use of improper equipment or software with the Product; (iii) Customer’s failure to follow installation, operation or maintenance instructions; (iv) failure or malfunction of equipment or software not serviced by CBTS; (v) actions of non-CBTS personnel; or (vi) Force Majeure conditions as defined herein. “Force Majeure” means an occurrence that is beyond the reasonable control of either party including, but not limited to, fire, explosion, earthquake, flood, storm, lightning, or other similar catastrophe, or vandalism. If Customer requests, CBTS at its sole option may perform repair or other services not covered by a maintenance agreement at CBTS’ standard rates for such service.
7.3 If a OEM has identified equipment as “end of life”, CBTS’ maintenance on the covered system(s) will be on a best effort basis only. When a system is end of life,/end of support from the OEM, CBTS may not be able to procure the parts required to fix a failure, error condition or an outage. It depends largely on the nature of the trouble and the inability to repair would be considered a “worst case” scenario. CBTS will make every effort under the terms of this Addendum to restore Customer’s system(s), but it may not be possible.
7.4 If Customer does not purchase software support from the OEM, then firmware updates, enhanced software maintenance permissions or logins, patch releases, product correction notices, and access to the OEM’s support website are excluded from CBTS’ Maintenance service, and work will be performed on a “best effort” basis. Neither CBTS nor Customer will be able to escalate any software support issue to the OEM for support.
7.5 If the Product supports telephony over Transmission Control Protocol/Internet Protocol (TCP/IP) facilities, Customer may experience certain compromises in performance, reliability and security, even when the Product performs according to its specifications. These compromises may become more acute if Customer fails to follow CBTS’ or the OEM’s recommendations for configuration, operation and use of the Product. CUSTOMER ACKNOWLEDGES THAT IT IS AWARE OF THESE RISKS AND THAT CUSTOMER HAS DETERMINED THEY ARE ACCEPTABLE FOR ITS APPLICATION OF THE PRODUCT. CUSTOMER ALSO ACKNOWLEDGES THAT, UNLESS EXPRESSLY PROVIDED IN ANOTHER AGREEMENT, CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER’S DATA.
8. Price, Payment, Taxes and Termination.
8.1 Customer agrees to pay the monthly maintenance charges for the initial term and the applicable charges for any renewal terms. If applicable, Customer may prepay for maintenance during the entire initial term of this Maintenance at the discounted prices set forth on the Maintenance Bill of Materials.
8.2 In the event that Customer requests a credit due to no longer having the system and neglects to inform CBTS in writing or email to cancel the coverage Customer may be granted a credit up to three (3) months at CBTS’ discretion.
8.3 Prior to the commencement of Maintenance, Customer may cancel coverage and receive a full refund of any prepaid amount. After commencement of any initial or renewal term of Maintenance, Customer may terminate Maintenance coverage upon thirty (30) days written notice. If Customer provides notice of its intent to terminate during the first thirty (30) days of coverage, Customer will be responsible only for the charges for the period of coverage up until the effective date of termination. After the first thirty (30) days of coverage, Customer may provide notice to cancel the automatic renewal of Maintenance at least thirty (30) days prior to the expiration of any initial or renewal term and no termination charges will apply. If notice is not provided at least thirty (30) days prior to the expiration date, Customer will be subject to a termination charge equal to the monthly charges for twelve (12) months or the remaining term, whichever is less. For prepaid maintenance, CBTS will refund or credit the pro rata fees for Maintenance during the remaining term less the applicable termination charge.
9. Exclusive Remedies; Limitation of Liability.
9.1 THE ENTIRE LIABILITY OF CBTS AND ITS SUBSIDIARIES, AFFILIATES AND SUBCONTRACTORS, (AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS OF ALL OF THEM) AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK OR SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE: (1) FOR CBTS’ FAILURE TO PERFORM ANY MATERIAL TERM OF THIS ADDENDUM (E.G., CBTS’ SERVICE OBLIGATIONS), CUSTOMER’S SOLE REMEDY SHALL BE TO CANCEL THIS ADDENDUM WITHOUT INCURRING CANCELLATION CHARGES IF CBTS FAILS TO CORRECT SUCH FAILURE WITHIN THIRTY (30) DAYS AFTER RECEIPT OF CUSTOMER’S WRITTEN NOTICE SPECIFYING THE FAILURE; (2) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR DEATH TO ANY PERSON FOR WHICH CBTS’ SOLE NEGLIGENCE WAS THE PROXIMATE CAUSE, CUSTOMER’S RIGHT TO PROVEN DIRECT DAMAGES TO PROPERTY OR PERSON; AND (3) FOR CLAIMS OTHER THAN SET FORTH ABOVE, CBTS’ LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEES RECEIVED BY CBTS FOR THE SERVICE GIVING RISE TO THE LIABILITY OR ONE HUNDRED THOUSAND DOLLARS ($100,000) IN THE AGGREGATE, WHICHEVER IS LESS.
9.2 EXCEPT TO THE EXTENT PROVIDED IN SUBSECTION 9.1(2) ABOVE, CBTS SHALL NOT BE LIABLE FOR THE FOLLOWING TYPES OF DAMAGES: (1) LOST, CORRUPTED, MISDIRECTED OR MISAPPROPRIATED DATA OR MESSAGES; AND (5) CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO PRODUCTS (“TOLL FRAUD”). CBTS SHALL NOT BE LIABLE FOR THE TYPES OF DAMAGES ENUMERATED ABOVE WHETHER OR NOT CBTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY AND TERMINATION OR EXPIRATION OF THIS MAINTENANCE.