MCLANE INTELLIGENT SOLUTIONS, LLC TERMS AND CONDITIONS AND ACCEPTABLE USE POLICY
The following terms and conditions outline the terms under which McLane Intelligent Solutions, LLC, hereinafter referred to as MIS, agrees to provide services. In so choosing to do business with MIS, an entity, hereinafter referred to as Client, agrees to accept the following terms and conditions. Note there are terms and conditions specific to various services offered by MIS and there will be found after “Other Terms and Conditions.” Please read them carefully.
HOURS OF SERVICE
Unless otherwise specified in an agreement, all contracted services will be provided to the Client by MIS between the hours of 8:00 am – 5:00 pm Monday through Friday, Central Standard Time, excluding MIS holidays. MIS will make reasonable efforts to respond to emergency requests. However, specific response times outside of normal business hours cannot be guaranteed.
SERVICE OUTSIDE NORMAL WORKING HOURS
Services performed outside of the hours of 8:00 am – 5:00 pm Monday through Friday, excluding public holidays, shall be deemed After Hours subject to provisions of agreements.
In order to receive support, trouble tickets must be opened by Client’s designated contact person, by email to our Help Desk, through our web portal or by phone to our help desk line if email is unavailable. Each call will be assigned a trouble ticket number for tracking.
Specific or additional payment terms may be specified in each addendum attached to this agreement. Payments are due on the due date reflected on the invoice.
All ConstantCare agreements are billed on approximately the 15th of the month prior to the service month. Fees will become due and payable on the first day of the service month. For example, if the service month is July, the invoice will be generated on June 15 and is due and payable on July 1. Fees may either be paid via credit card by signing an approval form or the amount may be invoiced. Services will be suspended if payments for agreement services are not received within 5 days following date due.
Any payments past the due date will incur a late fee of 1.5% per month (18% per annum) on the unpaid balance. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to MIS for the state of use.
OTHER TERMS AND CONDITIONS
1.1. In the event that any term specified herein is in conflict with or differs from terms within an addendum or agreement, the terms within the addendum or agreement take precedence.
2.1. If an agreement is terminated by the client, the client will be invoiced and held responsible for the unpaid balance of any service charges. For monthly agreements, the unpaid balance would include the most recent monthly invoice amount prior to termination multiplied by the remaining months of the term of the agreement and is due and payable at the time of termination.
2.2. In the event Client would claim a breach in the terms of the agreement, Client must notify MIS in writing within five (5) days of the breach event. MIS will have thirty (30) business days to take corrective measures to ensure terms are met. If MIS fails to implement corrective measures within the thirty (30) business-day period, Client may terminate this agreement with written notice to MIS for non-conformance. Client’s ConstantCare agreement will end on the date of the notice of termination. Client agrees to pay prorated monthly fees up to the termination date and shall have no further financial obligation for the ConstantCare monthly fees.
2.3. MIS may immediately terminate any agreement in the event Client fails to perform its obligation for payment of invoices pursuant to this agreement or any addendum. In such event, MIS shall have the right of recovery under Texas commercial law for all services performed prior to the date of termination. Client shall be liable for all costs of collection including reasonable attorney’s fees incurred by MIS to enforce its rights under this agreement, and any other forms of relief applicable under Texas law.
2.4. MIS may terminate any agreement without cause with a thirty (30) day notice to the Client.
2.5. After contract termination, MIS will collect any equipment owned by MIS and remove its agents from the client’s machines. Any additional activity that prevents the immediate collection of equipment or removal of services such as work needed to coordinate with a new provider or to migrate services to another entity will be billed by the hour at our current billing rates.
3.1. Infringement Claims. MIS and Client each agree to indemnify, defend and hold the other harmless against any action to the extent that such action is based upon a claim that the software (other than, with respect to MIS, third-party software provided by MIS) or Confidential Information provided by the indemnitor, or any part thereof, infringes upon the intellectual property rights of any third party.
3.2. Third Party Indemnification of MIS. Client acknowledges that by entering into and performing its obligations under this agreement and each Order, MIS will not assume and should not be exposed to the business and operational risks associated with Client’s business, and Client therefore agrees to indemnify, defend and hold MIS harmless from any and all third party claims, actions, damages, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of or related to the conduct of Client’s business except as a result of gross negligence on the part of MIS, including, without limitation, the use by Client of the services.
3.3. Procedures. All indemnification obligations under this Section shall be subject to the following requirements: (a) the indemnified party shall provide the indemnifying party with prompt written notice of any claim; (b) the indemnified party shall permit the indemnifying party to assume and control the defense of any action upon the indemnifying party’s written acknowledgment of the obligation to indemnify (unless, in the opinion of counsel of the indemnified party, such assumption would result in a material conflict of interest); and (c) the indemnifying party shall not enter into any settlement or compromise of any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld. In addition, the indemnified party may, at its own expense, participate in its defense of any claim. In the event that the indemnifying party assumes the defense of any such claim, the indemnifying party shall have no liability for attorney’s fees and costs incurred by the indemnified party.
4. Representation and Warranties.
4.1. We represent and warrant that we (a) have the right, power and authority to enter into the Agreement and to fully perform all of our obligations hereunder; (b) will use commercially reasonable efforts to provide all services required of us under the Agreement in accordance prevailing industry standards; and (c) own or have acquired the requisite rights from third parties to the MIS Property.
4.2. MIS does not manufacture hardware or commercial off-the-shelf (COTS) software covered under this agreement. Any warranty provisions are passed through from the manufacturer and are subject to the manufacturer’s limitations. Any labor supplied by MIS is not covered under the terms of the manufacturer’s warranty.
4.3. MIS may provide equipment owned by MIS (such as routers and remote backup devices) and housed at the client premises. Client agrees that such equipment shall be accorded the same care and security as similar equipment owned by the client. Client shall be held liable for any damage or loss not covered by the manufacturer’s warranty. Should such loss or damage occur, client will be invoiced the current replacement cost of the equipment plus shipping and handling and related installation charges.
4.4. MIS does not warrant “defect-free” code, but rather that reasonable efforts will be made to minimize defects through sound programming practices, identify defects through unit and integration testing, and resolve defects identified by the Client in a timely manner. Such warranty is available, but requires a formal test process that duplicates the production environment and includes complete regression testing by MIS testers.
4.5. MIS-coded Software (Software) – MIS shall work to correct all reproducible errors that materially affect operation of Software. In the event a defect is discovered, Client agrees to notify MIS with a summary of the problem, a screenshot if possible, and steps to reproduce the defect. MIS shall work to correct all such errors that it can verify based on Client information, and shall continue working either until it corrects the error, develops a workaround for that error, or determines in good faith that the error cannot be corrected as part of the then current release of the Program.
5. DISCLAIMER OF WARRANTIES; LIMITATION OF DAMAGES.
5.1. THE EXPRESS, BUT LIMITED, WARRANTY IN SECTION 4 ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING OUR SERVICES AND WE AND OUR AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES (IMPLIED OR EXPRESS) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT REGARDLESS OF WHETHER THE ACTION AROSE INSIDE OR OUTSIDE THE UNITED STATES. THERE IS NO WARRANTY AGAINST INACCURACY. THERE IS NO WARRANTY OF SYSTEMS INTEGRATION. THERE IS NO WARRRANTY THAT OUR OBLIGATIONS UNDER THIS AGREEMENT WILL FULFILL ANY OF YOUR OR ANY AUTHORIZED USER’S PARTICULAR PURPOSES OR NEEDS.
5.2. WE PROVIDE THE SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT THE SOLE RISK OF YOU AND EACH AUTHORIZED USER. YOU ACKNOWLEDGE THAT THE USE OF THE SERVICES BY YOU AND EACH AUTHORIZED USER ARE AT YOUR OWN RISK AND THAT THERE IS NO WARRANTY OF UNINTERRUPTED OR ERROR-FREE SERVICE OR ACCURACY OR RELIABILITY.
5.3. WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST DATA OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION ARISING FROM OR RELATING TO THIS AGREEMENT OR ARISING FROM OR RELATING TO THE USE OF THE SOFTWARE WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN US, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORTS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THIS SECTION 5, WE DO NOT EXCLUDE OR LIMIT LIABILITY IN RESPECT OF PERSONAL INJURY OR DEATH TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
5.4. YOU ACKNOWLEDGE AND AGREE YOU HAVE RELIED ON NO WARRANTIES EXCEPT OUR LIMITED EXPRESS WARRANTY IN SECTION 4.
5.5. You agree that the total liability of us and our Affiliates and the sole remedy of you and any End User for any claims regarding our services is limited to your right to terminate this Agreement. Further, should a court nonetheless find that remedy is not exclusive or that we are for any reason nonetheless liable for money damages, our cumulative liability in connection with this Agreement and our services, whether in contract, tort or otherwise, shall not exceed the amount paid to us under this Agreement during the three months preceding the events giving rise to such liability. The existence of more than one claim shall not enlarge that limitation of liability.
5.6. We are not obligated to exercise any control over the content of the information passing through our network except those controls expressly provided in this Agreement.
5.7. Except as expressly provided in the Agreement, you acknowledge that (a) we are in no manner responsible for any action or inaction of any third party, including, but not limited to, hardware or software vendors or Internet service providers; (b) we have not represented that the Services shall be uninterrupted, error-free, or without delay; and (c) we do not and cannot control the flow of data through the Internet, and such flow depends in large part on the performance of third parties whose actions or inaction can, at times, produce situations in which connections to the Internet (or portions thereof) may be impaired or disrupted. ACCORDINGLY, YOU ACKNOWLEDGE THAT WE DISCLAIM ALL LIABILITY RELATED TO EVENTS OUTSIDE OF OUR CONTROL AND/OR IN THE CONTROL OF THIRD PARTIES, AND YOU SHALL HAVE NO RIGHT TO RELY UPON ANY REPRESENTATION OR WARRANTY OF ANY THIRD PARTY IN RESPECT TO THE SERVICES. Further, you acknowledge that, in providing the Services, we shall necessarily rely upon information, instructions, and services from you, your Administrator, employees and agents, and other third parties providing computer and communications hardware, software, and Internet services. Except as expressly provided in the Agreement, you fully assume the risk associated with errors in such information, instructions, and services.
6. Ownership of Work Product
6.1. General. All worldwide intellectual property rights associated with any ideas, concepts, techniques, processes or other work product created by MIS during the course of performing the services shall belong exclusively to MIS, and Client shall have no right or interest therein. Unless this agreement is terminated by MIS for Client’s material breach or failure to make payments to MIS, MIS hereby grants to Client a perpetual, royalty-free, nontransferable, nonexclusive license to use, solely for Client’s internal business purposes, the object code form of any application software programs or other work product created by MIS in performing the services.
6.2. Managed Services Software Tools. Notwithstanding anything to the contrary in this agreement, MIS will retain all right, title and interest in and to all software development tools, know-how, methodologies, processes, technologies or algorithms used in providing the Managed Services which are based on trade secrets or proprietary information of MIS or are otherwise owned or licensed by MIS. Licenses will not be deemed to have been granted by either party to any of its patents, trade secrets, trademarks or copyrights except as otherwise expressly provided in this agreement. Nothing in this agreement will require MIS or Client to violate the proprietary rights of any third party in any software or otherwise.
6.3. Further Assurances. MIS and Client agree to execute and deliver such other instruments and documents as either party reasonably requests to evidence or effect the transactions contemplated by this Section. The provisions of this Section will survive the expiration or termination of this agreement.
7. Non Solicitation of Employees
7.1. Client acknowledges that MIS has a substantial investment in its employees that provide services to Client under this agreement and that such employees are subject to MIS’s control and supervision. In consideration of this investment, Client agrees not to solicit, hire, employ, retain, or contract with any employee of the other, without first receiving MIS’s written consent.
7.2. If any employee involved with the delivering of these services terminates his or her employment with MIS (regardless of the reason for termination), and is employed by Client (or any affiliate or subsidiary of Client) in any capacity either during the term of this agreement or within a 6 month period thereafter, Client shall immediately pay MIS an amount equal to 50% of the then current yearly salary or wage paid by MIS to such employee.
8.1. Equipment & Facilities. Client agrees that MIS may utilize certain items of Client’s equipment and may gain access to certain Client facilities. Client retains title and ownership in all of Client’s equipment owned by Client and utilized by MIS, and must grant authority for MIS to access Client’s facility. Facility access may be denied for any reason at any time, however if access to facilities is denied, Client understands that MIS may be unable to perform their duties adequately and if such a situation should exist, MIS will be held harmless.
8.2. Passwords. Client acknowledges that MIS may need access to any and all systems and resources to perform their duties under this contract. As such, MIS must have access to any and all passwords necessary to perform duties under this contract.
8.3. Waiver. The failure or forbearance of MIS or Client to enforce any right or claim against the other party shall not be deemed to be a waiver by MIS or Client of such right or claim or any other right or claim hereunder. The waiver by MIS or Client of a breach hereof shall not operate or be construed as a waiver of any subsequent breaches of the same or any other provision.
8.4. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, agreements, negotiations, correspondence, demonstrations, and other communications, whether written or oral, between MIS and Client. No modification or waiver of any provision hereof shall be effective unless made in writing signed by both MIS and Client.
8.5. Severability. If any provision hereof is determined in any proceeding binding upon the parties hereto to be invalid or unenforceable, that provision shall be deemed severed from the remainder of the Agreement, and the remaining provisions of the Agreement shall continue in full force and effect.
8.6. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the obligation for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of such party.
8.7. Applicable Law and Jurisdiction. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Texas without respect to conflict of laws in Texas. Client agrees and stipulates it is subject to personal jurisdiction of the courts in Bell County, Texas.
8.8. Notices. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received (i) when sent and received by facsimile transmission as indicated by a printed notice generated at the time of transmission, (ii) when mailed by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties as specified in part One, or at such address as the parties may later specify in writing for such purposes, or (iii) upon personal delivery. The foregoing shall apply regardless of whether such mail is accepted or unclaimed.
8.9. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to MIS whether by merger or operation of law. Except for this limited right of assignment, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without the other party’s prior written consent. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective.
8.10. Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a Temporary Restraining Order, Preliminary Injunction, or other equitable relief to preserve the status quo or prevent irreparable harm pending the selection and confirmation of the arbitrator, any and all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties or in accordance with AAA rules. The arbitrator shall apply the laws of the State of Texas without regard to conflicts of laws, to all issues in dispute. The arbitrator shall have the authority to determine his or her own jurisdiction. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
8.11. Confidentiality. A party receiving Information (defined below) of the other will not disclose such information other than to persons in the organization who have a need-to-know and who will be required to comply with this Section 8.11. The party receiving Information will not use Information for a purpose inconsistent with the terms of this Agreement. “Information” means the Product and Services, all information, protected property, and intellectual property related thereto as well as information related to the business of MIS or Client. Information will not include: (i) Information publicly known prior to disclosure, (ii) Information coming into the lawful possession of the recipient without any confidentiality obligation; and (iii) Information required to be disclosed pursuant to regulatory action or court order, provided adequate prior written notice of any request to disclose is given to the party whose information is to be disclosed. Each party will exercise at least the same degree of care to safeguard the confidentiality of the other party’s Information as it does to safeguard its own proprietary and confidential information, but not less than a commercially reasonable degree of care. These measures include protecting against any anticipated threats or hazards to the security or integrity of Client or MIS information and protecting against unauthorized access to or use of Client or MIS Information that could result in substantial harm or inconvenience to any employee or customer of either party. Either party must fully disclose breaches in security resulting in unauthorized intrusions that may materially affect the other party or its customers. The party must report to the other party when intrusions occur, the effect on the other party, and corrective action to respond to the intrusion, based on agreements between both parties.
8.12. Confidentiality for Clients Operating under the Texas Disciplinary Rules of Professional Conduct. Clients operating under the Texas Disciplinary Rules of Professional Conduct (specifically firms of practicing lawyers licensed by the Supreme Court of Texas and other jurisdictions) must not knowingly reveal confidential information of any client or former client to, among others:… (ii) anyone [else], other than the client, the client’s representatives or the members, associates or employees of the lawyer’s law firm. MIS and client therefore agree, for the sole and exclusive purpose of complying with Texas Disciplinary Rules of Professional Conduct, Rule 1.05, and any similar rule of confidentiality to which the lawyers of client are bound, as follows: That MIS is an “Employee” as that term is used in Rule 1.05; provided however, MIS is an Employee of client only for the purposes of maintaining confidentiality of client’s confidential information and for complying with Rule 1.05, but for no other purpose. MIS (or any of its existing or future employees, agents, members, officers, partners or contractors) is not an employee of client in any other context or within any other meaning of the term “Employee.”
ConstantCare Managed Print TERMS AND CONDITIONS
1. TERM; TERMINATION AND RENEWAL
1.1. The term of this Agreement will begin on the date We accept and sign the Agreement (the “Commencement Date”) and will continue for as long as equipment is covered by a schedule to this Agreement (“Term”). Each schedule has its own term (“Schedule Term”) for the equipment covered by such schedule. We may terminate any unit of equipment covered by this Agreement at the end of a Schedule Term if Xerox gives Us notice that such device is no longer supported by the PagePack Program. Each unit of equipment covered by a schedule to this Agreement will automatically renew for additional one-year terms unless either party provides the other party with written notice of non-renewal at least 45 days, but not more than 90 days, before the end of the existing Schedule Term. Upon Your request, We will provide You with revised pricing for the renewal term within 90 days before the end of the existing Schedule Term for the devices that will be supported at the time of renewal and will use reasonable efforts to notify you of the devices that are no longer supported by the PagePack Program.
2. SUPPLIES AND SERVICE
2.1. You agree to use the Consumables (as defined in the applicable attached schedule(s)) provided under this Agreement only in the covered equipment. You shall order Consumables only when needed. No “safety stock” of Consumables is permitted under this Agreement. “Safety Stock” means more than one consumable item (e.g. toner cartridge) that is not installed in the device. Xerox reserves the right to provide remanufactured or refurbished cartridges which will work as new.
2.2 You agree to return any used cartridges or other used Consumables to Xerox per Xerox’s directions. Any use of Consumables in devices other than the equipment constitutes a violation of this Agreement. Consumables are the property of Xerox until fully consumed by You in the equipment. Selling, transferring, bartering or otherwise conveying Consumables to anyone is strictly prohibited and is subject to civil and criminal penalties. You shall return to Us all unused Consumables upon expiration or termination of this Agreement. We reserve the right to invoice You for any unused Consumables that are not returned at Our then established retail prices, plus shipping and handling charges. You acknowledge that We reserve the right to audit Consumables orders and hold or deny shipments until the requests are validated. Shipping of consumables is included at no additional cost.
2.3 You agree to order ALL Consumables through the PagePack password protected web portal during the Term of this Agreement. You acknowledge that Xerox or a Xerox service provider will provide service for the equipment pursuant to Xerox’s standard service agreement (no service is included for NXT equipment). The terms and conditions (including exclusions for accidents, misuse, abuse, unauthorized repair, unauthorized disassembly, etc.) of the applicable equipment service agreement shall apply. Upon Your request, We will provide You with a copy of any applicable equipment service agreement. If You require service on equipment during the Term, You may request service using the following methods: (x) placing a request using the PagePack web portal, (y) calling Xerox at 1–800–835–6100, or (z) contacting Us.
2.4 You agree that: (a) You must separately purchase all supplies other than Consumables listed above, including, without limitation, paper, at Your own cost; (b) You must separately purchase equipment service, parts or supplies required by Your negligence, misuse of the equipment, failure to follow the Xerox’s suggested use instructions, or breach any warranty or service agreement provided by Xerox; and (c) We are a separate and independent company from Xerox and Xerox is NOT Our agent.
3. PRINT CHARGES; AND TAXES
3.1. Each month, You agree to pay Us, by the due date as set forth on Our invoice to You, all Base Monthly Charges, excess print charges and all other amounts due under this Agreement (including all applicable taxes). You agree to pay the Base Monthly Charges each month even if You do not make the number of prints included with the Base Monthly Charge. You may not carry over a credit from any month during which You make fewer than the minimum number of prints.
4. PAGEPACK ASSISTANT SOFTWARE
4.1. You agree (a) to install Xerox’s meter reading and equipment device information software (including any updates, patches, or replacement software) (“PagePack Assistant Software”) on one or more of Your workstations that are connected to Your network so that meter reads and equipment device information can be retrieved from the equipment and transmitted via the Internet to Xerox, (b) to the end-user license agreement for such software, (c) to keep the workstations on which the software is installed powered on and connected to the equipment via Your network at least five days a week and 6 hours a day, except during network outages and routine network maintenance, and (d) not to disable, disassemble, reverse engineer or otherwise interfere with the operation of the software. If Xerox fails to receive meter reads or device information on the equipment, We will give You notice that You are in breach of this Agreement. If You do not provide Xerox with meter readings within five (5) days of the date of Our request, then (i) We may estimate the number of prints used and invoice You accordingly, (ii) We will charge a fee in the amount of $_______ (if left blank the amount is zero) per piece of equipment that We do not receive meter readings for each month until We receive meter readings, and (iii) We will adjust the estimated charge for excess prints upon receipt of actual meter readings. If You do not provide Xerox with meter readings within fifteen (15) days of the date of Our request, then We may terminate this Agreement by giving You written notice of such termination. You acknowledge that if You do not provide meter readings that Xerox will not be able to provide You with Consumables and the equipment may not function or produce prints. You also acknowledge that the PagePack Assistant Software will send meter reads and other information on all of your networked print devices automatically to Xerox from time to time.
ACCEPTABLE USE POLICY
The Acceptable Use Policy (as amended, modified or supplemented from time to time as set forth on MIS’s website, this “AUP”) of McLane Intelligent Solutions, LLC. (“MIS”), is designed to (i) protect MIS’s Clients, users of MIS’s website, Products and Service, MIS computer network and physical infrastructure (“Network”) and third parties, (ii) further compliance with all relevant laws and regulations, (iii) promote the security and availability of MIS’s website, MIS Network and physical infrastructure and (iv) regulate and restrict the use of all products and services (including, but not limited to the Products and Services) provided by MIS, its website, MIS Network and its physical infrastructure (“MIS Services”). This AUP is also intended to establish a clear understanding of what MIS expects of its clients using its services. This AUP is incorporated by this reference into each Client’s Service Agreement.
This AUP is applicable to each user that subscribes to MIS’s Services (“Clients”), all users of MIS’s Services and all users that access or utilize MIS’s website, MIS Network or its physical infrastructure, whether or not such users are Clients of MIS, including the Clients of our Clients (“Third Party Users”), and every server or network device that is under each User’s control and attached to MIS Network or physical infrastructure as a part of MIS’s Services (a “Server”). The term “User” as used in this AUP means both Clients and Third Party Users.
Any access or usage of MIS’s Services or Network constitutes acceptance and agreement to this AUP. Each client of MIS agrees that it is responsible for violations of this AUP by itself and by any party that uses or access the MIS Services or the MIS Network through such client, whether authorized by such client or not.
MIS reserves the right to amend or modify this AUP from time to time, and a User’s use of MIS Services, MIS’s Network and physical infrastructure after changes to the AUP are posted on MIS’s website will constitute the User’s acceptance of any such amendments or modifications.
Clients are responsible for complying with this AUP and for violations attributable to their Clients and users, whether authorized or not by a Client or MIS. Clients must take all reasonable steps to ensure that their Clients and users will comply with this AUP.
MIS does not exercise editorial control over the content of any web site, e-mail transmission, newsgroups, or other material created or accessible over or through the Service, except for certain proprietary web sites owned by MIS. However, MIS may remove any materials that, in our sole discretion, may be illegal, may subject us to liability, or which may violate this AUP. MIS may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil matters.
MIS believes in communicating with our clients and will try to work with our clients to resolve any AUP violations before taking action which could cause a client’s service to become unavailable. However, due to the nature or severity of some violations, this is not always possible or preferable. We reserve the right to immediately suspend or terminate, without warning, services to a client who is in violation of the AUP.
This AUP does not (a) obligate MIS to monitor, review, or police the data and content residing on its Network or (b) create any obligation of MIS to any party that is not a Client, including, but not limited to, any Third Party User. Unless and until notified, MIS is not likely to be aware of any violations of this AUP or any violations of law. MIS expects all Users to notify us of any violations of law or violations of this AUP. MIS expressly disclaims any liability for the data and content transmitted through or intermediately, temporarily, or permanently stored on MIS’s Network or any server and for the actions or omission of its Users.
The following activities are expressly prohibited, and are considered violations of the AUP. These descriptions are guidelines and are not intended to be exhaustive. MIS will be the sole arbiter as to what constitutes as unacceptable use.
Illegal Activity or Content
The Service shall not be used for any unlawful activities or in connection with any criminal or civil violation. Use of the Service or Network for transmission, distribution, retrieval, or storage of any information, data or other material in violation of any applicable law or regulation (including, where applicable, any tariff or treaty) is prohibited. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory or otherwise unlawful.
MIS expressly prohibits any activities that, in its sole discretion, constitute network abuse. This includes, but is not limited to:
Denial of Service attacks or any activities designed to exhaust the resources of a host or network.
Any attempt to monitor data or traffic on any network or system without the authorization of the owner of the system or network.
Accessing, illegally or without authorization, computers, accounts or networks belonging to another party, or attempting to penetrate security measures of another individual’s system.
Port-scanning, vulnerability scanning, and any other activity that may be used as a precursor to an attempted system penetration.
Introducing malicious programs into any network or server, such as viruses, worms, trojan horses, and key loggers. Intentionally or negligently injecting false data into the Internet, for instance in the form of bad routing information or incorrect DNS information.
Forging any e-mail message header, in part or whole, of any electronic transmission, originating or passing through the Network.
Executing any form of network activity that will intercept data not intended for the client’s server.
Users are prohibited from engaging in improper use or distribution of email. MIS will be the sole arbiter as to what constitutes a violation of this provision. This includes, but is not limited to:
Sending of any unsolicited email (“spam”). Any message sent to a recipient from a purchased, rented, licensed, or traded list of email addresses is automatically considered unsolicited.
Hosting web pages advertised within “spam e-mail” sent from another network (“spamvertising”)
Using the Service to receive replies from unsolicited emails (“drop-box” accounts).
Configuring any email server in such a way that it will accept third party emails for forwarding (“open mail relay”).
Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by MIS Users must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list.
Purchasing lists of email addresses from 3rd parties for mailing to from any MIS hosted domain, or referencing any MIS account, is prohibited.
Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at [www.spamhaus.org] IRC Networks
All IRC activity is prohibited. This includes running any type of IRC software including, but not limited to, IRC client software, IRC server software, web-based IRC software, IRC bots such as “eggdrop”, and IRC proxies such as “psyBNC”. Servers found to be connecting to or part of these networks will be immediately removed from our Network. The server will not be reconnected to the Network until such time that you agree to completely remove any and all traces of the IRC server, and agree to let us have access to your server to confirm that the content has been completely removed. Any server guilty of a second violation will result in immediate account termination.
Legal adult content must be published in accordance of any applicable law or regulation. MIS reserves the right to suspend any account publishing offending content.
Proxy Servers & Peer-to-Peer File Sharing
Proxy Servers and Peer-to-Peer File Sharing are prohibited. This includes, but is not limited to, SOCKS proxies, Squid proxies, Bittorrent Proxies, Tor, Limewire, Kazaa, Bittorrent, and any CGI or PHP proxy scripts.
Facilitating a Violation of this Policy
Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, denial of service attacks.
MIS accounts operate on shared network resources. Excessive use or abuse of these shared network resources by one Client may have a negative impact on all other Clients. Misuse of network resources in a manner which impairs network performance is prohibited by this policy and may result in termination of your account.
MIS’s shared server accounts operate on shared resources. Excessive use or abuse of these shared resources by one Client may have a negative impact on all other Clients. You are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other Clients or the performances of the Service or Network. MIS reserves the right to limit such activities. At any time, all shared server accounts must use an acceptable level of resources and stay below 2% of the total system resources.
Reporting violations of MIS’s AUP
MIS requests that anyone who believes that there is a violation of this AUP direct the information to the Abuse Department at firstname.lastname@example.org
If available, please provide the following information:
The IP address used to commit the alleged violation
The date and time of the alleged violation, including the time zone or offset from GMT
Evidence of the alleged violation
An E-mail with full header information provides all of the above, as do system log files. Other situations will require different methods of providing the above information.
MIS may take any one or more of the following actions in response to complaints:
Issue written or verbal warnings
Disable access to a client’s content which violates AUP
Remove content which violates AUP
Block mail or any other network service
Null-route client’s IP address
Suspend the client’s account
Terminate the client’s account
Charge the client for administrative costs and/or reactivation charges
Bring legal action to enjoin violations and/or to collect damages, if any, caused by violations
Any violation of the AUP which results in a client’s server being removed or blocked from network access may be subject to reconnection fees as described in the Hosting Agreement.
The aforementioned list of actions shall not be construed in any way to limit the actions or remedies that MIS may take to enforce and ensure compliance with this AUP. MIS reserves the right to recover any and all expenses, and apply any reasonable charges, in connection with a client’s violation of this AUP. No service credits will be issued for any interruption in service resulting from violations of this AUP.
The client agrees to indemnify and hold harmless MIS from any claims resulting from the use of the service which damages the subscriber or any other parties.
MIS reserves the right to change this AUP at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this AUP periodically and to be aware of any modifications. You may identify whether MIS has revised this AUP by noting the “Effective Date” above. Your continued use of the site after such modifications will constitute your: (a) acknowledgment of the modified AUP; and (b) agreement to abide and be bound by the modified AUP. If you do not agree to these terms, please do not access or use this site or any site on the MIS Network.
|12/31/2014||Added Paragraph 2.5|
|11/20/2013||Updated Paragraph 2.1|
|5/22/2013||Updated Summary and added Managed Print T&Cs|
|5/20/2013||Updated Paragraph 2.2|