COMPUTER SYSTEM MAINTENANCE AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of the day of ______ , __________ (the "Effective Date") by and between IMPRESS COMPUTERS USA INC, with a principal place of business at
1718 FRY RD, HOUSTON, TX
77084 , and ____________________________with offices at ("Customer").
1. Equipment Covered
The Computer system and equipment for which maintenance and support is offered under this Agreement is the equipment and/or peripherals, and/or cabling and/or local area network(s) listed as follows (hereafter referred to as “Equipment”):
2. Support
2.1 Services Provided
IMPRESS agrees, for the term of this Agreement, to provide maintenance services on Equipment which are necessary to maintain the Equipment in good operating condition. All such maintenance shall be performed during the hours of 9:00 A.M. to 5:00 P.M. Monday through Friday, excluding public holidays (the "Principal Period of Maintenance”) will clean the internal parts of the computers listed above, check for spy ware and viruses, check for windows and anti virus updates, check the space availability on the hard drives, check for unusually large temporary files and check the hard drive for errors. Service or parts required for the Equipment as a result of other than normal use (e.g., accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by IMPRESS) are not included hereunder and shall be subject to Impress’s personnel availability and charged at Impress’s prevailing rates on the date such service or repairs are performed. Service requested by Customer to be performed at times other than during the Principal Period of Maintenance shall be subject to Impress’s personnel availability and charged to Customer at Impress’s overtime rate on the date such service is performed. IMPRESS will also provide assistance by telephone to answer urgent and immediate questions during the Principal Period of Maintenance.
2.2 Service Response Time
Unless otherwise specified, IMPRESS agrees to respond to any request for service either (i) before noon of the next working day after the request, to repair a network fileserver, any single user (stand‑alone) computer, or (ii) within two (2) working days after the request, to repair a workstation connected to a network, a tape backup unit.
2.3 Force Majeure
IMPRESS shall not be liable to Customer for any delay or failure by IMPRESS to perform its obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of IMPRESS.
2.4 Excluded Services
The maintenance service to be provided by IMPRESS under this Agreement shall not include the following:
(a) Performing services in connection with the use of the Equipment in conjunction with other
equipment or software, the relocation of the Equipment, the rewiring or rerouting of cables, or the addition or removal of accessories, attachments, features, or other devices;
(b) Electrical work external to the Equipment;
(c) Maintenance of accessories, attachments, features, or devices other then the Equipment;
(d) Maintenance of Equipment from which the original identification marks have been removed or altered; or
(e) Repair of damage resulting from (i) accident, transportation, neglect, or misuse by
Customer, Customer's failure to provide the necessary facilities or specified operating supplies, or failure by Customer to meet site specifications applicable to the Equipment; (ii) causes external to the Equipment such as, but not limited to, unusual physical stress, failure or fluctuation of electrical power, air conditioning or humidity control; or (iii) any cause other than ordinary use (e.g., accident, fire, lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by IMPRESS );
(f) Furnishing expendable or consumable supplies, equipment or accessories for the equipment.
(g) Maintenance of the Equipment or portions thereof which Customer has modified or repaired as set forth in Section 3 hereof or portions of the Equipment affected by such Customer modifications or repairs;
(h) Reconditioning required when repair and parts replacement cannot keep the Equipment in operating condition;
(i) Back‑up or restoration of Customer data, information or computer programs, whether or not used in conjunction with the Equipment;
(J) Specific requests by Customer for maintenance outside the scope of this Agreement.
3. Customer Modifications and Repairs
3.1 Customer Modifications
Customer shall inform IMPRESS in writing of any modifications to be made by Customer or any third party to the Equipment. IMPRESS shall not be responsible for maintaining Customer or third party modified portions of the Equipment or portions of the Equipment affected by such modified portions.
3.2 Customer Repairs
Maintenance or repairs requested due to Customer's unauthorized repairs or maintenance shall
be subject to Impress’s personnel availability and billed at Impress’s standard time and materials charges. In addition, all warranties express, implied or statutory are deemed revoked by IMPRESS and waived by Customer until such repair or maintenance has been performed by IMPRESS and the Equipment has been certified by IMPRESS for performance.
4. Customer Support
Customer agrees to use the Equipment in accordance with the operating manuals for the Equipment. Customer agrees to provide IMPRESS with access to its facilities and the necessary equipment and documentation for IMPRESS to perform maintenance, and with sufficient support and test time so that IMPRESS is able to duplicate any problem reported, to certify that the problem is with the Equipment, to correct the problem and to certify to Customer that the problem has been corrected. Customer shall be solely responsible for its data, information and programs stored on the Equipment including the making of timely and accurate back‑up copies.
5. Term
(a) The customer may elect one of the following methods of term maintenance: 1) Annual Maintenance; 2) Ten (10) Hour Block Maintenance. This Agreement shall commence on the date IMPRESS is paid the full term maintenance fee, which shall be advanced, and shall continue until the expiration of the designated term, or we receive the first monthly payment and credit card details to cover the remaining 11 months. Thereafter, this Agreement shall be automatically renewed as follows: 1) if the Customer elects Annual Maintenance, then on the anniversary of each annual term or; 2) if the Customer elects a Ten (10) Hour Block Maintenance Term, then on the expiration of ten hours of support.. All terms shall be renewed automatically unless this Agreement is terminated in accordance with the provisions of Section 11. Maintenance service under this Agreement shall continue (i) only so long as Customer maintains the current installed version of the Equipment, or (ii) until terminated by either party in accordance with the terms of this Agreement.
(b) The Customer has elected the following term: .
6. Price and Payment
6.1 Maintenance Fee
(a) Customer shall pay to IMPRESS the maintenance fee in advance. After the expiration of the First Term, IMPRESS may change the maintenance fee from time to time in accordance with its standard maintenance charges provided that IMPRESS shall have given Customer sixty (60) days written notice prior to the term for which such revised maintenance fee shall apply.
(b) The Maintenance Fee is as follows $ .
6.2 Additional Charges
With respect to (i) maintenance of the Equipment which IMPRESS provides in response to a request by Customer for maintenance and which IMPRESS is not obligated to provide under this Agreement, or (ii) corrections for difficulties or defects traceable to Customer's unauthorized acts, errors or system changes, Customer shall pay IMPRESS for all efforts toward such services, corrections or remedies at Impress’s then current standard time and materials charges. With respect to any repairs which are excluded from this Agreement and which are required for the Equipment to be in proper working order, IMPRESS will submit a description of the work which is necessary to restore the Equipment to proper working order and the charges therefore, and will request permission to restore the Equipment to proper working order.
6.3 Invoices
All invoices including but not limited to invoices for maintenance fees, time and materials charges, and expenses, are due fifteen (15) calendar days after receipt of invoice. If Customer fails to pay any amount due within fifteen (15) days from the receipt of the invoice, late charges of 1 1/2%, or the maximum interest rate allowed by law, per month shall also become payable by Customer to IMPRESS. In addition, failure of Customer to fully pay any invoiced amount within forty‑five (45) days after the receipt of the invoice shall be deemed a material breach of this Agreement and shall be sufficient cause for immediate termination hereof. If Customer fails to pay, when due, any amount payable hereunder or fails to fully perform its obligations hereunder, Customer agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by IMPRESS in enforcing this Agreement including but not limited to all expenses of any legal proceeding related thereto and all reasonable attorneys' fees incurred in connection therewith. No failure by IMPRESS to request any such payment or to demand any such performance or performance of any Customer obligation hereunder shall be deemed a waiver by IMPRESS of Customer's obligations hereunder or a waiver of IMPRESS 's right to terminate this Agreement.
6.4 Taxes
Customer shall, in addition to the payments required hereunder, pay, or reimburse IMPRESS for all sales, use, transfer or other taxes, and all duties, whether national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, taxes on net income which may be levied against IMPRESS. IMPRESS may add such taxes to the invoices submitted to Customer hereunder.
7. Travel Expenses
The maintenance fee payable hereunder includes all travel and related charges with the exception of lodging, if required with respect to maintenance services provided for the annual maintenance fee hereunder during the Principal Period of Maintenance. All travel expenses for all services billed in addition to the annual maintenance fee shall be charged to Customer as incurred.
8. Limitation of Liability
IMPRESS shall not be responsible to customer for loss of use of the equipment or for any other liabilities arising from its performance of maintenance hereunder whether such performance is by IMPRESS or third parties designated by IMPRESS. IMPRESS shall have no liability or obligation under this Agreement with respect to Customer data, information or computer programs, whether or not stored on the Equipment. IMPRESS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS OR THE OBLIGATIONS OF ITS AGENTS OR DESIGNEES UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF IMPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Impress’s liability for any reason and upon any cause of action whatsoever exceed the lesser of (i) fifty percent (50%) of the then current maintenance fee paid hereunder or (ii) that portion of the amounts paid hereunder which is attributable to the particular unit of equipment directly involved in the liability claim.
9. Indemnity
Customer shall indemnify and hold harmless IMPRESS from any loss, cost or expense, including attorneys' fees, to persons or property, other than the Equipment, suffered or incurred in connection with any claim, suit or proceeding brought against IMPRESS to the extent that it arises out of this Agreement or Customer's possession or use of the Equipment and services provided therefore.
10. Termination
10.1 Continuous Maintenance
This Agreement is renewable in accordance with the terms of Section 5, "Term", and shall
remain in effect only so long as Customer continuously contracts for or receives maintenance from IMPRESS for all of the Equipment covered by this Agreement from the time of acceptance of such Equipment. If Customer discontinues such maintenance under this Agreement as to any portion of such Equipment, IMPRESS may immediately terminate this entire Agreement.
10.2 Termination
In addition to its rights as set forth elsewhere in this Agreement, IMPRESS shall have the right to terminate this Agreement upon five (5) days written notice to Customer upon: (a) the violation or breach by Customer, its officers or employees of any provision of this Agreement, including, but not limited to, payment; (b) the termination of the business of Customer; (c) the voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law with respect to Customer; or (d) Customer's becoming insolvent or making any assignment for the benefit of creditors.
10.3 Notice of Termination
(a) Annual Term. If the Customer elects an Annual Maintenance Term, then after the first twelve (12) months of maintenance service under this Agreement, this Agreement may be terminated by Customer upon a minimum of thirty (30) days written notice prior to the expiration of the annual term. No refund will be due if Customer cancels maintenance or if IMPRESS terminates this Agreement pursuant to Section 11.2 above.
(b) TEN (10) Hour Block Term. If the Customer elects a TEN (10) Hour Block Maintenance Term, then this Agreement may be terminated by Customer upon a minimum of five (5) hours written or oral notice prior to the expiration of the Block Term. IMPRESS shall keep a running ledger of all support time provided and have Customer sign said ledger at the conclusion of every support call. Upon the expenditure of fifteen (5) hours of support maintenance, IMPRESS shall notice Customer that the Block term is coming to conclusion and that Customer has the obligation to notice IMPRESS that it wishes to terminate this Agreement upon the expiration of the TEN (10) hour support term. If the Customer fails to give said notice of termination, then this Agreement shall automatically renew for another TEN (10) Hour Block Term. No refund will be due if Customer cancels maintenance or if IMPRESS terminates this Agreement pursuant to Section 11.2 above.
11. General
11.1 Entire Agreement
This Agreement constitutes the complete and exclusive statement of the terms and conditions
between the parties with respect to the subject matter hereof and supersedes and merges any prior
understandings or agreements, oral or written.
11.2 Assignment
This Agreement shall be binding upon the parties and their respective successors and assignees. Customer may not assign this Agreement, or any of its rights, duties or obligations hereunder, in whole or in part, to any person or entity without the prior written consent of IMPRESS.
11.3 No Waiver
The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any other or further right hereunder.
11.4 Severability
If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.
11.5 Modifications
The agreement may not be modified or altered except by written instrument duly executed by
both parties, and except that IMPRESS may change the terms and conditions of this Agreement upon written notice to Customer sixty (60) days prior to the first day of any renewal period.
11.6 Governing Law
This Agreement and performance hereunder shall be governed by the laws of the State of TEXAS, and Customer hereby consents to the exclusive jurisdiction of the courts of the State of TEXAS or the Federal courts sitting in TEXAS and waives any objection to such venue.
11.7 Limitation of Action
No action regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has arisen.
11.8 Notice
Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given
(i) if by hand delivery, upon receipt thereof, (ii) if mailed, three (3) days after deposit in the U.S. mails, postage Prepaid, certified mail, return receipt requested. All notices shall be addressed to the parties at their respective addresses indicated herein and on the face hereof.
12.9 Remedies
The rights and remedies of IMPRESS set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the date and year first written above by their duly authorized representatives.
Accepted (signature) Accepted (signature)
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By: By:
Title: Title:
Date: Date:
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