This Service Agreement (“Agreement”) is made, on the date specified in the Sales Agreement, by and between CINEMASSIVE DISPLAYS, LLC, a Georgia limited liability company (“CineMassive”), with a principal place of business at 000 Xxxxxx Xxxxx XX, Xxxxxxx, Xxxxxxx 00000, on the one hand, and (“Customer”), whose principal place of business is set forth on the signature page of the Sales Agreement, on the other hand (individually referred to as a “Party” or collectively, the “Parties”).
1. NATURE OF AGREEMENT. This Agreement is a legal contract made between Customer and CineMassive. This Agreement contains the terms and conditions of CineMassive’s Support Program.
2. PRODUCTS. This Agreement covers all CineMassive‐manufactured products (“Products”).
3. FEE. The annual service fee under this Agreement is set forth in the Quote provided to Customer and incorporated herein by this reference and specified in the Sales Agreement.
4. DURATION. This Agreement will commence on the Effective Date and will remain in effect for the term set forth in the Quote provided to Customer and incorporated herein by this reference in the Sales Agreement.
5. EXTENDED LIMITED WARRANTY. In those states that permit extended limited warranties, if Customer purchases multiple years under this Agreement at the same time Customer makes its initial system purchase or during the renewal period and enters into a Terms of Sale agreement with CineMassive, CineMassive warrants all CineMassive‐manufactured Products purchased by Customer against defects in material and workmanship under normal use and service for an equal number of years as the duration of this Agreement (see Paragraph 4 above), however, in no such instance shall this extended limited warranty exceed five (5) years, except with a special written agreement. THIS WARRANTY COVERS ALL CINEMASSIVE‐ MANUFACTURED PRODUCTS, EXCEPT FOR DISPLAYS. THE WARRANTY FOR CINEMASSIVE- MANUFACTURERED DISPLAYS IS THREE (3) YEARS. THIS WARRANTY DOES NOT EXTEND TO ANY THIRD‐PARTY GOODS OR SERVICES. At its sole option, CineMassive will replace the Products during the warranty period at no charge. Any and all warranty claims made under this Paragraph must be made in accordance with the explicit provisions set forth in the Terms of Sale, including, but not limited to, Customer’s duty to make all claims to CineMassive in writing. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, CINEMASSIVE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW THAT VARY FROM JURISDICTION TO JURISDICTION. CINEMASSIVE DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
6. OBLIGATION OF CINEMASSIVE. If there is a defect in the material and/or workmanship of the Products during the term of this Agreement, and the Products have been subject only to normal use and service, CineMassive agrees to repair or replace, in CineMassive’s sole discretion, the Products that may be necessary to maintain proper operation of the Products under normal operation and service for the duration of the Agreement without additional charge.
7. OBLIGATION OF CUSTOMER. Customer must use the Products in a normal way and must protect against further damage to the Products if there is a covered defect. Customer must also abide by all terms and conditions of the CineMassive Equipment Sales Agreement, a copy of which is attached hereto and incorporated here by this reference, and the CineMassive End‐User Software License Agreement, which is available on CineMassive’s website.
8. SUPPORT PROGRAM. CineMassive’s Support Program provides general technical support coverage via remote and on-site personnel from CineMassive’s Support Desk. Specifically, CineMassive will provide the Customer with the following:
a. Remote telephone support: Support Program support desk personnel are available by telephone seven (7) days a week, twenty-four (24) hours per day, three hundred sixty-five
(365) days per year.
b. Basic support: CineMassive will provide Basic Support for CineMassive‐integrated third‐party products. “Basic support” shall mean telephone troubleshooting and warranty claim processing on behalf of the Customer.
9. SERVICE LEVEL OBJECTIVES (SLO). CineMassive will guarantee a response time of four hours
(4) for support calls. Customers under this Support Program will receive priority response, which the Support Desk will try to maintain at one (1) hour. For urgent priority issues, the SLO is one (1) hour. For high priority issues, the SLO is two (2) hours. For normal priority issues, the SLO is four
(4) hours. For low priority issues, the SLO is twenty-four (24) hours.
10. CINENET UPDATES. Customers that have an active GuardianCare contract shall receive and have access to CineNet software updates at no additional cost during the term of this Agreement. “CineNet software updates” as used in this Paragraph are limited to those updates within Customer’s current major version release. In order to receive CineNet software updates, Customer must be using a video wall processor that supports the latest version release of CineNet software.
11. DISCOUNTED SOFTWARE UPGRADES. During the term of this Agreement, Customer will receive a twenty‐ five percent (25%) discount off of CineMassive’s service rate schedule in effect at the time of such upgrade on all major CineNet software upgrades (i.e., new releases), including all CineNet products and seat license for Customer’s system that are covered by this Agreement. In order to receive CineNet software upgrades, Customer must be using a video wall processor that supports the latest version release of CineNet software.
12. ON-SITE SUPPORT. During the term of this Agreement, Customer will be eligible for two on-site incidents. Each such visit is referred to in this Agreement as an “Incident.” These incidents can be used for on-site support trips, upgrades, or preventative maintenance visits. For on-site support visits, a CineMassive technician will be dispatched to the Customer location after a problem has been reported to the CineMassive Support Desk, and the Support Desk technician has determined that an on-site field technician is required. For Preventative Maintenance visits, a CineMassive technician will visit the Customer location to review the status, condition, and performance of the Customer’s equipment and software to determine continuation or adjustments to the support coverage.
a. This Agreement includes the labor for up to two (2) Incidents per year of this Agreement, with each such Incident being limited to a maximum of forty (40) hours of CineMassive employee time.
b. Travel expenses will be incurred by CineMassive at no additional cost to Customer for up to two (2) Incidents per year of this Agreement.
13. CANCELLATION OF AGREEMENT. Customer may terminate this Agreement at any time on thirty
(30) days’ prior written notice to CineMassive. CineMassive may terminate this Agreement at any time on written notice to Customer that Customer or Customer’s agent has failed to pay any amount due to CineMassive under this Agreement. This Agreement shall also terminate automatically and immediately on Customer’s failure to comply with any of the other terms of this Agreement, or upon Customer’s fraud or material misrepresentation to CineMassive. On termination of this Agreement, Customer shall be entitled to a pro‐rated refund of the annual fee paid to CineMassive under this Agreement.
14. DISPUTE RESOLUTION. Any suit for breach of this Agreement shall be brought in the United States District Court for the Northern District of Georgia or, if jurisdiction in that court is unavailable, in State court in Atlanta, Georgia. The Parties hereto waive any objection that any Party might have now or hereafter to the venue of any such suit and irrevocably submit to the jurisdiction of such court in any such suit and hereby waive any claim or defense of inconvenient forum. The Parties agree to submit to the personal jurisdiction of the courts located within the county of Xxxxxx, Georgia, or the Northern District of Georgia, and agree to waive any and all objections to the exercise of jurisdiction over the Parties by such courts and to venue in such courts. The prevailing Party in any such suit shall recover its costs, expenses, including expert fees, and reasonable attorneys’ fees from the other Party, including for any appeals.
15. NOTICES. Unless otherwise provided in this Agreement, all notices or demands by any Party relating to this Agreement or any other agreement entered into in connection herewith, shall be in writing and shall be personally delivered or sent by: (i) a recognized overnight delivery service, postage prepaid, return receipt requested:
a. If to CineMassive, to the address set forth in the Preamble Paragraph of this Agreement;
b. If to Customer, to the address set forth on the signature page of this Agreement.
All such notices, requests, and communications shall, when transmitted by overnight delivery, be
effective when delivered. The Parties hereto may change the address(es) at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other Parties.
16. GENERAL PROVISIONS.
a. Entire Agreement. This Agreement, which is a Schedule to the CineMassive Sales Agreement, constitutes the entire agreement between Customer and CineMassive concerning the CineMassive Support Program, and no promise, inducement, or agreement not contained or referred to in this Agreement has been made to another party.
b. Amendment Requires Writing. Customer and CineMassive represent that this Agreement cannot be varied or amended except by written agreement.
c. Governing Law. This Agreement and any disputes arising out of or in connection with this Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of Georgia, United States of America, without regard to its conflict of laws provisions and excluding the UN Convention on Contracts for the International Sale of Goods.
d. No Assignment or Transfer. This Agreement may not be transferred or assigned by Customer without the express written agreement of CineMassive. This Agreement is personal to Customer (or any entity on whose behalf Customer has been authorized by Customer to enter into this Agreement and bind Customer). Neither Customer nor any such entity may assign this Agreement, or any of the rights granted by CineMassive hereunder, in whole or in part, without the prior written consent of CineMassive. Any attempt to do so shall be void and shall immediately and automatically terminate this Agreement. This Agreement is freely transferable or assignable by CineMassive.
e. Insolvency. The Agreement shall terminate without further notice or action by CineMassive if Customer becomes bankrupt or insolvent, makes an arrangement with Customer’s creditors, goes into liquidation, or ceases doing business for a period of more than ninety (90) consecutive calendar days.
f. Force Majeure. If the performance of CineMassive under this Agreement is prevented, hindered, or otherwise made impractical by reason of an Act of God, flood, strike, war, acts of government, terrorism, insurrection, city‐wide black‐out, general labor strike, or any other casualty or cause beyond the control of CineMassive, then CineMassive shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
g. Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
h. No Waiver. No term or provision hereof will be considered waived, and no breach excused,
unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach of any kind.
i. Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
j. Binding Effect. This Agreement and each of its terms, warranties, and representations are and shall be binding upon and are and shall inure to the benefit of the Parties and their respective successors, assigns, affiliates, parent companies, related companies, subsidiaries, officers, directors, agents, shareholders, representatives, and principals.
k. Gender and Number. Wherever the context so requires, the singular shall include the plural; the plural shall include the singular; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
l. Headings. The headings in this Agreement are for convenience only and in no way limit or affect the terms or conditions of this Agreement.