Terms and Conditions for York Telecom
THIS YORK TELECOM CORPORATION (‘YTC’) OFFERING TO THE CUSTOMER IS BASED ON THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS SUPERCEDE ANY CONDITIONS PREVIOUSLY DEFINED IN THE CUSTOMER PURCHASE ORDER OR ANY OTHER DOCUMENT RECEIVED FROM BY CUSTOMER THE END CUSTOMER.
1. Expedite Fee. After confirmation that all customer responsibilities have been met, YTC requires 10 business days in order to schedule and send a field engineer to begin the appropriate services. At Customer’s request and CUSTOMER’s written direction to expedite the work, the installation may be started sooner. The appropriate additional fees are assessed, as follows:
· $500 to begin the installation in 3-6 business days
· $1,000 to begin the installation in 1-2 business days
2. Cancellation / Rescheduling Fee. Once YTC, CUSTOMER and the Customer reach agreement on the work schedule, YTC expects that Customer will meet their responsibilities before the agreed-upon start date. If Customer wishes to cancel or reschedule the work, YTC must be provided written notice at least 8 business days in advance of the start date. If YTC does not receive this timely notice, rescheduling and cancellation fees are applied, as follows:
· $250 fee for requests to cancel or reschedule with 3-7 business days notice
· $500 fee for requests to cancel or reschedule with 1-2 business days notice
These charges cover the cost of changing airline tickets and travel plans, and the additional administrative efforts required to implement the changes.
3. Restocking Fee. Any item that Customer agreed to purchase from YTCthat is later deemed unnecessary/unwanted by Customer, CUSTOMER will incur a restocking fee of 25% of the item’s list price. In addition, YTC will pass along any unusually high shipping and/or insurance costs to CUSTOMER. YTC makes every effort to return products if necessary, however, if the manufacturer will not accept a return for any reason, CUSTOMER becomes the product owner and is responsible for the full cost of the item and any associated shipping and/or insurance costs. CUSTOMER or the authorized Customer representative must submit a signed Form B: Change of Work Authorization to the PM prior to YTC agreeing to send equipment back to the manufacturer. Items can only be accepted for return in their original packaging and within 30 days of delivery. This includes items delivered directly to Customer and items delivered to YTC for Customer.
4. Extended Stay/Missed Opportunity Fees. The YTC installation work order agreement with CUSTOMER for the Customer is based upon the following assumptions: 1) the entire room and its amenities will be completely available from 8:30 AM to 5:30 PM daily, and 2) the installation will occur over the specified period of consecutive days. If Customer fails to meet one or both of these conditions, and this prevents YTC field engineers from completing their work on-schedule—regardless of the reason (customer’s network not in place, electricity installation issues, etc)—CUSTOMER is responsible to pay YTC Extended Stay fees, as follows:
· $1,500 per field engineer/per additional day required to complete the work due to customer circumstances over which YTC has no control.
Furthermore, if Customer interrupts the installation by making the site inaccessible to the YTC field engineers for one or more days, an additional Missed Opportunity fee is also applied, as follows:
· $1,500 per day per field engineer to cover the cost of missed work opportunities elsewhere and for additional costs incurred for car rental, meals, changes in travel costs, etc.
5. Equipment Delivery - Transfer of Ownership. YTC requires specific information from Customer regarding shipments and drop-shipments (e.g., dock-to-dock or dock-to-room, etc.). Customer is responsible for the following:
· Drop-shipments to Customer directly from manufacturers and any problems that may arise regarding the condition of equipment received
Regarding equipment shipped from YTC or directly from the manufacturer or vendor, Customer is responsible to do the following:
· Check the exterior packaging condition of ALL receivables
· Notify the PM regarding equipment arrival and the condition of each shipped box or other packaging (to the extent that this can be verified through visual inspection)
· Notify the PM within two business days if damaged goods are refused
· Notify the PM within two business days if damaged goods are accepted; damages must be itemized on the delivery receipt; failure to do so makes Customer liable for the cost of the damaged equipment
· Notify the PM within two business days of any discrepancies between what was expected and the actual deliverables
6. Customers Performing Their Own Installation(s). If Customer has purchased the equipment and a maintenance-only contract from YTC, and states that they will perform their own installation, then Customer has 60 days to do the following (65 days from the date that the manufacturer agrees to ship the equipment):
· Ensure that they receive all shipments in good condition
· Notify the PM within two business days of any damaged goods or discrepancies with the deliverables; failure to do so makes Customer liable for the cost of the damaged equipment
· Resolve any problems for which Customer is responsible
· Complete the installation
· Notify the PM or the Customer Support Center (CSC) that Customer is ready for the CSC certification test. A $200 fee is assessed for the testing if the test does not take place within 65 days.
· Failure to call for a test within 60-65 days risks eventual discovery of equipment problems for which YTC cannot be liable. If failure to call for a test exceeds 90 days and it turns out that equipment is not functional at that time—or at any time during which the equipment can no longer be returned—Customer is fully responsible and YTC cannot be held liable for any damages. YTC can provide a Time & Material quote (minimum fee $400) if Customer wants YTC to resolve the problems remotely.
7. Other Customer Delays. If excessive delays caused by Customer result in product cost increases, discontinued products, and similar unanticipated events that YTC cannot control, or if customer delays result in the need for additional unanticipated project management time and higher incurred costs, CUSTOMER is liable for the additional charges, including labor. Fees/charges will be assessed when these costs are incurred at YTC standard labor and overtime rates, as applicable.
8. Shipping and Delivery. All products shall be packed for shipment in YTC’s and/or Manufacturer’s standard containers, marked for shipment to the address specified by Customer, and delivered to a carrier or forwarding agent chosen by YTC. Unless otherwise agreed, all shipments will be F.O.B. YTC, Eatontown, New Jersey location, and at the time of delivery to the carrier or forwarding agent chosen by YTC, all risk of loss and title shall pass to Customer, and all freight, insurance and other shipping expenses, as well as any special packing expenses, shall be borne by CUSTOMER. Customer shall be deemed to have accepted the products unless written notice of rejection and reasons therefore is delivered to YTC within two (2) business days of Customer’s receipt of such products.
9. PAYMENT. YTC standard terms are Net/30.Amounts outstanding for more than thirty (30) days will be subject to a monthly charge at the rate of one and one-half (1.5%) percent per month, or the maximum permitted by law, whichever is less, and shall serve as liquidated damages in the event of late payment by CUSTOMER
10. Security interest.Until the purchase price and all other charges payable to YTC for the products purchased hereunder have been received in full, YTC shall retain, and CUSTOMER hereby grants to YTC, a security interest in such products and proceeds. CUSTOMER agrees to promptly execute any documents reasonably requested by YTC to document, perfect and/or protect such security.
11. Installation and Service. Customer shall make available a safe and suitable place for installation in accordance with the YTC Site Preparation Checklist. YTC shall be under no obligation to install equipment which has not been tested by YTC, or for which the installation site and/or prerequisite non-supplied YTC equipment are not properly prepared. YTC will not be responsible for any delays or return visits required because of lack of free and/or safe access, or delays resulting from non-YTC supplied equipment or services. Unless defined under “Scope of Work” in this Technical Response Plan, YTC is not responsible for site wiring and installation or testing of any non-YTC supplied equipment. Customer shall not impose releases or waivers on YTC employees or representatives in connection with visits to Customer’s premises. Any such waivers or release shall be void. YTC will provide all tools, equipment, documentation, schematics, maintenance materials, software and associated media, collectively “Service Tools,” to be used by YTC personnel in the performance of Installation Services. Service Tools may be furnished with products or stored at Customer’s facility. YTC grants no title or license to Service Tools, and Customer agree to properly secure Service Tools and not to use them in any manner or make them available to third parties without YTC’s prior written consent. All such Tools shall remain the exclusive property of YTC, and shall be sole use of YTC.
12. Limited Warranty. All products are sold subject to the provisions of the YTC Warranty, a copy of which is included with the products provided hereunder and which is incorporated herein in its entirely by this reference. YTC’S LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND YTC MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, EITHER BY FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND YTC EXPRESSLY EXCLUDES AND DISCLAIMS WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer hereby understands that it is solely responsible for determining the suitability of Products for the purposes for which products are purchased.
13. Limitation of Liability. CUSTOMER agrees that YTC’s liability to Customer in any way connected with sales of products or services to Customer, regardless of the form of action, shall in no event exceed the price paid by CUSTOMER for such products or services. Under no circumstance will YTC be liable for any damages resulting from YTC’s failure to meet any delivery schedule, even if YTC has been advised of the possibility of such damages. IN NO EVENT WILL YTC BE LIABLE FOR COSTS OF PROCUREMENT OR SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THESE ITEMS OR THE SALE OF PRODUCTS OR SERVICES TO BUYER. THIS LIMITATION SHALL APPLY EVEN IF YTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER also agrees that this Limitation of Liability reflects an allocation of risk between CUSTOMER, the End Customer and YTC, and the price of any Products purchase from YTC reflects such allocation of risk.
14. Software. CUSTOMER acknowledges that all software sold separately or with hardware and obtained by Customer from YTC is proprietary to YTC and its licensors and is subject to copyrights owned by YTC and its licensors. Any reference to “purchases” of software and products containing software products signify only the purchase of a license to use the software in question pursuant to the terms of YTC License and Limited Warranty Agreement, or the licensing agreement of the respective software product provider, a copy of which is included with the products provided hereunder and which is incorporated herein in its entirety by this reference. Customer agrees to be bound by all of the terms of such YTC License and Limited Warranty Agreement, or the licensing agreement of the respective software product provider.
15. Patent Infringement.
· Indemnity. YTC will defend, at its own expense, any claim, suit or proceeding brought against CUSTOMER to the extent it is based upon a claim that any product sold by YTC to CUSTOMER infringes upon any patent, copyright or trade secret of any third party. CUSTOMER agrees that it shall promptly notify YTC in writing of any such claim or action and give YTC full information and assistance in connection therewith. YTC shall have the sole right to control the defense of any such claim or action and the sole right to settle or compromise any such claim or action. If CUSTOMER complies with the provisions hereof, YTC will pay all damages, costs and expenses finally awarded to third parties against CUSTOMER in such action. If a product sold to CUSTOMER, or in YTC’s opinion might be, held to infringe as set forth above, YTC may, at its option, replace or modify such product so as to avoid infringement, or procure the right for CUSTOMER to continue the use and resale of such Product. If neither of such alternatives is, in YTC’s opinion, commercially reasonable, the infringing product shall be returned to YTC and YTC’s sole liability, in addition to its obligation to reimburse awarded damages, costs and expense set forth above, shall be to refund the amounts paid for such products by CUSTOMER.
· Limitations. YTC will have no liability for any claim of infringement arising as a result of Customer’s use of a product in combination with any items not supplied by YTC, or any modification of a product by Customer or third parties.
· Entire Liability. THE FOREGOING STATE THE ENTIRE LIABILITY OF YTC TO BUYER OR ANY SUBSEQUENT PURCHASER OR PRODUCTS CONCERNING INFRINGEMENT OR INTELLECTUAL PROPERTY RIGHT, INCLUDING BUT NOT LIMITED TO, PATENT, COPYRIGHT AND TRADE SECRET RIGHTS.
16. CONFIDENTIALITY. YTC shall keep confidential and secret any and all Confidential Information. “Confidential Information” shall include, but not be limited to, information relating to the CUSTOMER and their Customer’s past, present and future marketing and research and development activities that may be disclosed to YTC by CUSTOMER and/or their customer and/or any parent, subsidiary or affiliate companies. YTC expressly agrees that any information it discovers or develops under this Agreement shall not be used by YTC or disclosed by YTC to any third party, nor shall YTC show this Agreement or disclose the existence, nature or subject matter this Agreement to any third party without the prior written consent of CUSTOMER. YTC’s obligations not to disclose Confidential Information to third parties and not to otherwise use Confidential Information shall survive the termination of this Agreement. YTC shall not duplicate any material containing Confidential Information, except as reasonably necessary for the performance of its services under this Agreement. YTC shall return all copies of materials containing Confidential Information upon YTC’s completion of the services under this Agreement or upon any earlier termination of this Agreement for any reason whatsoever.
Notwithstanding anything herein to the contrary, CUSTOMER recognizes that, in the course of performing services hereunder, YTC may prepare summaries of, or analyses containing, Confidential Information. YTC will not be required to return these summaries or analyses to CUSTOMER; but YTC will, upon termination of this Agreement continue to treat the Confidential Information in accordance with this Agreement.
The provisions of this Agreement shall not apply to information that: (i) is lawfully in the public domain at the time it was transmitted; (ii) has been independently developed by YTC without violation of this Agreement; (iii) is independently known to YTC at the time of receipt through no unlawful act of YTC; (iv) is disclosed by YTC with the prior written approval of CUSTOMER (v) becomes known to YTC from a source other than CUSTOMER, which source may legally is entitled to have and to disclose such information without restriction or (vi) is required to be disclosed by law.
17. Miscellaneous.
· CUSTOMER agrees that if the CUSTOMER resells any product purchased hereunder, it shall either resell such product unopened with the YTC Limited Warranty and the YTC License Agreement included herein or shall cause each successive purchaser, prior to use of any such product, to enter into a warranty and license agreement in YTC’s standard form or in such other form as shall be agreed to by YTC.
· YTC shall have the right to make substitutions and modifications to the products sold by it without notice to Customer, provided that such substitutions and modifications do not materially affect the overall product performance.
· YTC shall not be liable for any failure to perform any of its obligations hereunder which results from an act of God, the elements, fire, flood, component shortages, a major event, riot, insurrection, industrial dispute, earthquake, accident, war, embargoes, legal restrictions or any other cause beyond YTC’s control.
· The agreement between CUSTOMER and YTC with respect to the matters described herein and all matters related to the sale of products and/or services by YTC to CUSTOMER shall be governed and construed with the laws of the State of New Jersey, without respect to its provisions concerning the application of the laws of other jurisdictions. Any suit brought with respect thereto shall be brought in the federal or state courts in the districts which include Eatontown, New Jersey, and CUSTOMER hereby agrees and submits to the personal jurisdiction and venue thereof.
· The term and conditions set forth herein, including the YTC Limited Warranty, YTC Licensing Agreement, and respective product manufacturers Licensing Agreements incorporated herein by reference, shall constitute the entire agreement between YTC and CUSTOMER with respect to the matters described herein and all related matters with respect to the sale and license of products by YTC to CUSTOMER, and shall not be qualified or interpreted by any trade usage or prior course dealing unless expressly authorized in writing by YTC.
18. No Solicitation
Customer recognizes that York Telecom expends considerable time, effort and expense in training its employees. As such, in the event Customer hires any employee of York Telecom, in any capacity whatsoever, whether full-time, part-time or on a consultant basis, on behalf of itself or any person or entity, during the term of this Agreement and for a period of twelve (12) months thereafter, Customer shall pay York Telecom the sum equal to three (3) months pay at the rate paid by York Telecom to employee or $20,000.00 whichever is greater. This provision shall apply during the period of any such employee’s employment by York Telecom and for ninety (90) days thereafter.
19. Assignment
Neither party shall assign, transfer or otherwise dispose of this Agreement, or any of its rights or obligations herunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, York Telecom may, upon written notice to Customer, assign this agreement to a related entity.
20. Force majeure
Neither party shall be liable for any failure to perform or delay in performing any of its obligations hereunder (other than the payment of money) when such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, any natural catastrophe, fire, war, riot or civil unrest, strike, lockout or other labor disturbance, late or non-delivery by suppliers, shortage or unavailability of materials, components or transportation facilities, assertion by a third party of an infringement claim, or any act, refusal to act, regulation, order or intervention of any governmental authority. If such circumstances prevent or delay a party’s performance of a material obligation hereunder for more than three (3) consecutive months, then either party may at any time thereafter, provided that such circumstances are then continuing, upon written notice to the other party, terminate this Agreement, without any liability to the other party by virtue of such termination. However, such termination shall not affect any liability of any party to the other on any other basis.
21. Severability/fair interpretation
If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and ambiguities shall not be interpreted against the drafting party.