TERMS AND CONDITIONS OF BUSINESS Company agrees to comply with the terms and conditions contained herein and of the policies reflected by such Exhibits as Enables IT may update them from time to time in the Statement of Work; Service Level Agreement and Service Contract. The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase services and/or products from Enables IT to be mutually agreed upon by the parties. This Agreement, including all Exhibits, Statements of Work, Service Level Agreements and Service Contracts constitutes the entire agreement between Enables IT and Customer with regard to the Services to be performed and/or products to be provided by Enables IT to Customer and supersedes all prior agreements, understandings, statements, proposals, and representations, whether written or oral, between the parties. The terms of this Agreement will take precedence in the event of any inconsistency between it and the Exhibits and any other documents comprising Enables IT’s agreement with Customer, unless specifically stated in the Statement of Work and identifying the section(s) that will control. In consideration of the mutual promises and upon the terms and conditions set forth below, the parties hereby agree as follows: Services and Products Provided. Enables IT shall provide Customer with services as specified in the Statement of 1. Work/Service Contract and as specified in any subsequent mutually agreed written statements of work (each, a “Statement of Work”) which specifically incorporate this Agreement (the “Services”), and subject to the terms and conditions set forth in the applicable Exhibits. Enables IT shall sell and Customer shall purchase any goods, hardware, software and materials which Enables IT is to supply and/or manufacture in connection with the Services (the “Products”) as specified in any Statement of Work or described in any order from Customer to Enables IT for Products that Enables IT accepts in writing (a “Purchase Order”). Fees, Expenses, and Payment. Customer shall pay Enables IT the fees specified in (or calculated in accordance with the 2. fees or rates set forth in) the applicable Statement of Work/Service Contract, in the manner set forth in the applicable Exhibit. Enables IT will be reimbursed, at cost actually incurred, for expenses that have been approved in advance by Customer. Customer is responsible for all taxes, duties, and customs fees imposed on or with respect to the Services, excluding taxes based on Enables IT’s income. Customer may purchase additional Services offered by Enables IT from time to time on terms and conditions mutually agreed to in writing. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of eight (8) percent per month or fraction thereof until paid. 3. Term and Termination. 3.1 Term. This Agreement will commence as of the Effective Date and will continue for the Period agreed (“Initial Term”). Each Statement of Work will become effective when duly executed by both parties and will continue in effect until the expiration of the applicable Statements of Work term, unless terminated as permitted hereunder. 3.2 Renewal. Prior to the end of the Initial Term, Customer may elect to extend the Initial Term for one (1) or more year(s) by sending written notice to Enables IT. If Customer does not make such election, this Agreement shall renew automatically for successive one (1) month terms (a “Monthly Term”). In the event the agreement is subject to Monthly Terms, Enables IT may increase any reoccurring monthly charges set forth in a statement of work by fifteen percent (15%) per year upon thirty (30) days prior written notices. 3.3 Termination. (a) Customer may notify Enables IT in writing at least ninety (90) days prior to the end of the Initial Term of its election not to renew this Agreement, in which case this Agreement shall terminate at the end of such Initial Term. In the event the Agreement is subject to Monthly Terms, Customer may terminate this Agreement for any reason upon ninety (90) days prior written notice delivered to Enables IT. (b) Either party may terminate this Agreement at any time, upon written notice, if the other party materially breaches any of its obligations under this Agreement and such breach is not remedied within twenty (20) days after written notice thereof by the other party. Failure by Customer (whether under this or any other agreement between Customer and Enables IT) to make any payment due and payable to Enables IT is expressly deemed a material breach. (c) This Agreement terminates automatically, with no further action of either party, if Company is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in the normal course of business or if a receiver is appointed on account of Company’s insolvency. (d) Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief. On termination of this Agreement for any reason, (i) Customer shall immediately pay to Enables IT all of Enables IT’s outstanding unpaid invoices and interest in and, in respect of Services supplied but for which no invoice has been submitted, Enables IT shall submit an invoice, which shall be payable by the Customer immediately on receipt; and (ii) Customer shall return any Products which have not been paid for, and if Customer fails to do so, then Enables IT may enter the Customer’s premises and take possession of them. Any provisions of this Agreement that must survive termination to fulfill its essential purpose will survive termination of this Agreement. LEG002/Iss02/02-14 1 4. Confidential Information. 4.1 During the course of the parties’ relationship, they may have access to each other’s Confidential Information. “Confidential Information” means any information that is disclosed by one party (the “Discloser”) to the other (the “Recipient”), which, at the time it is disclosed, in any form, is identified or designated by the Discloser as “confidential or proprietary” or reasonably should be known by the Recipient to be proprietary or confidential information of the Discloser. “Confidential Information” includes, but is not limited to, with respect to either party, information relating to the business and affairs of such party, including without limitation research, development, products, methods of manufacture, trade secrets, business plans, customers, finances and personnel data, this Agreement (including the terms, conditions and pricing contained herein), and any information generated in the performance of Services under this Agreement. Notwithstanding, “Confidential Information” shall not include any information that (a) was rightfully in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from the Discloser; (b) is or becomes generally known to the public through no fault or breach on the part the Recipient or any person to who the Recipient disclosed such information; (c) is obtained by the Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (d) is independently developed by the Recipient without the use of Confidential Information. 4.2 The Recipient shall protect the Discloser’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the Recipient utilizes for its own information which it does not wish disclosed to the public. The Recipient shall not, either during the term of this Agreement or thereafter, use or disclose the Confidential Information without the prior written consent of the Discloser, except: (a) as specifically permitted in this Agreement; or (b) for the purpose of performing its obligations or enforcing its rights under this Agreement, provided that such disclosures are made only to those employees, consultants, contractors, professional advisors or third party service providers with a direct business need to know and who have agreed in writing to confidentiality provisions that provide the Discloser with at least as much protection as those contained herein. Notwithstanding the foregoing, if the Recipient is required to disclose Confidential Information pursuant to a requirement of applicable law, Recipient shall provide the Discloser with prompt written notice of any such requirement sufficient to permit the Discloser to seek and obtain appropriate protective orders prior to such disclosure by Recipient. 5. Representations and Warranties. 5.1 Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement. Further, both parties represent and warrant to the other: (ii) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (ii) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement. 5.2 Customer warrants to Enables IT, and agrees that during the term of this Agreement it will ensure that (a) Customer is the owner or valid licensee of any data and/or content Customer shall provide or make available to Enables IT in connection with the Services (“Content”), and that Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Enables IT to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Customer’s use, publication and display of the Content will not, to the knowledge of Customer, infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations and will use the Services only for lawful purposes; and (d) Customer will use reasonable commercial efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code. 5.3 Enables IT warrants that (i) the Services will be performed in a workmanlike manner and in material accordance with the Service Level Terms, (ii) neither the Products nor the Service will infringe the proprietary rights of any third party, and (iii) the Services will conform with generally prevailing industry standards. Customer must report any material deficiencies in the Products or Services to Enables IT in writing within ninety (90) days of Customer’s discovery of the deficiency. Enables IT shall keep in force with a reputable insurance company appropriate insurance to cover for potential losses relating to the Products, Services, and Enables IT’s equipment. TO THE MAXIMUM EXTENT ENFORCEABLE UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND ANY EXHIBIT, ENABLES IT AND ITS AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. ENABLES IT DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, ACCURACY, OR FITNESS FOR ANY PARTICULAR PURPOSE, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. 6. Limitation of Liabilities. EXCEPT AS DESCRIBED IN THIS AGREEMENT OR ANY EXHIBIT, ENABLES IT SHALL NOT BE LIABLE TO CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CAUSED BY ENABLES IT’S NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT WILL ENABLES IT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL ENABLES IT AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE LEG002/Iss02/02-14 2 OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ENABLES IT OR ENABLES IT’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 6, ENABLES IT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. 7. Ownership. 7.1 Enables IT or its licensor holds all rights, title and interest in all Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated in a Statement of Work. Customer acknowledges and agrees that no title or interest in such intellectual property rights is being transferred to it. 7.2 Each party shall own all rights, title and interest in, any and all of its ideas, concepts, techniques, know-how, programs, systems, methods, methodologies, procedures, and processes that it acquired or developed prior to this Agreement, and neither party will acquire any right, title, or interest by virtue of its performance under this Agreement in the intellectual property rights of the other party. 7.2 To the extent Enables IT develops and delivers any software or other code to Customer in order to provide the Services, Enables IT shall own all right, title and interest, and any and all intellectual property rights, in and to all such software, and to any modifications or enhancements which either party may make to such software (the “Software”). Subject to the terms and conditions of this Agreement, Enables IT hereby grants to Customer a limited, non-transferable, non-assignable, indivisible, nonseverable, non-exclusive, non-sublicensable right and license to use the Software until the Agreement is terminated, but only in connection with Services. 7.3 Customer hereby grants to Enables IT a limited, non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following, only to the extent necessary to perform the Services as specified herein: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back-up copies of the Content. Except for the foregoing limited rights, Enables IT does not acquire any right, title or interest in or to any Content, all of which will remain solely with Customer. 7.4 Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to Enables IT relating to the Services will be treated as being non-confidential and non-proprietary. Enables IT may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose. 7.5 Enables IT’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Enables IT. Customer will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Enables IT. 8. Indemnification. 8.1 Enables IT Indemnification. Enables IT shall indemnify, defend and hold harmless Customer and its subsidiaries and affiliates, and their respective directors, officers, employees and agents, from and against all claims, liabilities, actions, demands, settlements, damages, costs, fees and losses of any type, including reasonable attorneys’ and professionals’ fees and costs, arising from any third party claim or suit that is based on any negligent act or omission or willful conduct of Enables IT’s employees, sublicensees or contractors and which results in: (i) any bodily injury, sickness, disease or death; or (ii) any injury or destruction to tangible or intangible property (including computer programs and data) or any loss of use resulting therefrom. 8.2 Customer agrees to indemnify and hold Enables IT, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim by any third party (i) that use of the Content infringes the rights of, or has caused harm to, a third party, or (ii) based on any breach of Customer’s representations and warranties under this Agreement. 8.3 Each party’s obligation to indemnify the other is conditioned on the party seeking indemnification (i) providing the other party prompt written notice of the claim (ii) giving the other party sole control of the defense and settlement of the claim (provided that other party may not settle or defend any claim unless it unconditionally releases the party seeking indemnification of all liability), (iii) providing the other party all available information and reasonable assistance, and (iv) not having compromised or settled such claim. If Enables IT determines that the Service does or is likely to infringe any patent, trademark or copyright or misappropriate the trade secret of a third party, Enables IT may at its option: (i) procure at no cost to Customer the right to continue to use the Service in accordance with this Agreement; (ii) replace or modify the Service so that it no longer infringes or misappropriates, and thereafter substantially conforms to the requirements hereof; or (iii) terminate this Agreement and refund any fees prepaid by Customer for future use of the Service. This Section 8 states Enables IT’s entire liability to Customer for any infringement of any third party rights. LEG002/Iss02/02-14 3 9. General Terms. 9.1 Relationship; No Third Party Beneficiaries. Each party is an independent contractor and each party’s personnel are not employees or agents of the other party for federal, state or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one party an agent of the other party. There are no third party beneficiaries, actual or intended, under this Agreement. 9.2 Noninterference with Business. During the term of this Agreement and for one year after its termination, Customer agrees not to interfere with the business of Enables IT in any manner. By way of example and not of limitation, Customer agrees not to solicit or induce any employee, independent contractor or other personnel to terminate or breach an employment, contractual or other relationship with Enables IT. 9.3 Subcontractors. Enables IT may subcontract any of the Services to be provided hereunder to qualified third parties, provided that any such third party shall be subject to all of the obligations of Enables IT specified in this Agreement 9.4 Notices. All formal notices and other communications required or permitted hereunder shall be in writing and shall be mailed by certified or registered mail, postage prepaid, delivered either by hand or by messenger, or transmitted by electronic mail, electronic facsimile to the address on the signature page of this Agreement, or at such other address as either party shall have furnished to the other in writing. All such notices and other written communications shall be effective (i) if mailed, seven (7) days after mailing, (ii) if delivered, upon delivery, or (iii) if e-mailed or faxed, within one (1) business day after transmission, provided that the notifying party has written verification of receipt. 9.5 Assignment. Customer may not assign or delegate its rights or obligations under this Agreement without the other party’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 9.6 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the substantive laws of the State of California without regard to conflict of law principles. Any action relating to the Agreement will be brought in the Superior Court of the County of Santa Clara, California, or if under federal jurisdiction, in the U.S. District Court for the Northern District of California and the parties hereby submit to the jurisdiction of such courts, and waive any venue objections thereto. 9.7 Severability and Waiver. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver (express or implied) by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. 9.8 Entire Agreement; Amendment. This Agreement together with all Exhibits attached hereto constitute the entire, final, complete and exclusive agreement between the parties and supersedes all previous agreements or representations, written or oral, and all printed provisions or subordinate Customer documents, including purchase orders, with respect to the Software, the services specified herein, and the licensing and providing of same under this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together one and the same document. In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be (i) the provisions of any Statement of Work; (ii) the provisions of this Agreement document; (iii) the provisions of the remainder of the Exhibits; and (iv) provisions in the applicable Purchase Order (as defined in any applicable Exhibit). 9.9 Attorneys’ Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement (excluding any mediation required under this Agreement), the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action. 9.10 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. 9.11 Force Majeure. Enables IT will not be liable for and will not be responsible to Customer for any delay or failure to perform under this Agreement if such delay or failure results from fire, explosion, labor dispute, earthquake, casualty or accident, lack of or failure of transportation facilities and/or services, lack of or failure of telecommunications facilities and/or services including internet services, virus attacks, hacking attempts, epidemic, flood, drought, war, revolution, civil commotion, blockade or embargo, act of God, any inability to obtain any requisite license, permit or authorization, any regulation or other prohibition on the part of any governmental authority, or any other cause whatsoever, whether similar or dissimilar to those enumerated, beyond the reasonable control of Enables IT. LEG002/Iss02/02-14 4 9.12 Survival. All terms and provisions of this Agreement, including any and all exhibits, addenda and amendments hereto, which by their nature are intended to survive any termination or expiration of this Agreement, shall so survive. Managed Hosting Services Terms and Conditions 1. Services. 1.1 The Services. Enables IT shall provide Customer with the Services set forth in the Service Contract, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant, uninterrupted basis, and (ii) the integrity and security of the Services. 1.2 Maintenance. For optimal performance it is necessary to perform routine maintenance. Such maintenance often requires taking the Services offline, typically performed during off-peak hours. Enables IT will give Customer advance notice wherever possible. 1.3 Technical Advice. The Services may include technical advice in relation to the Products and Services, any documentation delivered in connection therewith. Such technical advice will be available during the hours of 9.00am and 5.30pm EST Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work and Customer shall nominate the Named Individuals set forth in the Statement of Work to whom Enables IT may be required to provide advice. These employees may require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with technical advice within the response time detailed in the Service Level Terms. Technical advice may be delivered by telephone or email and may be included as an additional service. A particular incident may require a temporary workaround solution to return the Services to a functioning state. 1.4 Managed Backup. Enables IT recommend that Customer test the managed backup service promptly following the Effective Date and periodically thereafter to determine if it capturing data adequately. 2. Fees; Charges and Payment. 2.1 In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Service Contract in advance of services being provided. No payment shall be considered made until received by Enables IT. 2.2 Customer shall provide all such information as Enables IT shall consider necessary to enable Enables IT to carry out its obligations under the Agreement. If and to the extent that Enables IT shall be delayed in the performance of such obligations by the failure of Customer to provide such information and/or access as aforementioned, then Enables IT shall be entitled to recover from Customer any additional costs that Enables IT may incur by reason of such delay or at Enables IT’s sole discretion to terminate this Agreement. 2.3 Enables IT shall be entitled to fees at its then current rates in the following circumstances: (a) Where resolution of an underlying problem may require additional service which may fall outside of this Agreement, and/or (b) Where, in Enables IT’s sole discretion, more than a reasonable level of Service is being provided to Customer as a result of untrained personnel operating the Product, and/or (c) Providing Services where, in the opinion of Enables IT, Customer has not complied with technical or environmental installation conditions as specified by the Product manufacturer or Enables IT, and/or (d) Providing Services in respect of Products which can no longer be maintained in good working order, (e) Any changes or modifications to Enables IT’s equipment resulting from technical or regulatory changes by the relevant authorities or regulatory bodies, and/or (f) Where products or services are requested or otherwise required by Customer which are not specifically within the Products or Services to be provided under the Service Contract, and/or (g) Where additional technical resource above and beyond the standard remote hands is required. 2.4 Where possible Enables IT will fix our prices with third party suppliers, however where this has not been possible and third party costs are increased Enables IT may pass this cost on to Customer. In the case of software licensing increases that cannot be fixed, these charges will be reflected in Customer costs. 3. Data. LEG002/Iss02/02-14 5 3.1 Customer shall own any Content, email, data, information or material submitted by Customer to the hosted environment in the course of using the hosted environment (collectively, “Customer Data”). Enables IT shall allow access to such data only by Customer and only through secure connectivity. 3.2 Enables IT will not retain any of Customer’s Data after it ceases to provide Services to Customer, including but not limited to data residing in structured directories, databases, email and other systems. 3.3 Enables IT shall not be liable for any costs related to the migration of Customer data to another provider. 3.4 Where Customer’s Services include data replication on a geographically separate site, the rate of data transfer will vary depending on the amount of data and its type and bandwidth fluctuations meaning that at any given time the secondary site may not be completely up to date and in the event of a failover to the secondary site, data not yet transferred will be lost. 4. Acceptable Use Policy. Customer must at all times conform to Enables IT’s Acceptable Use Policy set out in these Terms and Conditions, as modified or amended from time to time. 5. Customer Obligations. 5.1 Customer shall agree to: (a) Respond to Enables IT’s requests to aid remote resolution of the problem, such as a detailed explanation, provision of information such as log/configuration files, apply software patches or upgrades, make recommended configuration changes and allowing remote access, where agreed; (b) Ensure that all its communication details which are provided to Enables IT are at all times true, current, accurate and complete and Customer shall promptly notify Enables IT of any such alterations thereto from time to time and Customer acknowledges that Enables IT shall not be liable for any costs, damages or loss which Customer may suffer or incur as a result of failure to notify such changes to Enables IT; (c) Ensure that it has all necessary consents, permissions and licenses to make use of the Services including without limit registration under any applicable law related to the processing of data or the provision of other electronic communications; (d) Immediately notify Enables IT if it becomes aware of any unauthorized use of all or any of the Services; (e) Not use the Services or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of Enables IT may harm Enables IT or any of its Customers or bring Enables IT into disrepute or may call into question any action taken by Enables IT on Customer’s behalf; (f) Ensure that all material on any web site operated by Customer from time to time or communicated through such site is checked for viruses and other harmful code; (g) Ensure that all passwords are at all times kept confidential, used properly and not disclosed to unauthorized people and if Customer has any reason to believe that any password has become known to someone not authorized to use it or if any password is being or is likely to be used in an unauthorized way or of any other breach of security then Customer shall inform Enables IT immediately; (h) Not use the Services in any way that leads to a risk of or causes an excessive load on the network provided by Enables IT in connection with the Services; (i) Upon third party requests, allow Enables IT access to Customer’s data to check for any infringements of Customer’s obligations under this Agreement, and, when the situation necessitates, to remove or disable any such infringements from time to time. 5.2 Where Services have been rendered or costs incurred as a result of a breach of any of the foregoing, Enables IT reserves the right to render reasonable charges for the same. 5.3 Customer will be legally liable for maintaining, acquiring and providing the appropriate licensing agreements for all software installed by Customer. 5.4 Customer acknowledges and accepts that to allow Enables IT to properly provide the Services it must cooperate with Enables IT as required by Enables IT. 5.5 Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how the Internet functions and what types of use are and are not acceptable. 5.6 Customer agrees that it shall make no alteration or modification to any software or hardware which is administered by Enables IT and is covered by the Agreement without prior written approval of Enables IT. Any unauthorized alterations or modifications will entitle Enables IT to terminate the Agreement immediately. LEG002/Iss02/02-14 6 5.7 In the event that Customer changes the location of the Product from the initial installation site specified in the Statement of Work/Service Contract, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees that any such change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the new location is further than the previous location from Enables IT support center. 6. Enables IT’s Warranties and Liability. 6.1 Third Party Products and Services. Enables IT warrants that all software installed by Enables IT in relation to the fulfillment of the included Services will be licensed accordingly. Enables IT shall not be liable for any services or products supplied by a third party. 6.2 Enables IT is not responsible for any delay, malfunction, non-performance and/or other degradation of performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by Customer whether or not beyond those already supplied. Colocation Terms and Conditions 1. Services. 1.1 The Services. Enables IT shall provide Customer with the Services set forth in the Statement of Work/Service Contract, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant, uninterrupted basis, and (ii) the integrity and security of the Services. 1.2 Maintenance. For optimal performance it is necessary to perform routine maintenance. Such maintenance often requires taking the Services offline, typically performed during off-peak hours. For such maintenance Enables IT will give the client least forty eight hours' advance written notice. Emergency Maintenance shall take place where Enables IT detect or otherwise suspect an imminent failure and have no alternative than to take immediate corrective action. Any Maintenance Events which occur during Normal Business Hours, or which occur with less than 48 hours' notice, and have not been notified in advance (Emergency Maintenance Events), shall be considered to be Down Time for the purpose of the service availability measurement. 1.3 Technical Advice. The Services may include technical advice in relation to the Products and Services, any documentation delivered in connection therewith. Such technical advice will be available during the hours of 9.00am and 5.30pm EST Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract and Customer shall nominate the Named Individuals set forth in the Statement of Work to whom Enables IT may be required to provide advice. These employees may require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with technical advice within the response time detailed in the Service Level Terms. Technical advice may be delivered by telephone or email and may be included as an additional service. A particular incident may require a temporary workaround solution to return the Services to a functioning state. 1.4 The Colocation Space. (a) The Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other Enables IT premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances. (b) The Colocation Space is provided on an “As Is” basis and Customer may use the space only for the purposes of maintaining and operating Customer equipment as necessary to support local access communications facilities and links to third parties. (c) Access will be available on a 24 hour basis in accordance with Enables IT’s Security and Access Policies, copies of which are available to Customer upon request. Only Named Individuals (and persons escorted by Named Individuals) will be permitted to enter the Colocation Space. For good cause, Enables IT may suspend the right of any Customer representative or escorted persons to visit the Enables IT premises and/or the Colocation Space. Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation space under any circumstances. (d) At the request of Customer, Enables IT may assist Customer in performing light duties such as rebooting of equipment, pressing reset of readily accessible buttons, reconfiguration of non-restricted cables with push-on type connectors, assisting to locate and correct circuit problems, subject to additional fees at its then current rates. (e) Enables IT will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so (f) operated by Enables IT. LEG002/Iss02/02-14 “Colocation Space” shall mean the accommodation of equipment owned by Customer at a data center 7 2. Fees; Charges and Payment. 2.1 In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Statement of Work/Service Contract in advance of services being provided. No payment shall be considered made until received by Enables IT. 2.2 Customer shall provide all such information as Enables IT shall consider necessary to enable Enables IT to carry out its obligations under the Agreement. If and to the extent that Enables IT shall be delayed in the performance of such obligations by the failure of Customer to provide such information and/or access as aforementioned, then Enables IT shall be entitled to recover from Customer any additional costs that Enables IT may incur by reason of such delay or at Enables IT’s sole discretion to terminate this Agreement. 2.3 Enables IT shall be entitled to fees at its then current rates in the following circumstances: (a) Where resolution of an underlying problem may require additional service which may fall outside of this Agreement, and/or (b) Where, in Enables IT’s sole discretion, more than a reasonable level of Service is being provided to Customer as a result of untrained personnel operating the Product, and/or (c) Providing Services where, in the opinion of Enables IT, Customer has not complied with technical or environmental installation conditions as specified by the Product manufacturer or Enables IT, and/or (d) Providing Services in respect of Products which can no longer be maintained in good working order, (e) Any changes or modifications to Enables IT’s equipment resulting from technical or regulatory changes by the relevant authorities or regulatory bodies, and/or (f) Where products or services are requested or otherwise required by Customer which are not specifically within the Products or Services to be provided under the Statement of Work/Service Contract, and/or (g) Where additional technical resource above and beyond the standard remote hands is required. 2.4 Where possible Enables IT will fix our prices with third party suppliers, however where this has not been possible and third party costs are increased Enables IT may pass this cost on to Customer. In the case of software licensing increases that cannot be fixed, these charges will be reflected in Customer costs. 3. Data. 3.1 Customer shall own any Content, email, data, information or material submitted by Customer to the Colocation Space in the course of using the Colocation Space (collectively, “Customer Data”). Enables IT shall allow access to such data only by Customer and only through secure connectivity. 3.2 Enables IT will not retain any of Customer’s Data after it ceases to provide Services to Customer, including but not limited to data residing in structured directories, databases, email and other systems. 3.3 Enables IT shall not be liable for any costs related to the migration of Customer data to another provider. 4. Acceptable Use Policy. Customer must at all times conform to Enables IT’s Acceptable Use Policy set out in these Terms and Conditions. 5. Customer Obligations. 5.1 5.2 In relation to use of the Services, Customer shall indemnify and hold Enables IT harmless against: (a) damages, losses and expenses arising as a result of any action or claim that Customer’s equipment infringes any intellectual property rights of a third party; (b) All loss and damage to Enables IT equipment, including the Enables IT’s data center, caused by Customer or by an act or omission of Customer or any of its directors, officer, employees, representatives or subcontractors; (c) All loss and damage arising out of Customer use of the Services to transmit Data for any unlawful purpose, including without limitation fraud, invasion of privacy, obscenity, defamation or interrupt or interfere with other network users; and/or (d) Any costs, damages or loss which Customer may suffer or incur as a result of failure to notify changes to Enables IT. Customer shall: LEG002/Iss02/02-14 8 (a) Be responsible for the general care of the equipment, ensuring it is installed, tested, maintained, operated and transported in accordance with the manufacturer’s specifications, manuals or documentation, at Customer’s sole risk; (b) Customer will provide Enables IT with two (2) days written notification when wishing to install or remove a piece of equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer equipment, Enables IT’s accounting department will verify that Customer has no payments due to Enables IT. Once Enables IT authorizes removal of Customer equipment, Customer will remove such Customer equipment and will be solely responsible to leave area in good operating condition at its own expense; (c) Be responsible for ordering all Internet, local and long-distance lines from carriers where these are not already provided by Enables IT and ordering any and all necessary cross-connects from Enables IT. Customer will be solely responsible for such circuits and for all payments due to the carriers. Customer will notify the carrier directly when Customer wishes to terminate or modify such circuit. Customer understands that Enables IT does not own or control these services and that Enables IT is not responsible or liable for performance (or non-performance) of such services; (d) Ensure that Customer equipment does not interfere with or adversely affect the Services or Enables IT’s equipment; (e) Ensure that it has all necessary consents, permissions and licenses to make use of the Services including without limit registration under any applicable law related to the processing of data or the provision of other electronic communications; (f) Immediately notify Enables IT if it becomes aware of any unauthorized use of all or any of the Services; (g) Ensure that all material is checked for and free of all viruses and other harmful or malicious code; (h) Ensure that all passwords are at all times kept confidential, used properly and not disclosed to unauthorized people and if Customer has any reason to believe that any password has become known to someone not authorized to use it or if any password is being or is likely to be used in an unauthorized way or of any other breach of security then Customer shall inform Enables IT immediately; (i) Not use the Services in any way that leads to a risk of or causes an excessive load on the network provided by Enables IT in connection with the Services; and (j) Upon third party requests, allow Enables IT access to Customer’s data to check for any infringements of Customer’s obligations under this Agreement and when the situation necessitates, to remove or disable any such infringements. 5.3 Where Services have been rendered or costs incurred as a result of a breach of any of the foregoing, Enables IT reserves the right to render reasonable charges for the same. 5.3 Customer will be legally liable for maintaining, acquiring and providing the appropriate licensing agreements for all software installed by Customer. 5.4 Customer acknowledges and accepts that to allow Enables IT to properly provide the Services it must cooperate with Enables IT as required by Enables IT. 5.5 Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how the Internet functions and what types of use are and are not acceptable. 5.6 Customer will keep in full force and effect during the term of this Agreement with a reputable insurance company, appropriate insurances to cover potential losses or liability under an Agreement, including but not limited to cover for all Customer equipment, workers’ compensation, employer’s liability, and commercial general liability in an amount not less than that necessary to compensate Customer and its customers for complete failure of Service. 5.7 Customer agrees that Customer and its agents and representatives shall not pursue any claims against Enables IT for any liability Enables IT may have under or relating to this Agreement unless and until Customer or its employee, as applicable first makes claims against Customer’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Customer shall employ best efforts to name Enables IT as an additional insured on all general liability insurance. 5.8 Customer agrees that it shall make no alteration or modification to any software or hardware which is administered by Enables IT and is covered by the Agreement without prior written approval of Enables IT. Any unauthorized alterations or modifications will entitle Enables IT to terminate the Agreement immediately. LEG002/Iss02/02-14 9 5.9 In the event that Customer changes the location of the Product from the Installation Site Address specified in the Statement of Work, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees that any such change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the new location is further than the previous location from Enables IT support center. 6. Enables IT’s Warranties and Liability. 6.1 Third Party Products and Services. Enables IT warrants that all software installed by Enables IT in relation to the fulfillment of the included Services will be licensed accordingly. Enables IT shall not be liable for any services or products supplied by a third party. 6.2 Enables IT is not responsible for any delay, malfunction, non-performance and/or other degradation of performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by Customer whether or not beyond those already supplied. 6.3 Enables IT shall not arbitrarily or capriciously require Customer to relocate Customer equipment; however, upon ninety (90) days written notice or, in the event of any emergency, Enables IT may require Customer to relocate Customer equipment; provided however, the site of relocation shall afford comparable environmental conditions for Customer’s equipment and comparable accessibility to Customer’s equipment. In the event that Enables IT requires Customer to relocate Customer equipment, all costs shall be borne by Enables IT. 6.4 Enables IT disclaims all liabilities in connection with the following: (i) incompatibility of the site with any of Customer’s equipment, software or telecommunications links; (ii) loss of material uploaded; (iii) downtime or unavailability occurring during an Enables IT service window when Customer is notified in advance; and (iv) any force majeure event set forth in the Agreement. 6.5 Enables IT does not guarantee security of Customer equipment or of the Colocation Space. Enables IT requires that Customer and its employees comply with all Colocation security procedures as defined on Enables IT’s Security and Access Policies (available upon request by Customer) in order to maximize the security of the Enables IT premises. Support Terms and Conditions 1. Services. 1.1 The Services. Enables IT shall provide Customer with the Services set forth in the Statement of Work/Service Contract, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant, uninterrupted basis, and (ii) the integrity and security of the Services. 1.2 Service Hours. The Services will be available during the hours of 9.00am and 5.30pm EST Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract (the “Service Hours”). Additionally, services may be provided outside the Service Hours subject to agreement at additional charges for such work. 1.3 Technical Advice. The Services may include technical advice in relation to the Products and Services, any documentation delivered in connection therewith. Such technical advice will be available during the hours of 9.00am and 5.30pm EST Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work/Service Contract and Customer shall nominate the Named Individuals set forth in the Statement of Work/Service Contract to whom Enables IT may be required to provide advice. These employees may require approval by Enables IT. Enables IT shall use its best efforts to provide Customer with technical advice within the response time detailed in the Service Level Terms. Technical advice may be delivered by telephone or email and may be included as an additional service. A particular incident may require a temporary workaround solution to return the Services to a functioning state. 1.4 Products. Enables IT will provide the Services for Products or Product releases currently supported by the Product originator. Enables IT can offer support for other releases (earlier or Beta) only on a reasonable basis. 1.5 Maintenance. Where equipment hardware maintenance has been purchased by Customer as set forth in the Statement of Work/Service Contract, the following applies: (a) Any replacement parts will become the property of Customer upon payment and all faulty parts will become the property of Enables IT. Only standard parts of equal quality and compatible revision level to those replaced shall be used by Enables IT to effect repairs. (b) Enables IT reserves the right to supply new, second hand or reconditioned replacement parts in the performance of the Services. (c) Enables IT does not warrant that the Services will cause the equipment to operate without interruption or error. LEG002/Iss02/02-14 10 1.6 longer be valid Any pre-paid days have to be scheduled within twelve (12) months of the order date, after this date they will no 1.7 Customer Specific Business Software Applications. To the extent any Customer-specific business software applications have been specifically listed in the Statement of Work/Service Contract, such applications are included within the Service. Enables IT will provide application connectivity and testing Services for those Customer-specific applications. Service for all Customerspecific applications will be provided on a discretionary basis. Enables IT may cease support for any Customer-specific applications at any time giving Customer no less than 30 days’ written notice, should in the opinion of Enables IT, the Customer-specific applications unreasonably impact upon the overall performance of the Service. 2. Fees; Charges and Payment. 2.1 In consideration of the provision of the Services, Customer shall pay the Service Fee specified in the Statement of Work/Service Contract in advance of services being provided. Customer shall pay the price of all subsequent invoices within fourteen (14) days of the date of the invoice in full. No payment shall be considered made until received by Enables IT. 2.2 Customer shall provide all such information as Enables IT shall consider necessary to enable Enables IT to carry out its obligations under the Agreement. If and to the extent that Enables IT shall be delayed in the performance of such obligations by the failure of Customer to provide such information and/or access as aforementioned, then Enables IT shall be entitled to recover from Customer any additional costs that Enables IT may incur by reason of such delay or at Enables IT’s sole discretion to terminate this Agreement. 2.3 The obligations of Enables IT to provide Services shall not extend to and Enables IT shall be entitled to fees at its then current rates in the following circumstances: (a) Where resolution of an underlying problem may require additional service which may fall outside of this Agreement, and/or (b) Where, in Enables IT’s sole discretion, more than a reasonable level of Service is being provided to Customer as a result of untrained personnel operating the Product, and/or (c) Providing Services where, in the opinion of Enables IT, Customer has not complied with technical or environmental installation conditions as specified by the Product manufacturer or Enables IT, and/or (d) Providing Services in respect of Products which can no longer be maintained in good working order, (e) Any changes or modifications to Enables IT’s equipment resulting from technical or regulatory changes by the relevant authorities or regulatory bodies, and/or, (f) Where products or services are requested or otherwise required by Customer which are not specifically within the Products or Services to be provided under the Statement of Work/Service Contract, and/or (g) In the event that Customer requires the Services to be carried out outside the Service Hours above, and/or (h) Where in the interests of the majority of customers, we reserve the right to charge excessive users of the service an additional fee prior to support being provided, and /or (i) Where on-site escalation is required, expenses will be charged separately and travel time will be invoiced at the Enables IT standard rate per hour unless otherwise agreed or where pre-paid days have been agreed to, the time will be taken from them, and/or (j) Providing Services where in the reasonable opinion of Enables IT they are impractical to perform due to alterations in the locations of the Product specified attached or connected to any other device or equipment not approved in writing by Enables IT prior to such connection and/or, (k) Providing Services required as a direct or indirect result of damage caused by accident, disaster (which shall include but not be limited to fire, flood, water, wind and lightning) transportation, neglect, nuisance, electrical current or voltage fluctuations, and/or; (l) Providing Services required as a result of radiation affecting the hardware or software attached or unauthorized attempts to repair, upgrade, maintain, relocate or modify the Products or equipment and/or; (m) Diagnosis and/or rectification of problems not associated with the Products and/or; (n) Providing Services for Products that are outside the manufacturer’s life cycle will be provided on a reasonable basis and/or; (o) Hardware or software configuration changes, upgrades, repairs or modifications made or attempted by Customer not notified or agreed with Enables IT and/or; LEG002/Iss02/02-14 11 (p) Services, labor or materials associated with the relocation of any equipment or labor and travelling expenses resulting from requests of Customer for Service when Enables IT’s equipment is subsequently found to be operating correctly and/or appears to be inoperative owing to incorrect or failure of circuits and or services provided by a telecommunications provider, or failure of other host equipment or failure of other devices directly or indirectly connected to Enables IT’s equipment. 2.4 Where possible Enables IT will fix our prices with third party suppliers, however where this has not been possible and third party costs are increased Enables IT may pass this cost on to Customer. In the case of software licensing increases that cannot be fixed, these charges will be reflected in Customer costs. 3. Customer Warranties and Obligations. 3.1 Customer warrants and agrees that Enables IT is the owner of the Product (or where the Product is leased or hire purchased, that the user has consented to this Agreement) and that Customer has full power and authority to enter into this agreement and that Customer permits and consents to Enables IT performing the Services. 3.2 the Services: 3.3 Customer agrees, throughout the term of this agreement, to procure/provide for/to Enables IT, where applicable to (a) Such access to the place of use as Enables IT shall reasonably require discharging its Services; (b) At the place of use, such facilities as Enables IT shall reasonably require to discharge its operations (including without limitation adequate workspace, telephone access and office furniture and equipment). (c) All reasonable precautions to protect the health and safety of Enables IT’s employees, agents and subcontractors while on site. (d) The equipment and supply of all documentation and other information necessary for Enables IT to diagnose any fault in the Product. Customer agrees that it shall: (a) Be responsible for the general care of the Enables IT’s equipment, ensuring it is maintained, operated and transported in accordance with the manufacturer’s specifications, manuals or documentation; (b) Not permit the Enables IT’s equipment to be used or operated by other than properly qualified operators employed by or under Customer’s control; (c) Respond to Enables IT’s requests to aid remote resolution of the problem, such as a detailed explanation, provision of information such as log/configuration files, apply software patches or upgrades, make recommended configuration changes and allowing remote access, where agreed; (d) Provide Enables IT with access to appropriate knowledgeable employees and to all documentation, diagnostics programs, operating systems, utilities and application programs necessary to enable correct diagnosis and resolve reported problems. (e) Ensure that personnel of Enables IT working on or near potentially hazardous equipment, whether due to the temporary or permanent state of the electrical system or the nature of the work to be carried out, will be accompanied by another competent person at all times whilst doing so. 5.2 Where Services have been rendered or costs incurred as a result of a breach of any of the foregoing, Enables IT reserves the right to render reasonable charges for the same. 5.3 Customer will be legally liable for maintaining, acquiring and providing the appropriate licensing agreements for all software installed by Customer. If as a consequence of Service being provided, software, other than that installed by Enables IT for the purpose of facilitating remote connection and the delivery of Service, is installed, configured or in any way utilized, Customer is responsible for having the appropriate license for the intended use of that software. Customer will be required to provide valid software licensing upon request. Enables IT may cease Service for any non-licensed software at any time. 5.6 Customer agrees that it shall make no alteration or modification to any software or hardware which is administered by Enables IT and is covered by the Agreement without prior written approval of Enables IT. Any unauthorized alterations or modifications will entitle Enables IT to terminate the Agreement immediately. 5.7 In the event that Customer changes the location of the Product from the initial installation site address specified in the Statement of Work, then Customer agrees to advise Enables IT in advance in writing of the new location and agrees that any such change will entitle Enables IT to terminate the Agreement immediately or require an additional fee for the Services if the new location is further than the previous location from Enables IT support center. LEG002/Iss02/02-14 12 6. Enables IT’s Warranties and Liability. 6.1 Third Party Products and Services. Enables IT warrants that all software installed by Enables IT in relation to the fulfillment of the included Services will be licensed accordingly. Enables IT shall not be liable for any services or products supplied by a third party. 6.2 All remote support is given in good faith on a best endeavors basis and not on a guaranteed fix basis. Customer recognizes that there is a limitation to the service level that can be given remotely. Project Terms and Conditions 1. Products and Services. 1.1 The Services. Enables IT shall provide Customer with the Services (including the installment of the Products or any parts for them) set forth in the Statement of Work, and the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and sound professional procedures. Enables IT will use its best efforts to ensure (i) the Services are provided on a constant, uninterrupted basis, and (ii) the integrity and security of the Services. a. Prior to commencing the Services the project manager or coordinator, on behalf of Enables IT, will agree the dates for the Services to be undertaken with Customer and confirm this via email. When a Statement of Work is issued as part of the project implementation process the service dates will be defined and agreed within this document. 1.2 The Products. Enables IT shall sell and Customer shall purchase any goods, hardware, software and materials which Enables IT is to supply and/or manufacture in connection with the Services, set forth as “Products” in the Statement of Work or described in any Purchase Order. 2. (a) The provisions of the Agreement, the Statement of Work and any Terms and Conditions referenced therein shall prevail over any conflicting provisions in any purchase order, acceptance notice or other document. (b) No variation to these Conditions shall be binding unless the parties sign a written agreement which changes the Products and Services to be provided. (c) Any advice or recommendation given by Enables IT or its employees or agents to Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by Enables IT is followed or acted upon entirely at Customer’s own risk, and accordingly Enables IT shall not be liable for any such advice or recommendation which is not so confirmed. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Enables IT which is not set out in the Agreement. (d) Any typographical, clerical or other error or omission in any sales literature, price list, proposal, quote, invoice the Statement of Work, or other document or information issued by Enables IT shall be subject to correction without any liability on the part of Enables IT. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Enables IT which is not set out in the Contract Price; Invoice, and Terms of Payment. 2.1 Price. (a) The price of the Products and/or Services shall be Enables IT quoted price and confirmed on the Statement of Work and/or Purchase Order. All prices quoted are valid for 14 days only, unless stated differently in a written quote or proposal, issued in writing by Enables IT. (b) Where Enables IT has agreed a fixed price and provision date for Services then such price will remain fixed until that provision date. However, any change in delivery dates, quantities or specifications for the Products and/or Services which is requested by Customer, or any D. “Delay” shall mean any delay in the time schedules set forth in the Statement of Work caused by any instructions of Customer or failure of Customer to give Enables IT adequate information or instructions may result in further reasonable charges. (c) The price is exclusive of any applicable taxes, duties and customs fees, which Customer shall be additionally liable to pay to Enables IT. (d) Enables IT reserves the right, by giving notice to Customer at any time before delivery, to increase the price of the Products and/or Services to reflect any increase in the cost to Enables IT which is due to any factor beyond the control of Enables IT (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products and/or Services which is requested by Customer, or any Delay. (e) Enables IT reserves the right to charge fees in addition to the price if: LEG002/Iss02/02-14 13 (f) (i) Customer requires the Services to be provided outside the hours of 9.00am and 5.30pm EST Monday to Friday, excluding all public holidays, unless otherwise specified in the Statement of Work, and/or; (ii) Where in Enables IT’s opinion, more than a reasonable level of Services is being provided as a result of Customer’s untrained personnel operating the equipment and/or; (iii) In Enables IT’s sole discretion additional time or expense is incurred as a result of Customer’s lack of instructions, the inaccuracy of the information supplied or any other cause attributable to Customer, and/or; (iv) Where Customer fails to perform any items in clause 2.1(f) below. In the event that Enables IT collects good, materials or other equipment from Customer, for example for a trade in (the “Trade-In Goods”), then Customer shall be responsible for: (i) Decommissioning the Trade-In Goods including deleting any data, advising the Enables IT of any potential security risks, and; (ii) Packing the Trade-In Goods in suitable containers, and; (iii) Making all the Trade-In Goods available for collection within a pre agreed time. 2.2 Invoices. Products and associated manufactures support will be invoiced upon receipt of Purchase Order. All Services will be invoiced on completion or on a work done basis up to the end of the calendar month, whichever is the earlier, unless otherwise agreed in the applicable Statement of Work. In the instance where there has been any Delay of more than one month, resulting in Enables IT not being able to perform further Services then Enables IT may invoice for work completed to date. 2.3 Terms of Payment. (a) Customer shall pay the price of the Products and/or Services within 14 days of the date of Enables IT’s invoice in full and cleared funds (without any deduction or right of set off whatsoever). Enables IT shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Products has not passed to Customer. Receipts for payment will be issued only upon request. (b) If Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Enables IT, Enables IT shall be entitled to cancel the Agreement and/or applicable Statement of Work or Purchase Order, or suspend any further deliveries of Products and/or Services to Customer; 2.4 Where possible Enables IT will fix our prices with third party suppliers, however where this has not been possible and third party costs are increased Enables IT may pass this cost on to Customer. In the case of software licensing increases that cannot be fixed, these charges will be reflected in Customer costs. 3. Orders and Specifications. 3.1 No order submitted by Customer shall be deemed to be accepted by Enables IT unless and until confirmed by a formal Purchase Order signed by Enables IT authorized representative. 3.2 Customer shall be responsible to Enables IT for ensuring the accuracy of the terms of any order (including any applicable specifications) submitted by Customer, supplying Enables IT with all necessary data and other information, and for giving Enables IT any necessary information relating to the Products within a sufficient time to enable Enables IT to perform the Agreement in accordance with its terms. Customer shall ensure the accuracy of all data and information. Customer shall co-operate with Enables IT in all matters relating to the Products and Services 3.3 The quantity, quality and description of and any specification for the Products and/or Services shall be those set out in the Statement of Work and Purchase Order. 3.4 If the Products are to be manufactured or any process is to be applied to the Products or Services provided by Enables IT in accordance with a specification submitted by Customer, Customer shall indemnify Enables IT against all loss, damages, costs and expenses awarded against or incurred by Enables IT in connection with or paid or agreed to be paid by Enables IT in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Enables IT’s use of Customer’s specifications. 3.4 Customer shall at its own expense supply Enables IT with all necessary data and other information to enable Enables IT to perform the Contract. Customer shall ensure the accuracy of all data and information. 4. Cancellation or Change to Orders. LEG002/Iss02/02-14 14 4.1 No Purchase Order which has been accepted by Enables IT may be cancelled by Customer except with prior written agreement from Enables IT and on terms that Customer shall indemnify Enables IT in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by Enables IT as a result of such cancellation. 4.2 In the event that Customer wishes to amend or cancel any confirmed scheduled Service date within 14 days of the scheduled date then Customer shall be liable to an amendment charge at the current scale of charges per day amended or cancelled effected. This will be reduced where Enables IT can utilize the engineer(s) on alternative equivalent chargeable work with another customer. 4.3 Enables IT shall have the right to make any changes to the Products or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Products or Services, and Enables IT shall notify Customer in any such event. 5. Delivery. 5.1 Any dates quoted for delivery of the Products and/or Services are approximate only and Enables IT shall not be liable for any Delay in delivery of the Products and/or Services however caused. Time for delivery shall not be of the essence of the Agreement unless previously agreed by Enables IT in writing. The Products may be delivered by Enables IT in advance of the quoted delivery date upon giving reasonable notice to Customer. 5.2 Where the Products and/or Services are to be delivered in installments, each delivery shall constitute a separate contract and failure by Enables IT to deliver any one or more of the installments in accordance with these terms and conditions or otherwise set forth in the applicable Statement of Work or Purchase Order, or any claim in accordance with these terms and conditions or any claim by Customer in respect of any one or more installments shall not entitle Customer to treat the Agreement as a whole as repudiated. 5.3 If Customer fails to take delivery of the Products on the agreed dates, or fails to give Enables IT adequate delivery instructions or fails to make necessary arrangements for accepting delivery at the time stated for delivery (otherwise than by reason of any cause beyond Customer’s reasonable control or by reason of Enables IT’s fault) then, without prejudice to any other right or remedy available to Enables IT, Enables IT may store the Products until actual delivery and charge Customer for the reasonable costs (including insurance) of storage and other expenses incurred and time expended. 5.4 Failure by Customer to pay for part delivery of Products and/or Services when payment is due shall entitle Enables IT to withhold further delivery of Products and/or Services. 5.5 Enables IT reserves the right to refuse to take delivery of Products returned by Customer if Customer has not first obtained a good return number issued by Enables IT to Customer and such number is not displayed on the packaging of the Products returned. 5.6 Enables IT shall be entitled to levy a 2% handling charge on Products returned if ordered in error or are no longer required by Customer for whatever reason. 6. Risk and Property. 6.1 Risk of damage to or loss of the Products shall pass to Customer: (a) In the case of Products to be delivered at Enables IT’s premises, at the time when Enables IT notifies Customer that the Products are available for collection or; (b) In the case of Products to be delivered otherwise than at Enables IT’s premises, at the time of delivery or, if Customer wrongfully fails to take delivery of the products, the time when Enables IT has tendered delivery of the Goods. 6.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these terms and conditions or otherwise set forth in the Agreement, the property in the Products shall not pass to Customer until Enables IT has received in cash or cleared funds payment in full of the price of the Products and all other goods or services agreed to be sold by Enables IT to Customer for which payment is then due. 6.3 Until such time as the property in the Products passes to Customer, Customer shall hold the Products as Enables IT’s fiduciary agent and bailee, and shall keep the Products separate from those of Customer and third parties and properly stored, protected and insured and identified as Enables IT’s property, but Customer shall be entitled to use the Products in the ordinary course of its business. 6.4 Until such time as the property in the Products passes to Customer (and provided the Products are still in existence and have not been resold), Enables IT shall be entitled at any time to require Customer to deliver up the Products to Enables IT and, if Customer fails to do so forthwith, to enter upon any premises of Customer or any third party where the Products are stored and repossess the Products and in doing so Enables IT shall have no liability to Customer or any third party for loss of data, software or other information belonging to Customer or a third party. LEG002/Iss02/02-14 15 6.5 Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Enables IT, but if Customer does so all moneys owing by Customer to Enables IT shall (without prejudice to any other right or remedy of Enables IT) forthwith become due and payable. 7. Warranties and Liabilities. 7.1 In respect of Products not manufactured by Enables IT or Services delivered by a third party company, Customer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to Enables IT. Where Customer has purchased Products only (i.e. not as part of a project) then the risk of the Products not performing to Customer’s requirements lies with Customer and any claim must be taken up by the Customer with the manufacturer directly. 7.2 Enables IT shall be under no liability in respect of any defect in the Products and/or Services arising from any drawing, design or specification supplied by Customer. 7.3 Enables IT shall be under no liability in respect of any defect arising from normal wear and tear, willful damage, negligence, abnormal working conditions, failure to follow Enables IT’s instructions (whether oral or in writing), misuse or alteration or repair of the Products without Enables IT’s approval. This will also lead to the invalidation of any support provided for under any agreement and statement of work with Enables IT. 7.4 Enables IT shall be under no liability (i) in respect of loss of data, or (ii) under any warranty, condition or guarantee if the price for the Products and/or Services has not been paid by the due date for payment 7.5 For Products manufactured by Enables IT, Enables IT warrants that such Products will conform to and/or achieve the claims made for them in Enables IT’s literature. Enables IT does not warrant that the Services will cause the equipment to operate without interruption or error. 7.6 Any claim by Customer which is based on any defect in the quality or condition of the Products and/or Services or their failure to correspond with specifications shall be notified to Enables IT within 7 days, otherwise Customer shall not be entitled to reject the Products and/or Services and Enables IT shall have no liability for such defect or failure, and Customer shall be bound to pay the price as if the Products and/or Services had been delivered in accordance with the Agreement. ACCEPTABLE USE POLICY This Acceptable Use Policy is intended to help protect Enables IT’s customers, and the Internet community, from the inappropriate use of the Internet. A customer’s use of our service constitutes acceptance of this Acceptable Use Policy. Enables IT reserves the right to revise and update this Acceptable Use Policy from time to time. 1. Customer must at all times conform its use to this Acceptable Use Policy and comply with all applicable federal, state and international law. 2. Customer agrees not to: 3. (a) Transmit, or otherwise permit any unsolicited or unauthorized advertising or promotional material or any other form of similar marketing material (SPAM), or make available tools or methods to send such unauthorized SPAM; (b) Publish or otherwise distribute warez, copy written or other illegal material. The onus is on Customer to prove ownership of rights to publish the material, not on Enables IT to prove Customer does not; or (c) Exceed reasonable bandwidth usage, determined solely at Enables IT’s discretion. Material published to or transmitted through the Services must not: (a) Be defamatory of any person; (b) Be obscene, offensive or inflammatory; (c) Contain any adult material, such as pornography or otherwise lewd or obscene content. The definition of adult material shall be at the sole discretion of Enables IT; (d) Display any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means depicting child pornography as defined in the United Nations Convention on the Rights of the Child; (e) Infringe any copyright or trade mark or other intellectual property rights of any nature; (f) Be likely to deceive any person; (g) Be threatening, abusive or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety; (h) Misrepresent Customer’s identity or affiliation with any person or organization; or LEG002/Iss02/02-14 16 (i) Publish, link to, issue or display any material which in the absolute discretion of Enables IT may harm Enables IT or any of its Customers or bring Enables IT into disrepute or may call into question any action taken by Enables IT on Customer’s behalf. 3. If Enables IT has any reasons to suspect any illegal action or action in breach of the clauses contained within this condition, Customer shall cooperate in any resulting investigation. 4. If Customer fails to cooperate with any investigations, or fails to immediately rectify any illegal or improper use, Enables IT may immediately suspend Services. 5. Determination of failure to comply with Enables IT’s Acceptable Use Policy is determined at the sole discretion of Enables IT. 6. In the event of failures to comply with this Acceptable Use Policy, Enables IT reserves the right to: (a) Immediately, temporarily or permanently suspend Services; (b) Issue a warning to Customer; (c) Issue legal proceedings against Customer for reimbursement of all costs on an indemnity basis, including but not limited to reasonable legal and administrative costs, damages, losses and expenses arising as a result of action or claim; or (d) Disclose such information to law enforcement authorities as reasonably necessary. LEG002/Iss02/02-14 17
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