Customer's other equipment, services, or compatibility with Customer's
<br />systems, then Customer shall be required to purchase a replacement
<br />part or equipment in order for WSI to complete the technical services
<br />pursuant to this Agreement.
<br />C. EXCLUSION'S WSI does not provide:
<br />1) Electrical work, cabling, drilling or carpentry;
<br />2) Technical support of equipment not provided by WSI;
<br />3) Loaner equipment. Consult account manager for spare/redundant
<br />systems;
<br />4) Additional equipment or upgrades to existing equipment or operating
<br />systems, software or other tools or utilities or networks or components
<br />that may be required in connection with a manufacturer's major
<br />software upgrade;
<br />5) Support in resolving network, workstation, database, environmental or
<br />other errors not directly related to the Software and Equipment listed
<br />in this Agreement;
<br />6) Technical support of systems that have non-standard configurations
<br />that have not been certified by 3rd party providers are specifically
<br />excluded from the Agreement unless otherwise agreed in writing by
<br />WSI and included in this Agreement;
<br />7) Any hardware, software or systems supplied to the Customer by a third
<br />party, unless specifically included in this Agreement.
<br />8) Parts are covered for any system with an installation date of less than 5
<br />years. After 5 years, the system is considered at an age for replacement
<br />and parts are no longer covered under this agreement.
<br />9) Management of anti -virus or other security applications (see WSI for
<br />approved 3rd party applications).
<br />WataranE'xl'uzmiIToart: WSI is providing technical services in lieu of any
<br />warranties from manufacturer. To the fullest extent permitted by law, the
<br />services herein and the Software and Equipment are provided on an "as is"
<br />basis. WSI does not warrant that the Equipment and Software will operate
<br />uninterrupted or error free or that all defects will be corrected or that they
<br />will meet customer's requirements or will operate in combinations with other
<br />equipment, software, or data not provided by WSI. WSJ DISCLAIMS ALL
<br />WARRANTIES EXPRESS OR IMPLtILP._W)JITH RESPECT TO THE SOFTWARE,
<br />E VIPMENT AND SYSTEM, WSI DISCLAIMS ANY IMPLIED WARRANTY Of
<br />MERCHANTABILITY 0 „FITNESS FOR A.. PARTICULAR PURPtiSE�
<br />1WCIRKEIJJNAN NLIKE EFFORTS NON -INFRINGEMENT OR WARRANTIES ARISING
<br />BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE Of DEALING OR
<br />USAGE OF TRADE., In lieu of such warranties, WSJ shall provide all of time
<br />services stated herein throuhaut the term.
<br />ARTICLE II
<br />GENERAL TERMS AND CONDITIONS
<br />A. WSI RESERVES the right to modify or delete any term or condition of this
<br />Agreement by giving a 30-day prior notice to Customer, in which case
<br />Customer may terminate this Agreement by giving WSI written notice of its
<br />intent to terminate within 30 days of its receipt of notice from WSI regarding
<br />the change, in which case WSI will provide a pro-rata refund of pre -paid
<br />Technical Services Fees for the remainder of the Term.
<br />B. iLIAB'ILIT V DISCLAIM ,ENt'S WSI shall not be liable or held responsible for any
<br />delay in or failure or defect of performance under this Agreement, or be
<br />liable for any other consequence, damage, injury, or loss, caused by or
<br />resulting from any act, event, occurrence, or cause beyond the reasonable
<br />control of WSI, including (without limitation) acts of God, war, fires,
<br />hurricanes, explosions, floods, strikes, major mechanical breakdown, system
<br />malfunctions, interruption of utility services, acts of any unit of government
<br />or agency thereof, work stoppage, breakdown, virus contamination, theft,
<br />loss of data, lack of available parts from the manufacturer, loss caused by
<br />power failures, loss caused by lack of Customer equipment or software
<br />backups, or work done due to lack of proper training of Customer's
<br />personnel. Customer is expected to insure the Equipment, Software, and
<br />System and to backup all data, voice and video files and to protect the
<br />computer from incoming virus damage. Service calls that are caused by any
<br />of the foregoing exclusions shall be invoiced at the currently published time
<br />and materials rates.
<br />To the fullest extent permitted by law:
<br />1) WSI and its officers, directors, employees, shareholders, agents and
<br />representatives shall not be liable to customer or any other party for
<br />incidental, special, exemplary or consequential damages (including,
<br />without limitation, loss of anticipated profits, loss of data, and loss of
<br />goodwill) arising out of or related to this Agreement or the goods and
<br />services provided, even if advised in advance of the possibility.
<br />2) Except with respect to damages caused by WSI's willful misconduct,
<br />WSI's liability (including attorneys' fees) to customer or any third party
<br />arising out of or related to this Agreement and the goods and services
<br />provided shall, for any and all causes and claims, regardless of the form
<br />of action, whether based on contract, tort, negligence, strict liability,
<br />indemnification or otherwise, in the aggregate not exceed the price
<br />paid by Customer for the particular goods or services involved prior to
<br />such claim's accrual under which such damages arose.
<br />C. CUSTOMER RESPONSIBILITY It is the responsibility of the Customer to
<br />have trained personnel operating the Equipment who have basic PC
<br />knowledge. Additional training is available from WSI for an additional charge
<br />as new people are hired to run the Equipment. The Customer shall make the
<br />Equipment available to the service department representative as soon as a
<br />representative arrives on -site and agrees to allow the WSI technical services
<br />representative access to the Equipment, immediately upon arrival. Any
<br />delays will be charged for at our regularly published service rates. Access will
<br />be given to him/her for as long as it takes to repair and adequately test the
<br />Equipment.
<br />D, FORCE M jEURE If either party hereto shall be delayed or hindered in or
<br />prevented from the performance of any act required hereunder by reason of
<br />inclement weather, strikes, lockouts, labor troubles, inability to procure
<br />material, failure of power, restrictive governmental laws or regulations, riots,
<br />insurrection, war or other reason of a like nature not the fault of the party
<br />delayed in performing work or doing acts required under this Agreement, the
<br />period for the performance of any such act shall be extended for a period
<br />equivalent to the period of such delay. Notwithstanding the foregoing, the
<br />provisions of this section shall at no time operate to excuse Customer from
<br />any obligations for payment when due, and all amounts shall be paid by
<br />Customer to WSI when due.
<br />E• GOVERNING LAW; VENLUE This Agreement and any matters and disputes
<br />related thereto shall be governed by and construed in accordance with the
<br />laws of the State of Indiana without regard to the choice of law principles
<br />thereof. Any cause of action arising hereunder may only be brought in a
<br />federal or state court located in Marion County, Indiana. Each party expressly
<br />agrees that Marion County shall be deemed to be a county of preferred
<br />venue and each such party waives any entitlement each might otherwise
<br />have to a transfer of venue out of Marion County under any preferred venue
<br />requirements of Indiana Trial Rule 75 or any other venue rules or laws which
<br />may be applicable. The parties hereby submit to the exclusive jurisdiction of
<br />the Indiana courts.
<br />E, SEV!LLALIN�LITy, In the event that any of the provisions of this Agreement is
<br />held to be invalid or unenforceable in whole or in part by a court of
<br />competent jurisdiction, those provisions to the extent enforceable and all
<br />other provisions will nevertheless continue to be valid and enforceable as
<br />though the invalid or unenforceable provisions had not been included in this
<br />Agreement, and this Agreement shall be construed by adding a valid
<br />provision which effectuates the intent of the invalid provision as nearly as
<br />lawfully possible.
<br />G. EXECUTION AN~,NR DELIVERY Each of the persons who has signed this
<br />Agreement represents and warrants that he or she has been duly authorized
<br />to sign this Agreement by all necessary action on the part of the entity on
<br />whose behalf he or she has signed this Agreement. This Agreement may be
<br />executed in one or more counterparts, each of which shall be deemed an
<br />original and part of one and the same Agreement. Delivery of an executed
<br />copy of this Agreement by facsimile transmission or email shall constitute
<br />effective and binding execution and delivery thereof and the signatures
<br />thereon shall be deemed to be original signatures for all purposes.
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