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<br />Support and Managed Services Agreement
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<br />1. AGREEMENT. This Support and Managed Services Agreement
<br />las defined below) between you ("you" may also be referred to as
<br />Customer") and the applicable NextiraOne operating entities (hereiD,
<br />'NextiraOne) sets forth the legal rights and obligations govemiDg your
<br />rders for the purchase of maintenance services described herein.
<br />. "';ustomer represents that it owns or leases certain communications and/or
<br />Intemetworking electronic equipment and subliêenses the associated
<br />software (collectively, the "System") as described in the attached
<br />Customer Inventory Schedule. NextiraOne agrees to furnish such
<br />requcsted maintenance for the System. The System and its location(s)
<br />(the "Premises") are described in the Order Form, as defined beJow. The
<br />Customer will be provided maintenance services by NextíraOne, LLC
<br />and/or its applicable subsidiaries and affiliates, while all work performed
<br />for Customer in Califomia will be performed by NextiraOne California,
<br />LP. This Support and Managed Services Agreement consists of signed
<br />order form(s), a Scope of Work ("SOW"), if applicable, Customer
<br />Inventory Schedule, Hourly Work Rates Form, includes the following
<br />terms and conditions, a Service Plan, if applicable, (as defined in Section
<br />10), and applicable software license (collectively, the "Agreement").
<br />Customer order(s) for Maintenance services (as defined herein), including
<br />the initial order and all subsequent orders (collectively, the "Order"),
<br />shall be incorporated into this Agreement by reference and become part
<br />of this Agreement during the Term (as defined below). Customer Orders
<br />shall be set forth on an Order Form signed by the Customer in the form
<br />set forth at Attachment A (collectively, the "Order Form").
<br />
<br />2. TERM. 'The term of this Agreement shall commence on August 1,
<br />2004 ( the "Effective Date"), and will continue for forty-eight (48) months
<br />thereafter following the Effective Date ("Term"), and this Agreement shall
<br />apply to any Order placed during the Term, even if performance extends
<br />beyond the Term.
<br />3; SERVICE .FEE. The price for Maintenance is set forth on the
<br />Order Form (the "Service Fee"). The Service Fee, plus all applicablc
<br />taxes, is due annually in advance, unless otherwise agreed in writing by
<br />~he parties. CUSTOMER WILL PROVIDE EVIDENCE OF ITS TAX
<br />~XEMPT STATUS IF IT CLAIMS SUCH STATUS. ]1' sales or use
<br />axes are not invoiced or collected, and it is later determined that sales or
<br />Ise taxes apply, Customer agrees to pay such taxes, with any interest or
<br />penalties.. A1l charges are due. on receipt of invoice. Service Fees
<br />received more than thirty (30) days after billing are subject to a Jate
<br />payment charge the lesser of one and one-half percent (1.5%) for each
<br />thirty (30) day period that they remain unpaid or the maximum permitted
<br />by law. Customer shall not be relieved of its payment obligations due to
<br />the faiJure of any third party to make timely payments.
<br />
<br />4. SERVICE FEE ADJUSTMENTS. NextiraOne may increase the
<br />Service Fee for performing additions to or moves of components of the
<br />System and additions or changes to the configuration of a component of
<br />the System, including any upgrades and new peripheral devices
<br />("Modifications"). Additional eq"i;>ment purchased from NextiraOne
<br />and added to the System ("Additions") shall be procured and subject to a
<br />separate written equipment purchase agreement between the parties. All
<br />Modifications and/or Additions shall be included in the service covera"e
<br />provided by this Agreement and may result in an increase of the Servi~e
<br />Fee, which Customer agrees to pay. Maintenance services for
<br />Modifications and/or Additions shall be subject to the terms and
<br />conditions of this Agreement and be co-terminus with the Term of the
<br />applicable Order. NextiraOne will maintain Modifications performed by
<br />a party other than NextiraOne only if Customer's modified system is
<br />certified by NextiraOne at Customer's expense to be in accordance with
<br />manufacturer's standards for service and maintenance. Customer agrees
<br />to pay the rates stated in the Hourly Work Rates Form, attached hereto as
<br />Attachment "B", for such certification efforts jf NextiraOne is requested
<br />to maintain such Modifications. Customer hereby acknowledges that
<br />Modifications, incJuding software upgrades, performed 01' supplied by
<br />unauthorized distribLttors may result in a denial of warranty services from
<br />~he manufacturer of the System or Maintenance services from
<br />:'lextiraOne. Customer will provide a written statement setting forth the
<br />ocation of additional items of equipment, quantity, description, serial
<br />wmber and part number. Any necessary adjustment to the Service Fee
<br />will be set forth on an explanatory document or Quotation issued by
<br />NextiraOne. Any Modi:ications performed by NextiraOne reqliire a
<br />separate Order.
<br />
<br />ATTACHMENT A . _",:"
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<br />
<br />nextlrat:Jne·'
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<br />5. ORDERING PROCEDURES. (A) Customer shall sign an Order
<br />Form for each new Maintenance service ordered during the Term (H)
<br />NextiraOne shall acknowledge acceptance of Customcr's Order bv
<br />executing said Order Form. (C) All executed Order Forms are \kcmed
<br />incorporated into' this Agreement. (D) NextiraOne may accept a
<br />CustomeHssued purchase order as an Order. However, the parties
<br />acknowledge that a Customer purchase order or other similar doeùment is
<br />for the Customer's intemal purposes only and, therdore. if accepled by
<br />NextiraOne, these terms and conditions shall apply to the Order and the
<br />terms on the Customer purchase order will have no effect on this
<br />Agreement or Maintenance or other services provided under this
<br />Agreement. (E) A SOW. if applicable. shall be attached to the Order
<br />Form and shall be deemed inco:1Joratcd into this Agreen~ent In the event
<br />of a contlict between the SOW and this Agreement, Ihis Agreement shall
<br />control.
<br />
<br />6. SERVICE EXCLUSIONS. (A) Servíces do not include repairs or
<br />replacements necessitated by (í) fire, explosion, power irregularities.
<br />power surges, acts of God, including. without limitation. earthqu¡¡k>:s.
<br />rains, floods or lightning (unless CLlstomer has purchased NextiraOn>:',
<br />Electric Surge Protection coverage for lightning as delìneatcd in· the
<br />applicable Service Plan), or any other cause not attributable 10
<br />NextiraOne (not including a defect in the System); (Ii) deterioration ol'
<br />materials which, by their nature, have a limited shelf life (including,
<br />without limitation, batteries), (iii) Customer's failure to follow applicable
<br />operation, maintenance, warranty, or environmental requirements
<br />described in any of the manufacturer's manuals or product bulletins, or
<br />NextiraOne manuals; (IV) Customer's additions. alterations,
<br />modifications, enhancements or repairs to, or dis¡¡ssembly 01'. the Sy,tcm
<br />without NextiraOne's written consent; (v) damages rcsulting Ii'om
<br />mishandling, abuse, or misuse of the system by Customer or a third party
<br />without the consent of NextiraQne; (vi) relocation of the System without
<br />NextiraOne's written consen: (other than teiephones relocated in
<br />accordance with the manufacturer's specitications): (vii; tàilurcs or
<br />required changes resulting from the local exchange company,
<br />interexchange carrier, the power company or other transmission
<br />providers, or (viii) any other service not required to keep the equipment in
<br />good operating condition for normal use. (8) When NcxtiraOne
<br />determines that the System, any System component. or opcratlng Sy"t>:m
<br />software or application software can no longer be etTcctivdy maintained
<br />for any reason, including but not limited to. usage, environmental
<br />conditions, or lack of readily available replacement parts or software.
<br />NextiraOne shall inform Customer and reserves the right to cancel, in
<br />whole or in part, its service obligations lor any sLlch equipment,
<br />component or sotìwarc in the System ir Nextòl'aOne determines, in ItS
<br />commercially reasonable discretion, that it is unable (on commercially
<br />reasonable terms) to (i) continue to provide the services, or (ii) obtain
<br />replacement parts lor the System, operating System software or
<br />application sotìware. (C) As it relates to subsection B alxm.:. II
<br />NextiraOne cancels service, NextiraOne shall provide CUStoI11C;' a
<br />prorated refund.
<br />
<br />7. CUSTOMER RESPONSIBILITIES. Customer will: (i) allow
<br />NextiraOne twenty-four (24) hour access to all Customer I'n.:misc,
<br />NextiraOne deems necessary ror maintenance and repair of the SYSICI11
<br />and performance of any required activity and make available a reasonable
<br />amount of secure space for storage by NextiraOne of repair parts as
<br />necessary; (ii) provide su;table facilities for the Maintenance of the
<br />System in accordance with local codes, including. but not limited to.
<br />ducting, conduit, structural bOJ"Ïngs, etc. tor cable and conducturs ill
<br />1100rs, ceilings and walls; electrical service with suitable terminals and
<br />power surge protection devices; and metailic grounds with sufficient
<br />slack in the equipment room, installed in conformity wt:h the National
<br />Eìcctrical Code and local codes; (iii) provide m:cessary power. healing,
<br />cooling. humidity and dust control as required by :llallLl Iùc!li I'l'l
<br />specifications; (iv) remove existing equipment or cable that interferes
<br />with System installation; (v) identify and disclose to NextiraOne
<br />disclosed equipment, wiring or conditions that might be anected by 01'
<br />might affect the installatior, of the System, inclLlding any hazardous or
<br />potentially hazardous conditions and Customer agrees to dei'end and hold
<br />harmless NextiraOlle lì'om any claims, damages or liabiiitie, rc",iltlng
<br />from a faiJure to disclose ¡¡lis in (ormation; (vi) authorize NcxtiJ'aOne. at
<br />Customer's expense, to make service requests upon third panies 1'01'
<br />System interconnection reqLlirements, including obtaining tekphonc'
<br />service 1'0:' testing whel'e necessary: (vii) designa'.e trash deposit poinl' Oil
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<br />CitySanMarcosCN62I O"()4rcr7-12c04
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<br />NextiraOne Confidential
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