TMG Online Terms and Conditions 07.01.17
Terms and Conditions
Networking, Computer and Telecommunications Equipment, Software, and Services Supplied By
THE MAYNARD GROUP, INC.
The Maynard Group, Inc. (called "The Maynard Group"), is a California corporation. Its principal place of business is located at 3949 Research Park Ct., Soquel, California 95073.
1.0 BACKGROUND CONTEXT.
1.1 The Maynard Group sells, installs, services, and maintains various networking, computer and telecommunications equipment, materials, software, and services.
1.2 The third party equipment, materials, software, and services supplied by The Maynard Group may be subject to tariffs, terms, conditions, licenses, warranties, and limitations of remedies or liability contained in the third party's applicable tariffs, licenses, or terms and conditions of sale or use.
1.3 Customer's use of any third party equipment, materials, software, or services will be subject to any applicable third party tariffs, licenses, or terms and conditions of sale.
1.4 The Maynard Group’s services and any materials, equipment, or software provided by The Maynard Group that are not covered by third party tariffs, licenses, or terms and conditions of sale shall be provided to the Customer subject to the terms, conditions, and limitations of liability or remedies set forth in these Terms and Conditions Applicable To Telecommunications Equipment, Software, And Services Supplied By The Maynard Group, Inc. (called the "Terms and Conditions").
2.0 THE MAYNARD GROUP WILL SUPPLY THE EQUIPMENT, MATERIALS, SOFTWARE, AND SERVICES DESCRIBED ON THE COVER SHEET.
In consideration of Customer (or a third party leasing or other financing source acceptable to The Maynard Group called a "Third Party Funding Source") paying the price and fees described on the cover sheet attached to these Terms and Conditions, The Maynard Group agrees to provide the equipment, material, software, and services described on the cover sheet subject to these Terms and Conditions and any applicable third party suppliers’ tariffs, licenses, or terms and conditions of sale or use.
3.0 EQUIPMENT AND MATERIAL INSTALLATION.
3.1 Equipment will be installed in a secure, sheltered location, with power, provided by the Customer.
3.2 If the Customer does not own or control all portions of the Customer’s premises that The Maynard Group needs to access to complete the installation, the Customer is responsible for obtaining any required consents from its landlord or building owner and arranging for access to any secured areas before the scheduled installation of the equipment and material at the Customer’s sole expense.
3.3 If any government approvals, permits, or inspections are required for The Maynard Group to install the equipment and materials, the Customer will secure the required approvals, permits, or inspections before the scheduled installation of the equipment and material at the Customer’s sole expense.
3.4 The Maynard Group will install the equipment, material, and software described on the cover sheet at Customer's premises identified on the cover sheet. The Maynard Group will use reasonable commercial efforts to install the equipment and materials with minimum damage the Customer's premises, however, some drilling and other minor alterations to the premises may be required to complete the installation.
4.0 COORDINATION WITH INTERNET COMPANY, TELEPHONE COMPANY AND CUT OVER.
4.1 The Maynard Group will coordinate the installation of the equipment, materials, and software with Customer’s designated Internet and/or telephone company. The Maynard Group will also order and schedule the installation of lines, circuits, calling plans, Internet accesses and other services directly with the Customer’s designated Internet and/or telephone company.
4.2 The “Cut Over Date”, as the term is used herein, shall be the date upon which the equipment, materials, and software are installed and are capable of providing the basic service for which the equipment is designed. The Cut Over Date shall not be postponed as a result of minor omissions or variances in the performance of the equipment which do not materially affect the operation of the system as a whole.
4.3 The Maynard Group shall under no circumstances be responsible for any charges incurred by the Customer from any third party Internet company, telephone company, utility company, or other service provider, regardless of the fact that The Maynard Group is involved in the ordering and provisioning telephone services on behalf of Customer. The Maynard Group shall not be liable for disconnects, change orders, billing errors and omissions from any third party provider. All third party charges are the sole responsibility of Customer.
4.4 All delivery and installation dates and the intended Cut Over Date indicated by The Maynard Group are estimates and are only approximations. The Maynard Group shall under no circumstances be liable for any direct, special, incidental, or consequential damages, resulting from delays in the delivery or installation of the equipment, materials, or software or for any delays in the actual Cut Over Date.
5.0 TOLL FRAUD AND HACKING.
In selecting the Networking, Computer and Telecommunications Equipment on the cover sheet, Customer expressly assumes the responsibility to employ the security features built into the system, such administrative passwords, user passwords, and the risk of unauthorized hacking and toll fraud if he or she fails to use the security features.
6.0 CLOUD AND VOIP SERVICES.
6.1 The Service. The services consist primarily of Voice over Internet Protocol services, which may be offered by The Maynard Group in a variety of forms and packages (each being a "Service" and collectively being the "Services"). The Service(s) shall consist of a combination of software solutions, products, networks, services and hosting facilities (the "Network"), components of which The Maynard Group has been granted access and/or licenses to by third party licensors, suppliers, vendors, and subcontractors ("Third Party Vendors"). In no event shall The Maynard Group's use of, or contractual arrangement with any Third Party Vendors create any agency, employment, joint venture, partnership, representation or fiduciary relationship, and neither The Maynard Group nor its Third Party Vendors shall have the authority to create any obligation on behalf of the other.
Customer may select and order specific Service(s) by completing and signing an order form furnished by The Maynard Group (hereinafter the "Order Form"). Except as otherwise indicated, the Service(s) may be purchased by Customer exclusive of the others. Fees and charges associated the Service(s) shall be set forth within each Service's respective Order Form and/or other fee schedules or policies furnished by The Maynard Group. The Maynard Group and any Third Party Vendor may modify, expand, improve, maintain and/or repair the Service(s) or Network at any time and without liability to the Customer or any third party although such process may require a temporary suspension of Service(s) or increased rates.
6.2 SERVICE LIMITATIONS. 0+ calling (including without limitation collect or third party billing), 900 and 976 calls, and 10-10 "dial-around" calls, and/or some x11 calls may not be supported.
6.3 911 AND E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE MAYNARD GROUP WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING THE MAYNARD GROUP, AT&T OR OTHER SERVICE PROVIDER. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE MAYNARD GROUP, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
THE MAYNARD GROUP DOES NOT MAKE, NOR DOES IT INTEND TO MAKE, SPECIFIC REPRESENTATIONS OR WARRANTIES BASED ON THE STATEMENTS ABOVE AS IT CANNOT FORESEE EVERY POSSIBLE COMBINATION OF EVENTS. THE FACT THAT THE MAYNARD GROUP MAY CONNECT 911 OR E911 PHONE CALLS, INCLUDING IN SITUATIONS IN WHICH 911 OR E911 SERVICES ARE NOT AVAILABLE OR ARE NOT ORDERED BY CUSTOMER, DOES, IN NO WAY, CREATE A WARRANTY THAT SUCH CALL WILL BE CONNECTED ERROR FREE OR WITHOUT DELAY. THE MAYNARD GROUP MAY CHARGE CUSTOMER ADDITIONAL FEES AND/OR PASS THROUGH TO CUSTOMER ANY CHARGES, FEES, TAXES OR OTHER AMOUNTS ASSESSED ON THE MAYNARD GROUP FOR ANY 911 OR E911 CALL THAT IS CONNECTED IF THE SERVICE ORDERED DOES NOT INCLUDE 911 OR E911.
6.4 ORDERING THE SERVICE. Customer may select and order any of the Service(s) offered by The Maynard Group by completing and submitting an order form (the "Order Form"). The Order Form requires Customer to provide certain information including, but not limited to, Customer's name, E911 information, billing address, email address and credit card or banking information. Such information must be accurate, current and complete. Customer agrees to ensure that all such information is always accurate and complete. Customer acknowledges that if it provides any information that is untrue, inaccurate, not current, or incomplete, Customer's rights to use the Service(s) may be suspended or terminated without liability on the part of The Maynard Group.
6.5 TERM. These Terms of Service shall apply upon Customer's submission of a completed and signed Order Form; provided that if Customer acquires access to or uses the Service(s) without submitting an Order, then these Terms of Service shall immediately apply upon such use or access. The Maynard Group shall provide Customer a Service Commencement Date when such date is known to The Maynard Group. The Maynard Group may change such date, without liability, in its sole discretion. Subject to the provision of these Terms of Service and unless a longer term is specified in the Order Form, either Party may terminate any of the Services ordered hereunder, without further liability, upon thirty (30) days written notice to the other. Customer shall remain responsible and shall pay all charges and fees associated with the Service(s) that accrue up to termination.
6.6 EQUIPMENT. Customer shall be solely responsible for any liabilities that arise from the equipment, software and facilities used and/or provided by the Customer. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising from the foregoing.
6.7 DATABASE UPDATES. Customer shall furnish all information reasonably requested by The Maynard Group in order for The Maynard Group to provide each Service. Customer shall ensure that all information and data that it has given or that it will give to The Maynard Group, including but not limited to Customer's billing information, mailing address and email address, is current and accurate at all times. The Maynard Group shall have no responsibility to verify the accuracy of any information provided by Customer and shall have no liabilities or obligation relative to any amount billed or notices delivered incorrectly as a result of inaccurate information provided by Customer and Customer's failure to correct or update the same. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to Customer's failure to perform the foregoing obligation.
6.8 UNLAWFUL AND PROHIBITED USE. The customer is expressly prohibited from using the Service(s) in a manner that would, in any way, constitute or encourage conduct that is criminal in nature, that may give rise to a civil liability, or that otherwise violates any applicable laws or regulations. In addition, the Customer is expressly prohibited from using the Service(s): (a) for any abusive or fraudulent purpose; (b) in a manner that enables Customer or any third party to avoid any obligation to pay for the Service(s); (c) in a manner that is deemed to interfere with, disrupt, or present a risk to the Service(s), Network, software, property, or security of The Maynard Group, its customers, its Third Party Vendors or other third parties, whether directly or indirectly; (d) in a manner that results in usage inconsistent with The Maynard Group's expectations or the purpose for which The Maynard Group is providing the Service(s); and/or (e) in a manner that may violate these Terms of Service, or the policies of The Maynard Group. Customer shall provide, at its cost, all reasonably necessary security equipment, software, facilities and other apparatus to ensure that the Service(s) are not used in a fraudulent or unauthorized manner, whether by the Customer or any third party. If The Maynard Group determines, in its sole discretion, that the Customer is using the Service(s) in a manner that violates or is contrary to this Section then The Maynard Group, as well as any affected Third Party Vendors, shall have the right, without liability, to block, suspend or terminate the Service(s), or any part thereof, without notice. Customer shall be responsible for any liabilities and obligations arising from its use of the Service(s) that is contrary to, or violates this Section. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the Customer's violation of this Section. If The Maynard Group, in its sole discretion, believes that Customer's actions or omissions may be considered criminal in nature, The Maynard Group may forward personally identifiable information to the appropriate authorities for investigation and prosecution.
6.9 AUDIT AND LAW ENFORCEMENT. The Maynard Group reserves the right to audit, track or monitor the Customer's use of the Service(s) to (a) enforce the provisions of these Terms of Service; (b) conform to legal requirements or comply with legal process; (c) protect and defend the rights or property of The Maynard Group or any Third Party Vendors; (d) respond to request for identification in connection with a claim of copyright or trademark infringement, or unlawful activity; (e) act to protect the interests of The Maynard Group's customers (f) conform to The Maynard Group's contractual obligation with any Third Party Vendor; or (g) provide the Service(s). Customer agrees that these Terms of Service are sufficient notice to Customer of such monitoring to the extent any notice is required under applicable federal or state law.
6.10 PRIVACY. The Service(s) utilizes the public Internet and third party networks. The Maynard Group and its Third Party Vendors shall not be liable for any lack of privacy which may be experienced by the Customer with regard to the Service(s). Customer shall be solely responsible for any liabilities arising from the Customer's lack of privacy. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the Customer's lack of privacy.
6.11 CONTENT. Neither The Maynard Group nor any of its Third Party Vendors operate or control the content transported by the Service(s). As such, neither The Maynard Group nor any of its Third Party Vendors shall have any liability or responsibility for the content of any communication or information transmitted via the Service(s). Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the content of any communication or information transmitted via the Service(s).
6.12 LOCAL NUMBER PORTABILITY (LNP). If Customer desires to port a number either to or from The Maynard Group's Network, Customer shall execute and/or deliver to The Maynard Group all documents and information requested by The Maynard Group, including, but not limited to, all required Letters of Authorization ("LOA"). Customer acknowledges and agrees that The Maynard Group shall have the right to refuse to port any number to its network for any reason. Customer agrees that The Maynard Group, in its sole discretion, may port a number to any Third Party Vendor selected by The Maynard Group in order to provide the Service(s), and that The Maynard Group may be required to be named as the Customer of Record for such number. The Maynard Group will make reasonable commercial efforts to execute all port requests; however, The Maynard Group has no control over any porting process (either to or from The Maynard Group's Network). As such, The Maynard Group makes no guaranties or warranties that a number will be ported on a particular day, or that a submitted port request will actually result in the number being ported. The Maynard Group will inform Customer of port dates when such dates are known to The Maynard Group. The Maynard Group reserves the right to change the port date in its sole discretion. Customer agrees to comply with all applicable rules, regulations and orders, including but not limited to all FCC and public utility commission rules regarding number porting. The Maynard Group makes no warranty that the Service(s) associated with a number will be uninterrupted or error free during any porting process. Customer acknowledges that, if any account associated with the number being ported is canceled or suspended prior to the port date, such number may not be eligible for porting. It is Customer's sole responsibility and obligation to timely cancel its account(s) with The Maynard Group from which the number is being ported, and Customer shall be solely responsible for any contractual obligations it has with such The Maynard Group and any applicable fees and charges, including early termination fees. Number porting is done at the Customer's sole risk. Under no circumstances shall The Maynard Group be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of any number port requested by Customer, including those arising from any slamming complaints.
Customer acknowledges that requests to port numbers away from The Maynard Group's Network will be completed not less than seven (7) days from the date of the request.. Customer agrees to comply with all LNP policies established from time to time by The Maynard Group. The Maynard Group may modify its LNP policies at any time with or without notice to Customer and customer agrees to comply with all such modifications.
6.13 PAYMENT TERMS. Customer agrees that if a Service Order submitted by Customer is accepted by The Maynard Group, Customer shall pay all charges and amounts associated with the Service(s) and Customer's account(s), regardless of whether such amounts result from fraudulent or unauthorized activities by third parties. Customer shall comply with The Maynard Groups billing and payment policies that are in addition to the provisions set forth herein, as the same may change from time to time in The Maynard Group's sole discretion.
CUSTOMER ACKNOWLEDGES THAT THE MAYNARD GROUP WILL NOT, NOR IS IT RESPONSIBLE TO, MONITOR CUSTOMER(S) ACCOUNT FOR FRAUDULENT OR UNAUTHORIZED ACTIVITIES, OR ACTIVITIES THAT MAY RESULT IN INCREASED COSTS TO CUSTOMER. CUSTOMER AGREES THAT IT IS ENTIRELY RESPONSIBLE TO MONITOR ALL ACTIVITIES ATTRIBUTED TO ITS ACCOUNT(S). IF CUSTOMER BELIEVES THAT ANY SERVICE IS BEING USED IN A FRAUDULENT OR UNAUTHORIZED MANNER THROUGH ITS ACCOUNT, THEN CUSTOMER MUST NOTIFY THE MAYNARD GROUP OF SUCH ACTIVITIES AND THE MAYNARD GROUP WILL REASONABLY ASSIST CUSTOMER TO PREVENT SUCH INDIVIDUALLY IDENTIFIED ACTIVITIES.
Customer shall pay charges in addition to those charges normally associated with the usage of the Service(s) in those circumstances in which costs and expenses are generated by the Customer and incurred by The Maynard Group, including but not limited to: (a) costs associated with The Maynard Group's employees, agents or third parties assisting Customer with problems relative to Customer's network, equipment or service outage if The Maynard Group determines that the outage was not a result of The Maynard Group's network or facilities; and (b) excessive costs associated with The Maynard Group's employees, agents or third parties compliance with criminal, quasi criminal or civil subpoenas, court orders, and/or the like, that relate to the Customer or other third parties that access and/or use the Service(s) by and through the Customer.
The Maynard Group may require Customer to commit to and pay a minimum monthly fee for certain Services. Such minimum commitment shall be set forth on the respective Order Form. Customer acknowledges that if a minimum commitment is required by The Maynard Group at the time the Service is ordered, Customer shall be responsible for and shall pay the minimum monthly fee throughout the Term of the Service, regardless of whether Customer actually consumes any of the Services.
Customer is responsible for and must pay any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, regulatory fees, and charges now in force or enacted in the future, as well as other additional costs that may arise as a result of the Customer's usage of the Service(s). Similarly, The Maynard Group may pass through to Customer taxes and fees owed by The Maynard Group to the extent permissible by law. Said amounts, if any, are in addition to set-up fees or charges associated with the consumption of the Service(s). If Customer is exempt from paying any taxes or fees, Customer must provide documentation, acceptable to The Maynard Group, certifying that Customer is exempt. Tax exemption will only apply from and after the date The Maynard Group acknowledges Customer's exemption request. Customer agrees to indemnify and hold The Maynard Group, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of any exemption claimed by Customer.
As a condition of accepting a Service Order, providing Service(s) to Customer or continuing to provide Service(s) to Customer, The Maynard Group may require Customer to make a security deposit, which shall be due upon The Maynard Group's written request. Upon termination of Services, The Maynard Group may apply such deposit to any fees, charges or other amounts unpaid by Customer. Any remaining amount of the deposit will be returned to Customer within ten (10) days.
The Maynard Group may immediately suspend, restrict or terminate the Service(s)s, without notice or liability, if The Maynard Group does not receive payment of all amounts billed to Customer by the required due date and/or all amounts that must be prepaid in order to continue the provision of the Service(s). In addition, The Maynard Group may add interest charges to any past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate allowed by law, prorated for each day payment is past due. Service suspension or cancellation will result in Customer's loss of the numbers associated with the Service(s). Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of the rights of The Maynard Group to collect the full amount of the charges for the Service(s). Customer agrees to reimburse The Maynard Group for reasonable attorneys' fees, and any other costs associated with collecting delinquent or dishonored payments. The Maynard Group may assess reinstallation charges against Customer in the event The Maynard Group suspends, restricts or terminates the Service(s) as a result of Customer's nonpayment or breach of this agreement.
If Customer has prepaid for the Service(s), such Service(s) shall be immediately suspended without notice at the time the fees for Customer's consumption of Service(s) has reached the pre-payment amount. Customer is entirely responsible to monitor its consumption of Service(s) and replenish any prepayment amounts when necessary to continue using the Service(s).
Additional payment and billing terms and conditions may be found in the Service Order.
6.14 BILLING DISPUTES. In the event Customer disputes any amount billed by The Maynard Group, Customer shall notify The Maynard Group of such billing dispute in writing. The existence of a dispute shall not relieve Customer from paying any amounts billed hereunder. All Customer disputes must be submitted to The Maynard Group within thirty (30) days of the billing date or such dispute shall be forever waived. Upon receipt of a billing dispute, The Maynard Group shall reasonably investigate the dispute and provide Customer with a resolution based on the outcome of such investigation.
7.0 THE MAYNARD GROUP LIMITED WARRANTY.
7.1. What Is Covered. The Maynard Group warrants that the equipment, materials, and the installation thereof will be free from defects in materials and workmanship under normal use and that the quality of the workmanship will comply with industry standards and applicable local codes in effect as of the Cut Over Date.
7.2. Duration Of The Warranty. The above express warranty is made for a period of sixty days (60) from the Cut Over Date or date the equipment was installed by The Maynard Group.
Obligations Of The Maynard Group During The Warranty Period:
7.3. Repair or Replacement of Defective Equipment or Material. The Maynard Group will either repair or replace the defective equipment of material without additional charge. The Maynard Group will use reasonable commercial efforts to respond to emergency calls (the inoperability of the majority of the system) within three (3) hours after receiving notice thereof. The Maynard Group will use reasonable commercial efforts to respond to non-emergency malfunctions originating within the telephone system within one (1) business day after notice thereof. Business day shall be understood to mean Monday Through Friday, 8:00 am to 5:00 pm, except any holidays observed either by The Maynard Group or Customer. Service provided outside of the business day shall be surcharged at The Maynard Group's then current surcharge rate.
7.4. Final Remedy. If The Maynard Group is unable to repair or replace defective equipment or material within a reasonable time, The Maynard Group, at its discretion, may terminate this agreement, remove the equipment and materials, and refund the purchase price actually paid for the defective equipment and materials without further obligation to Customer.
Exclusion Of Other Warranties:
7.5. The Maynard Group does not warrant that the equipment, software, or materials listed on the cover page will meet your requirements or that the operation of the equipment, software, or materials will be uninterrupted or error free. The warranty does not cover any equipment, software, or materials which have been: (a) subject to misuse, neglect, accident or other casualty not contributed to by The Maynard Group, (b) because the equipment or materials were located or used under conditions outside of equipment manufacturer’s specifications, including but not limited to wiring, electrical power, temperature, humidity, or dust, (c) by causes other than normal use; or due to improper installation by someone other than The Maynard Group, its employees or agents, (d) wired, installed, repaired or altered by anyone other than The Maynard Group or its authorized representatives, or (e) moved from its original location or that is no longer owned and used by the customer named on the cover sheet. Further, The Maynard Group is not responsible for problems caused by the transmission quality of third party Internet or telecommunications systems.
7.6. ANY IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE TERM OF THE EXPRESS WARRANTIES. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
7.7. THE MAYNARD GROUP SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING FROM ANY BREACH OF THESE WARRANTIES OR UNDER ANY OTHER LEGAL THEORY EVEN IF THE MAYNARD GROUP OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Your Obligations Under The Warranties:
7.8. In the event you encounter a problem with the equipment, software, or materials, you must call The Maynard Group's technical support department during the warranty period, report the problem, and request warranty service.
7.9. The warranties set forth above are in lieu of all other express and implied warranties, whether oral, written, or implied, and THE REMEDIES SET FORTH ABOVE ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. These warranties may only be modified in an express written amendment to these Terms and Conditions signed by an authorized officer of The Maynard Group. Accordingly, additional statements such as advertising or presentations, whether oral or written, do not constitute warranties by The Maynard Group and should not be relied upon as such. This Warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
8.0 THIRD PARTY EQUIPMENT WARRANTIES.
The warranty set forth in Paragraph 7.0 is made by The Maynard Group. Certain Equipment listed on the cover sheet may also be subject to additional warranties provided directly from the equipment manufacturer to the Customer.
9.0 RISK OF LOSS.
The Maynard Group shall bear risk of loss, or damage to, the equipment and materials while in The Maynard Group's possession and while en route to Customer's premises. Once delivered to the Customer's premises, regardless of the proximity to the Cut Over Date, all risk of loss, or damage to, the equipment and material shall be borne by the Customer.
10.0 PAYMENT TERMS – BILLING, RENEWAL, CANCELLATION, AND RIGHT TO SUSPEND SERVICES.
10.1 Invoices will be prepared by The Maynard Group and mailed, faxed or sent electronically to the Customer. Payment terms for invoice items are stated on the cover sheet, but are subject to review and change based on Customer's credit history.
10.2 All prices are stated in United States dollars and all payments will be made in United States dollars. Any payment that is not received by The Maynard Group within thirty (30) days after the due date shall be subject to a late payment charge of one and one half percent (1.5%) per month or fraction thereof from the original due date or the highest amount permitted by law, whichever is less, and any extraordinary collection expenses (e.g., time spent reviewing, compiling, communicating, and discussing account history with Customer) incurred by The Maynard Group will be reimbursed by Customer.
10.3 The Maynard Group will have the right to suspend its obligations to Customer under these Terms and Conditions if Customer’s account becomes past due. This includes, but is not limited to, the suspension of warranty and maintenance services to Customer until its account is current.
10.4 The Customer understands that following the “Cut Over Date” Post Installation Support such as changes, modifications, manufacturer support, patches, repairs and troubleshooting of programming, software, hardware and configurations are normal and to be expected. The Customer will not withhold or delay any payment to The Maynard Group outlined in the Terms of Payment schedule or other payments for change orders, service agreements or invoices for any reason whatsoever, including Post Installation Support. The Maynard Group shall under no circumstances be liable for any delays, interruptions or trouble experienced due to Post Installation Support.
10.5 After the original term of the Service Agreement, the Service Agreement shall be automatically renewed from month to month, unless the Customer notifies TMG, with 30 days, advanced notification, in writing, of the cancellation of this Agreement. The Agreement may also be renewed for successive periods of either one, two or three years each, subject to the written approval of both parties. This Agreement may be cancelled at anytime, with 30 days written notice from the Customer. Customer Agrees to pay, within 30 days of written cancellation, 100% of the total remaining unbilled charges for the duration of the Service Agreement term. Monthly billing is based upon total port count. From time to time an inventory is taken and the Service Agreement will be revised to match the actual port count. This may increase or decrease the monthly charge. Customer will be billed monthly for the Service Agreement.
11.0 EFFECTIVE DATE.
This Agreement is tendered to Customer for execution but it shall not be binding upon The Maynard Group until accepted in writing by an officer of The Maynard Group. Deposit or other acceptance of the payment tendered herewith shall not constitute acceptance of this Agreement.
12.0 THIRD PARTY FUNDING, LEASING AND FINANCING; LEASING AND FINANCING PROVIDED DIRECTLY BY THE MAYNARD GROUP.
12.1 In the event of cancellation or any termination by Customer of leasing, third party funding or financing agreements, The Maynard Group shall be entitled to retain the amounts paid to The Maynard Group upon execution of this Agreement by Customer. Customer acknowledges that The Maynard Group has no control over the interest rate, or other fees, charged by the third party, leasing or finance company which The Maynard Group may approach on behalf of Customer. Customer further acknowledges that any such third party, leasing or financing company may request certain personal guaranties in connection with any agreement to enter into leasing or financing arrangement with Customer. Customer will supply financial information and will execute the third party, leasing or financing company's standard documents.
12.2 The Maynard Group, at its discretion, may provide direct Leasing and Financing to the customer for Networking, Computer and Telecommunications Equipment, Software and Services. The customer agrees to the following Definitions and Terms when Leasing and Financing directly through The Maynard Group.
Definitions: The following definitions are used but not otherwise defined in this Agreement: A) "Casualty Value" means the market value of the Equipment at the end of the Term or when in relation to a Total Loss, the market value the Equipment would have had at the end of the Term but for the Total Loss. The Casualty Value may be less than but will not be more than the original purchase price of the Equipment. B) "Equipment" means Networking, Computer and Telecommunications equipment, Software and Services with a cash/casualty value of equal to the purchase price on the cover page. C) "Total Loss" means any loss or damage that is not repairable or that would cost more to repair than the market value of the Equipment.
Term: The Lease commences on the 1st day of the month following installation and will continue for a period of time (the “Term”) shown in the TERMS OF PAYMENT section.
Rent: The rent will be paid monthly, in advance, beginning on the 1st day of the month following installation and will be paid on the 1st day of each succeeding month throughout the Term (the "Rent").
Purchase Option: Equipment leased or financed directly through The Maynard Group may be optionally purchased at the end of the Term, and payment of all Rental Installments, for $1.00 following the initial Term of this lease.
Use of Equipment: The Customer will use the Equipment in a good and careful manner and will comply with all of the manufacturer's requirements and recommendations respecting the Equipment and with any applicable law, whether local, state or federal respecting the use of the Equipment, including, but not limited to, environmental and copyright law.
The Customer will use the Equipment for the purpose for which it was designed and not for any other purpose. Unless the Customer obtains the prior written consent of The Maynard Group, the Customer will not alter, modify or attach anything to the Equipment unless the alteration, modification or attachment is easily removable without damaging the functional capabilities or economic value of the Equipment.
Loss and Damage: To the extent permitted by law, the Customer will be responsible for risk of loss, theft, damage or destruction to the Equipment from any and every cause. If the Equipment is lost or damaged, the Customer will continue paying Rent, will provide The Maynard Group with prompt written notice of such loss or damage and will, if the Equipment is repairable, put or cause the Equipment to be put in a state of good repair, appearance and condition. In the event of Total Loss of the Equipment, the Customer will provide The Maynard Group with prompt written notice of such loss and will pay to The Maynard Group all unpaid Rent for the Term plus the Casualty Value of the Equipment, at which point ownership of the Equipment passes to the customer.
Ownership and Quiet Enjoyment: The Equipment is the property of The Maynard Group and will remain the property of The Maynard Group unless the Customer exercises the purchase option. The Customer will not encumber the Equipment or allow the Equipment to be encumbered or pledge the Equipment as security in any manner. The Maynard Group warrants that as long as no Event of Default has occurred, The Maynard Group will not disturb the Lessee's quiet and peaceful possession of the Equipment or the Lessee's unrestricted use of the Equipment for the purpose for which the Equipment was designed.
Surrender: At the end of the Term or upon earlier termination of this Agreement, the Customer will make the Equipment available for pick up at the Customer’s Site(s) where the Equipment was installed and The Maynard Group will arrange, at The Maynard Group’s cost and expense, to pick up the Equipment. If the Customer fails to make the Equipment available for pick up, the Customer will pay to The Maynard Group any unpaid Rent for the Term plus the Casualty Value of the Equipment plus 10% of the Casualty Value, at which point ownership of the Equipment will pass to the Customer.
Taxes: The Customer will report and pay the following taxes, fees and charges on or before same are due: Property. If the Customer fails to do any of the foregoing, The Maynard Group may, but is not obligated to do so at the Customer's expense. Notwithstanding any other provision of this Agreement, the Customer will not be required to pay any tax, fee or charge if the Customer is contesting the validity of same in the manner prescribed by the legislation governing the imposition of same, or in the absence of a prescribed form, in a reasonable manner. However, the Customer will indemnify and reimburse The Maynard Group for damages and expenses incurred by The Maynard Group arising from or related to the Customer's failure to pay any tax, fee or charge, regardless of whether the Customer is contesting the validity of the same or not. If the Customer fails to pay any and all taxes, fees, and charges mentioned in this Agreement and The Maynard Group, on behalf of the Customer, pays the same, the Customer will reimburse The Maynard Group for the cost upon notification from The Maynard Group of the amount.
Default: The occurrence of any one or more of the following events will constitute an event of default ("Event of Default") under this Agreement: A) The Customer fails to pay any amount provided for in this Agreement within 30 days after same is due or otherwise breaches the Customer’s obligations under this Agreement. B) The Customer becomes insolvent or makes an assignment of rights or property for the benefit of creditors or files for or has bankruptcy proceedings instituted against it under the Federal bankruptcy law of the United States or other competent jurisdiction. C) A writ of attachment or execution is levied on the Equipment and is not released or satisfied within 10 days.
Remedies: On the occurrence of an Event of Default, The Maynard Group will be entitled to pursue any one or more of the following remedies (the "Remedies"): A) Declare the entire amount of the Rent for the Term immediately due and payable without notice or demand to the Customer. B) Commence legal proceedings to recover the Rent and other obligations accrued before and after the Event of Default. C) Take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. The Customer waives any and all damage occasioned by such taking of possession. D) Terminate this Agreement immediately upon written notice to the Customer. E) Pursue any other remedy available in law or equity.
Additional Documents: Upon written demand by The Maynard Group, the Customer will execute and deliver to The Maynard Group documents required by The Maynard Group to protect The Maynard Group’s interest in the Equipment including, but not limited to, the documents necessary to file a UCC financing statement.
13.0 SUPPLEMENTAL MATERIALS OR SERVICES – CHANGE ORDERS.
From time to time, the Customer and The Maynard Group may agree to add or make changes to the equipment, materials, software, services or labor in this agreement, in the form of a change order. Additionally, unknown or unforeseen conditions may arise during the installation process that require immediate, additional labor or materials in order to properly and safely complete the work. The Customer hereby acknowledges that unknown or unforeseen conditions may arise that require an immediate change order and the Customer agrees to accept and pay for change orders totaling up to 5% of the total cost of this contract without their advance, written approval. Unless the parties agree otherwise in writing any additional labor will be provided at The Maynard Group’s standard labor rates in effect on the date the services are provided. Any additional equipment, materials, software, or labor shall be provided subject to these terms and conditions unless the parties expressly agree otherwise in writing.
14.0 NO INDEPENDENT EMPLOYMENT.
The Customer agrees not to employ or engage the services, directly or indirectly, of any person employed by The Maynard Group, for a period of one year from the date the employee leaves The Maynard Group.
15.0 CONTRACTOR’S LICENSE.
Contractors are required by law to be licensed and regulated by the California Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, CA 95826.
16.0 GENERAL CONDITIONS.
16.1 This Agreement shall in all respects be interpreted, construed in accordance with, and governed by the internal laws of the State of California, without regard to the rules on conflict of laws. The parties exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods if otherwise applicable. The place of making and the place of performance for all purposes shall be Soquel, California regardless of the actual place of execution or performance. In the event of any litigation between the parties, the parties stipulate that the sole and exclusive jurisdiction for such action shall be in the State Courts for the County of Santa Clara, California or the United States District Court for the Northern District of California. Both parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the parties for any dispute arising out of this Agreement.
16.2 This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions, proposals, advertising, or other exchanges between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties to this Agreement.
16.3 Any notice required or permitted by this Agreement shall be in writing and shall be sent and confirmed by prepaid express courier or certified mail addressed to the other party at the address shown on the cover page of this Agreement or at such other address for which such party gives notice hereunder. Such notice shall be deemed to have been given the earlier of the date of actual receipt or three (3) days after deposit in the mail.
16.4 Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
16.5 If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
16.6 The agreement of which the Terms and Conditions are a part is not transferable without the prior written consent of The Maynard Group. Once transferred, these Terms and Conditions shall be binding upon and be for the benefit of both the original and the substitute parties hereto, their successors and assignees.
16.7 In any litigation between the parties, the prevailing party shall be entitled to reasonable attorney fees and all costs of proceedings incurred in enforcing this Agreement.
16.8 In no case shall The Maynard Group's liability under this agreement for any breach of contract or warranty exceed the total amount of the fees paid by Customer under this agreement.
16.9 The Maynard Group rejects any and all printed terms and conditions contained on any purchase order or other ordering document submitted by Customer now and hereafter. The parties' performance under this agreement shall be governed exclusively by the cover sheet and these Terms and Conditions and any written signed amendments or signed extensions of them.
16.10 Paragraph headings are for convenience only and shall not be considered in the interpretation of this Agreement.
16.11 The Maynard Group and Customer are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other.
16.12 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
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