Amendment No. 8 to Systems Integrator Agreement between Cisco Systems, Inc. and INX Inc.
This amendment updates the existing agreement between Cisco Systems, Inc. and INX Inc. (formerly InterNetwork Experts, Inc.), allowing INX to resell Cisco’s Remote Operations Services (ROS) to end users. The amendment outlines the terms for reselling these services, including order procedures, obligations for providing service descriptions, and requirements for both parties. The amendment takes effect upon signature by both parties and remains in force until the main agreement expires or is terminated. All other terms of the original agreement remain unchanged unless specifically modified by this amendment.
1. | Ex. H: EXHIBIT FOR THE RESALE OF CISCO REMOTE OPERATIONS SERVICES (CISCO ROS) is hereby attached to and made a part of the Agreement. |
INTEGRATOR | CISCO SYSTEMS, INC. | |||||
Authorized Signature: | /s/ Paul Klotz | Authorized Signature: | /s/ Perry Booth | |||
Print Name: | Paul Klotz | Print Name: | Perry Booth | |||
Print Title: | Vice President | Print Title: | Cisco Financial | |||
Date: | 3-7-06 | Date: | 3/20/06 | |||
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1.0 | DEFINITIONS. | |
All capitalized terms not defined herein shall have the meaning ascribed in Attachment 1 (Glossary of Terms). | ||
2.0 | SCOPE. Integrator is authorized on a non-exclusive basis to resell Services to End Users in the Territory. The Services Integrator is authorized to resell are set forth in Attachment 2 (Services Availability). This Exhibit shall apply to Integrators resale of, and Ciscos provisioning of, the Services. | |
3.0 | CISCO RIGHTS AND OBLIGATIONS. For each End User to whom Integrator resells Services, Cisco will use commercially reasonable efforts to provide the Services to Integrators End User in accordance with the following. |
3.1 | Resale of Services. Cisco will make the Services listed in Attachment 2 (Services Availability) available to Integrator for resale to Integrators End Users, subject to the specified limitations. | ||
3.2 | Communications with End Users. Cisco will, from time to time, communicate with End Users, regarding such matters as Service activation, support and troubleshooting. All such communications will be in English unless otherwise agreed by Cisco and the End User. End Users calling Cisco for technical support should be fluent in English. |
4.0 | INTEGRATOR RIGHTS AND OBLIGATIONS. |
4.1 | Services Descriptions. When Integrator resells the Services to an End User, Integrator shall provide at the time of sale to End User a copy of the Service Description of each Service ordered by the End User. Integrator further agrees to: |
(i) | provide or ensure that each End User provides the required Management Connections for each ordered service; and | ||
(ii) | ensure that Integrator and End User comply with all requirements listed in Section 5.0 (Customer Responsibilities) of the Services Description of each ordered Services; and | ||
(iii) | comply with all requirements set forth in Attachment 3 (Integrator Requirements). |
Integrator may not make any modification(s) to the Service Descriptions, except as delineated in section 5.2 below. Cisco shall only be obligated to provide the Services set forth in Attachment 2 (Services Availability) and shall not be obligated to provide any other services, including, without limitation, any services described in a Modified Description. | |||
4.2 | Valid Customer Service Order. Cisco requires a valid Customer Service Order from Integrator prior to commencing Services to End Users. | ||
4.3 | Submission of Transaction Details. Orders must state the name of the End User and provide contact information for the End User employee or contractor who is responsible for coordinating activation of the |
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Service with Cisco. An Order must also specify the Components that are to be managed by each ordered Service. Integrator will be responsible for providing all additional information reasonably requested by Cisco to fill the Order, such as the sites at which Components are located. Such information may be provided with the Order or promptly following Ciscos request. | |||
4.4 | Ordering. Integrator agrees to be bound by all Orders submitted by Integrator or on Integrators behalf. Each Order shall be limited to a single End User. Orders are subject to acceptance or rejection by Cisco. An Order received by Cisco will be deemed accepted unless Cisco rejects it in writing (by fax, e-mail or otherwise) within ten (10) Business Days of receipt. | ||
4.5 | Supplemental Orders. Integrator may purchase additional quantities of a Service (Supplemental Order) for resale to an End User to which Integrator has previously sold that Service by adding additional Components to the existing Order for that service and End User (Existing Order). The Service Term of the Supplemental Order will be coterminous with the Service Term of the Existing Order. Supplemental Orders are subject to acceptance or rejection by Cisco. | ||
4.6 | Start Date of Service Term. | ||
A Service may be turned up over the course of several weeks or months, as the End User makes each Component available for management of that Service. The initial Service Term of a Service will begin on the Start Date of that Service, whether or not the End User makes Components available for management on that date. However, as set forth in Section 9.3, Component-based fees will not be invoiced until the Service is initiated for the Component. | |||
4.7. | Activation Schedule. Delays. Rescheduling. |
Each party will use reasonable efforts to meet the Start Date of each Order accepted by Cisco, and will promptly inform each other of any expected delays. Either party may defer the scheduled Start Date of a Service by up to thirty (30) days by notifying the other party at least five (5) Business Days before the original Start Date. The notice will propose a new Start Date, which will be subject to the other partys approval, such approval not to be unreasonably withheld or delayed. |
4.8 | Cancellation Without Cause. | ||
Integrator may cancel all or any portion of an accepted Order, without cause, by notice to Cisco, provided: |
(i) | if Integrator reschedules activation of a Service for a Component for which such activation had already been scheduled pursuant to Section 4.7 (Activation Schedule), Integrator agrees to pay the rescheduling charge for that Component; and | ||
(ii) | if Integrator cancels all or substantially all of Integrators Order for a Service for an End User, effective either before the start of or during the Service Term of that Service, Integrator agrees to pay Cisco the cancellation fee per Section 9.2. |
In either (i) or (ii) above, Integrator shall pay Cisco the rescheduling or cancellation fees within thirty (30) days of the effective date of cancellation. | |||
4.9 | Services Renewal. At the end of the initial Service Term of an Order, that Service Term will automatically be extended on a month-to-month basis until the Order for that Service is renewed for a longer term (which will be considered a new Service Term), or cancelled by either party on thirty (30) days notice. Cisco will give Integrator sixty (60) days notice of any price increases that will apply to such month-to- month services. |
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4.10 | Effect of Termination. Termination or expiration of this Exhibit does not terminate Orders previously accepted by Cisco under this Exhibit, except as set forth in the Term and Termination section of the Agreement. |
5.0 | COPYRIGHT LICENSE FOR USE OF SERVICE DESCRIPTIONS. |
5.1 | Each Service is described in a Service Description, which also sets forth requirements for use of that Service. | ||
5.2 | Service Descriptions are copyrighted by Cisco, and may be used and modified only as permitted herein. Subject to this Agreement, Cisco grants Integrator a non-exclusive, non-transferable (except as permitted in Section 4.2) and nonsublicenseable (except as permitted in this Section) license, during the Term, with respect to the Service Description of each Service that Integrator seek to sell, to: |
(i) | modify the Service Description by adding Integrators Marks, provided such branding complies with Ciscos then-current copyright (http://www.cisco.com/en/US/about/ac50/ac47/copyright_material_guidelines.html) and other brandling guidelines at http:/www.cisco.com/en/US/about/ac50/ac47/about_cisco_brand_center.html; | ||
(ii) | modify the Service Description to create a Modified Description; | ||
(iii) | use the Service Description or Modified Description solely to sell the Service and products or services Integrator bundle with that Service; | ||
(iv) | reproduce and distribute the Service Description or Modified Description solely to End Users and potential End Users, in connection with the marketing and sale of the Service; and | ||
(v) | sublicense third parties to exercise the rights granted in this Section 5.0, solely to perform services for Integrator. |
6.0 | USE OF CISCOS MARKS. |
6.1 | Integrator may use the Cisco Marks solely for use for the Services in connection with Integrators advertisement, promotion and distribution of the Services. Integrators use of Ciscos Marks must comport with Ciscos then-current policies. | ||
6.2 | Notwithstanding section 6.1 above, Integrator may not use Cisco Marks in a Modified Description, unless approved by Cisco in writing for a specific Modified Description. Cisco may give or withhold such approval in its sole discretion. Ciscos approval does not constitute an endorsement or approval of the contents of the Modified Description, and does not relieve Integrator of full responsibility for such content. | ||
6.3 | Before publishing or disseminating any advertisement, promotional materials or documentation bearing any of Ciscos Marks, Integrator will deliver a sample of the proposed item to Ciscos designated representative for approval, which will not be unreasonably withheld or delayed. | ||
6.4 | Integrator may not publish or otherwise disseminate any such item until approved by Cisco. All such advertising and other material will include such statements or other identifying references as Cisco may reasonably request. Any use of the Cisco Marks by Integrator will inure to Ciscos benefit. | ||
6.5 | Cisco (and its respective suppliers as the case may be), own all right, title and interest in the Marks, the Services and the software used to provide Services. Integrator has paid no consideration for the use of the Cisco Marks, and nothing in this Exhibit will give Integrator any interest in any of the Marks. |
7.0 | USE OF INTEGRATORS MARKS. |
7.1 | During the Term, Cisco may list Integrator as an Integrator of Services on Cisco.com, and in presentations to current and potential investors and customers, using Integrators name and logo. |
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7.2 | Before publishing or disseminating any other form of advertisement or promotional materials bearing any of Integrators Marks, Cisco will deliver a sample of the proposed item to Integrator for Integrators approval, which will not be unreasonably withheld or delayed. | ||
7.3 | Cisco will not publish or otherwise disseminate any such items until approved by Integrator. All such advertising and other material will include such statements or other identifying references as Integrator may reasonably request. Any use by Cisco of Integrators Marks will inure to Integrators benefit. Cisco will comply with Integrators standard usage guidelines concerning use of Integrators Marks. | ||
7.4 | Integrator owns all right, title and interest in Integrators Marks. Cisco has paid no consideration for the use of Integrators Marks, and nothing in this Agreement will give Cisco any interest in any of Integrators Marks. | ||
7.5 | Upon termination or expiration of the Agreement or this Exhibit or both, for any reason, each party will immediately cease all display, advertising and use of the other partys name and Marks, and Integrator will cease all use of the Service Descriptions and Modified Descriptions. |
8.0 | LIMITED SERVICE WARRANTY. | |
The Services are provided with the Limited Service Warranty set forth in Attachment 7 (Limited Warranty Statement). | ||
9.0 | PRICE AND PAYMENT TERMS. |
9.1 | Pricing. Ciscos price(s) and discounts for the Services are set forth in Attachment 4 (Pricing) and http://www.cisco.com/partner/services/remote_ops/docs/cros_pricing.xls. All prices are exclusive of any taxes and duties which, if applicable, shall be paid by Integrator. Applicable taxes are billed as a separate item. Integrator may not set off against any invoices any amounts claimed due to Integrator from Cisco. | ||
9.2 | Pursuant to Section 9.1 above (Pricing) and Attachment 4 (Pricing), the discount applicable to Integrator for each Service is based on the term for which the Service is ordered for a specific End User. | ||
If the sum of all recurring monthly charges paid by Integrator to Cisco at the time of cancellation (per Section 4.8) or at the end of Service Term is less than eighty-five percent (85%) of total recurring contract value, then Integrator agrees to pay Cisco a sum equal to eighty-five percent (85%) of such recurring contract value less the total recurring monthly charges actually paid to Cisco by Integrator. | |||
Integrator shall remit payment to Cisco within thirty (30) days of the cancellation date or at the end of the applicable Service Term, unless, upon expiration of the Service Term, Integrator agrees in writing: |
9.3 | Invoices. Invoices for recurring charges for a Service will be issued monthly, in advance (generally on the first day of each calendar month). Each such invoice will include charges only for those Components for which the Service has been implemented by the Cisco internal billing cut-off date in the month preceding the date of the invoice. The first invoice for a newly-implemented Component will include pro-rated charges for the period from the date Service was implemented for the Component until the start of the current billing period, as well as charges for the current billing period. One-time charges (initiation and set up fees, cancellation fees, time and materials fees, etc.) will be invoiced as incurred. Payment for all invoiced charges is due thirty (30) days from the invoice date in U.S. Dollars. |
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9.4 | Additional Terms. Integrator agrees to pay for each ordered Service at the price in effect on the date Cisco receives an Order for the Service. Prices may be reduced by Cisco at any time, and may be increased on ninety (90) days notice. The applicable monthly charge for each Service is based on the number and types of Components to be managed under that Service, as referenced in Attachment 4 (Pricing). | ||
Price reductions and increases will apply to all Orders received after the effective date of the price change, except that the price applicable to each Component listed on a Supplemental Order will be the lower of: (i) the price charged for that Component on the Existing Order, or (ii) the then-current price for that Component, applying the same discount tier as applied to the Existing Order. If Integrator purchases a Service for some Components for an End User, and later purchase that Service for additional Components for the same End User, Integrator may take advantage of the higher discount (if any) that results from increasing number of Components under management, only if: (a) Integrator commits to a new one, two or three year Service Term for all Components, and (b) the new Service Term exceeds the number of months remaining in the Service Term of the existing Service. | |||
9.5 | Resale Price. Integrator is free to determine its resale prices unilaterally. Integrator understands that neither Cisco, nor any employee or representative of Cisco, may give any special treatment (favorable or unfavorable) to Integrator as a result of Integrators selection of resale prices. No employee or representative of Cisco or anyone else has any authority to specify what Integrators resale prices for the Services must be, or to inhibit in anyway, Integrators pricing discretion with respect to the Services. |
10.0 | TERMINATION. | |
This Exhibit may be terminated by Cisco and/or Cisco may suspend its performance of any and all Services on five days notice if Integrator fails to pay for the Services when due and fails to make such payment within fifteen (15) days after notice from Cisco of such past due payment. Integrator will be charged the normal daily rate for suspended Services during the period of suspension, and a Service restoration charge may apply. In addition, a deposit may be required prior to Service restoration. | ||
11.0 | TIME AND MATERIAL SERVICE CHARGES UNCOVERED CAUSES. |
11.1 | Notwithstanding any provision of a Service Description, the Services do not include troubleshooting or resolution of a reported Network problem, answering calls, or providing on-site assistance to the extent the reported problem results from, or the time or expenses incurred are due to, an Uncovered Cause. | ||
11.2 | Subject to the limitations set forth in this Section 11, Integrator agrees to pay Ciscos then-current time and material service rates for time and expenses Cisco incurs in providing services due to an Uncovered Cause. For example, such charges would be incurred if: (i) Integrators End User calls Cisco for assistance regarding a Component that is not managed by Ciscos Service and Cisco has Integrators permission pursuant to Section 12.1 or (ii) Integrators Modified Description of a Service requires Cisco to change its normal processes or procedures or to incur more time in providing the Service. | ||
11.3 | Cisco will promptly consult Integrator (or End User, if Cisco has Integrators permission pursuant to Section 12.1) once Cisco determines that a chargeable event has been identified or is about to occur. Prior to proceeding further, Cisco will require Integrators written authorization, unless pre-authorized pursuant to Section 12 below, to pay for time spent and expenses beyond that incurred in isolating or identifying a problem. |
12.0 | OTHER SERVICES CHARGES AUTHORIZED BY INTEGRATOR OR END USER. |
12.1 | From time to time, one of Integrators End Users may request that Cisco perform services (other than moves, adds, changes and disconnects) that are beyond the scope of the Services Integrator has purchased for resale to that End User (e.g., with respect to an Uncovered Cause). If Integrator checks Yes on Attachment 5 (Approval Form for Cisco to Provide Hourly Services to End Users), Integrator |
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authorizes Cisco to perform such services, and bill Integrator for those services at Ciscos then-current rates. | |||
12.2 | From time to time, one of Integrators End Users may request that Cisco perform moves, adds, changes and disconnects. If Integrator checks Yes on Attachment 6 (Approval Form for Processing End User MACDs), Integrator authorizes Cisco to perform the services requested by Integrators End User, and bill Integrator for those services at Ciscos then-current rates. |
13.0 | DESIGN, REVIEW, ORDER SUSPENSION AND TERMINATION. | |
Cisco will promptly notify Integrator if Cisco concludes that a Network is not reasonably supportable (for example, because of incorrect wiring of a LAN, protocols not disclosed to Cisco at the time Cisco accepted the Order, or a Network design that will require unusually high levels of troubleshooting and support), describing the problem encountered and any suspected cause(s). Notwithstanding any other provision of this Exhibit or the Agreement: |
(i) | If Cisco provides such notice prior to the date the Service is initiated for any Component of the affected Network, Cisco may, without liability to Integrator, suspend the Order for that Service until the problem is resolved to Ciscos satisfaction; | ||
(ii) | If Cisco provided such notice after the Service is initiated for a Component of that Network, Cisco will continue to provide the Service for all Components for which Service has previously been initiated, but Cisco may, without liability to Integrator, refuse to initiate the Service for additional Components until the problem is resolved to Ciscos satisfaction; and | ||
(iii) | Either party may terminate the Order for the affected Service and End User Network if the problem is not resolved within sixty (60) days of the date of Ciscos notice. Cisco will have no liability to Integrator, and Integrator will have no liability to Cisco, arising from such termination. |
14.0 | SUSPENSION OF SERVICES FOR MISUSE OF MANAGEMENT CONNECTION. | |
Cisco will have the right to suspend affected Services if a Management Connection established for use in providing such Services is used for any other purpose (for example, in an attempt to gain access to Ciscos network or data). Cisco will promptly inform Integrator of any such suspension. Integrator will be charged the normal daily rate for suspended Services during the period of suspension. When Cisco is satisfied that adequate measures have been implemented to prevent a recurrence of the problem, Services will promptly be restored. | ||
15.0 | GENERAL. |
15.1 | Entitlement. Integrator acknowledges that an End User is entitled to receive Services only for which Integrator has paid the service fees to Cisco. | ||
15.2 | Disclosure of Contract Information. Integrator acknowledges and agrees that in no event shall any of the information contained in this Exhibit or Integrators Agreement be disclosed to any third party. | ||
15.3 | Representations and Warranties. Integrator shall not make any representations or warranties on behalf of Cisco, except as expressly authorized herein or as expressly authorized by Cisco in writing. Neither Integrator nor Cisco will make any obligation to End Users on behalf of the other, nor commit the resources of the other to End Users. | ||
15.4 | Independent Contractors. The relationship of Cisco and Integrator established by this Exhibit is that of independent contractors. Nothing in this Exhibit shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Integrator to create or assume any obligation on behalf of Cisco for any purpose whatsoever. All financial obligations associated with Integrators business are the sole responsibility of Integrator. All sales and other agreements |
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between Integrator and its End Users are Integrators exclusive responsibility and shall have no effect on Integrators obligations under this Agreement. | |||
15.5 | Indemnification. Integrator hereby indemnifies and holds Cisco harmless from any claim, loss, damage or expense, including reasonable court costs and attorneys fees, resulting from any claim made by End User against Cisco hereunder under claim of a third party beneficiary or otherwise. This shall not limit Ciscos obligations, subject to the terms and conditions of this Exhibit, to provide the Services described herein. Integrator shall be solely responsible for, and shall indemnify and hold Cisco free and harmless from, any and all claims, damages or lawsuits (including Ciscos attorneys fees) arising out of the acts of Integrator, its employees or its agents including, without limitation, any warranties made in addition to Ciscos Limited Services Warranty and for any misrepresentation of Ciscos reputation or the Services. | ||
15.6 | No Third Party Beneficiaries. Except as expressly set forth herein, nothing expressed or referred to in this Exhibit shall be construed to give any person or entity other than the parties to this Exhibit any legal or equitable right, remedy, or claim under or with respect to this Exhibit or any provision of this Exhibit. This Exhibit and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Exhibit. |
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GLOSSARY OF TERMS
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Services AVAILABILITY
Services Available and requirements for | ||
Cisco Remote IT Infrastructure and Change | commercial resale in the United States | |
Management Services | (excluding sales to U.S. Federal Government) | |
WAN/LAN Management | No specialization required | |
IP Telephony Management | Must have Cisco IPC Specialization to resell | |
Security Management | Must have Cisco Security Specialization to resell |
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INTEGRATOR REQUIREMENTS
1. | Integrator shall be in good standing (i.e. at least maintain its partnership status and remain current on outstanding invoices); | |
2. | Integrator shall have Ciscos IPC specialization criteria; | |
3. | Integrator shall have a corporate main office or be headquartered in the United States; and | |
4. | Integrator shall be in good CSAT standing (maintaining the minimum score for the U.S. Theatre) |
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PRICING
Recurring and non-recurring (one-time) fees are rounded to the nearest dollar, actual prices may vary. Non-recurring fees listed are for existing networks.
All Recurring Services | ||||||||||||
Months of Term: | 12 | 24 | 36 | |||||||||
Discounts from VVL Price: | 15 | % | 20 | % | 25 | % |
If the physical location of the managed device is outside the United States, the price may be subject to the following increase over the domestic VVL prices:
Canada | 0 | % | ||
EMEA | 15 | % | ||
Japan | 15 | % | ||
Australia | 15 | % | ||
Latin America | 25 | % | ||
APAC | 25 | % | ||
Rest of world | 25 | % |
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Integrator Name: | Inx | |||
Integrator HQ Address: | 1955 Lavelay Dr. Ste 220 | |||
o | YES. When Integrators End User requests or requires technical assistance or other services (other than moves, adds, changes and disconnects, as defined on Ciscos price list) that are beyond the scope of the Services Integrator have purchased from Cisco (e.g., with respect to an Uncovered Cause), Integrator HEREBY AUTHORIZES Cisco to e-mail the End User (with copy to Integrator) requesting the End Users approval for Integrator to provide that service to the End User for a quoted hourly rate. |
Integrator contact to cc: on authorization form: | ||||||
Integrator contact name: | ||||||
Cell Phone: | ||||||
Pager: | ||||||
Email: | ||||||
x | NO. When Integrators End User requests or requires technical assistance or other services that are beyond the scope of the Services Integrator has purchased from Cisco (e.g., with respect to an Uncovered Cause), Integrator DOES NOT AUTHORIZE Cisco to e-mail the End User requesting the End Users approval for Integrator to provide that service for a quoted hourly rate. | |
If Integrator checks No, Integrator must provide contact information for Integrators support or sales personnel who can be reached 24x7 to provide or authorize the requested or required services. |
Integrator 24X7 contact name: | Integrator 24X7 contact name: | |||||
Jon Groves | Gary Derheim | |||||
Cell Phone | Cell Phone | |||||
972 ###-###-#### | 214 ###-###-#### | |||||
Pager: | Pager: | |||||
Email: | Email: | |||||
***@*** | ***@*** |
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Approval Form For Processing End User MACDs
Integrator Name: | Inx | |||
Integrator HQ Address: | 1955 Lavelay Dr. Ste 220 | |||
o | YES. When Integrators End User requests MACDs, Integrator HEREBY AUTHORIZES Cisco to provide the requested service. |
x | NO. Integrator does not want Cisco to begin processing a MACD request until Cisco receives Integrators specific written authorization in each instance. Integrator understands that this election will increase the time it takes for Cisco to respond to such requests from Integrators End Users. | |
In either case, Integrator would like Cisco to provide information about MACDs requested by the End Users to the following contacts: |
Billing contact: | Gary Derheim | |||||
Cell Phone: | 214 ###-###-#### | |||||
Pager: | ||||||
Email: | ***@*** | |||||
MAC & Disconnect contact: | Jon Groves | |||||
Cell Phone: | 972 ###-###-#### | |||||
Pager: | ||||||
Email: | ***@*** | |||||
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Limited Warranty and Disclaimer for Remote Operations Services
Availability =1- | Total Downtime (in minutes) for all Network Links | |
(# of minutes in month) x (Total Network Links) |
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