CROWN COMPUTER’S PEACE OF MIND AGREEMENT
These terms and conditions set forth the obligations of the parties under Crown Computers, Inc. Peace of Mind Agreement – Managed Desktop, managed Network and Sever Editions. Crown Computers, Inc. is referred to as Crown Computers.
2. Service Provided.
Crown Computers is providing a maintenance contract that includes the following services for the Customer’s contracted devices under this agreement. Crown Computers will 1) perform an Initial Technology Assessment, 2) perform Monitoring Services, and 3) provide routine Technical Assistance and Support to Customer.
3. Initial Technology Assessment.
The Initial Technology Assessment will be performed according to Crown Computers standard procedures. This technology assessment will include 1) an inspection of Customers desktop and server room environment, 2) a report detailing the equipment covered by this agreement and software installed on such equipment, 3) consultation on user activity and performance, and 4) an assessment and recommendations for the Customer’s current network.
4. Monitoring Services.
Crown Computers will provide system monitoring to Customer through a remote monitoring service. Remote monitoring will occur on a 24/7 basis. Crown Computers will use systems and software that it selects at its discretion to conduct the remote system monitoring. The Customer agrees that Crown Computers may install equipment on the Customer’s network, and configure Customer’s firewall and/or router if necessary, to permit the monitoring equipment to operate. Crown Computers will retain ownership of the monitoring equipment it installs at Customer’s premises. The Customer may not move, tamper with or disconnect the electrical power to the monitoring equipment, and the Customer will advise its employees of this requirement. The Customer agrees that it will follow Crown Computers’ recommendations to permit it to perform the monitoring services. The monitoring services provided are limited to the monitoring of approved and contracted components which are identified in the “inventory of Devices to be Monitored.” Customer acknowledges that Crown Computers ability to conduct monitoring services depends on the Customer having adequate connectivity to its network. Accordingly, the Customer understands and agrees that Crown Computers will not be responsible for connectivity problems at Customer’s premises or those associated with Customer’s service or network, and that Crown Computers will not be responsible for any inability to perform monitoring attributable to connectivity problems.
5. Technical Assistance and Support.
Crown Computers will also provide technical assistance and support for the Customer’s network, computers, peripherals, and devices that are covered by this agreement. Technical assistance and support will be provided through a combination of Tier I help desk support, Tier II remote support, on site and repair center support. Network Support Labor includes: 1) On-site labor provided by Crown Computers at Customer’s premises, 2) In-house labor provided a Crown Computers’ repair center, and 3) tier II remote support provide by Crown Computers. Crown Computers will determine the method of provided requests technical assistance and support. The following apply with regard to each method of providing technical assistance and support.
a. Tier I Help Desk Support.
Crown Computers will provide Customer with a phone number for Tier I telephonic help Desk support to assist ins resolving problems for covered equipment. Tier I Help Desk support is available for all of the Customer’s devices and is not limited to devices included in the sheet “Inventory of Devices to be Monitored.” Customer agrees, however, that Tier I help desk calls for non-listed equipment will be charged against Customers monthly allotment of houses. The help desk will be staffed by Crown Computers during normal business hours which are 8:00 a.m. to 5:00 p.m. (Pacific Time), Monday through Friday, excluding holidays. 24 hour phone support is available for contracted network devices under the Platinum Plan. Customer understands that this agreement does not obligate Crown Computers to provide training to Customer’s staff on the use of software owned or licensed by Customer. If the Tier I help Desk Support is unable to resolve the problem from the Help Desk, then Crown Computers at its own discretion may escalate the problem to its Tier II support or dispatch on-site Network Support Labor time to address the problem.
b. Remote Support.
Customer will provide Crown Computers with access to its computer network to enable Crown Computers to provide technical assistance and support remotely through the remote access to Customer’s network and hardware. The Customer will designate a single primary contact, with telephone number and e-mail address to notify in the event of monitoring alerts.
c. Onsite and Remote Tier II Support.
On-Site and Remote Tier II Support are contemplated for routine maintenance and troubleshooting of the customer’s network. If Crown Computers, at its own discretion, decides on-site network support is needed, it will dispatch a technician to Customer’s location. In the event that the Customer requires additional on-site labor for projects etc., the Customer is responsible for contracting Crown Computers to schedule on site support visits. The Customer will provide Crown Computers with reasonable access to its premises and hardware installations to enable Crown Computers to provide on site support. On-site sand Tier II support are available during normal business hours. On-site and Tier II support time will be first drawn from the Customer’s monthly allotment. On-site and Tier Ii support time provided outside of normal business hours or provided on an expedited schedule at the Customer’s request will be charged against the Customer’s monthly allotment at the rate of two times the actual number of hours expended. Travel time by Crown Computers technicians and support personnel to and from the Customer’s premises is not provided for free under this agreement and is counted against the monthly block of Network Support Labor allotted to the Customer.
d. Repair Center Support.
Crown Computers will also provide Network Support Labor services at its repair center located, in San Diego, CA. The repair center address is listed on the Crown Computers website at www.crowncomputer.com . Cron Computers can provide pick-up and drop services if the Customer request, but additional standard charges will apply. Customer agrees to pay for these additional charges if it request such pick-up or drop off services. Support and repair service time at the Crown Computers repair center will be counted against the monthly block Network Support labor time Customer is purchasing under this agreements.
e. Network Support Labor.
On site and Repair Center Support. Network support Labor, whether provided on-site, through Tier II remote support or remote access, or at a Crown Computers repair center, is provided under all version of the Managed Desktop, Managed Network and Server Editions of the Technology Advantage Agreement. The amount of Network Support Labor (whether provided on-site, through Tier II remote support or remote access, or at a repair center) that the Customer may utilize without extra charges for labor depends on the support level chose by the Customer.
Allotted Network Support Labor time that is not utilized by the Customer during one calendar month does not carry over to later calendar moths and no refund will be made to Customer for unused allotted hours. Unused allotted hours cannot be redeemed for cash or used to discount hardware or software purchases. Customer agrees that any on-site, Tier II, or repair center Network Support Labor or Help Desk Assistance for components not included in the sheet “Inventory Devices to be Monitored” used by Customer in excess of the monthly allotment will be billed to Customer at Crown Computers’ standard rates. Customer agrees to pay for such extra services and agrees that no additional prior written approval from the Customer will be necessary.
6. Payment, Billing and Charges for Extra Services.
Customer agrees to pay Crown Computers the service charge plus any applicable taxes in advance of any services performed. Monthly billing will be provided with payment required by the first day of the month for coverage during that period. An additional installation fee equal to one month of service on the covered equipment is required to activate this agreement and will be included with the first billing to the Customer. Additional Network Support Labor units added during the term of the contract will be billed according to the terms set forth above. Adjustments to the Network Support Labor unites purchases must be received by the 15th of the month preceding the start of the next billing period to ensure proper billing.
All of Crown Computers’ obligations under the agreement shall automatically terminate, without the need for any notice by Crown Computers, in the event the Customer fails to make any advance payment required by this agreement or fails to make any other payment owed to Crown Computers. Such termination shall not relieve Customer of its obligations to pay under this agreement.
If the Customer orders from Crown Computers extra services not covered by this agreement, or orders hardware or software, then it agrees that it will pay Crown Computers for such services, hardware or software at Crown Computer’s standard rates. Such extra services, hardware or software will be billed to the Customer in accord with Crown Computer’s standard billing practices and payment terms. Purchase orders that may be submitted to Customer are for Customer’s internal administrative purposes only and the terms and conditions contained in those purchase orders will not supersede the terms and conditions of this service agreement.
7. Term of the Agreement.
Unless terminated earlier pursuant to subjections A) or B), this agreement will last for one year. It will be automatically renewed for additional one year period, unless the Customer or Crown Computers provides written notice of its intent not to renew the agreement at least 45 days before the expiration of the scheduled term. A) Crown Computers Early Termination Right. Crown Computers shall also have the additional right to terminate this agreement at any time and for any reason by giving the Customer 30 days written notice of its decision to terminate the agreement. If Crown Computers gives such notice, the agreement will terminate on the date specified in the notice. If Customer has prepaid for service, it will be entitled to a refund of amounts actually paid for the prorated terminated portion of the contract term. B) Customer Early Termination Right. The Customer has the right to terminate this contract without further liability prior to the end of the contracted term in only two circumstances. First, the Customer may terminate this contract for any reason if, within 30 days of installation of the monitoring equipment, the Customer delivers a written notice advising Crown Computers that it is exercising its right to terminate this agreement without cause under this provision. To be effective, this early termination notice must be received by Crown Computers within the specified initial 30 day period and the notice must be delivered to Crown Computers. If the Customer cancels during this initial 30 day period, then Customer will be responsible for the registration fee, and the standard first month contracted service charges, and any extra time and materials work provided at the customer’s request during this 30 day period, but the Customer will be under no obligation to continue with the service provided under this agreement. Second, if the Customer does not provide a notice of termination within the initial 30 days, then the Customer has the right to terminate this contract without further liability prior to the end of initial term or any annual renewal term only in the event Crown Computers materially breaches this agreement and fails to cure the breach within 30 days of written notice from the Customer which i) describes the material breach and ii) demands that Crown Computers remedy the breach within 30 days. For any early termination notice from the Customer to be effective under this section, the written notice provided by the Customer must specifically advise Crown Computers that the Customer is giving an early termination notice and demanding a cure under Section 7(B) of the Peace of Mind Agreement.
8. No Raiding.
Customer acknowledges that Crown Computers invests significant time and expense in technical training and vendor authorization for its staff. Therefore, Customer agrees it will not solicit, directly or indirectly, the employment of technical employee of Crown Computers for a temporary or permanent position during the term of the contract or the first 6 months after expiration of the contract. If Customer violates this provision and hires a technical employee of Crown Computers, then it agrees it will pay to Crown Computers a service charge equal to two times the annual salary of the technician hired, such fee being due upon the Customer’s hiring of the employee.
9. Items Not Covered by this Agreement.
This agreement does not provide any remote monitoring or proactive service for any device not included on the “inventory of Devices to be Monitored” sheet. Crown Computers does not warrant or guarantee that Customer’s network will be problem free and Customer acknowledges that Crown Computers is not responsible for problems with Customer’s network. Crown Computers will use its best efforts to provide commercially reasonable services to the Customer, but the Customer is not purchasing a minimum service level and Crown Computers does not commit to provide any guaranteed minimum service levels under this agreement. This agreement does not insure against failure of the Customer’s network, hardware or software. Crown Computers does not provide disaster recovery solutions under this agreement and does not guarantee that Customer’s data integrity will be preserved or protected from failure. Customer is responsible for confirming that data backed up is accurate, testing restores to confirm data is recoverable, management of tape swaps and for otherwise insuring that its data and application backup and retrieval procedures and systems are adequate for the Customer’s business needs. This agreement does not include the cost of hardware or software that Crown Computers may recommend to Customer to maintain or upgrade the Customer’s technology system. If the Customer chooses to purchase replacement hardware or software, or additional hardware or software, Crown Computers will install the hardware or software of the Customer’s at Crown Computers’ then current standard rates. If persons other than Crown Computers move, perform work on, add to, or repair the equipment or if the Customer requests service outside the scope of the contract, Crown Computers shall at its sole option, be entitled to either void this contract or correct problems at its then chargeable rate.
Crown Computers will not be obligated to provide technical assistance or support if Customer moves the equipment described herein outside of the normal areas in which Crown Computers does business. Support does not include software application training support.
10. Warranty Limitations.
CROWN COMPUTERS IS NEITHER AN INSURANCE COMPANY, HARDWARE MANUFACTURER, GUARANTEED SERVICE LEVEL PROVIDER NOR A SOFTWARE DEVELOPER, BUT A RESELLER, INTEGRATOR AND CONTRACT TECHNOLOGY MANAGEMENT SERVICE PROVIDER. ACCORDINGLY, CROWN COMPUTERS DOES NOT GUARANTY ANY PARTICULAR SERVICE LEVEL. AND DOES NOT PROVIDE ITS OWN WARRANTIES FOR HARDWARE OR THIRD PARTY SOFTWARE UNDER THIS PEACE OF MIND AGREEMENT, BUT MERELY DELIVERS TO ITS CUSTOMERS THE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OR SUPPLIER OF THE HARDWARE OR THIRD PARTY SOFTWARE CROWN COMPUTERS RESELLS OR SUB-LICENSES, TO THE EXTENT SUCH WARRANTIES ARE TRANSFERABLE. EXCPET AS EXPRESSLY SET FORTH IN SECTION 10(a) OF THIS AGREEMENT, CROWN COMPUTERS DOES NOT OFFER, AND SPECIFICALLY DISCLAIMS, ANY WARRANTY OF ITS OWN, EXPRESS OR IMPLIED. CROWN COMPUTERS DOES NOT WARRANT THAT CUSTOMER’S NETWORK, HARDWARE OR SOFTWARE WILL BE PROTECTED FROM FAILURE AND DOES NOT WARRANT THAT THAT CUSTOMER’S DATA INTEGRITY WILL BE PRESERVED OR PROTECTED FROM FAILURE.
a. Services Warranty. Crown Computers warrants that the services it performs under this agreement will be performed in a manner consistent with Crown Computers’ customary practices and procedures. Should a failure to comply with the warranty appear within thirty (30) days after the date of completion of such services, Crown Computers shall, if promptly notified in writing, at its opinion, either provide the Services anew or refund to the Customer the price charged for such non-conforming Services. Such re-performance or refund shall be Customer’s exclusive remedy and shall constitute fulfillment of all abilities of Crown Computers with respect to any nonconformity of or defect or deficiency in Services furnished to Customer.
b. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED; ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR THAT SOFTWARE OR EQUIPMENT IS FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF INFRINGEMENT OR THE LIKE ARE HEREBY DISCLAIMED.
11. LIMITATION OF REMEDIES AND LIABILITY.
a. Exclusive Remedies. Crown Computers liability on any claim, whether in contract, negligence, tort, strict liability or otherwise, arising in whole or in part out of Services performed, or equipment provided, under this agreement or otherwise, shall in no case exceed the lesser of the fees paid to Crown Computers under this agreement or the fees paid to Crown Computers for the portion of services or equipment which give rise to the claim. All causes of action against Crown Computers arising out or relating to this Agreement or the performance or breach of this agreement shall expire unless brought within one (1) year after the first date of performance or breach which in whole or in part gives rise to the claim. These remedies are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement, or for any breach of this Agreement, whether brought under a theory of tort liability, contract liability, or any other theory.
b. Limitation of Liability Crown Computers liability with respect to the quality and conformity of equipment or services supplied to Customer shall be limited to the provision of the warranties set forth or described in Section 10 above. IN NO EVENT SHALL CROWN COMPUTERS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OROTHER TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW. Without limiting the generality of the foregoing, Crown Computers shall have no responsibility to compensate Customer for delays in or loss of use of equipment, loss, impairment or miscalculation of data, loss of revenue or increased costs, loss of facilities, loss or delays in services, or claims of Customer’s clients, or other third parties to whom it provides goods or services, loss of profits or revenue, cost of substitute goods, facilities or services, downtime costs, delays or otherwise.
a. Indemnification of Crown Computers. By accepting this Agreement, Customer hereby releases and agrees to indemnity, defend, and hold Crown Computers harmless from and against any and all claims, obligations, losses, liabilities, and expenses of any and every kind whatsoever (including without limitation attorneys’ fees and other costs of defending any action) which Crown Computers may incur as a result of any claim by Customer or third persons either:
i. For which Crown Computers has no liability for under section 11; or
ii. That are caused by accidents, misuses, misapplication, neglect of the Customer or any of its agents or employees or as a result of service provided by any third person other than a Crown Computers representative; placement or operation of the equipment in an area that does not apply with the manufacturer’s published space or environmental requirements; or improper storage use and movement of equipment.
13. Choice of law and Dispute Resolution.
This agreement shall be governed by the laws of the state of Califronia, and any dispute hereunder shall be resolved by the substantive law of Califronia. Any disputes arising under this agreement or any other services provided by Crown Computers that are decided in a court of law shall be decided in the state courts in San Diego County, California. Prior to either party commencing any formal legal processing, officers of each party shall meet in person in an attempt to resolve in god faith the dispute. If the parties are unable to resolve the dispute through such a meeting, then either party may request mediation. Crown Computers may, at its option, also demand and require arbitration of any dispute arising under or in any way related to this agreement or any services provided by Crown Computers. Such arbitration, if elected by Crown Computers, shall be conducted under the rules of the American Arbitration Association, and a final judgment thereon may be entered by any court having jurisdiction. The arbitration shall be conducted by an arbitrator(s) who has industry experience in the provision of technology management services.
Crown Computers acknowledges that the Customer’s computers may contain confidential and proprietary business information to which Crown Computers may incidentally have access in providing services under this agreement. Crown Computers agrees that it will not knowingly disclose any such confidential and proprietary information to third parties for any purpose unrelated to providing services under this agreement.
Crown Computers may assign this contract at any time without prior notice to or the consent of the Customer. Customer may not assign this agreement without the prior written approval of Crown Computers.
16. Integration Clause.
This is the final agreement of the parties with respect to services provided by Crown Computers under this agreement, and any prior representations, negotiations or agreements with respect to this agreement are merged into this agreement. No employee, agent or representative of Crown Computers is authorize to make any representations or promises regarding the scope of this agreement that are not contained in this agreement, and any prior verbal or written representations or promises are superseded by these written terms and conditions, which are numbered 1 through 16.