Annual Maintenance Contract
Terms and Conditions
Proto3000 Inc., by and through its affiliates, (“Company”) and the undersigned customer, by and through its affiliates, (“Customer”) have entered into this agreement (“Agreement”) for certain post-warranty maintenance services (the “Maintenance Services”) in respect, and with the objective of, maintaining optimal performance of Customer’s selected hardware (individually, the “Product” and collectively, the “Products”). Coverage hereunder is limited to (i) Product(s), identifiable only by serial # noted in the quote provided by the Company (the “Quote”), located in Canada at the address identified in the Quote; (ii) any other items contained in any addendum to this Agreement agreed to in writing.
- Service Level Features
1.1 Company shall exercise commercially reasonable efforts to provide the Maintenance Services, which shall include the following, unless otherwise specified in the applicable maintenance service level package purchased by Customer, as more particularly described in Appendix A, annexed hereto (the “Service Level Package”):
1.2 Correcting, repairing and/or replacing, as applicable, a non-conforming or defective Product, as determined by Company in its sole and unfettered discretion, which Product may include software embedded therein or otherwise licensed to Customer in connection with the sale or use of the Product, and any part thereof (excluding Consumables, as specified in Section 2 herein).
1.3 Preventive maintenance performed by Company’s authorized technical representatives (“Technical Representative”) at factory-recommended maintenance intervals. Preventive maintenance procedures may be completed in conjunction with unscheduled or emergency service visits.
1.4 Technical phone and email support available on business days, which shall mean any day other than a Saturday, a Sunday, and/or statutory holiday in Ontario, between the hours of 9:00 a.m. and 5:00 p.m., Eastern Time (“Business Hours”).
1.5 On-site service visits where Company determines, in its sole and unfettered discretion, that phone and email support cannot be rendered to resolve the problem, such visits shall be subject to the terms and conditions of the Service Level Package.
1.6 Priority service scheduling whereby Customer will receive priority scheduling of Technical Representative after a problem is reported to the Company call center by Customer and the need for an on-site service visit is determined by Company, in its sole and unfettered discretion.
1.7 Manufacturer-developed software maintenance releases provided from time to time, during the Product’s life cycle, which means the term during which the Product is commissioned until it is eventually decommissioned, in Company’s sole and unfettered discretion (“Software Releases”).
1.8 Other Product updates and/or modifications, as deemed necessary by Company, in its sole and unfettered discretion, will be installed when available throughout the maintenance term, which shall mean the annual term commencing on the Effective Date, as hereinafter defined, of this Agreement.
1.9 User training courses are available at Company’s office or may be provided electronically at the election of the Company, applicable only where Customer is the original purchaser of the Product. Training shall be held at Company’s corporate headquarters or at Company’s regional offices, subject to the terms and conditions of the Service Level Package.
- Consumables and Spare Parts
2.1 Customer acknowledges that, unless otherwise provided in the Service Level Package, Maintenance Services, or the annual maintenance fee, this Agreement does not include the replacement of consumables and disposable materials, including without limitation, thermoplastics, resins, printing heads, light engines, projectors, build trays, milling tools, material discs, spindles, tool holders, timing belts, cleaning fluid, wiping cloths, gloves and other similar items (collectively, the “Consumables“), which Consumables Customer may purchase separately at Company’s then-current rates. In addition to any rights of the Company hereunder, the use of any unapproved Consumables will void any warranty or service obligations provided by the Company hereunder.
2.2 Customer acknowledges that the applicable manufacturer, Company’s spare parts supplier, (the “Supplier”), will provide a warranty that all spare parts supplied and manufactured by the Supplier hereunder shall be free from defects in material and workmanship for a period of ninety (90) days following installation thereof, and Customer acknowledges that spare parts may be reconditioned parts.
2.3 Spare parts that have been certified by, but not manufactured by, the Supplier are provided by Company to Customer in “as is” and “where is” condition. Company’s liability in respect of such spare parts shall be limited only to amounts that are recovered by Company from the Supplier, under warranties provided by the Supplier, if any such warranties or amounts exist.
2.4 Customer acknowledges that use of parts and/or Consumables not manufactured or certified by the Supplier may result in damage to Products. In the event that Company, acting reasonably, determines that damage to a Product has been caused by the use of parts and/or Consumables not manufactured by, and/or not certified by, the Supplier, Customer acknowledges and agrees that Company shall have the right to: (i) terminate Customer’s rights to Maintenance Services under this Agreement; (ii) terminate this Agreement; or (iii) offer to diagnose and repair the Product, or its components, at Company’s then-current maintenance restoration rates. Customer further acknowledges and agrees that: (i) the use of parts and/or Consumables not manufactured by, and/or not certified by, the Supplier, including without limitation, resins and filaments; and (ii) the tampering or altering of any spare parts may also disqualify Customer from receiving any discounts on Company’s support and Maintenance Services, parts and Consumables.
- Customer Responsibilities
3.1 Customer, at its sole expense, and except as otherwise provided herein, shall (i) perform all routine maintenance procedures and maintain the Product and the prescribed conditions at its site in accordance with the user instructions provided with the Product at the time of purchase (the “User Instructions”) and the applicable law of Ontario; (ii) promptly install and maintain all Software Releases and procure any additional equipment or software that may be required for, or as a result of, such installation or maintenance, all in accordance with the User Instructions; (iii) provide Company with access to the Product during Business Hours; (iv) provide assistance, information, services, Consumables, and facilities as may be requested by Company to perform the Maintenance Services; and (v) return to Company at Customer’s sole cost and expense, within thirty (30) days of Company’s request, all replaced spare parts.
3.2 Customer shall not, without Company’s prior written authorization, permit any person, other than an operator trained pursuant to the User Instructions, to operate the Product.
3.3 Unless otherwise permitted in accordance with the User Instructions, Customer shall not: (i) permit any person, other than Company’s Technical Representative, to perform the Maintenance Services or other support or maintenance of the Product; or (ii) attempt any repair to, or replacement of, the Product.
3.4 Customer shall be solely responsible for Product failures, as well as for the necessary remedies therefor, caused either directly or indirectly by: (i) acts or omissions of the Customer, its operators, employees, agents, or anyone for whom Customer, by law, is responsible, that are inconsistent with Customer’s obligations contemplated herein or in the User Instructions; or (ii) modification or replacement of, or repair to, the Product or any part thereof without Company’s prior written authorization.
3.5 Company’s warranty obligations herein shall not apply to repair or replacement necessitated in whole or in part by: (i) fault or negligence of Customer, its operators, employees, agents or anyone for whom Customer, by law, is responsible; (ii) improper or unauthorized use of the Product, including without limitation, use of thermoplastics, resins or spare parts unauthorized by Company; (iii) installation, modification or repair not executed by Company or its Technical Representative; (iv) removal of the Product from the original installation site; (v) unusual stress, power failure or deviation from recommended maintenance procedures; or (vi) failure to maintain the prescribed conditions at the installation site and/or any other failure to comply with the User Instructions.
3.6 Nothing in this Agreement shall require Company to provide any external electrical work; equipment reconditioning or refurbishing; repairs or adjustments due to abuse, modification, or alteration; equipment operation or maintenance, to the Products, such work being contrary to Company’s User Instructions. Company shall not be required to perform any services or repairs due to external causes, including without limitation, fire, electrical damage, power surges, flood or other intervening catastrophic causes (collectively, the “Extraordinary Repairs”).
3.7 Customer shall make at least one (1) of its Company-trained employees fully available to Company for purposes of assisting Company with any telephone or on-site Maintenance Services to be provided hereunder.
3.8 Customer shall remain solely liable for ensuring that its data and files are adequately documented for backup purposes and Customer acknowledges and agrees that Company will not be liable for any lost data or any data reconstruction costs. The contents of this subsection 3.8 shall survive the expiration, termination or surrender of this Agreement, notwithstanding anything in this Agreement to the contrary.
3.9 Any services provided by Company and determined by Company, in its sole and unfettered discretion to be: (i) a service or repair not expressly stipulated in Section 1 of this Agreement; (ii) Extraordinary Repairs; and/or (iii) repairs required to be performed after Business Hours, shall be charged on a time and materials basis, in accordance with Company’s then-current repair rates. Customer acknowledges that information as respects Company’s repair rates is available through Company’s call center, and Customer further acknowledges and agrees that such rates shall be due and payable by Customer within thirty (30) days of receipt of Company’s invoice.
- Limitation of Liability
4.1 Notwithstanding the limited warranty provided by the Supplier as respects the spare parts at the time of purchase and the Supplier’s limited warranty set out in Subsection 2.2 and Subsection 2.3 of this Agreement, Company makes no further warranties of any kind, either express or implied, collateral or direct, as respects the spare parts, software, equipment, and/or any services performed in accordance with this Agreement, and Company expressly disclaims any implied warranties of merchantability or fitness for any particular purpose for all spare parts, equipment and services provided herein.
4.2 Customer acknowledges and agrees that, in no event, shall Company, or any third party engaged by Company to provide services in accordance with this Agreement, be liable for any indirect, consequential or special damages, including without limitation, any lost profits or downtime, any lost savings, or other special, incidental, consequential and/or liquidated exemplary, or any other damages however caused, notwithstanding that Company may have been advised of the possibility of such damages. Customer further acknowledges and agrees to accept a refund of the annual maintenance fee as liquidated damages and not as a penalty. Customer acknowledges that the acceptance of said refund is both reasonable and a material factor in establishing the maintenance rates herein, and that said rates would be significantly higher in the absence of Customer’s acceptance. Notwithstanding any other provision of the Agreement, the Parties agree that Company’s sole liability to Customer for any and all claims howsoever arising and related to the Agreement will be limited to $5,000.
4.3 Customer acknowledges and agrees that its remedies herein, as well as the maximum liability of Company, or any third party engaged by Company to provide services in accordance with this Agreement, are strictly limited as expressly stated in this Section.
4.4 Customer agrees to indemnify and hold harmless Company from and against any claims, demands, losses, costs, damages, actions, suits or proceedings which may be brought or commenced by Customer or its affiliates.
4.5 The term “Company”, as used in this Agreement, so far as covenants or obligations on the part of Company are concerned, shall be limited to mean and include only Proto3000 Inc., its affiliates and its authorized representatives at the time in question of the Products and Maintenance Services, and in the event of any transfer or assignment by Company of this Agreement, the Company, herein named, shall be automatically freed and relieved from and after the date of such transfer or assignment, of all liability as respects the performance of any covenants or obligations on the part of the Company contained in this Agreement thereafter to be performed, it being intended hereby that the covenants and obligations contained in this Agreement on the part of the Company shall, subject as aforesaid, be binding on Company only during and in respect of its period prior to any transfer or assignment of this Agreement.
4.6 The contents of this Section 4 shall survive the expiration, termination or surrender of this Agreement, notwithstanding anything in this Agreement to the contrary.
- Maintenance Fees; Renewal Term
5.1 Customer agrees to pay a one-time, non-refundable annual maintenance fee in the amount set out in Appendix B annexed hereto, for each Product that it wishes to enrol in this Agreement, plus all applicable taxes, prior to the Effective Date, which date shall mean the last day of the initial one (1) year warranty term of the original purchased Product, or if Customer’s option to renew has been exercised, the first day of the Extension Period, as hereinafter defined, (the “Effective Date”), which shall entitle Customer to Maintenance Services for a one (1) year period, commencing on said Effective Date.
5.2 This Agreement and the covenants and obligations of Company shall not be effective until such annual maintenance fee is received by Company.
5.3 Provided that Customer is not in breach of any of its responsibilities as set out in Section 3 of this Agreement and has made all necessary payments pursuant to this Section 5, Customer shall have the option, exercised by Customer’s payment of Company’s then-current renewal fee, to renew this Agreement for three (3) further terms of twelve (12) months (the “Extension Period”), upon the same terms and conditions as are herein contained except for the current annual maintenance fee. Customer acknowledges that such option to renew must be exercised prior to the expiration of the current term of this Agreement. In the absence of any such renewal, Customer agrees to pay Company’s then-current rates for any repair or services provided in accordance with this Agreement, following the expiration, termination or surrender of this Agreement.
- Company’s Right to Terminate
6.1 Company may, at its option, terminate or suspend the Maintenance Services herein contained, if Customer is in breach of any of its covenants and obligations set out in this Agreement, or if any steps are taken, or any action or insolvency and/or bankruptcy proceedings are instituted by or against Customer, including without limitation, the appointment of a receiver or liquidator.
6.2 Company may, at its option, terminate or suspend the Maintenance Services herein contained, if in Company’s reasonable determination, Customer, its operators, employees, agents, or anyone for whom Customer, by law is responsible, interferes with Company’s ability to fulfill its responsibilities under this Agreement. Such interference includes the use of abusive, harassing, profane or offensive language and/or behaviour towards Company, its affiliates, Technical Representatives, employees or agents.
6.3 In the event that Company terminates this Agreement pursuant to this Section 6, Company shall provide notice to Customer pursuant to Section 12 of this Agreement. Customer acknowledges that such notice of termination or suspension by Company of the Maintenance Services shall have immediate effect. There shall be no return of pre-paid annual maintenance fees which shall be kept by Company.
- Governing Law
7.1 This Agreement shall be governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein. With respect to any dispute, controversy or claim arising out of or relating to this Agreement, the parties agree and consent to the jurisdiction of an exclusive venue in the federal or provincial courts located in Toronto, Ontario.
7.2 Any provision of this Agreement which is, or is deemed to be, unenforceable in any jurisdiction shall be severable from this Agreement in such jurisdiction, without in any way invalidating the remaining provisions of this Agreement, and such unenforceability shall not make that provision unenforceable in any other jurisdiction.
- Waiver of Breach
8.1 The waiver by Company of any term, covenant or condition shall not be deemed to be a waiver of the balance of the terms, covenants or conditions herein contained. Further, the waiver by Company of any breach of any term, covenant or condition herein contained, shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or other term, covenant or condition herein contained.
8.2 Customer acknowledges and agrees that no term, covenant or condition of this Agreement shall be deemed to have been waived by Company unless such waiver is in writing and signed by Company.
8.3 No failure or delay by either party, in exercising or enforcing any right hereunder or under any applicable law shall operate as a waiver thereof, or preclude any other exercise or enforcement of rights herein contained, or in accordance with any applicable law.
- Force Majeure
9.1 Customer acknowledges and agrees that Company may, at its option, engage a third party, in a subcontractor position, to perform the services in accordance with this Agreement, on behalf of Company.
9.2 Neither party shall be liable for any delays in performance of any covenant or obligation herein contained that are due to circumstances beyond either party’s control, including without limitation, acts of nature, acts of the government, delays in transportation, and delays in delivery or inability of the Supplier to deliver materials, goods, equipment, services or labour. In the event of delayed performance due to any such cause, the date of delivery or the time of completion, as applicable, shall be extended by a period of time reasonably necessary to overcome such delay, such period of time to be mutually agreed upon between the parties.
- Assignment and Transfer
10.1 Customer acknowledges and agrees that it cannot transfer this Agreement, in whole or in part, without the prior written consent of Company, which consent shall not be unreasonably withheld.
10.2 Company may, in its sole and unfettered discretion, assign or transfer this Agreement, in whole or in part, to an affiliate or any other qualified third party, without the consent of Customer.
- Entire Agreement
11.1 This Agreement, and the Appendices attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Company and Customer, concerning the Products and the Maintenance Services, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than are herein set forth.
11.2 Customer acknowledges and agrees that any purchase order, which shall mean any commercial document which has been issued by Customer to Company in accordance with this Agreement which indicates the type of, quantity of, and price for, a Product or service to be provided by Company shall serve only to direct Company as respects the Product or Products to be purchased, and to constitute good and sufficient payment authority as respects said Product(s), and shall not be deemed a counteroffer to the terms of this Agreement. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties unless in writing and signed by each of them, or their authorized representatives.
12.1 All notices, consents, approvals, statements, authorizations, documents, or other communications (collectively “Notice”) required or permitted to be given hereunder shall be in writing, and shall be delivered personally, transmitted by electronic mail, or mailed by registered mail, postage prepaid, to the said parties at their respective addresses set forth hereunder, namely:
(a) In the case of Company to: 100 Zenway Boulevard, Vaughan L4H 2Y7 to the attention of John Frangella or via email to [email protected]; and
(b) In the case of Customer to the address on file with Company or via email on file with Company.
13.1 This Agreement may be executed in several counterparts, each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same agreement and notwithstanding their date of execution shall be deemed to be executed as of the date set out hereunder.
- Electronic Records and Signature
14.1 It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other words of similar import, the parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable legislation including the Electronic Commerce Act, 2000 (Ontario), or similar other Provincial acts, Personal Information Protection and Electronic Documents Act (Canada).
- Physical Address or Location of the Products
15.1 Any changes to the location noted in the Quote shall only be effective on 10 days written notice from Customer to Company.
16.1 In order to be eligible to receive the Maintenance Services, Customer must agree to the terms and conditions of this Agreement. By signing the quote provided to Customer by the Company, Customer acknowledges that he/she/it has read this Agreement in its entirety and agrees to be bound by the terms and conditions hereof.