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<br />Support and Managed Services Agreement
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<br />each floor on whieh the Systern is to be installed where NextiraOne will
<br />place waste.!òr removal by Customer; (viii) cooperate with NextiraOne's
<br />-requests fòr assistance in testing or installation and have appropriate
<br />personnel prcsent at appropriate times; (ix) be rcsponsible fOr providing
<br />adequate back-up of data and for restring data to repaired equipment; (x)
<br />immediately notify NextiraOne of any anticipated delay in facility
<br />availability or inability to meet any of the above Jisted requirements; (xi)
<br />if System is to be connected to the public network, Customer is solely
<br />responsible for seJcctìon, implementation and maintenance of security
<br />features for defense against unauthorized long distance calling, e.g., toll
<br />fraud; (xii) Customer is solely responsible for payment of long distance,
<br />toll and other telecommunications charges incuITed through use of the
<br />System; (xiii) Customer must provide remote access to its equipment for
<br />remote diagnostics and in the event that the Customer fails to provide
<br />such remote access or demands an immediate dispatch, NextiraOne may
<br />bill Customer a service call fee for any applicable service calls; (xiv)
<br />NextiraOne shall invoice Customer and Customer agrees to pay, at the
<br />rates depicted in Attachment B, for any expenses related to delays
<br />resulting from conditions at the Customer Premises which delay or inhibit
<br />NextiraOne's performance.
<br />
<br />8. SOFTWARE LICENSE. (A) Grant of License. Customer
<br />acknowledges that Customer's software license is granted directly by the
<br />software publisher or equipment manufacturer from which the Software is
<br />provided, and not by NextiraOne. Customer agrees to be bound by the
<br />software publisher's or equipment manufacturer's software Jicense
<br />agreement attached to the Order. Any such license agreement shall be
<br />deemed incorporated into this Agreement, and shall exclusively, and
<br />independentJy govern the licensing of such Software. Absent such direct
<br />license, NextiraOne grants Customer a non-exclusive license to use the
<br />Software in the System for its useful Me, provided Customer: (i) to the
<br />extent permissible under the Texas Public Information Act, dòes not
<br />disclose information about the Software to a third. party without
<br />NextiraOne's prior consent; (ii) uses the System solely fòr Customer's
<br />intemal business purposes; (iii) does not copy any part of the Software
<br />without NextiraOne's consent, (iv) does not attempt to develop any
<br />source code from the Software; and (v) returns, erases or destroys any
<br />Software on any media being recycled or discarded and so certifies to
<br />NextiraOne. Customer may only transfer the right to use the Software to
<br />an end user who acquires the right to. use the System and agrees to be
<br />bound by the terms of this license. Notwithstanding any other provision
<br />of this Agreement, Customer's 1ailure to comply with the terms of this
<br />Section 8 shall be deemed a materia! breach as· defined in Section 13 of
<br />this Agreement. Accordingly, in addition to the remedies set fòrth in
<br />Section 13, NextiraOne shall be entitled to immediately terminate this
<br />Agreement and all of Customer's rights and privileges to the Software,
<br />and to obtain injunctive and other equitable relief.
<br />
<br />9. HAZARDOUS SUBSTANCES. Customer represents and
<br />warrants that the Premises shall: (i) be in compliance with all applicable
<br />federaí, state and local laws, rules and regulations; (ii) be safe and non-
<br />hazardous; and (iii) not contain, present, or expose NextiraOne employees
<br />or agents to asbestos or other hazardous materials or substances (as
<br />deflned by any applicabJe state, federal or local hazardous waste or
<br />environmental law or regulation). If Customer breaches this Section,
<br />NextiraOne may immediately suspend performance until Customer has
<br />corrected such condition(s). Any NextiraOne performance obJigations
<br />under this Agreement shall be extended for the delay caused by the
<br />cleanup or removal of such substances. If Customer docs not correct such
<br />condition(s), NextiraOne may, in addition to any other rights and
<br />remedies available hereunder at law or in equity, elect, at its sole
<br />discretion, to recommence performance or tenninate this Agreement with
<br />respect to such Premises without liability.
<br />
<br />10. MAINTENANCE OBLIGATIONS. NextiraOne's post-warranty
<br />Maintenancc obligations shall be as det1ned in this Section, the SOW
<br />and/or the Scrvice Plan (if applicable), attached hereto and madc a part
<br />hereof ("Maintenance"). NextiraOne shall respond to System failures,
<br />-~ìther on-site or remotely, pursuant to the applicable Service Plan.
<br />Vlaintenance, in aceor'dance with the pricing set forth in this Agreement,
<br />¡hall include fumishing parts and labor necessary to maintain the System
<br />.n good operating condition in accordance with the manufactl:rer's
<br />speciflcations based on Customer's nonna] use. Repair and replacement
<br />parts may be new or reconditioned to be the functional equivalent of new.
<br />NextiraOne may require that any Systcm not installed or maintained by
<br />
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<br />nextlraOne
<br />
<br />NextiraOne be brought up to manufacturer'.s specifications at Customer's
<br />expense before NextiraOne performs any maintenancc services.
<br />11. LI:Y1ITED WARRANTY. NEXTIRAONE WARRANTS IILi\1
<br />WORK PERFORMED UNDER THIS AGREEMENT SHALL BE
<br />DONE IN A GOOD AND WORKMANLIKE MANNER AND BE FREE
<br />FROM MATERIAL DEFECTS FOR A PERIOD OF FORTY-FIV1, (4))
<br />DAYS FROM DATE OF PERFORMANCE. CUSTOMER'S SOU:
<br />AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTY
<br />SHALL BE CORRECTION QF THE DEFECT BY NEXTIRAONE AT
<br />NEXTIRAONE'S EXPENSE. THIS AGREEMENT EXCLlIDES ALl,
<br />OTHER EXPRESS WARRANTIES AND ALL IMPLIED
<br />WARRANTIES, INCLUDING, BUT :'\tOT LIMITED TO. THE
<br />WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY
<br />AND FITNESS FOR A PARTICULAR PURPOSE. NEXTIRAONE
<br />DISCLAIMS ANY WARRANTY TO PREVENT UNAUTHORIZED
<br />USE OF THE SYSTEM.
<br />12. LIMITATION OF LIABILITY AND INDEMNIFICATION. (A)
<br />IN NO EVENT SHALL NEXTIRAONE BE UABL!; FOR: (i) ANY
<br />SPECIAL, fNCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL
<br />DAMAGES; (ii) COMMERCIAL LOSS OF ANY KIND
<br />(INCLUDING LOSS OF BUSfNESS OR PROFITS); OR (iii) ANY
<br />DAMAGES OF ANY KI:'>ID RESULTING FROM UNAUTHORIZED
<br />USE OF THE SYSTEM, INCLUDING, WITHOUT LIMITATION.
<br />TOLL FRAUD. THIS PROVISION APPLIES TO ALL CLAIMS
<br />WHETHER BASED UPON BREACH OF WARRANTY. BREACH OF
<br />CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ,i\NY
<br />OTHER LEGAL THEORY, AND WHETHER NEXTIRAÛNl HAS
<br />BEEN ADVISED OF THE POSSIBILI,Y OF SUCH DAMAGE OR
<br />LOSS. WITH RESPECT TO· ANY CLAIM FOR DIRECT
<br />DAMAGES, THE ENTIRE LIABILITY OF NEXTIRAONE FOR
<br />CLAIMS ARISING ltNDER OR IN ANYWAY RELATED TO
<br />THIS AGREE!\1ENT SHALL NOT EXCEED EITHER THE
<br />VALliE OF THE ORDER GIVING RISE TO THE (,Lo\1:\1 OR
<br />$1,000,000, WHICHEVER IS LESS. (8) NexiinlOne shall be liablc It)!'
<br />any physical damage it causes to the System or its components due to its
<br />gross negligence or willful misconduct. In such evcl1\, Customer'> sole
<br />remedy shall be limited to NextiraOne's repair of the Syst~n1 or
<br />component, or if the System or component cannot be repaired, as
<br />determined by NextiraOne in its sole discretion, replacement with a
<br />comparabJe System or component (C) Each party shall defend.
<br />indemnify and hold hannless the other party, and its respective directors.
<br />trustees, employees and agents Irom and against any third pany claIm.
<br />slfit, action or proceeding alleging bodily inj;.¡ry (including dcath) (I"
<br />damage to tangible property to thc extent such injury or damag~ IS causcd
<br />by the gross negligence or willful misconduct of the indemnifY1llg pany.
<br />its employees, subcontractors or sllppliers in conneclilm wit:l lht'
<br />performance of services· or the unauthorized discloSure or use of any
<br />Confidential Information, as defined in Section 14 below, provided that
<br />such claim is promptly reported to the inderimifyiilgpàrtyin writing.
<br />
<br />13. TERMINATIO:"ì. (A) The non-breaching party may terll1ìnate
<br />this Agreement and/or any outstanding Order Form and/or pursue ils
<br />remedies in law or equity; except as otherwise limited by this Agret'll1ent.
<br />in the event thaI: (i) Customer fails to make any paymem when dut' and
<br />tails to cure the nonpayment within fourteen (14) days of written notic~;
<br />(ii) a party commits a material breach of this Agreement «():h~!" than a
<br />breach ¡or nonpayment) and fails to cure that breach within thinv (30)
<br />days following receipt of written notice describing the breacl;; (Ii,)
<br />Customer refuses to permit NextiraOne to perform its obligations under
<br />this Agreement, or purports to terminate or cimcelthis Agreement or any
<br />Order Form; or (iv) a party ceases doing business or commences
<br />disso]u¡ion or 1iquidation proceedings. In addition to any other rights or
<br />remedies set forth herein, in the event Customer dei'aJlts und~r Ihl>
<br />Agreement, Customer's prepayment shall be nonrefundable. In thl' C\'CI11
<br />Customer has not prepaid for the entire term oi' the terminatcd ()n.kr.
<br />Customer is liable for liquidated damages. which Customer' agrees is
<br />reasonable, in the amount equal to the remaining 111omb]y or quar,~rl)
<br />Service Fee multiplied by the I1lllllber of months or quaners remailTlng in the
<br />term of the terrninated Order. It is agreed that NextiraOne's damages in the
<br />event of C\lstomer's breacll are difticult or impossible to ascel1ain. lìlese
<br />provisions are intended, therefore, to establish liquidated damages in the
<br />event of cancellation and are not. intended as a penalty. In the event of
<br />teríllination resulting trom NextiraOne's default, NextíraOne will pn)nlpti)
<br />refund to Customer any unused pOl1iol1 ór [lie Scrvic~ Fee. (B) l:lt'
<br />
<br />CitySanMarcosCN62I 0-04rcr7 -12-04
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<br />NextiraOnc Confidcntial
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