|
SERVICE AGREEMENT
<br />
<br />
<br />
<br />1. DEFINITIONS. “MCA” shall mean Mobile Communications America, Inc.; “Customer” shall mean the Customer names in the Agreement; and “Product” shall collectively mean the Equipment and Software which MCA and Customer agree to be serviced pursuant to this
<br />Service Agreement. Such Product is listed on the front of this Agreement.
<br />2. ACCEPTANCE. The terms and conditions set forth on the front and reverse side of this Agreement is an offer to purchase Service by Customer which shall become a Service Agreement when acknowledged in writing by MCA’s Service Department; and the banking,
<br />negotiation or other use of any payment shall not constitute an acceptance by MCA. It is agreed that Service shall be provided only on the terms and conditions contained in this Agreement. MCA shall not be bound be terms and conditions in Customer’s purchase order or
<br />elsewhere unless expressly agreed to on writing. Upon acceptance by MCA’s Service Department, MCA’s interest in the Agreement is assigned to Mobile Communications America, Inc.
<br />3. SERVICE DEFINED
<br />a. MCA agrees to provide service for the Customer for the Product listed on the front side of this Agreement. Such Product shall be serviced according to the terms and conditions on the front and reverse side of this Agreement (“Service”). The Service shall begin
<br />and end on the dates set forth on the front side of this Agreement. MCA shall also Service other Product purchased by Customer during the term of this Agreement on the same terms and conditions set forth in this Agreement at then current service fees for such
<br />Product. Upon delivery of such other Product to Customer, service fees for Service on such other Product shall be added to the billing cycle following the expiration of the labor warranty on such other Product. In the event of loss, damage, theft, or removal from
<br />Service of any Product, Customer shall immediately report the loss, damage, theft or removal in wiring to MCA. In this even, Customer’s obligation to pay service fees with respect to any such Product shall terminate at the end of the month in which MCA
<br />receives such written report.
<br />b. Mobile Product shall be removed and reinstalled in different vehicles at Customer’s request for the service fee in effect at the time of the Customer’s request.
<br />c. This Agreement does not include service of any transmission line, antenna, tower or tower lighting, unless such work is described on the front of the Agreement. Service shall include the labor and parts required to repair Product which has become defective
<br />through normal wear and usage. This does not include consumables and the Installation. Service does not include the repair or replacement of Product which has otherwise become defective, including, but not limited to, damage caused by accidents, physical or
<br />electronic abuse or misuse, acts of God, fires or other casualty. Service performed for non-covered repairs shall be billed at MCA’ above contract rate applicable for such Service. Product under contract must be maintained in environmental conditions as set forth
<br />in the product specifications and damage resulting from environmental conditions not conforming to the specifications is not covered by this Agreement.
<br />d. Where telephone lines and Product are used in conjunction with MCA maintained Product, MCA shall have no obligations or responsibility for such telephone lines or Product but shall, upon request, assist the Telephone Company in repairing such upon payment
<br />at the appropriate above contract rate.
<br />e. Customer shall indicate on the front side of this Agreement any Product which is intrinsically safe so that appropriate parts and procedures may be used to maintain such status.
<br />f. At the expiration of twelve (12) months after the commencement of Service hereunder (or any time thereafter), if Product cannot in MCA’s opinion be properly or economically repaired, because (but not limited to) excessive wear, deterioration or unavailability of
<br />parts, MCA, at its sole option, upon thirty (30) days prior written notice to customer sent by certified mail, may either: (1) remove such Product from this Agreement; or may increase the price to Service such Product. Customer shall have (30) days from receipt of
<br />notice of price increase to object to such increase. If Customer properly objects to such increase MCA shall then have the option to remove such Product from coverage by the Agreement. Customer’s obligation to pay Service fees with respect to Product removed
<br />from this Agreement shall terminate at the end of the month during which such Product is removed.
<br />4. SERVICE STANDARDS. The Product shall be serviced by MCA in accordance with the following standards: (I) MCA part or parts of equal quality shall be used; (ii) the Products shall be serviced at levels set forth in MCA’s product manuals; and (iii) routine service
<br />procedures prescribed from time to time by MCA for its Product shall be followed.
<br />5. TIME AND PLACE OF SERVICE.
<br />a. Service shall be done at the location specified on the front side of this Agreement. Where Service is to be performed at the location of the Product, Customer shall furnish shelter, heat, light and power at these locations. Customer shall notify MCA immediately of
<br />Product failure, allow MCA full and free access to the Product, and cooperate fully with MCA in MCA’s servicing of the Product. Waiver of liability by MCA against Customer or other restrictions shall not be imposed by Customer as a site access requirement.
<br />Customer shall allow MCA full and free access to the Product. Customer shall allow MCA to use necessary machines, communications, facilities, features and other product (except as normally supplied by MCA) at not charge. Mobiles and removable Product
<br />shall be delivered by Customer to the MCA Service Center indicated on the front side of this Agreement.
<br />b. Hours of Service under this Agreement shall be the normal working hours, excluding holidays, or MCA’s Service Center unless otherwise indicated on the front side of this Agreement.
<br />6. PAYMENT/TAXES. On or about the date each payment is dues as set forth on the front side of this Agree ment; MCA shall send Customer an invoice covering the Service fees for the next Payment Period. All other charges shall be billed monthly and the Customer shall
<br />pay the amount of each invoice within ten (10) days of its date to MCA office designated by MCA. Each invoice shall be due and payable whether or not the Product is operating and MCA may terminate this Agreement by giving Customer ten (10) days notice by certified
<br />mail if Customer defaults in its payment to MCA. Customer shall reimburse MCA for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments now or hereafter imposed by authority of any Federal, State, or Local law, rule or regulation with respect
<br />to the Service of the Product except Federal income and profit taxes of MCA and income and franchise taxes of MCA.
<br />7. RIGHT TO SUBCONTRACT. MCA shall have the right to subcontract in whole or in part the Service called for by this Agreement. MCA shall notify Customer of the name and address of each subcontractor.
<br />8. REVISION OF FEES. Prior to the anniversary of the “Expiration Date” indicated on the front side of this Agreement, MCA may revise the Service fees set forth on the front side of this Agreement by giving Customer written notice of the amount of the increase at least sixty
<br />(60) days in advance of the Anniversary date. Upon receipt of any such notice, Customer may terminate this Agreement on the Expiration Date or any Anniversary of it upon thirty (30) days prior written notice to MCA sent by certified mail to the address indicated in this
<br />Agreement; otherwise the new fees shall become effective on the Anniversary date. In the event of such termination, all accrued and unpaid charges shall be due and payable immediately upon termination.
<br />9. AUTOMATIC RENEWAL. After the Expiration Date indicated on the front side of this Agreement shall continue for successive additional periods of one year, provided that either MCA or Customer may terminate this Agreement on the Expiration Date or Anniversary of it
<br />upon thirty (30) days prior written notice to the other party sent by certified mail to the address indicated in this Agreement.
<br />10. INTERRUPTION OF SERVICE. Customer shall notify the servicing agency in the event of the failure of any Product. If the servicing agency fails to repair the Product within a reasonable time, Customer shall notify the MCA office designated by MCA. After said notice
<br />from Customer to the servicing agency and to the MCA office designated by MCA. MCA shall be liable for any interruption or interference affecting the use of transmission through the Product maintained to the extent of a pro rate allowance based on the monthly service fee
<br />for the time such interruption or interference is attributable to the fault of MCA or its subcontractor. MCA does not assume and shall have no liability under this Agreement for failure to provide or delay in providing service for the Product due directly of indirectly to causes
<br />beyond the control of MCA, including, but not restricted to, acts of God, acts of public enemy, acts of the United States, any State, Territory of the United States, or any political subdivision of the foregoing, or the District of Columbia, acts of failure to act of the Customer, its
<br />agents, employees or subcontractors, fires, floods, casualty, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather conditions or defaults of MCA subcontractors due to any such causes.
<br />11. WARRANTY LIMITATIONS. EXCEPT AS SPECIFIED IN THIS AGREEMENT, MCA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITAION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
<br />AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MCA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
<br />12. FCC AND OTHER GOVERNMENT MATTERS. Although MCA may assist in preparation of the FCC license application, Customer is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission (“FCC”) or
<br />any Federal, State, or Local governmental agency. Customer is solely responsible for complying with the applicable FCC rules and regulations and the applicable rules and regulations of any other Federal, State, or Local governmental agency. Neither MCA or any of its
<br />employees is an agent of Customer in FCC or other governmental matters. MCA, however, may assist in preparation of the FCC license application at no charge to Customer.
<br />13. ENTIRE AGREEMENT. Customer acknowledges that it has read and understands the terms and conditions of the Agreement and agrees to be bound by them, that it is the complete and conclusive statement of the Agreement between the parties and that this Agreement sets
<br />forth the entire agreement and understanding between the parties relating to the subject matter hereof and all understandings and agreements, oral and written, heretofore made between MCA and Customer, are merged in this Agreement which alone fully and Completely
<br />expresses their agreement.
<br />14. AMENDMENT. No modification of or additions to this Agreement shall be binding upon MCA unless such modification is in writing and signed by the MCA Division Service Vice President authorized to make such revisions and authorized agent of Customer.
<br />15. VALIDITY. If any term or provision of this Agreement shall to any extent be held by a court or other tribunal to be invalid, void, or unenforceable, then that term or provision shall be inoperative and avoid insofar as it is in conflict with law, but the remaining terms and
<br />provisions of the Agreement shall nevertheless continue in full force and effect and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid, void, or unenforceable.
<br />16. HEADINGS. Section and paragraph headings used in this Agreement are for convenience only and are not to be deemed or construed to be part of this agreement.
<br />17. LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
<br />18. ASSIGNMENT. No assignment or transfer, in whole or in part, of this Agreement by Customer shall be binding upon MCA without its prior Written consent.
<br />19. WAIVER. Failure or delay on the part of MCA or Customer to exercise any right, power or privilege under this Agreement shall not operate as a waiver of any right, power, or privilege of this Agreement.
<br />20. TIME TO SUE. Except for money due upon an open account, no action shall be brought for any breach of this Agreement more than two (2) years after the accrual of such cause of action except where a shorter limitation period is provided by applicable law.
<br />21. AUTOMATIC RENEWAL. After the Expiration Date indicated on the front side of this Agreement, this Agreement shall continue for successive additional periods of one year, provided that either MCA or Customer may terminate this Agreement upon thirty (30) days
<br />written notice to the other party prior to the Expiration Date or thirty(30) days written notice to the other party prior to the Expiration Date’s anniversary during any one year renewal period.
<br />22. See Attachment “A” for Additional Terms and Conditions.
<br />NOTE:
<br />
<br />DIRECT INQUIRES ABOUT THIS AGREEMENT TO YOUR LOCAL MOBILE COMMUNCATIONS AMERICA OFFICE AT 4800 NORTH I-85, CHARLOTTE, NC 28206 OR 315 KITTY HAWK DRIVE, MORRISVILLE NC 27560
<br />DocuSign Envelope ID: 5110E2A6-A07A-40C9-ADB2-438D115D1E09
|