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HomeMy WebLinkAboutM2_TermsConditionsTERMS AND CONDITIONS v3 -M2 AUTOMATION &CONTROL SERVICES,INC.("M2") (1)AGREEMENT AND LIMITATIONS.Buyer accepts M2's Proposal,Scope,Costs,and these Terms and Conditions for products or services (the "Agreement")by signing and returning the Proposal Signature Page,by acknowledging acceptance via email or other means,by sending a purchase order in response to the Proposal,or by Buyer's instructions to M2 to order products or perform services.The Agreement shall constitute the entire Agreement relating to the products,equipment,and services covered by the Proposal.No terms,conditions,or warranties other than those identified in the Proposal and no agreement or understanding purporting to modify such terms and conditions whether contained in Buyer's purchase order or elsewhere,shall be binding on M2 unless signed by M2's authorized representative.Buyer is hereby notified of M2's express rejection of any terms inconsistent with these Terms and Conditions or any other terms proposed by Buyer in accepting M2's Proposal.Neither M2's subsequent lack of objection to any such terms,nor the delivery of the products or services,shall constitute an agreement by M2 to any such terms. (1a)DEFINITIONS. ●“Respond”-Acknowledgement of a service request or repair by an M2 support or service technician. ●“Critical Issue”-The outage of a critical device that results in a life safety issue. ●“Resolution”-An action plan to resolve the issue. ●“Non-Critical Issue”-The outage of a device or request for service that is not a life safety issue. ●“Completion Date”-The date on which all components of this Proposal are functional and utilized by the Buyer. ●“Life Safety Issue”-Any issue that would put any Buyer’s stakeholder(s)in danger due to an outage. (2)TERMINATION OR MODIFICATION.This Agreement may be modified or rescinded only in writing signed by an authorized representative of both M2 and Buyer.Accepted orders may be canceled or modified by Buyer only with M2's express written consent.If cancellation or modification is allowed,Buyer agrees to pay M2 all expenses incurred and damage sustained by M2 on account of such cancellation or modification,plus the budgeted profit. (3)LIMITED WARRANTY &SUPPORT.Unless Buyer is under other warranty support and service agreement(s)with M2 or selects a Professional Service Agreement detailed in section eighteen (18),M2 automatically assigns the Basic Warranty & Support package for the Buyer to this Proposal.This warranty is specific to this Proposal only and does not include any past or upcoming proposals the Buyer may be considering.THESE WARRANTIES ARE EXCLUSIVE AND ARE PROVIDED IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING,WITHOUT LIMITATION,ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WHICH ARE HEREBY DISCLAIMED. (3a)BASIC WARRANTY &SUPPORT.M2 Warrants the following:Manufacturers'Equipment Warranty -M2 assigns for Buyer's benefit all manufacturer's warranties applicable to products sold or installed.Any representation of the manufacturer's warranty is provided for convenience only and does not constitute a warranty or representation by M2. Buyer is charged with complying with the terms of the manufacturer's warranty.Buyer will be subject to the availability or any delays in receiving equipment from the manufacturer or distributor channels to resolve issues.Installation Warranty - M2 warrants the products installed will remain in place and securely fastened for one (1)year after Completion Date, barring theft,vandalism,and/or substantial destruction of the building.M2's sole obligation for defective services shall be to correct defective services.Service Warranty -M2 Automation will provide labor of up to a maximum of ten (10) man-hours or $1,000 of services to repair the initial installation for one year from the Completion Date.M2 will be available for service or warranty requests during M2’s established business hours for one (1)year after Completion Date. M2 will have a support agent or technician Respond to the request within two (2)business days.M2 will have up to five (5)business days to determine a Resolution for a Critical Issue either remotely or onsite.M2 will have ten (10)business days to perform Resolution of Non-Critical Issue either remotely or onsite.If Buyer declares a request to be an emergency and requires support inside or outside of business hours,M2 will respond and bill at our emergency rates regardless of warranty status.Buyer acknowledges that subsequent trips may be required to resolve issues.Software & Security Updates –M2 will for the first year after Completion Date update software or firmware on any equipment installed under this warranty.Training &Administrative Support –M2 will provide training and administrative support for a maximum of two (2)hours for 1 year after Completion Date.Any further training or support will be billed at M2’s standard service rates. (4)SECURITY SYSTEM MONITORING.Buyer warrants that it will enter into a separate monitoring agreement for any security system monitoring services proposed by M2. (5)REMEDIES AND LIMITATIONS OF LIABILITY.Buyer agrees that the limit of M2's liability for any breach of this Agreement or for any negligent acts,errors,or omissions relating to or arising out of this Agreement shall not exceed the total fee Buyer paid M2 pursuant to this Agreement.M2 EXPRESSLY DISCLAIMS ALL LIABILITY FOR PROPERTY DAMAGE,ECONOMIC DAMAGE,OR CONSEQUENTIAL DAMAGE,INCLUDING LOSS OF PROFIT. (6)SOFTWARE LICENSE.To the extent software is provided by M2 under the Agreement,Buyer agrees that such software may only be used in accordance with the terms and conditions of the software license agreement that accompanies the software. (7)LATE CHARGE AND ATTORNEY’S FEES.A late charge will be due and payable on any amounts past due more than thirty (30)days.The late charge will be computed at the rate of eighteen percent (18%)per annum on the past due unpaid amount COMPOUNDED MONTHLY.If payment is not made when due,Buyer agrees to pay all costs of collection including,but not limited to,collection agency fees,reasonable attorney fees,and court costs.The party who does not prevail in a court action or bankruptcy proceedings brought to enforce or defend this Agreement or to protect the security interest of M2 shall pay to the prevailing party therein all reasonable attorney fees incurred by such prevailing party for collection and in all trial and appellate courts. (8)LEASING OR FINANCE AGREEMENTS.M2 has third-party vendors capable of financing or leasing Proposal costs to Buyer. Additional terms are available upon request.Pricing will change based on market rates.Rates may vary depending on credit score. (9)SOLUTIONS PARTNERS.Buyer understands that M2 may hire outside solution providers or sub-contractors to assist M2 in the completion of the Proposal requirements.M2 warrants that any outside solution provider or contractor will maintain Buyer and M2 standards or M2 will remove contractor/provider from the Buyer's premises. (10)FORCE MAJEURE.Both the Buyer and M2 shall be excused from the performance of their obligations under this Agreement for the duration of any prevention,delay,or stoppage due to strikes,lockouts,labor disputes,acts of God,inclement weather, inability to obtain labor or materials or reasonable substitutes therefor,governmental restrictions,regulations,or controls,hostile government action,civil commotion,fire or other casualty,utility,or telecommunication disruption,epidemic,pandemic,or other causes beyond the reasonable control of either party,including,without limitation to scheduled and unscheduled machinery and equipment downtime for repairs,replacements,and rebooting. (11)INSURANCE.M2 shall obtain and maintain the following insurance coverage throughout the Term:(i)workers’compensation insurance in accordance with applicable laws;and (ii)general commercial liability insurance having a coverage limit of not less than One Million Dollars ($1,000,000)per occurrence.M2 will provide Buyer evidence of such insurance coverage upon written request. (12)SECURITY AND DATA.Buyer acknowledges and agrees that:(i)security technology,including,without limitation,equipment and software,can fail or fail to function as planned without notice and without the act or omission of any person,and during the pendency of such failures,data,and functionality may be suspended or lost in its entirety;(ii)equipment does not indefinitely store data and audit logs,and in the event of an incident requiring information retention,Buyer is solely responsible for saving or downloading such data or logs on third party devices for safe keeping;and (iii)M2 is providing equipment and services to assist Buyer with the security of the premises,but Buyer shall be and remain solely responsible for the security of the premises, protection of data,and care of equipment,notwithstanding any failures of security technology. (13)INDEMNIFICATION.Each Party shall indemnify,defend,and hold harmless the other Party,its permitted successors and assigns,and each of its officers,directors,employees,and agents,from and against any and all claims,actions,liabilities, demands,and/or suits brought or threatened by any third person or entity,and against all losses,damages,fines,penalties, awards,costs,and expenses,including,without limitation,attorneys’fees associated therewith (each,a “Claim,”and in the plural,“Claims”),resulting from,or arising out of,directly or indirectly:(i)any default,failure,or breach of any covenants, representations,and/or warranties of this Agreement (any of the foregoing,a “Breach”)by the indemnifying Party (except to the extent a Breach by the indemnifying Party will have directly resulted from a Breach by the indemnified Party);and/or (ii)any negligence or other tortuous act or omission (any of the foregoing,“Negligence”)on the part of the indemnifying Party,its employees and/or agents with respect to the indemnifying Party’s performance of its obligations under this Agreement. (14)PROPOSAL SITE VISIT.M2 has made the appropriate site visit(s)and the proposed system will be designed and implemented by M2 as a turn-key solution unless specifically identified as being the Buyer’s responsibility.M2 and Buyer’s personnel will determine the various installation locations and space requirements for GUI,hardware,and other equipment following the Proposal start date. (15)M2 PERSONNEL SCREENING.M2 staff shall always act in a professional manner when on Buyer’s site,keep working areas organized,clean,and clear of clutter,and shall only converse with authorized Buyer representatives.Where Buyer requires services within a detention center or other secure area,assigned M2 staff shall first pass such a background check and satisfy such other reasonable requirements as Buyer may request prior to performing such services.Further,all tools or other objects brought by M2 personnel into such secure areas will be the responsibility of M2 personnel for tracking and removing tools or objects.Buyer may prevent M2 personnel from entering,and require M2 personnel to leave,any of the premises when Buyer deems such personnel unacceptable,with or without notice,and M2 will be responsible for supplying a suitable replacement. (16)PROPRIETARY RIGHTS.No provision of this Agreement conveys any ownership interest to Buyer in or to any of the intellectual property rights,including,planning,design process,software resources used in the creation or management of the proposal implementation,copyright,patent,trademark,and trade secret,are retained by M2 or its affiliates,all rights reserved (collectively,“IP”).Buyer shall and shall ensure all of its employees,representatives,independent contractors,and agents do not: (i)copy or duplicate,in whole or in substantial part,any IP;(ii)externally (i.e.,to persons that are not Buyer representatives) distribute,transmit,publish,transfer or commercially exploit any IP,in whole or in part;(iii)incorporate any part of the IP in printed or electronic course;(iv)reverse engineer,decompile or modify the IP,in whole or in part;(v)use the IP or the information contained therein or results derived therefrom to develop any products or services that could be competitive with the services or any other products or services provided by M2 or its affiliates;or (vi)alter,remove,or otherwise hinder the delivery of any copyright,disclaimer,or other proprietary notice appearing in any IP. (17)INFRASTRUCTURE,UTILITIES,ADMINISTRATIVE RIGHTS &BUYER EXISTING EQUIPMENT.Unless specifically noted in this Agreement,Buyer is to provide and maintain all 120vac electrical power source(s)and internet connection(s)applicable to products sold or installed.Buyer acknowledges and agrees that M2 will have no obligation or responsibility for Buyer's existing equipment ("Buyer's Equipment")other than any additions or modifications mentioned in this Proposal.M2 shall have no obligation to retain or store any Existing Equipment that is otherwise removed or replaced concerning the performance of this Agreement.If Buyer desires to keep any removed Buyer's Equipment in connection with the performance of this Agreement, Buyer will provide written notice to M2 no less than fourteen (14)days prior to the commencement of work beginning on the premises.M2 shall have the right,but not the obligation,to dispose of such Buyer's Equipment in any manner M2 sees fit,subject to applicable laws.In all events,however,M2 will repair any damage caused to the premises resulting from the removal of Buyer's Equipment to permit the installation of products sold or installed. (17a)Administrative Logins.M2 does not issue root administrative rights to the Buyer without a separate Infrastructure Release of Liability document of file with M2.M2 will offer limited user rights on security infrastructure at Buyer's request. (18)PROFESSIONAL SERVICE AGREEMENT (PSA).This section and its subsections are only valid when Buyer elects to purchase the associated project as a PSA.Buyer hereby agrees to obtain from or through M2,and M2 agrees to provide to Buyer,those certain services at the location(s)for which this project is to be installed (collectively,“Services”)and the equipment described therein this Project is subject to the terms and conditions of this section. (18a)Effective Date.The “Effective Date”of the PSA is the date Buyer delivers a copy of this Proposal Signature Page with PSA option selected. (18b)Term and Termination.The term of this PSA shall commence on the Effective Date and shall continue for a period of twelve (12)months (the “Initial Term”).Upon the expiration of the Initial Term,this PSA shall automatically renew for successive twelve-month periods (each “Renewal Term,”and together with the Initial Term,the “Term”),unless M2 or Buyer gives written notice of non-renewal to the other party prior to the date that is thirty (30)days before commencement of the applicable Renewal Term.Effect of Termination;upon the termination of this PSA for any reason (or no reason),M2 shall bill Buyer $1.00 for the sale and transfer of all equipment attached to this PSA.Buyer shall be obligated to pay all open balances due to M2.PSA costs are non-refundable if canceled inside of any term. (18c)Fees;Payment.In exchange for Services and the use of the M2 Equipment,Buyer shall pay M2 the Base Price according to the terms of the Proposal Signature Page (Signature Page)and the Annual Fee more fully identified on the Signature Page.Annual Fee which will be billed in advance,on an annual basis.The Annual Fee will remain fixed during the first (12)months of the Term.After such twelve (12)month period,M2 may increase the annual fee once per Renewal Term (as defined in Section 18b),by an amount not to exceed the average 12-month percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U)during the prior 12-month period.All invoices for the Annual Fee shall be due on the date identified in the respective invoice.All invoices will be sent at the beginning of each Renewal Term. (18d)M2 Equipment.Buyer acknowledges and agrees that all equipment supplied by or through M2 or otherwise in connection with this Proposal,as the same may be upgraded,repaired,and replaced from time to time pursuant to this Agreement (collectively,“M2 Equipment”),and Buyer’s right to use and obligations in connection therewith,shall be subject to all of the terms and conditions Buyer hereby acknowledges and agrees that M2 is the sole owner of M2 Equipment. (18e)Unauthorized Repairs.Buyer shall not permit,and M2 shall have no obligation for,any M2 Equipment serviced, altered,repaired,or replaced,by Buyer or any third parties.Where M2 discovers that any M2 Equipment has been serviced,altered,repaired,or replaced,by Buyer or any third parties,M2 shall have the right,but not the obligation,to repair,restore,or replace such M2 Equipment at Buyer’s additional expense. (18f)Administrative Logins.M2 does not issue root administrative rights to the Buyer for any M2 Equipment.M2 will offer limited user rights on M2 Equipment at Buyer's request.Upon termination of the PSA,M2 will turn over root administrative rights to Buyer after completion of turnover documents and separate Infrastructure Release of Liability document. (18g)Buyer’s Existing Equipment.From time to time Buyer may request M2 service Buyer's existing equipment that is not associated with this PSA or any other service agreement with M2.(collectively,“Buyer’s Equipment”)If M2 agrees to service such equipment on case-by-case bases it will be billed at M2’s standard service rates and terms of repair.This includes any costs and expenses incurred in rendering Services for Buyer’s Equipment,including,without limitation,the cost of any additional equipment,supplies,replacement parts,or components,required in connection therewith. (18h)Access.For the duration of the Term,Buyer shall,at no cost to M2,provide:(i)adequate and accessible space; and (ii)provide M2 and its representatives reasonable access to the Project premises for installation of M2 Equipment and provision of other on-site Services,including,without limitation,system maintenance,emergency responses, technology upgrades,and the like. (18i)Service,Support &Warranty.During the Initial Term and subsequent Renewal Terms,M2 will support and maintain all labor costs associated with M2 Equipment within this proposal,and all equipment replacement costs for a period of 5 years unless Buyer has elected to engage in a Premium PSA which M2 will maintain equipment costs for the lifetime of this agreement.M2 will update software or firmware on all M2 Equipment.M2 will provide training and administrative support.In the event service is required,M2’s response times and equipment availability are based on the PSA option selected on the Signature Page and will follow the guideline below:(Please refer to section 1a for definitions) Standard PSA -M2 will be available for service or warranty requests during M2’s established business hours. M2 will have a support agent or technician Respond to the request within one (1)business day.M2 will have up to two (2)business days to determine a Resolution for Critical Issues either remotely or onsite.M2 will have five (5)business days to perform Resolution of Non-Critical Issue either remotely or onsite.Buyer will be subject to the availability or any delays in receiving replacement equipment from the manufacturer or distributor channels to resolve issues.Buyer acknowledges that subsequent trips may be required to resolve issues. Advanced PSA -M2 will be available for service or warranty requests 24 hours a day,365 days a year.M2 will have a support agent or technician Respond to the request within two (2)hours.M2 will have up to twenty-four (24)hours to determine a Resolution for Critical Issues either remotely or onsite.M2 will have (3)business days to perform Resolution of Non-Critical Issue either remotely or onsite.Buyer will be subject to the availability or any delays in receiving replacement equipment from the manufacturer or distributor channels to resolve issues. Buyer acknowledges that subsequent trips may be required to resolve issues. Premium PSA -M2 will be available for service or warranty requests 24 hours a day,365 days a year.M2 will have a support agent or technician Respond to the request within two (2)hours.M2 will have up to eight (8) hours to determine a Resolution for Critical Issues either remotely or onsite.M2 will have (2)business days to perform Resolution of Non-Critical Issue either remotely or onsite.M2 will stock critical pieces of equipment for Buyer’s Project and have any failed piece of equipment replaced within 24 hours of Buyer receiving a Response from M2.Buyer acknowledges that M2 may replace defective equipment with like or better equipment and in some instances use temporary solutions to settle issues that may need further service returns to fully resolve. Buyer acknowledges that subsequent trips may be required to resolve issues.Buyer agrees that equipment will be refreshed upon failure or every ten years of active use.