Managed Services Contract
Anthem Business Solutions
CONTRACT TERMS & CONDITIONS
These terms and conditions will be incorporated by reference in and apply to the Managed Services Proposal/Invoice issued by Tulsa Cash Register, Inc. DBA Anthem Business Solutions (“ABS”) to a customer (“Customer”) for hardware maintenance services and/or other included services. The Managed Services Proposal will identify (A) the ABS Hardware products and software (“Software”) for which ABS will be providing maintenance services and support services, respectively, (B) the applicable Coverage Periods, and (C) the price for services. The Invoice will reflect the same information. The Managed Services Proposal/Invoice may contain other site-specific information. The Managed Services Proposal/Invoice, read in conjunction with these terms and conditions, form the maintenance services agreement (“Agreement”) between Customer and ABS. ABS agrees to provide and the Customer agrees to accept maintenance service on the equipment listed, at the annual charges indicated in the attached equipment list, in accordance with the following terms and conditions.
a) Term. The term of the Agreement is the term stated on the Managed Services Proposal/ Invoice as agreed upon by Customer’s signature on the Managed Services Proposal/Invoice, unless a party terminates it in accordance with the provisions of this Article. Provided ABS has received full and complete payment as set forth on the Invoice, coverage of the Agreement for new scheduled products will begin upon the date(s) specified on such Invoice.
b) Renewal. Either party may terminate the Agreement effective at the end of the then-current term by giving the other party written notice of non-renewal. Notice of non-renewal from Customer to ABS shall be given within 15 days of the date of a Managed Services Proposal or 45 days before the end of the then-current term. Notice of non-renewal from ABS to Customer must be given at least 45 days before the end of the then-current term. If neither party gives the other party a timely notice of non-renewal, then this Agreement shall continue in force (subject to modifications as described in this subsection) for a successive 1 year term, subject to each party’s rights to terminate the agreement under this Article. If ABS sends Customer a new Managed Services Proposal/Invoice applicable to a renewal term that includes or incorporates any changes in pricing, terms, or conditions, then the pricing, terms, and conditions stated or incorporated by reference in the new Managed Services Proposal/Invoice shall govern during the renewal term, and shall supersede any contradictory pricing, terms, or conditions stated in the Agreement that were effective during the then-current term. ABS shall have the option to increase the annual pricing of the contract by up to 4.0% of the current contract price at the renewal time and the new pricing shall automatically be in effect for the next year term.If ABS does not send the new Managed Services Proposal at least 15 days before the end of the then-current term, then the terms and conditions of the Agreement shall continue in force until the expiration of the 15-day notice period.
c) Termination by ABS for Cause and Other Remedies. ABS may terminate the Agreement upon: (i) a failure by Customer to pay, when due, any invoices (whether under the Agreement or other agreements between the parties) if Customer does not cure the breach within 10 days after written notice to Customer of the breach; or (ii) any other material breach hereunder if Customer does not cure the breach within 30 days after written notice to Customer of the breach. In addition, if Customer fails to pay a charge within 30 days of the invoice date, or if Customer is otherwise in default hereunder, ABS may suspend service under the Agreement, back bill for service provided, and/or collect late charges at the rate that is the lesser of 1.5% per month or the maximum rate allowable by law. In case of a payment default by Customer, ABS also may accelerate any payments due from Customer under the Agreement during the term (in which case the entire amount to be paid under the Agreement shall be immediately due and payable). The remedies in this section are not exclusive, and ABS’s selection of any one remedy does not preclude the exercise by ABS of any other remedy available hereunder, or at law or in equity.
d) Termination By Customer for Cause. Customer may terminate the Agreement upon a material breach by ABS if ABS does not cure the breach within 60 days after written notice to ABS of the breach.
e) If, in the opinion of ABS, at the end of the first year or thereafter, individual items can no longer be properly or economically maintained to ABS’s standards of performance on site, ABS will provide the Customer with an estimate of reconditioning charges for such equipment and Customer agrees to pay those charges and make the equipment available. Should the Customer fail to make the equipment available to ABS for reconditioning, ABS shall not be responsible for any equipment failures which are directly attributable to the need for reconditioning.
2. Managed Service
a) Hardware Maintenance Service. If Hardware Maintenance Service is included in the Managed Services Proposal/Invoice, ABS agrees to provide maintenance service availability Monday through Saturday, from 8:00 a.m. to 5:00 p.m., excluding holidays, and keeps the equipment in good working order while operated in accordance with ABS’s published specifications while the equipment is located within ABS’s area of responsibility.
The maintenance provided is based on the specific performance standard needs of individual products as determined by ABS. These needs include preventive maintenance – handled at the discretion of an ABS Maintenance Technician – during a reported service call or at the discretion of the ABS Service Manager. On-call remedial maintenance will be provided and will include adjustments, lubrications and replacement of parts deemed necessary by ABS.
b) PS Help Desk Support. If PS (Help Desk Support) is included in the Managed Services Proposal/Invoice, ABS agrees to provide Help Desk Support during normal ABS business hours via the ABS help desk. Help Desk Support includes answers or assistance with simple situation which are easily answered by phone. Help Desk Support does include assistance with sales tax rate programming. Help Desk Support does not include extensive support, programming or training.
c) SEL Software Enhancement License. If SEL (Software Enhancement License or Membership) is included in the Managed Services Proposal/Invoice, ABS agrees to provide software updates or upgrades, as provided by the software manufacture, during the period of this Agreement. SEL entitles Customer to all software updates, but does not provide for any installation, programming or training on any updates or upgrades. All labor is chargeable at ABS prevailing rates.
d) CA/EDC Credit Authorization Electronic Data Capture. If CA/EDC (Credit Authorization Electronic Data Capture) is included in the Managed Services Proposal/Invoice, ABS agrees to license a current support contract from Merchant Link on behalf of Customer. Merchant Link will provide 24×7 credit card support via the current 800 number as provide by Merchant Link.
e) Remote Monitoring. If Remote Monitoring is included in the Managed Services Proposal/Invoice, ABS agrees to license to the Customer a current contract for Virtual Technician. With Remote Monitoring installed, ABS will monitor Customer system statuses, as available for Remote Monitoring and as programmed by ABS, for any out of specifications situations, during ABS normal business hours. ABS will then either enter a service case into the ABS service dispatch system or/and contact Customer.
f) Secure Remote Support. If Secure Remote Support is included in the Managed Services Proposal/Invoice, ABS agrees to provide a current contract for Secure Remote Support. With Secure Remote Support, ABS will provide a secure support connection to the Customer from ABS, via the ABS Secure Remote Support Server. With this secure connection, ABS can provide remote support to Customer. This remote support connection does not provide any labor association with the connection or the support provide via the Secure Remote Support connection.
g) CGSS SonicWall Comprehensive Gateway Security Suite. If CGSS is included in the Managed Services Proposal/Invoice, ABS agrees to license a current subscription of CGSS from SonicWall of the firewall AntiVirus, Anti-Spyware, and Content Filtering software as provided by SonicWall, for the SonicWall TZ or Pro firewalls as appropriate.
h) Managed AntiVirus. If Managed AntiVirus is included in the Managed Services Proposal/Invoice, ABS agrees to license a current subscription of the AntiVirus software and install it on the Customers system, one subscription per covered PC or Workstation. For any work with AntiVirus, Customer hereby appoints ABS as Customer’s agent, to access technical or other services, load software and use tools related to the AntiVirus Managed Services on customers behalf.Customer acknowledges that (a) as Customer’s agent, ABS, is authorized to interact with on Customer’s behalf and to bind Customer regarding the services, software and tools associated with the Managed Services, and (b) while ABS is acting as the Customer’s agent, all access to the services, software, and tools associated with the Managed Services must be through ABS.
i) DataSecure. If DataSecure is included in the Managed Services Proposal/Invoice, ABS agrees to provide daily off site POS database backups. ABS will monitor these backup during ABS’s normal business days to ensure the Customer POS database is backed up daily. If the database is not backed, ABS will determine what corrective should be taken to fix the problem, and notify the Customer if action is required by the Customer. The size of the database backup provided will be determined by the DataSecure package selected, which includes 250megabyte, 500megabyte or 1gigabyte packages, unless otherwise specified.
j) If Cloud Subscriptions are included in the Managed Services Proposal/Invoice, ABS agrees to license a current subscription from the 3rdvendor on behalf of Customer.
All service calls made on equipment not under maintenance contract shall be invoiced immediately at ABS’s prevailing rates. These rates are subject to change without notice.
ABS may charge a fuel surcharge on any service call requiring on site service. This fuel surcharge is not covered by this Agreement
4. Initial Inspection and Repair
If the equipment to be covered by this agreement is not currently under ABS’s maintenance responsibility, nor covered by ABS’s standard warranty, immediately prior to the commencement date of this Agreement, it shall be subject to a chargeable inspection by ABS. ABS shall take such action as may be necessary in its judgment to place the equipment in good operating condition, including without limitation, making repairs and adjustments and replacing parts. The Customer shall pay for all labor and materials used in connection therewith at ABS’s then current prevailing rates.
a) Maintenance service is contingent upon the proper use of all equipment and does not include:
b) Electrical work external to the equipment or maintenance of accessories, attachments, or other devices not furnished by ABS;
c) Service caused by supply items that do not meet ABS or manufactures specifications;
d) Repair of damage, increase in service time, or problems resulting from: i) Accident, transportation, neglect, theft, fire or water damage, misuse, natural disaster, act of God, or other than ordinary use; iii) Alterations which include but are not limited to, any changes in design, installation, or removal of features, or any other modification, whenever any of the foregoing are performed by other than ABS representatives.
e) Normal operator functions as described in the owners or operator’s manuals;
f) Problems relating to or caused by software which was not supplied by ABS;
g) Expendable supply items or materials including, but not limited to, batteries, paper, ribbons, ink, toner, printer drums, printer fuser wires;
h) Making specification changes or performing services connected with relocation of equipment, and adding or removing accessories, attachments or other devices;
i) Such service, which is impractical for ABS representatives to render because of alterations in the equipment or their connection by mechanical or electrical means to another machine or device;
j) Equipment located in an unsuitable place of installation or an unsafe or hazardous environment, as determined by ABS.
k) Any problems related to virus, spyware, malware, Trojans, worms, phishing, phaxing, vishing, bots, (herein referred to as Virus or Viruses): and
l) Hacking, unauthorized access, or security breaches.
6. ABS Property
Maintenance software, test equipment and similar property used by ABS at the installation site (even if shipped with the equipment) shall remain the exclusive property of ABS and shall be for the sole use of ABS and under the control of ABS. Such property, some of which contains confidential information of ABS includes, but is not limited to, the following: Price list, programming manuals, tools of any nature, software, CD’s, DVD’s, laptops, PDA’s, flash drives, USB drives, cell phones, automobiles, meters, test equipment, and cabling.
POSaaS provided equipment is the property of Tulsa Cash Register. The Customer is to provide insurance on all equipment and Tulsa Cash Register is to be on the policy as a co-insured.
7. Access of Equipment
a) ABS shall have full and free access to the equipment to provide service thereon.
b) Remote Access. ABS maintains a system which allows remote access to the Customers POS System (“Remote Access”). Provided that the Customer has entered into and has a current NSM contract, Customer agrees to allow ABS to allow Remote Access to all ABS technicians. As of the date hereof, the Customer authorizes ABS to allow Remote Access to these technicians. The Customer shall have the right from time to time, upon not less than three (3) days prior written notice to ABS: (i) to authorize ABS to allow Remote Access to additional persons, and (ii) to authorized ABS to prohibit Remote Access to any person for Remote Access; provided, however, that the Customer shall not have the right to limit Remote Access by ABS’s employees. ABS shall have the right from time to time to alter the means for Remote Access, including, without limitation, designating the means of access and user names/numbers and passwords.
c) Limitation of Liability. ABS shall have no liability to the Customer of any nature whatsoever arising or resulting from or connected with the access to, use of, or the denial of access to or use of, Customer’s POS System via Remote Access, provided that such access, use or denial of access or use has been authorized by Customer in accordance with this Agreement. Customer shall indemnify, defend, and hold ABS harmless from, and reimburse ABS for, any loss, fee, cost, expense, damage, liability or claim (including, without limitation, reasonable attorneys’ fees and costs) arising out of, based upon, or resulting from the access to, use of, or the denial of access to or use of Customers POS Systems via Remote Access which has been authorized by Customer in accordance with this Agreement.
d) Term and Termination: Survival. This Agreement shall commence as of the date hereof, and may be terminated at any time by either party upon not less than thirty (30) days prior written notice given by the terminating party to the other. Upon the effective date of the termination of this Agreement, all person then authorized by the customer to have Remote Access (other than the employees of ABS) shall cease to have Remote Access. ABS shall have the right to deny Remote Access to any person at any time and without notice to the Customer if the customer is not covered by a current Remote Management contract. The obligations of the Customer under Section 2 above shall forever survive the termination of this Agreement.
e) Notices. All notices hereunder shall be given in writing via registered or certified mail, return receipt requested, postage pre-paid or overnight courier.
If persons other than ABS representatives perform maintenance or repair of a unit of equipment, and as a result further repair by ABS is required, such repairs are not included in the charges set forth in this Agreement, and will be made at ABS’s applicable time and material rate and terms then in effect. Maintenance by third parties could be the basis for voiding any existing warranties and forfeiture of the remainder of the Contract.
Customer agrees that ABS has a substantial financial investment in its employees and the loss of an employee would cause a substantial financial loss to ABS. Customer agrees not to solicit ABS’s employees, for employment or for hire. Customer will not, on the Customers own behalf or on behalf of any other person, partnership, association, corporation, or other entity, solicit or in any manner attempt to influence or induce any employee of the ABS or its subsidiaries or affiliates (known by the Customer to be such) to leave the employment of the ABS or its subsidiaries or affiliates, or do work for Customer or any other person, partnership, association, corporation, or other entity , nor shall he use or disclose to any person, partnership, association, corporation or other entity any information obtained while an employee of the ABS concerning the names and addresses of the Company’s employees, or Customer agrees to compensate ABS the amount of $75,000.00 immediately upon the departure of the employee from ABS or the engagement of the ABS employee, as liquidated damages, and not as a penalty.
10. Engineering Changes
Engineering changes, determined applicable to Customer by ABS, will be controlled and installed by ABS at no charge on equipment covered by this Agreement, during normal business hours. The customer may, by providing notice subject to written confirmation by ABS, elect to have only mandatory charges, as determined by ABS installed on equipment so designated.
11. Limitation of Liability
a) Scope of Damages. ABS AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE TO THE CUSTOMER OR ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, PUNITIVE OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER-ACCRUED TAXES OR GOVERNMENT LEVIES), WHETHER ARISING FROM THE CUSTOMER’S USE (OR INABILITY TO USE) OF THE PRODUCTS, SERVICES PROVIDED IN CONNECTION HEREWITH, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ABS SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF ANY SUPPORT SERVICES OR THE TERMINATION OR NON-RENEWAL OF A MAINTENANCE SERVICES AGREEMENT OR THIS AGREEMENT, BE LIABLE TO THE CUSTOMER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF THE CUSTOMER’S BUSINESS.IN NO EVENT SHALL THE CUSTOMER BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN THE AGGREGATE IN EXCESS OF AN AMOUNT EQUAL TO THE FEES PAID HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CUSTOMER’S FIRST CLAIM OF ALLEGED DAMAGES.
Other than as set forth above in this paragraph, ABS disclaims all warranties with respect to the equipment (including without limitation warranties as to merchantability and fitness for a particular purpose), either expressed or implied. The above express warranty is in lieu of all obligations or liabilities on the part of ABS for damages, including but not limited to special, incidental, or consequential damages arising out of or in connection with the use or performance of this equipment check card or check transactions over the Internet, or use ABS or 3rd party SSL to transimt credit card, debit card, gift card, check card or check transactions, or otherwise have any connections to any network where there is a potential for unauthorized access, via wired or wireless.
b) Viruses and Security. It is the Customer’s responsibility to have and maintain in place virus protection software and security for all of its systems and data, which such security includes firewalls, passwords, physical security, and access control policies. If Customer’s systems have connections to the Internet, or transmit credit card, debit card gift card.
Customer acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Customer’s responsibility. A properly configured firewall is required for each site using any connection to the public Internet or any private network where there is a potential for unauthorized access to the network. Customer acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate.
ABS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT, AFTER THE INITIAL INSTALLATION BY ABS OF ANY ABS PROVIDED SOFTWARE, THE SOFTWARE OR CUSTOMER’S DATA WILL REMAIN VIRUS-FREE. SUPPORT OR SERVICES HEREUNDER NECESSITATED BY COMPUTER VIRUSES, OR BY ANY FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, INCLUDING, WITHOUT LIMITATION, DAMAGE CAUSED BY PERSONS LACKING AUTHORIZED ACCESS, ARE NOT COVERED UNDER THIS AGREEMENT, AND WILL BE SUPPLIED ONLY UPON CUSTOMER REQUEST AND ON A REASONABLE EFFORTS BASIS. CUSTOMER WAIVES ANY CLAIMS HEREUNDER AGAINST ABS TO THE EXTENT ARISING FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, ANY VIRUS, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS, WHICH SUCH UNAUTHORIZED ACCESS CUSTOMER ACKNOWLEDGES CANNOT IN ALL CASES BE PREVENTED EVEN IF REASONABLE STEPS HAVE BEEN TAKEN. IF REQUESTED BY CUSTOMER, ABS SHALL PROVIDE, ON A REASONABLE EFFORTS AND ON A TIME-AND-MATERIALS BASIS, SUPPORT OR SERVICES TO ADDRESS DAMAGE CAUSED BY, BUT NOT LIMITED TO, ANY OF THE FOLLOWING: CUSTOMER’S FAILURE TO HAVE CURRENT VIRUS PROTECTION; CUSTOMER’S FAILURE TO MAINTAIN VIRUS PROTECTION; DAMAGE ARISING AS A RESULT OF A FAILURE OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA; DAMAGE ARISING AS A RESULT OF A BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA; OR DAMAGE AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS. SUCH SUPPORT AND SERVICES SHALL BE BILLED AT THE PREVAILING STANDARD ABS RATES
c) Credit Cards. Customer acknowledges that credit card providers, banks, and credit card processing companies implement and require specific policies in conjunction with their cards and services. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY THE CREDIT CARD COMPANIES, BANKS, AND/OR PROCESSORS CUSTOMER ELECTS TO ACCEPT OR UTILIZE
12. Governing Law
This contract shall be governed by and construed according to the laws of the State of Oklahoma.
This contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom such modification, termination or waiver is sought to be enforced.
This agreement is not assignable by Customer without written permission from ABS, such permission not to be unreasonably withheld, and any attempt by Customer to assign any rights, duties, or obligations which arise under this Agreement without such permission shall be void.
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