Payment Terms
All payments are due to GOTHAM upon presentation. Payments received after the due date are subject to monthly late fees of one and a half percent (1.5%) of unpaid balance or $25.00, whichever is greater. Client’s payment obligations may extend beyond the end date of this Agreement.
This constitutes the entire agreement between CLIENT NAME and GOTHAM. Any modifications must be carried out in writing by both parties. Any dispute arising under this Agreement will be resolved by submitting said dispute to GOTHAM in writing for review. Should collection efforts become necessary, Client agrees to pay Gotham for all fees incurred in such efforts, including reasonable attorney’s fees and disbursements. This Agreement shall be governed according to the laws of the State of New York. Any suit or action relating to this Agreement shall commence in the State of New York.
Out of Scope Work & Rates
The cost of any physical hardware is not covered by this Agreement.
Any device not covered by an OEM warranty (i.e., HP SmartCare, Cisco Smartnet, etc.) is considered Out of Scope until an OEM warranty has been purchased and activated. The cost of product maintenance agreements with software publishers and hardware manufacturers are not included in this Agreement.
The replacement, repair of the hardware or reinstallation of the supported device with expired manufacturer maintenance and/or support agreement is considered outside of this Agreement.
*Servers and Workstations should be business class machines from major manufacturers with Volume License Key. OEM licenses are not recommended. Vendor examples include but are not limited to: Dell, HP, Lenovo, IBM, ACER and Toshiba.
** Projects shall be signed off by the Client in advance of any work performed. Typical projects include, but are not limited to, the following: Low Voltage Cabling and Project Management, Upgrades of servers, new software installations, Major functionality enhancements, Relocation and location moves, Major software version upgrades, Contact Center Migration, Voice and Data Cloud Migration and Transitions between carriers, Cost Management Audits, Mobility Procurement etc.
After Hours Support
Unless otherwise specified in this agreement and SOW, Remote after-hours support is outside the scope of this agreement and will be performed on a best effort basis.
On-Site unscheduled after hour support will be billed on a time and materials basis of 2 times our Preferred Rate.
Indemnification
Client agrees to indemnify and hold harmless GOTHAM TELECOM, INC., GOTHAM TELECOM, INC.’s affiliates, and each of their affiliates, respective officers, directors, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of any of the following: (i) client’s actual or alleged use of the Services in violation of: (a) the AUP, (b) EUCL (c) any other part of this Agreement, (ii) any breach by Client of any of its obligations under this Agreement, except to the extent such claim, demand, lability, obligation, loss, damage, penalty or fine results from GOTHAM TELECOM’s gross negligence, fraud or willful misconduct.
Each party agrees to indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence, (ii) willful misconduct and (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right.
Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT AGREES ANDACKNOWLEDGES THAT: GOTHAM TELECOM, INC. MAKES NO REPRESENTATION OR WARRANTY TO CLIENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, QUALITY, FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF THE SERVICE. GOTHAM TELECOM, INC. DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE UNINTERRUPTED OR COMPLETELY SECURE PROVIDED, THAT GOTHAM TELECOM, INC. SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM ITS SERVICES IN A MANNER INTENDEDTO PROTECT THE SECURITY OF THE CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. THE CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OFCLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY.
GOTHAM TELECOM, INC. DOES NOT MAKE ANY REPRESENTATION OR WARRANTY TO CLIENT REGARDING THE PERFORMANCE OR USE OF ANY SERVICE, INCLUDING THAT ANY SERVICE WILL BE ERROR FREE OR THAT GOTHAM TELECOM, INC. WILL BE ABLE TO RESOLVE ANY ERROR IN ANY SERVICE PROVIDED, THAT GOTHAM TELECOM, INC. AGRESS TO PERFORM THE SERVICES UNDER THIS AGREEMENT IN COMPLIANCE WITH APPLICABLE LAWS.
GOTHAM TELECOM, INC. DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO, AND SHALL HAVE NO LIABILITY FOR, ANY EQUIPMENT FAILURE OR DAMAGES INCURRED BY CLIENT FOR ANY SOFTWARE OR HARDWARE PURCHASED FROM OR THROUGH GOTHAM TELECOM, INC. CLIENT’S ONLY RECOURSE FOR ANY SUCH FAILURE OR DAMAGES IS THE APPLICABLE MANUFACTURER’S OR VENDOR’S PROVIDED WARRANTS.
Confidentiality
“Confidential Information” means all information disclosed by one party to the other, whether before or after the execution of this Agreement, including: (i) this Agreement and GOTHAM TELECOM, INC.’s unpublished prices and other terms of the Services, audit and security reports, server configuration designs, data center designs (including non-graphic information observed by Client on a tour of a data center), and all other trade, business, financial and technology information about GOTHAM TELECOM, INC. and its operations that GOTHAM TELECOM, INC. considers to be its confidential and proprietary property, (ii) with respect to Client, content transmitted to or from, or stored by Client on, GOTHAM TELECOM, INC.’s servers and (iii) with respect to both parties, all other information that is marked as “confidential” or if disclosed in non- tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given by the disclosing party to the receiving party within fifteen (15)days following such disclosure. Confidential Information shall not include any information that (i) was in the public domain or enters the public domain through no act or omission on the part of the receiving party; (ii) is rightfully disclosed to the receiving party by a source not bound by a confidentiality agreement with the other party hereto; (iii) was in the possession of the receiving party prior to receipt from the disclosing party as evidenced by the books and records of the receiving party or (iv) is developed by the receiving party subsequent to receipt of Confidential Information from the disclosing party independent of the Confidential Information of the disclosing party and such independent development is evidenced by the books and records of the receiving party.
Each party agrees not to use the other party’s Confidential Information except in connection with the performance or use of the Services or the exercise of its rights under this Agreement. Each party agrees not to disclose the other party’s Confidential Information to any person or entity except as provided to its employees and consultants who have a need to know the Confidential Information; provided, that such employees and consultants are advised that the Confidential Information so disclosed is the Confidential Information of the other party and such employees and consultants are bound by confidentiality restrictions in a writing at least as stringent as those set forth in this Agreement.
Not with standing anything to the contrary contained, each party may disclose any of the Confidential Information of the other party if required to do so by law, governmental regulation or court order; provided, that the disclosing party shall give prompt notice thereof to the other party in as far in advance as practicable prior to such disclosure and shall cooperate with the other party, at such other party’s expense, to obtain a protective order regarding such disclosure.
In connection with the services provided under this Agreement, GOTHAM TELECOM, INC. may utilize certain equipment owned by Client and may gain access to facilities owned, occupied, or controlled by Client. The parties acknowledge and agree that Client retains all right, interest, and title to all such equipment and facility.