Standard Terms and Conditions
1. Incorporated of Support Agreement
These Standard Terms and Conditions are incorporated by reference into any Support Agreement between Keytel Systems DBA Keytel and its Client(s).
2. Provisions of Services
Keytel will provide the Services to Client as identified in the Support Agreement(s). Keytel reserves the right to change or modify the features of Client’s.
3. Price and Payment Terms
(a) The price for Services is provided in the Support Agreement. Keytel may, after the initial term of a Support Agreement, increase charges for Services by giving the Client thirty (30) days written notice which may be sent via electronic mail to known/established email address(es) of Client.
(b) Payment terms are net 30 days, unless otherwise specified in the Support Agreement. Failure to pay within specified terms may at the option of Keytel result in the suspension of the Services, imposition of interest charges at the rate of a 1.5% per month or the highest allowed by law, and may result in the termination of the Support Agreement by Keytel.
(c) The Support Agreement will specify whether the contract is based on a fixed price or per-piece-price rate.
(d) Sales tax will be added to each invoice. In the event Client claims exemption from sales and use taxes, Client must provide Keytel with the appropriate tax exemption certificate from the taxing authority.
4. Proprietary Rights
Except as set forth in the Support Agreement, Keytel does not convey or transfer nor does Client obtain any right or interest in any of the software programs, systems, tools, data or materials or process utilized or provided by Keytel in connection with the performance of the Support Agreement.
5. Client Representations
Client represents and warrants to Keytel that Client has the right to authorize Keytel to perform the Services (as defined within the Support Agreement) including but not limited to computer products, phones, or hardware or software.
6. Client Responsibilities
Client, at its expense, shall:
(a) Allow employees or agents of Keytel reasonable access to the premises and facilities where the Service is to be provided, and Client shall not require Keytel’s personnel to sign any document that has not been approved in advance by Keytel.
(b) Provide appropriate electric current for any necessary purpose with suitable outlets.
(c) Provide safe, suitable and easily accessible floor space, adjacent to where Service will be provided.
(d) Provide reasonable assistance to Keytel as requested.
(e) Use the Services only on equipment identified by Client. Upon the failure of Client to comply with the responsibilities set forth in this Section ("Non-compliance"), Keytel may, at its option, refuse to perform any Service where Non-compliance has occurred until such Non-compliance has been cured to the reasonable satisfaction of Keytel without any liability or obligation under this Agreement or any applicable law; provided however, that Keytel may charge Client at its then current labor rates for any Service call at which no Service was performed by Keytel as a result of Non-compliance.
7. Client Network Limitations
In the event Keytel provides services to manage the Client’s Data Network (hereinafter “Managed Services”), the Client agrees to obtain prior written approval from Keytel prior to attaching any device, system, or computer of any kind onto the Client’s private Data Network. Keytel does not permit unauthorized access to Keytel’s servers and/or Services. Keytel makes no representations, warranties, or assurances that Client’s devices, systems, or computers will be compatible with Keytel’s Services. The Client is authorized to utilize any public access point designated as such by Keytel for non-Client owned systems or third-party systems internet access. Client is prohibited from violating or attempting to violate the security of the network by attaching unauthorized systems to the network. Unauthorized access or attempted access may violate the Client’s system and/or network integrity and could cause catastrophic failure of Client’s Data Network. Violations of system of network security may result in civil or criminal liability in addition to immediate termination of any Services provided by Keytel. Keytel will investigate occurrences, which may include cooperation with the appropriate law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation: (a) Accessing data not intended for the Client or logging into a server or account that the Client is not
authorized to access; or
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or
authentication measures without proper authorization; or
(c) Attempting to interfere with service to any Client, network, or Keytel, including, without limitation, via
means of overloading, “flooding”, “mail bombing”, or “crashing”; or
(d) Forging any TCP/IP packet header or any part of the header information in any email or newsgroup
(e) Taking any action in order to obtain services to which the Client is not entitled; or
(f) Allowing any network access by non-Client owned or systems which have not been expressly approved by
(g) Any use of the Services for any unlawful purpose.
8. Limited Warranty
Keytel shall provide computer and/or other technical Services in a good workmanlike and professional manner consistent with current industry standards. The foregoing limited warranty is contingent upon Client fulfilling the Client responsibilities specified in any Support Agreement and these Standard Terms and Conditions. In the event Client finds any Services to be defective or nonconforming during the warranty period, subject to the limitations set forth above, Keytel shall promptly correct such Services to the reasonable satisfaction of Client in accordance with the Support Agreement. In the event such corrected Services fail to comply with the Support Agreement, then at Client’s option, Keytel shall again promptly correct such Services or shall reimburse to Client the payments made to Keytel for such Services. The foregoing constitutes Client's sole remedy for Service warranty claims relating to computer and technical Services. To the extent Keytel is supplying third-party hardware or software as part of the Services to Client, such hardware and software shall be provided with the manufacturers’ or publishers’ standard end user warranties, if any. Keytel makes no independent warranties with regards to third-party hardware or software.
9. Disclaimer of All Other Warranties
WITH THE EXCEPTION OF THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN ANY SUPPORT AGREEMENT OR WITH THE EXCEPTION OF THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN ANY SUPPORT AGREEMENT OR THESE STANDARD TERMS AND CONDITIONS, KEYTEL DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED UNDER LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KEYTEL DOES NOT PROMISE THAT THE PRODUCTS OR SERVICES PROVIDED WILL BE ERROR-FREE OR THAT CLIENT’S COMPUTER PRODUCTS, HARDWARE OR SOFTWARE WILL OPERATE WITHOUT INTERRUPTION.
10. Limitations of Liability
KEYTEL WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF PROFIT, LOST TIME, LOSS OF DATA, LOSS OF USE OF ANY SUCH EQUIPMENT, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, OR ANY OTHER DAMAGES RESULTING FROM THE BREAKDOWN OR FAILURE OF ANY COMPUTER PRODUCTS, HARDWARE OR SOFTWARE, OR FROM DELAYS IN SERVICING OR THE INABILITY TO RENDER SERVICE ON ANY COMPUTER PRODUCTS, HARDWARE OR SOFTWARE EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY SUPPORT AGREEMENT OR THESE STANDARD TERMS AND CONDITIONS, KEYTEL’S LIABILITY FOR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO KEYTEL’S NEGLIGENCE OR INSTALLATION OF DEFECTIVE PARTS OR COMPONENTS, WHETHER OR NOT SUCH DEFECT WAS KNOWN OR DISCOVERABLE, SHALL NOT EXCEED THE ACTUAL PRICE PAID TO KEYTEL BY CLIENT UNDER THE SUPPORT AGREEMENT FOR THE COMPUTER PRODUCTS, HARDWARE OR SOFTWARE, OR SERVICE, WHICHEVER IS LESS.
Keytel shall not be responsible for damages caused by (i) accidents, misuse, misapplication, or neglect of Client or any of its agents or employees or as result of Service by any person other than a Keytel representative; (ii) placement or operation of computer products in an area that does not comply with manufacturer's published space or environmental requirements; or (iii) improper storage, use, and movement of any computer products to be serviced.
Internet/Transmission Disclaimer. Keytel does not and cannot control the flow of data over the Internet or the integrity of the Internet. Therefore, Keytel disclaims all liability for loss of data, corruption of data, or inability to provide Services, as a result of disruptions, slowdowns, breakdowns, or other technical issues affecting the Internet.
Client may terminate any Support Agreement upon forty-five (45) days written notice to Keytel which shall be by certified mail to the address on the Support Agreement. Keytel may terminate any Support Agreement at any time with-cause by providing written notice to Client to the address on the Support Agreement or by electronic mail to an email address previously established by the Parties. After the initial term, either Party may terminate any month-to-month Support Agreement by providing notice to the other party prior to any payments made by Client. Termination of a month-to-month term shall be effective after notification and thirty calendar days after Client’s last payment. Either party may terminate any Support Agreement at any time if the other party breaches any material provision and fails within fourteen (14) days after receipt of notice of default to correct such default promptly or to commence corrective action reasonably acceptable to the aggrieved party and proceed with diligence to completion.
12. Personal Information
Keytel represents and warrants to Client that in connection with the receipt, storage, use and/or transfer of Personal Information, it shall (a) at all times maintain the confidentiality of Personal Information provided Keytel or otherwise disclosed to Keytel in connection with the provisions of Services under any Support Agreement, and (b) maintain appropriate security measures that are in compliance with data protection regulations promulgated under applicable state and federal laws of the United States. For the purposes of this section “Personal Information” means the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security number; (ii) driver’s license number/state-issued
identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
13. Patents, Copyrights, Trademarks, and other Intellectual and Proprietary Rights
Except for rights expressly granted to Client by Keytel in any Support Agreement, the use of Keytels Services does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all rights, title, and interest in any product or Service provided to Client belongs to Keytel. Any products or services are only for Client’s use in connection with Services provided to Client. Client expressly warrants to Keytel that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Keytel’s servers.
Client agrees to defend, indemnify, and hold Keytel harmless, from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney’s fees, against liabilities arising out of:
(a) Any liability to Keytel arising by virtue of any use of Keytel’s Services by Client, including but not limited to Client’s employees, agents, or contractors for any unlawful purpose, or any violations of any federal, state, or local law or regulation governing use of e-mail or the internet; or
(b) Any software or other products or goods supplied by Client infringing or allegedly infringing on the property
or proprietary rights of a third-party; or
(c) Any copyright or trademark infringement, or any violation of intellectual property rights of any third-party
by Client, including but not limited to Client’s employees, agents, or contractors.
15. Binding Agreement and Assignments
These Standard Terms and Conditions and any Support Agreements shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
No waiver of any provision or breach shall be implied by failure to enforce any rights or remedies herein provided, and no express waiver shall affect any provision or breach other than that to which the waiver is applicable and only for that occurrence.
17. Force Majeure
Neither Party shall be liable for any failure, inability or delay to perform hereunder (except the payment of money), if such failure, inability or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strike, lockout, labor disturbance, social conflict, fire, explosion, earthquake or sabotage.
All notices which may be given in connection with any Support Agreement shall be by certified mail with postage prepaid and return receipt requested, or personal delivery, or electronic mail, or facsimile. Any notice sent to either party shall be sent to the address specified on the Support Agreement, or if non listed or the address is obsolete, to the Party’s Statutory Agent as listed with the Ohio Secretary of State. Any such addresses stated on a Support Agreement may be changed at any time upon written notice of such change sent by the means stated above, tothe other party by the party effecting the change.
19. Dispute Resolution
The parties shall attempt in good faith to resolve any dispute arising out of or relating to any Support Agreement promptly by negotiation between executives who have authority to settle the controversy. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and the response shall include
(a) a statement of each party’s position and a summary of arguments supporting that position, and
(b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the disputing party’s notice, the executives of both parties shall meet at a mutually acceptable time and place to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. In the event the parties cannot reach a satisfactory settlement under the aforementioned process, they each agree to present the dispute to non-binding mediation before a mutually agreeable neutral mediator at a mutually agreeable neutral site. If mediation is not successful, the parties may proceed to binding arbitration or litigation.
20. Governing Law
These Standard Terms and Conditions and any Support Agreements shall be construed and enforced in accordance with the substantive laws of the State of Ohio, without regard to conflict of interest principles. Exclusive venue for any action, whether at law or in equity, shall be Franklin County, Ohio.
21. Independent Contractor
Nothing in these Standard Terms and Conditions or any Support Agreements, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers' compensation, and all other employment benefits.
22. Entire Agreement
The Support Agreement and these Standard Terms and Conditions sets forth the entire Agreement and understanding between the Parties with respect to Services provided by Keytel to Client, and replaces any prior oral or written communications. The Support Agreement(s) executed by Keytel and Client are made a part of these Standard Terms and Conditions. These Standard Terms and Conditions shall not be supplemented, modified or amended except by a written instrument signed by duly authorized representatives of Client and Keytel, respectively, and no other person has or shall have the authority to supplement, modify or amend this Agreement in another manner.
In the event any term or provision of any Support Agreement or these Standard Terms and Conditions is determined to be invalid, illegal or unenforceable, the remaining terms and provisions will continue in full force and effect.
24. Headings and Interpretations
The headings of the Sections of any Support Agreement or these Standard Terms and Conditions are intended solely for convenience or reference, and shall be given no effect in the construction or interpretation of the document. The use of the masculine pronoun herein shall, where the context so indicates, be deemed to include the feminine and the neuter and vice versa, and the use of the singular shall be deemed to include the plural and vice versa.
25. Order of Precedence
In the event of any conflict or inconsistency of terms among these Standard Terms and Conditions or any Support Agreement, the order of precedence that shall apply is as follows, with each listed document or type of document superseding and prevailing over any subsequently listed document or type of document, and with later executed documents prevailing over earlier documents of the same type, each solely to the extent of any irreconcilable conflict or inconsistency of the terms and conditions thereof: (i) these Standard Terms and Conditions; (ii) any Support Agreement; (iii) Service change authorizations executed by the parties; and (iv) purchase orders and/or modifications to Support Agreements executed by the parties. However, the Parties may exclude paragraphs or portions thereof from these Standard Terms and Conditions by specifically stating such excluded paragraphs or portions thereof on any Support Agreement. Any preprinted terms and conditions in any Client purchase orders shall be void and of no effect.
Any Support Agreement(s) may be executed in duplicate counterparts. Each such counterpart, if executed by both parties, shall be an original and all such counterparts together shall constitute but one and the same document. Any Support Agreement shall not be deemed executed unless and until at least one counterpart bears the signature of each party’s duly authorized signatory.