MAIN AGREEMENT FOR PRODUCTS AND SERVICES
C1 Networx Inc. and C1 Web Connect Inc. (referred to as “C1”, “we” or “us”) is pleased to offer this Agreement to the Customer (referred to as “Customer” or “you”). The parties intend that this Agreement, upon acceptance by us, shall constitute a main agreement for the sale and/or installation of our Products and Services in Canada within our established service territory, or upon mutually agreed terms when installation is available outside our established service territory.
Customer understands that the Products and Services offered by C1 are entirely dependent on the internet. As C1 does not have control of the World Wide Web, nor the Public Service Telephone Network, nor the Hydro Electric Companies, the customer understands that connectivity cannot be 100% guaranteed. Service disruptions may occur and alternative disaster recovery methodologies must be implemented by the customer.
A) Customer has reviewed, considered and purchased a Redundancy Design option available with C1 Enterprise Systems.
B) Customer declines the Redundancy Design options available with C1 Enterprise Systems and thereby waives this option and will implement their own Redundancy mechanism,
Disaster Recovery Options:
A) Customer has implemented a Disaster Plan as outlined by C1 Crew Contingency.
B) Customer declines the Disaster Plans as outlined by C1 Crew Contingency and thereby waives this option and will implement their own Disaster Recovery mechanism.
Maintenance and Support Plan:
Customer understands and accepts the terms of the C1 & Done! Maintenance and Support Plan as it is exhibited and displayed on our website.
Pre-Authorized Payment Options:
A) Customer has accepted one of C1’s “No Contract”, “1 Year Contract”, or “3 Year Contract” Service Plans and commits to a Month-to-Month Pre-Authorized Payment (PAP).
B) Customer declines C1’s PAP options and has elected to pay annually per the terms and conditions of their respective Service Plan.
This Agreement incorporates all provisions of the annexes, exhibits and other documents that are referenced herein. All of these documents taken together, including those effective in the future, shall constitute the entire agreement between you and us and replace any prior oral and/or written communications, negotiations and agreements relating to the subject matter hereof. Each party represents that the individual signing on its behalf has the power and authority to enter into this Agreement. This Agreement shall become valid and binding upon execution by the Customer and C1.
“Annex A” means the ordering document for Products and/or Services.
“COF” means an installation change order form signed by you and us.
“Corrective Maintenance” means repair or replacement services provided to remedy defects in a Product pursuant to manufacturer specifications and any applicable Service Plan, including labor and parts.
“Custom Software” means any Software or portion thereof written by us in whole or in part to your specifications.
“Installation Date” or “Cut over Date” means the date on which: a) a Product, or if a phased installation is intended, any portion of a Product, is installed by us and substantially performing according to all manufacturer’s specifications as verified by our standard test procedures; or b) we deliver a Product to you, if not to be installed by us; or c) performance of a MAC or Project Service is completed by us.
“L&P” means labor and/or parts provided by us on a time and materials basis.
“MAC” means any moves, adds or changes to an installed Product (excluding Product Upgrades).
“Premises” means your installation or service location as referenced on an Annex A.
“Product” or “Products” means equipment, Product Upgrades, and/or Software or Custom Software licensed by you from us.
“Product Upgrade” includes, but is not limited to a new release, new functionality of a Product or Product enhancement, as noted on an Annex A, to an installed Product.
“Periodic Services” means renewable and ongoing services, for which there is a specified periodic charge, as described on an Annex A and/or the applicable Service Plan (exclusive of Warranty Service).
“Price” shall have the meaning set forth in Section 2 hereof.
“Services” means Maintenance Plan and Project Services.
“Project Services” means supplemental services, provided by us on a time and materials or project basis, as described on a Annex A and/or the applicable SOW, Statement of Work.
“Service Plan” is the C1 Standard, Professional or Enterprise System offered by us and described in detail on our Service Plans page exhibited on our website. services and maintenance. Each Service Plan is supported by our C1 & Done! Maintenance and Support Program, exhibited on the website.
“Software Owner” means any party other than us, which may own the Software.
“SOW” means the statement or scope of work document.
“Warranty Services” means the services described in Section 10 of this Agreement and the Corrective Maintenance as described in our Warranty Services Policy.
“Software” means any computer program supplied under this Agreement, or which constitutes part of any Product, on magnetic tape, disk, semiconductor device or other memory device, or Product memory including hardwired logic instructions, microcode and documentation used to describe, maintain and use the programs.
The Price for the Products and Services, except MAC and L&P, shall be specified on an Annex A and on any COF’s. The Price for MAC and L&P orders shall be noted in our invoice to you.
Any additions, deletions or changes to the Products after acceptance of an Annex A may only be made prior to the Installation Date by a COF as mutually agreed by the parties. The amount of credit for any deletions shall be equal to the Price at which each deleted item was ordered originally less any applicable manufacturer restocking charge and any direct costs incurred.
You may order a Maintenance Plan under one or more of our Maintenance Plan or Project Services as described on an Annex A and related Exhibit. For a Maintenance Plan, there may be annual rate increases during the term, and we will provide you sixty (60) days prior written notice of such increase.
The Price does not include applicable taxes unless otherwise indicated, and you shall be responsible to pay when due or levied any sales, use, commodity, excise or other similar taxes with respect to any Products and/or Services, exclusive of taxes based on our net income.
4. PAYMENT TERMS
You agree to pay the Price in such amounts and at such times as described in the applicable Annex A or on the invoice for MAC and L&P. For amounts remaining unpaid after thirty (30) days from invoice date, an interest charge may be assessed equal to 18% annually or the highest amount allowed by law, whichever is lower.
5. FINANCING OPTION
You may assign this Agreement to a financing company or a bank for the sole purpose of financing the Price, provided you agree that any such assignment shall not delay or relieve you of your duty to perform any of your obligations under this Agreement. All payments made shall be promptly refunded to you upon our receipt of the same from the financing company.
6. TITLE TO EQUIPMENT
Title to each Product purchased, including for Software, passes to you on its full payment and we remain the owners of the merchandise until full payment is received.
7. RISK OF LOSS
We will bear the risk of loss of the Products while they are in transit to your Premises. After delivery of the Products to your Premises, you shall bear such risk of loss unless the loss is caused by our negligence or that of our agents or subcontractors.
If the Products are not paid in full, you shall maintain an insurance policy covering the full value of the Products until we are paid in full.
8. INSTALLATION RESPONSIBILITIES
Site preparation and Product installation responsibilities of each of us shall be described on the Installation Responsibilities Policy, if applicable.
We will make all reasonable efforts to complete the installation by the intended Installation Date specified on an Annex A. We will notify you of the actual Installation Date and you agree, on request, to sign our cut over or installation certificate. Minor omissions or variances in the installation or performance of any Product that do not materially affect the operation of the Product as a whole shall not affect or postpone the Installation Date and shall be noted by you.
9. ACCEPTANCE OF PRODUCTS
Except as noted below, a Product will be deemed accepted by you five (5) business days after its Installation Date, unless you notify us in writing within such period of any non conformities. Upon such notice, we will promptly correct any such non-conformities to the specifications of the Statement of Work. The Product will then be deemed accepted by you. MAC, L&P and Products not installed by us will be deemed accepted on their Installation Date.
10. PRODUCT LIMITED WARRANTY
We agree to provide Warranty Service as set forth in this Section and in our Warranty Service Policy for the Product(s) indicated on an Annex A.
We warrant the system shall operate in accordance with the original manufacturer’s technical specifications for a period equal to the warranty provided by the manufacturer from the Installation Date. Excluded from this limited warranty are any repairs or replacements relative to the relocation of the Products, MAC’s, repairs or replacements required after an accidents, direct abuse or improper operation of the Products, acts of thirds parties, force majeure or use of accessories or devices other than those installed and approved by us.
We shall not be liable for any consequential damages. Except as provided herein, all other warranties expressed or implied, legal or conventional are specifically excluded.
11. LIMITATION OF LIABILITY
We shall not be liable for any special, direct, incidental or consequential damages, including lost revenue or profit or additional operation or personal expenses, arising out or relating to this agreement of the breach thereof, or the Products, or the Installation or maintenance thereof or any delay relative to any of the forgoing, including any such damages arising out of or related to negligence or other tort.
Moreover, we inform you of certain measures to be taken to prevent or make more difficult access to the installed Products by unauthorized users or authorized users but for prohibited actions. You understand that it is your responsibility to take the protection measures recommended by us.
We do not assume any liability for the unauthorized uses by the customer or by an unauthorized third party or after a fraudulent usage of the Products, codes or softwares by an employee or an unauthorized third party who accessed the customer’s system.
12. SOFTWARE LICENSE
We grant to you a non-exclusive, license to use the Software, but only in conjunction with the equipment or Product with which it is licensed and installed. You acknowledge and agree that you shall have no title or ownership rights to such Software.
You agree to abide by and/or execute any software license agreement required by the Software Owner, as noted on an Annex A, or required by the Software Owner to receive a Product update, enhancement or new release and said provisions of the software license agreement shall be in addition to the terms and provisions contained in this Section 12.
You agree to maintain the Software version up to current supported versions by the manufacturer. If the software version is not a current supported version, we shall use best effort to support you. Should a version upgrade be required to correct problems, you agree to pay the Price for the required upgrade.
You acknowledge and agree that the Software is a trade secret of the Software Owner and/or us. You agree to take all reasonable precautions to protect the trade secret nature of the Software and to prevent its disclosure to unauthorized personnel. You may make one back-up copy of the Software, but agree not to otherwise copy, modify, translate, reverse compile, decompile or reverse engineer the Software.
13. FAILURE TO COMPLY
Should you fail to pay the Price when due or fail to comply with any terms or conditions of this agreement, or if any proceeding in bankruptcy, receivership or insolvency is instituted by or against you or against your property, or if the Product was in any way encumbered, we may, without demand and without refunding any amounts of received on account of Price, retaining same as liquidated damages and not as penalty, take immediate possession of the Products, and for such purposes, may enter into and upon the Premises to remove it, the while without prejudice to any other rights and recourses we may have. Your hereby indemnify us in respect of all damages to the said premises occasioned by such removal. Our rights and recourses hereunder shall be cumulative and not alternative.
If either party is not substantially complying with the terms of this Agreement, the other party may give written notice of such failure to perform. The non-complying party will be in compliance if, within ten (10) days after receiving such notice, it either corrects its performance or commences a continuous good faith effort to correct its performance within a reasonable period of time.
Upon our default, we will only be liable for: a) liabilities referred to in Sections 10 and 11.
Both parties may delegate any or all of their duties to subcontractors, subsidiaries or parent or affiliated companies, provided that both parties will remain liable for their respective duties. Except as noted in Section 5, you may not assign this Agreement or any of your rights under this Agreement without our prior written consent. Any attempt to do so is void.
This Agreement may not be modified except in writing, signed by you and us. The terms and conditions contained on any other form, purchase order or other communication by either of us are deemed void.
Neither of us will be liable for our inability to perform to the extent caused by conditions beyond our reasonable control, including but not limited to Pandemics, Acts of God, environmental conditions at your Premises, your third-party telephone services provider or other contractors, labor disputes, perils, other hazards or manufacturer’s discontinuation of Product(s) and/or Services.
You grant us the right to use your name in customer lists, SEC documentation and marketing materials. In the event we intend to disclose information other than your name, such as, but not limited to, dollar amount of sale, project timelines, project objectives and or use your logo, trade or service marks, we will obtain your approval.
If any portion of this Agreement is held invalid, such invalidity shall not affect the remaining portions of this Agreement, and you and we agree to substitute for the invalid portion a valid provision that most closely approximates the economic effect and intent of the invalid provision.
Failure or delay by either of us to exercise any right, power privilege or remedy will not constitute a waiver thereof. A waiver of default will not operate as a waiver of any other default or of the same type of default on a future occasion.
Neither party will bring a legal action more than two (2) years after the cause of action arose.
Any provision contained herein that by its nature could reasonably be construed to survive expiration of this Agreement shall so survive.
This Agreement shall be governed by and construed according to the laws of the Province of Ontario.
The parties hereby declare that they have required that the present document and all documents relating hereto, whether present or future, be drawn up in the English language. Les parties déclarent par les présentes qu’elles exigent que le présent document, de même que tous les documents s’y afférant, soit pour le présent ou pour le futur, soient rédigés en langue anglaise.