This MAINTENANCE AGREEMENT is subject to these terms and conditions:
(1) Definitions. For the purpose of brevity and uniformity all references to Delta Wireless, Inc. in this agreement will be construed to mean Delta Wireless, Inc. All references to Customer shall be construed as meaning and apply to the equipment to be maintained by the terms of this agreement.
(2) Work. Delta Wireless, Inc. agrees to provide maintenance for the Customer of the equipment described on the attached equipment list of the agreement beginning and ending on the dates indicated if the Customer makes the payments herein specified. Mobile units will be removed and reinstalled in different vehicles at T&M rates. This agreement does not include maintenance of any transmission line, antennas, tower or tower lighting, unless such work is described on the reverse side of this agreement, such maintenance may be furnished upon request at mileage, material and labor rates prevailing at the time of each call. Maintenance shall include the labor and parts required to repair equipment which has become defective through normal wear and usage. Maintenance does not include the repair or replacement of equipment which has otherwise become defective, including, but not limited to, damage caused by accidents, physical abuse or misuse of the equipment, acts of God, fires, and does not include extensive maintenance or replacement of equipment due to interference, intermodulation, or other degrading signals causing poor service that the equipment is not designed to reject. Prior to the start of the contract, the customer is responsible for identifying equipment that is defective, broken, inoperable or physically damaged. Repair of this equipment to operational condition will be performed on a time and material basis.
(3) Maintenance Standards. The equipment will be maintained by Delta Wireless, Inc. in accordance with these standards: (I) Manufacturer parts or parts of equal quality will be used; (II) oil, water, dust and foreign substances will be removed from the equipment; (III) the equipment will not be subject to mechanical abuse; (IV) the equipment will be maintained at the levels necessary to provide the required communication; (V) routine maintenance procedures will be followed; and (VI) all maintenance work will be done by qualified technicians. The equipment will be inspected and adjusted periodically and as often as required.
(4) Time and place of maintenance work. Maintenance work on the base stations and other fixed equipment shall be performed at the location of the equipment, and the Customer shall furnish heat, light and power at these locations. Mobile units and removable equipment shall be delivered by the Customer to the place of service indicated on the reverse side of this agreement. The Customer shall give the Delta Wireless, Inc. Service Station at least 3 days’ notice prior to delivery of a mobile unit for reinstallation. Customer shall give Delta Wireless, Inc. full and free access to all equipment being serviced.
(5) Payment. On or about the date each payment is due as set forth on the reverse side of this agreement Delta Wireless, Inc. will send the customer an invoice covering the monthly maintenance fees for the next Payment Period plus all other charges for the preceding Payment Period, and the Customer shall pay the amount of said invoice within fifteen (15) days of its date to Delta Wireless, Inc. Each invoice shall be due and payable whether or not the equipment is operating, and Delta Wireless, Inc. may terminate this agreement by giving the Customer fifteen (15) days notice by certified mail if the Customer defaults in its payment to Delta Wireless, Inc. The Customer shall reimburse Delta Wireless, Inc. for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments now or hereafter imposed by or under the authority of the Federal, State or local law, rule or regulation with respect to the maintenance of the equipment except Federal income and profits taxes of Delta Wireless, Inc.
(6) FCC records. Delta Wireless, Inc. will assist in FCC licensing issues, however Customer is solely responsible for any and all licenses or authorizations required by the FCC or any other government agency.
(7) Interruption of service. The customer shall notify Delta Wireless, Inc in the event of failure of the unit. If Delta Wireless, Inc. fails to repair the unit within a reasonable time the Customer shall notify Delta Wireless, Inc. in writing. After said notice from the Customer, Delta Wireless, Inc. shall be liable for any interruption or interference affecting the use of or transmission through the equipment maintained to the extent of a pro rate allowance based on the monthly maintenance fee for the time such interruption or interference is attributable to the fault of Delta Wireless, Inc. does not assume and shall have no liability under this agreement for failure to provide or for delay in providing maintenance for the equipment due directly or indirectly to causes beyond the control and without the fault or negligence of Delta Wireless, Inc. including, but not restricted to, acts of God, acts of the public enemy, acts of the United States any State Territory of the United States, or any political subdivision of the foregoing, or the District of Columbia, acts of the Customer, its agents, employees, or subcontractors, fires, floods, epidemics quarantine restrictions, strikes, freight embargoes, and unusually severe weather conditions.
(8) Automatic renewal. After the “Date Maintenance Ends” indicated on the reverse side of this agreement, this agreement shall continue for successive additional periods of 1 month, provided that either Delta Wireless, Inc. or the Customer may terminate this agreement on the “Date Maintenance Ends” or thereafter upon 30 days written notice to the other party sent by certified mail to the address indicated herein.
(9) Laws and regulations. This agreement and the rights and obligations of the parties under it are subject to present and future valid orders and valid laws, rules and regulations of duly constituted authorities having jurisdiction.
(10) Waiver. Failure or delay on the part of Delta Wireless, Inc. or the Customer to exercise any right power or privilege hereunder shall not operate as a waiver thereof.
11) Prior negotiations. This contract constitutes the entire agreement of the parties hereto and shall supersede all prior offers, negotiations and agreements.
(12) Amendment. No revision of this agreement shall be valid unless made in writing and signed by a General Manager or corporate officer of Delta Wireless Inc. and authorized agent of the Customer.(13) Non-solicitation agreements. Contracted Company is and shall remain an independent contractor under this agreement and any other agreement for consulting services and no employment relationship is created. Services are provided for the exclusive use of the Client, and may not be sold, given away, or used for any other purpose other than the Client’s business or organization. The Client understands and agrees that Contracted Company employees may not be solicited for regular full-time or part-time employment at the Client’s business or organization without the express written approval by Designated of Contracted Company. The Client further agrees that in the event that any Contracted Company employee, while still employed by Contracted Company, or within ninety days of separation of employment from Contracted Company, becomes employed by the Client, a placement fee equal to thirty percent of the first years salary is immediately payable to Contracted Company upon hiring of the Contracted Company employee by the Client.
(14) Non-Solicitation of Employees: Customer shall not, during the term of this Agreement and for a period of two (2) years immediately following the termination of the contract, or any extension hereof, for any reason, either directly or indirectly: (a) call on, solicit, induce, recruit, or encourage any of Delta Wireless, Inc. employees to leave their employment or terminate their contracts or take away such employees (b) attempt to solicit, induce, recruit, encourage or take away employees for the customer or any other person or entity: (c) call on solicit, induce, recruit or encourage any of the customers to terminate their relationships with Delta Wireless or take away such customers or (d) attempt to solicit, induce, recruit, encourage or take customer of Delta Wireless, Inc. for the Customer or any other person or entity.
(15) Equipment that is documented “End of Life” by a manufacturer, cannot be added to this contract. Delta will provide a diligent work effort to repair the equipment on a time and material basis, under the same contractual response time and work day/week schedule.