This Service Level Agreement (this “Agreement”) is between Cognigen Business Systems, Inc. (‘CBSi”), the provider of the Retail Technology Co-op service, (hereinafter collectively referred to as “RTC”) and the undersigned (hereinafter referred to as “Customer,” “you,” or “your”), (individually a “Party,” collectively the “Parties”). This Agreement will detail your rights and obligations under this Agreement as well as the service plan you have selected. By signing this Agreement, you agree to its terms and conditions. This Agreement is effective on the date indicated on the signature page (the “Effective Date”).
CBSi will install, set up, and test your RTC communication and technology system (“System”) in the configuration that is described in Exhibit A, which is incorporated herein by this reference. In addition, you agree to purchase the corresponding services (“Services”) detailed on Exhibit A. You represent and warrant that you will not alter, change or modify the System, nor any of the System components, nor will you add to, or delete any portion(s) of the System without the prior written permission of CBSi. Any attempts to alter, change, or modify the System will negate any warranty, if applicable, and will relieve CBSi of any further liability to you whatsoever. You agree to the terms of this Agreement on behalf of yourself or anyone who uses or accesses the Services and/or System and agree to be solely responsible and liable for any violations of the terms of this Agreement by you or by any other user. If at any time you would like to have changes made to your System, or an additional System, and if the changes are acceptable to CBSi, the changes will be made via a new, fully executed Exhibit A to this Agreement and your Services fee(s) will be adjusted accordingly.
a. Required Equipment. CBSi will provide all equipment required for your System to perform. You understand and agree that the equipment is owned and maintained by CBSi, or its third-Party providers, and that CBSi only conveys to you the right to use the equipment as detailed herein. As such, CBSi will maintain or replace the equipment at no charge to you if it fails in the normal course of operations for the term of this agreement.
b. Purchase Option. Should you elect the purchase option, you understand and agree that the equipment will be wholly owned by you and that maintenance or repairs to that equipment are at your expense and that CBSi will only repair or replace the equipment for an additional fee.
c. Access to Your Premises. You authorize CBSi and our employees, agents, contractors, and representatives to enter your premises ("Premises") in order to conduct a site survey, install, maintain, inspect, repair, or remove the System. CBSi shall provide a schedule of dates and times when access is required with at least twenty four hours notice. In the case of an emergency when access cannot be provided, please notify CBSi via its technical support line at 877-330-5590, x220.
d. Site Preparation Requirements. At your sole expense, and prior to the scheduled installation date, you shall prepare the installation facilities according to the site preparation requirements as detailed below. Prior to installation of the System, CBSi will inspect your facilities to ensure site preparation requirement compliance and conduct a site survey. In the event such facilities fail to meet the site preparation and survey requirements detailed herein, installation shall be postponed until such time as both parties have a signed off site survey. The site preparation requirements include:
1. Providing adequate physical wall space in an area of the store that is not susceptible to water, spills, and things of the like;
2. Unobstructed by desks, pipes, etc. for a three foot by three foot mounting board and six inch raised cover
3. Removal of any debris or other items that may delay installation
4. Access to the location during installation time scheduled
5. Power distribution of a 120 volt AC outlet within 15’ of the mounting space
6. And equipment, communication lines, and environmental conditions, as applicable;
e. Third-Party Vendors. For the purposes of this Agreement, "Third-Parties” means any Third-Party provider of any portion of the System and/or its components, or service(s) who contribute to the Services and/or the System. CBSi is a distributor/seller/reseller of Third-Party providers of some equipment solutions and broadband carrier services. Under the Required Equipment provision, CBSi may replace or repair defective System components on behalf of the Third-Party manufacturer, provided that you follow all applicable return procedures that CBSi provides to you. CBSi may at its sole discretion change providers of the DSL, cable or satellite service used to operate your system to ensure quality control and best in class pricing. Should CBSi change providers, it will do so in a manner that will not interrupt service during normal business hours, and no fees or service increase for this change will be passed on to you.
a. Activation and Installation Fees. The Activation and Installation Fees required for your System are detailed on Exhibit A as one-time Non Recurring Charges (NRC) and are payable 50% upon execution of this agreement. The balance will be included on your first monthly Service Fee billing. Should you elect to change your System configuration, CBSi may be required to impose an additional Activation and Installation Fee(s). Such changes shall be agreed to by both parties in writing.
b. Services Fee(s). CBSi will begin monthly billing for the Services 30 days after the installation of your System. Services are billed one month in advance of Services being provided. Monthly charges for your Services are detailed on Exhibit A. You are also responsible for all taxes, fees, surcharges, and other charges that CBSi bills you for the Services, unless you have proof of tax exempt status. All taxes will be billed at their actual cost. All Services Fees are pro-rated according to the acceptance and sign off date for the Services. Terms of payment are Net 30. Should you choose not to accept the system within the first 30 days, you must notify CBSi in writing with a detailed description of why the service is being discontinued and schedule a specific de-installation date.
c. Repair and Maintenance Fees. In the event your System does not function properly, CBSi will repair or replace defective components. Should the System malfunction due to your negligence, malfeasance, or actions of any nature, CBSi reserves the right to charge you for repair and/or replacement of any System component.
d. Failure to Pay. CBSi shall have the right to terminate or suspend Services for failure to pay your bill when due. In addition, CBSi shall have the right to use any legal method available to them to collect unpaid charges to your account in the event of non-payment.
e. Rescheduling Installation. In the event that no one authorized to sign off on the site survey and permit installation of the System is available at your premises at the scheduled time, and notification was not provided to CBSi at least 24 hours in advance, you agree to pay a Rescheduling Installation fee in the amount of $50.
f. Late Charges. CBSi may add interest charges to any past-due amounts at the lower of 1.5% per month or the maximum rate allowed by state law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges. Notice of any disputes must be in writing and received by CBSi within thirty (30) days after you received your bill. If charges cannot be processed through your credit card, or if your bank draft or electronic funds transfer is returned for insufficient funds, CBSi will charge you an additional $25.00. If the state law where you receive the Services requires a different fee, CBSi will charge you that amount.
g. Credit Check. You give CBSi permission to obtain your credit information from any consumer credit-reporting agency prior to executing this contract. CBSi reserves the right to refuse Services and/or Systems to anyone at any time for any reason.
1) You may cancel the Services at any time by providing written notification to CBSi Customer Care, 9740 Appaloosa Road, San Diego, CA 92131 or via the web site, www.rtcoop.com. Should you elect to terminate this Agreement prior to its expiration, you agree to pay an Early Termination Fee as follows. Cancellation within the first thirty (30) days will be no charge. Cancellation after the first thirty (30) days will be $200.00 per site ordered.
2) CBSi may immediately cancel the Services and terminate this Agreement if (a) you breach any of your material obligations provided for in this Agreement and such breach is not corrected or cured within thirty (30) days after receipt of written notice of such breach; or (b) you fail to pay the amount(s) due to CBSi when due.
3) Should CBSi terminate your Agreement for cause, you agree to pay all fees incurred through the end of the month of termination. You agree to pay an Uninstall Fee in the amount of $200.00 per site ordered.
4) CBSi may cancel the Services and terminate this Agreement at any time for any reason upon thirty (30) days written notice to you. In the event CBSi cancels the Services under this Section, any prepaid fees and charges will be returned to you and CBSi will remove the System at no additional charge to you. Examples of CBSi cancellations under this provision include, but are not limited to, discontinuation of manufacturer support of System components, and the development of more cost effective System components.
This Agreement shall be construed under the laws of the State of California without regard to choice of law principles. Any civil action or other legal proceedings arising out of or relating to this Agreement, whether brought before or after any termination of this Agreement, shall be brought and heard only in San Diego County, California and the parties hereto expressly waive any rights under any law or rule to cause such proceedings to be brought or heard in any other location. RTC consents to jurisdiction in any state or federal court located in San Diego County, California in any civil action or other legal proceeding arising out of or relating to this Agreement. In the event that any of the provisions of this Section conflict with the requirements of any applicable State law, such provisions shall be automatically deemed to be modified to the extent necessary to comply with such law.
At all times, CBSi shall have the absolute right to assign its duties and/or obligations hereunder to an affiliate, subsidiary or successor and shall also have the right to subcontract work performed hereunder; provided, however, such subcontracting will not relieve CBSi of its duties and/or obligations under this Agreement. You may transfer this agreement to any bona fide successor or purchaser of the facility or business that the equipment is installed in provided that CBSi has been notified in writing and your successor agrees to the terms and conditions of this agreement. Upon CBSi acceptance of the successor or purchaser, you will have no further liability other than bringing any outstanding fees to a zero balance.
Neither CBSi nor you shall be liable for any loss of damage or be deemed to be in breach of this Agreement if their failure to perform or failure to cure any of its obligations under this Agreement results from any event or circumstance beyond its reasonable control, including, without limitation, any natural disaster, terrorism, fire, flood, wind, earthquake, or other Act of God; shortage of equipment, materials, supplies, or transportation facilities, strike or other industrial dispute, war or rebellion, or compliance with any law, regulation, or order (whether valid or invalid) of any governmental body, other than an order, requirement, or instruction arising out of your violation of any applicable law or regulation; provided, however, that the Party interfered with provides the other Party written notice thereof promptly, and, in any event, within fifteen (15) working days of discovery of any such Force Majeure condition. If notice of the existence of any Force Majeure condition is provided within such period, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure event or circumstance described in such notice, except that any such cause shall not excuse the payment of any sums owed to CBSi prior to any Force Majeure condition. This Section shall survive the expiration or sooner termination of this Agreement.
This Agreement constitutes the modified agreement between CBSi and supersedes all prior agreements, understandings, statements or proposals, and representations, whether written or oral. This Agreement can be amended only as provided for in Section 1, above. No written or oral statement, advertisement, or service description not expressly contained in this Agreement will be allowed to contradict, explain, or supplement this Agreement. The entire agreement can be found by visiting our website at www.rtcoop.com, or one will be provided upon customer request.
