Ongoing Support Terms and Conditions

1.0 CPI Support Services – PROVIDED VIA REMOTE ACCESS ONLY

When assistance requests are submitted to the CPI Support Team via the CPI Support Web Portal (www.commprod.com), the requests or incidents are assigned a severity level according to the impact on Client’s business as a whole. The following definitions can be used to assess the situation and provide the appropriate severity level when logging the request/incident with CPI Support. A CPI Support Team member will confirm that the correct severity level has been assigned based on the information provided and proceed accordingly.

Level 1 – Site Down:
The Client's production use of the programs is completely stopped or so severely impacted that the organization cannot reasonably continue work.

  • Response Time is 2 hours or less



Note:
   In addition to reporting a Level 1 – Site Down via CPI’s Support Web Portal, Client must also call CPI’s Customer Service at 800.999.0197.  It is important when submitting a Site Down that Client production site is completely down and that this is not a means of escalating an incident to be addressed more quickly.



Level 2 – Major Functionality Impairment:
Important program features are unavailable with no acceptable workaround. The Client's implementation or production use of the programs is continuing; however, there is a serious impact on the Client's productivity and/or service levels.

  • Response Time is 8 hours or less



Level 3-Some Business Impact:
Important program features are unavailable, but a workaround is available, or less significant program features are unavailable with no reasonable workaround. The Client's work, regardless of the environment or product usage, has a minor loss of operational functionality or implementation resources.

  • Response time is 24 hours or less



Level 4 - Low Business Impact:
The Client requests information, an add or change to system configuration items, or documentation clarification regarding the programs functionality, but there is no impact on the operation of the program itself. The Client's implementation or production use of the programs is continuing and there is no work being impeded at the time.

  • Response time is 24- 48 hours.



2.0 Routine Systems Administration Services

CPI will perform Routine System Administration Services such as those listed below upon Client request and the time expended shall be deducted from Client’s contract amount/“block” of hours.  If Client does not request CPI perform these services, the Client shall be expected to perform them to ensure system integrity. 

  • Updating existing Reports or creating new reports
  • Moves, Adds and Changes of Staff Accounts including the addition of new user profiles
  • Modifying Workflows and Workspaces
  • Modifications to System Configuration Setting
  • Troubleshoot and modify Business Rules as needed
  • Create and/or update Custom Fields and Custom Objects



3.0 Support Services / Strategic Planning Meetings

Should Client request, a CPI Consultant and lead engineer will facilitate scheduled status meetings.  These meetings will serve to update Client on recently scheduled support services tasks and/or predetermined time-lines for upcoming development efforts.  Discussions on best practices for utilization of the communications platform and consensus of Client’s long range goals will also be covered.



4.0 Confidentiality

Both Parties acknowledge that the knowledge and information of the other Party as related to that Party’s business and proprietary interests is highly confidential.  Thus, each Party and its employees and agents agree not to disclose, during or after the term of this engagement/agreement, any information relative or pertinent to the other Party’s financial condition, operating conditions, business operations and plans, or other information identified as proprietary.  This obligation of confidentiality does not apply to information that:  (a) is or becomes publicly available; (b) is already in the recipient’s possession prior to receipt; (c) is independently created by the recipient without resort to the information provided by the opposite Party; or (d) is received from a third party without an obligation of confidence.  Client agrees any testimonial made on behalf of CPI may be used, in whole or in part, in connection with publicizing and promoting CPI. Client authorizes CPI, without further consideration, to use Client’s name, brief biographical information, and non-proprietary project information for descriptive purposes.  Client hereby irrevocably authorizes CPI to copy, exhibit, publish or distribute the descriptive information for purposes of publicizing CPI’s services or for any other lawful purpose. Client agrees that it will make no monetary or other claim against CPI for the use of the descriptive information.  Client statements may be used in printed publications, multimedia presentations, on CPI’s website, or in any other distribution media.  All files and records related to Client’s business shall be the property of Client, and CPI shall not remove these files or records from Client’s facilities without the express consent of Client.



5.0 Material and Workmanship

CPI warrants and represents the services will be performed in a skillful and workmanlike manner according to those standards generally prevailing among consultants performing similar services under similar circumstances.  To the extent that CPI is not the manufacturer of any hardware or software products that Client may purchase as a result of or relating to CPI’s services, CPI does not provide any warranty on such products, whether with respect to their design, performance, functionality or compatibility, with Client’s existing system.  Any warranty with respect to product must come from the manufacturer or the product procurement distributor, and CPI will pass through to Client any applicable warranties of the manufacturer, to the extent permissible. In the event, Client does not elect to adopt any subsequent release or version of a hardware or software product, and to the extent that either software support or underlying and related hardware for the Client’s systems is unavailable as a direct result of such decision, CPI shall use its best efforts to fulfill its obligations under this engagement/agreement.  EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, CPI DISCLAMS ALL WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.    



6.0  Client Responsibilities

Client shall:  (a) designate one point of contact for all purchase/installation matters; (b) follow all of CPI's and manufacturer's instructions with respect to the use or operation of the products; (c) recognize that CPI and its authorized agents or vendors shall have the exclusive rights to test, change, modify, move, connect, relocate, replace, repair or otherwise maintain the products in order to preserve system integrity; (d) provide the appropriate electrical and/or other necessary connections as specified by CPI and as required by applicable laws, codes, ordinances and regulations; (e) provide the proper product environment (with reference, in part, to the manufacturer's specifications, requirements or suggestions); (f) provide reasonable access to the products and reasonable work space on the premises to enable CPI to perform its functions;  (g) take such other measures as are reasonable and appropriate to allow CPI to perform its functions under this engagement/agreement; and (h) otherwise comply with all engagement/agreement terms and conditions, applicable laws, codes, ordinances and regulations. 


7.0  Services Not Covered

It is explicitly understood and agreed by the Parties, that this engagement/agreement does not require CPI to perform any repair or maintenance services or to replace or provide any products as a result of (a) Client’s failure to carry out its responsibilities as provided in Section 6.0 above, or (b) the force majeure failures, causes, events or conditions described in Section 9.0 below. CPI may agree to perform services in the foregoing instances on a time and materials basis.



8.0 Indemnification

CPI will indemnify, defend, and hold Client harmless from and against any claims, liabilities, losses, expenses, or damages (collectively “Damages”) caused by the services performed or the work delivered by CPI under these terms infringing any copyright, trade secret or any other proprietary right of any third party.  Excluded from such indemnification are any claims related to (i) services performed on equipment or software which Client covenanted CPI had the rights to modify, (ii) services performed to Client specifications  or design and, (iii) infringement resulting from or caused by Client’s misuse or unauthorized modification of systems or product.  CPI will also indemnify, defend, and hold Client harmless from and against any Damages resulting from CPI’s willful misconduct or negligent acts or omissions in performing the services which are the subject of these terms, except to the extent such Damages are caused by the willful misconduct or negligence of Client.  CPI’s obligation to indemnify and defend Client with respect to any claim shall be subject to (i) Client providing CPI with prompt notice of such claim, (ii) CPI having sole control over the defense and settlement thereof, (iii) Client providing CPI with the information and assistance necessary to defend or settle such claim as reasonably requested by CPI, and (iv) the limitations set forth hereafter.  CPI WILL NOT BE LIABLE FOR INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA OR ITS USE OR LOST PROFITS OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  THIS LIMITATION OF CPI’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR OTHERWISE, INCLUDING NEGLIGENCE.  Client acknowledges this limitation of liability is part of the consideration and was considered by CPI in establishing the prices and rates to be charged to Client, which, but for this limitation, would have been higher.  Client’s right to recover Damages is limited to the amounts paid to CPI hereunder.  Any claim relating to or arising out of any breach or alleged breach of this engagement/agreement shall expire and shall be deemed to have been waived and released unless the aggrieved party shall have filed suit with respect to such claim in a court of competent jurisdiction within one (1) year following the date of the act or omission constituting such breach, irrespective of the date of discovery of such breach by the aggrieved party.  THE PARITES EXPRESSLY INTEND AND AGREE THAT THE FORGOING LIMITATIONS PERIOD SHALL SUPERSEDE ANY STATUTE OF LIMITATIONS OR OTHER LIMITATION PERIOD THAT WOULD OTHERWISE APPLY TO SUCH CLAIM UNDER ANY STATUE, REGULATION OR RULE OF LAW.



9.0  Force Majeure
 

CPI shall not be liable in any way for any delay in performance, or for any loss or damage due to any of the following:  fires; strikes; labor disputes; embargoes; explosions; power failures or surges; wars; acts of civil or military authorities; acts stemming from governmental requirements, regulations or priorities; acts of nature; acts of public enemies; inability to secure materials, products, or transportation; acts or omissions of a carrier; or failures, events or conditions beyond CPI's reasonable control, regardless of whether similar to any of the foregoing.  Neither CPI nor CPI's affiliates shall be liable for any delays, losses, damages or product failures attributable to any service, product, or action of any person other than CPI's affiliates, their employees, or agents.



10.0  Entire and Complete Terms
 

This engagement/agreement contains the understanding of the parties hereto with respect to the subject matter contained herein and may be amended only by a written instrument executed by each of the parties or their respective personal representatives, successors, and/or assigns.  This engagement/agreement supersedes any and all prior agreements with respect to the subject matter hereof, and there are no restrictions, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this engagement/agreement.  Should the parties supplement this engagement/agreement (Project Scope documents), the Terms and Conditions herein shall take precedence should there be any conflict.



11.0  Severability

If any application or term of this engagement/agreement is held to be unenforceable or invalid for any reason, the validity of all the remaining applications and terms shall not be affected, and, if generally consistent with the basic purpose of this engagement/agreement, the rights or obligations of each of the parties shall be construed and enforced as if the contract did not contain such invalidity.  Each party has had the benefit and advice of independent legal counsel in connection with the subject matter of this engagement/agreement in connection with the execution, delivery, and performance of this engagement/agreement.  Therefore, neither party to this engagement/agreement will be considered the exclusive drafter of the engagement/agreement.



12.0 Arbitration and Applicable Law

This engagement/agreement shall be deemed to have been entered into in the State of Indiana, and all questions concerning the validity, interpretation or performance of any its terms or provisions, or of any rights or obligations of the parties hereof, shall be governed by and resolved in accordance with the internal laws of the State of Indiana.  Unless the parties to this engagement/agreement mutually agree in writing, all claims and disputes arising in connection with the making of and entering into or performance of the engagement/agreement will be finally settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this engagement/agreement as a single arbitrator appointed in accordance with such rules.  The cost of the arbitrator and the cost of both parties of proceeding in arbitration, including, without limitation, reasonable attorney fees and expenses, will be borne as to each claim submitted to arbitration by the substantially non-prevailing party on that claim.  The award of the arbitrator will be in writing and will contain findings of fact and conclusions concerning applicable law.  Judgment upon the award rendered by the arbitrator may be entered in any court having proper jurisdiction.  Should any litigation be commenced between the parties to this engagement/agreement, or the rights and duties of either party in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief that may be granted, to a reasonable sum for its attorney fees, court costs, and other reasonable litigation fees in such litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose.



13.0 Hardware and Software

CPI may provide Client with pricing for hardware or software deemed necessary to maintain the integrity of the communications system.  Should Client elect to procure such hardware and/or software and subsequently cancel such order, a twenty percent (20%) restock charge plus all shipping and labor charges may, at the discretion of CPI, be imposed.  Title to all equipment shall remain with CPI until Client fulfills agreed upon payment terms.  While title is in the possession of CPI, Client agrees to protect and maintain all equipment and insure it against theft, loss, and/or damage.  If for any reason Client is in default, CPI shall have full rights to completely remove any or all equipment until balance owed is brought current.  NOTE: There may be a reinstallation fee charged at CPI’s standard hourly rate.  CPI has the option to liquidate any and all equipment in order to recuperate moneys due, and Client shall be responsible for the amount not collected due to the sale of said equipment. Overdue invoices for all CPI services shall bear interest at the maximum permitted under the applicable law and Client agrees to pay all attorney fees and court costs incurred by CPI in enforcing any balance due for collection.



14.0 Non-Solicitation

For the term of this engagement/agreement and for a period of one year thereafter, Client hereby agrees not to hire, solicit, or accept solicitation of, through employment or otherwise, directly or indirectly, any of CPI’s employees.  If such action occurs and results in a CPI employee accepting employment with the Client, Client hereby agrees to pay to CPI, as liquidated damages, that individual’s CPI annual compensation to offset such recruiting and training costs.