1.The initial term of the Agreement is the period indicated on the Sales Order Form (the “Order,” collectively, with these Atlantic Maintenance Terms and Conditions and any other incorporated agreements, the “Agreement”). Thereafter, this Agreement shall automatically renew, at the then-current rate, for successive twelve (12) month periods, unless either party gives written notice of non-renewal at least thirty (30) days prior to expiration of the then-current term. Customer shall not (without Atlantic (“Atlantic”)’s prior written consent): (a) assign or transfer its rights and/or obligations under this Agreement; or (b) relocate equipment covered under the agreement (as indicated on the Order) (“Equipment”). Atlantic may terminate this Agreement if covered equipment (“Equipment”) is sold, relocated (including, to another Customer site) or assigned or transferred to a third party; and, upon such cancellation, all remaining payments shall become immediately due and payable.
2. The pricing under this Agreement is based on the number of clicks and/or the term of this Agreement. This is a term agreement and may not be cancelled within any term. Early termination by Customer will be deemed a default, in which event, without limitation, all remaining charges shall become immediately due and payable. If this Agreement is calculated on a cost-per-click maintenance program, the early termination fee will be calculated using the average actual usage from the beginning date of the Agreement, multiplied by the remaining months of the then-current term. Atlantic reserves the right to charge a monthly fee to cover increased variable costs including, but not limited to fuel, shipping, and/or freight.
3.On supply inclusive agreements only, all toner and developer required for normal operation of the equipment will be provided by Atlantic based on manufacturer’s stated yield on an 8 1/2" x 11" 20 lb bond page. Any additional toner and/or developer required due to greater image densities and/or otherwise reduced yield will be separately chargeable at Atlantic’s then-current rates. For Customer’s convenience, Atlantic may stock toner and/or supplies at Customer’s location. Any such toner and supplies remains Atlantic’s property until installed, and, if not returned to Atlantic, will be chargeable to Customer.
4.Copies made on 11" x 17" paper will be charged at double the rate of a single 8 ½” x 11” copy.
5.Unless otherwise specified on the Order, this Agreement does not cover network support, including installation of print drivers and utilities, beyond the specific Equipment and included hardware listed on the Order. All network functionality support beyond the initial installation will be chargeable at Atlantic’s then-current time and materials rates, unless covered by a separate network support agreement.
6.All charges arising hereunder, including, without limitation, monthly maintenance fees and any billable excess clicks, services, supplies, and all applicable taxes on such charges, are due net thirty (30) days from the invoice date. Atlantic may charge Customer interest on any overdue (not paid when due) charges at a rate equal to the lesser of 5% per month or the maximum rate permitted by law. Atlantic reserves the right to increase rates hereunder once annually.
7.Customer is responsible: (a) to provide: (i) all requested and/or required meter reads on a timely basis (Customer failure to comply will result in, without limitation, Atlantic using meter estimates to determine invoice amounts, subject to additional per-meter processing charges); (ii) adequate environmental conditions, including proper ventilation and power; and (iii) Atlantic with full and free access to equipment; (b) to, at all times hereunder, operate Equipment properly, safely and in accordance with manufacturers’ specifications; and (c) for ensuring compliance with applicable legal requirements, including, without limitation, those concerning data retention, protection and/or deletion/removal. The parties acknowledge and agree that Atlantic shall have no obligation to remove, delete, preserve, maintain or otherwise safeguard any information, images or content retained by or resident in any Equipment.
8.All required preventive maintenance and repair services necessary to keep the Equipment operating in substantial conformity with applicable published specifications will be performed by Atlantic (or its assigned servicing agent) during regular business hours (8:30 a.m. - 5:00 p.m., Monday through Friday, except those holidays recognized by Atlantic) at no additional cost to Customer, provided that: (a) the Equipment is in good working order on the date of commencement of this Agreement; (b) the service is not an Excluded Service; and (c) Customer remains in compliance with its obligations hereunder and any other agreement with Atlantic. Customer agrees Atlantic shall not be required to use OEM parts and supplies, provided that parts or supplies meet or exceed manufacturers’ specifications. Both installed and removed parts are deemed property of Atlantic.
9.Exclusions. Service calls for operator functions (e.g. adding or changing supplies, auto gradation/color calibration, or any other Customer responsibility) will be subject to a time and material service charge at Atlantic’s then-current rates. Other services that are excluded from Atlantic’s obligations and chargeable hereunder (collectively, “Excluded Services” or “Exclusions”) include, without limitation:
(a)Repairs or other services resulting from or necessitated by: (i) causes other than normal use, including, without limitation: (1) Customer (or any third party): misuse, abuse, accidents, negligence, willful acts or use of supplies or spare parts that do not meet Atlantic’s standards; (2) failure or variances of electrical power or other failure to provide proper operating environment (e.g. air conditioning, heat or humidity control); and (3) theft, fire, water, acts of god and/or any other damage resulting from causes outside of Atlantic’s reasonable control; (ii) performance of service or repairs on, or other modification of, Equipment by anyone other than Atlantic or its assigned servicing agent; (iii) unauthorized transportation and/or relocation of Equipment; and/or (iv) operating system or application software, firmware or other programmed code, internal or external to Equipment;
(b)Services or other performance outside of Atlantic’s regular business hours;
(c)Wiping, erasing or otherwise removing hard drive(s) from Equipment (unless expressly set forth on the Order); and
(d)Other work and/or services beyond the scope of this Agreement.
All Excluded Services shall be invoiced in accordance with Atlantic's then-current rates and terms. If, in Atlantic’s opinion, Equipment cannot be maintained through Atlantic’s routine preventive maintenance program (e.g. due to advanced age, excessive usage, an Exclusion or any other reason), any necessary services shall be deemed Excluded Services, and Atlantic will submit to Customer a cost estimate for such Excluded Services. If Customer declines to authorize the same, Atlantic reserves the right, on at least ten (10) days’ written notice, to terminate coverage under this Agreement for any or all Equipment and, upon such termination, Atlantic shall have no further obligations with respect to terminated Equipment. If the Exclusion that formed the basis for termination resulted, in whole or in part, from Customer’s acts or omissions (e.g. Customer misuse, negligence, unauthorized servicing or other failure to meet its obligations), Customer shall remain liable for its prospective payment obligations hereunder (in addition to those payments then due and payable), and all such payments shall be immediately due and payable. Neither Atlantic nor an assigned servicing agent shall be responsible for service delays or inability to perform service due to any “cause” beyond its reasonable control (e.g. unavailability of parts, property manager demands); and, in any such event, Atlantic reserves the right to terminate this Agreement on not less than ten (10) days’ notice. As long as Customer is not responsible, in whole or in part, for the “cause” that formed the basis for Atlantic’s termination, Atlantic will credit Customer for any pre-paid fees attributable to the balance of the then-current term.
10.Atlantic assumes no responsibility or liability whatsoever for: (a) Exclusions; (b) Customer’s failure to meet its obligations (including those responsibilities under Section 7 hereinabove); and/or (c) Customer’s (or any third party’s) operation, use (including regulatory compliance) and/or misuse of, or other damage to, Equipment; and Customer will indemnify, defend and hold harmless Atlantic from and against any claims and/or other liability arising from any of the foregoing.
11.ATLANTIC’S TOTAL OBLIGATIONS AND ANY EXPRESS WARRANTIES UNDER THIS AGREEMENT, IF ANY, ARE IN LIEU OF: (A) ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT, WHICH ARE SPECIFICALLY WAIVED; AND (B) ALL OTHER OBLIGATIONS AND/OR LIABILITIES FOR DAMAGES, INCLUDING, WITHOUT LIMITATION: 1) PERSONAL INJURY AND PROPERTY (INCLUDING INTELLECTUAL PROPERTY); AND 2) LOST PROFITS, LOSS OF REVENUE, LOSS OF USE, LOST OR CORRUPTED DATA, AND ANY OTHER INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ATLANTIC’S SERVICES. CUSTOMER AGREES THAT IF ATLANTIC CAUSES ANY INJURY OR DAMAGE TO CUSTOMER OR CUSTOMER’S PROPERTY, WHICH SAID CLAIM IS NOT OTHERWISE WAIVED HEREIN, ATLANTIC’S MAXIMUM CUMULATIVE LIABILITY FOR SAID INJURY OR DAMAGE WILL NOT EXCEED CUSTOMER’S PAYMENTS TO ATLANTIC DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FOR THE SERVICE(S) RENDERED THAT CAUSED SAID INJURY OR DAMAGE.
12.This Agreement constitutes the entire agreement between the parties with respect to Equipment maintenance, superseding all previous proposals, oral or written.
13.Customer will be in default if it fails to perform any of its obligations, including making prompt undisputed payments when due, under this Agreement, any other agreement with Atlantic or a third party lease of Equipment. Upon any default, Atlantic may (without notice): (a) withhold services, supplies and/or other products until the default is resolved (for avoidance of doubt, Customer’s payment obligations shall continue to accrue during any such withholding period); (b) declare all sums due and to become due to be immediately due and payable under this Agreement and any other agreement; (c) commence collection activities for all sums due and to become due hereunder, including, without limitation, costs and expenses of collection and reasonable attorneys’ fees; (d) terminate this Agreement on ten (10) days’ written notice; and/or (e) pursue any other remedies permitted by law. Customer will reimburse Atlantic for all reasonable costs and expenses incurred (including reasonable attorneys' fees, court costs, collection agency fees, etc.) in enforcing this Agreement. Atlantic’s rights and remedies herein are cumulative and not exclusive of any other rights and/or remedies available to Atlantic at law, in equity, under statute or otherwise. Should either party commence a lawsuit arising out of or related to the terms and conditions of this Agreement, such lawsuit shall be filed exclusively in a state or federal court located in New York County. Further, this Agreement is governed by, and shall be interpreted exclusively under, the laws of the State of New York.