1.0 PRODUCT AND SERVICES
1.1 Product Description. In addition to the General Terms and Conditions set forth at (http://www.blackbox.com/about/terms-and-conditions-of-sale.aspx) (“General Terms”), these Additional Terms for Distributed Antenna Systems (“DAS”), as identified herein, set forth the supplementary legal rights and obligations governing Customer orders for the purchase of Black Box design, purchase, installation and warranty of DAS and/or Wireless Local Area Network equipment (“Equipment”) and/or licensed software (collectively, the “System”), and/or other related DAS services (“Services”).
2.0 DEFINITIONS
2.1 Capitalized terms not otherwise defined herein shall have the meaning given them in the General Terms and selected Service Plans.
3.0 CHANGES AND WORK DELAYS.
3.1 When changes in the System and/or Services are requested by Buyer or are otherwise necessitated as set forth in this Agreement (“Change Order”), Black Box shall promptly estimate the monetary effect and so notify Customer. If the Change Order affects the cost or time of performance under an Order or SOW, Customer and Black Box will mutually agree in writing to an equitable adjustment (to include margin), the amount of which shall be payable to Black Box as set forth in the Order. Unless otherwise agreed to in writing, the provisions of this Agreement shall apply to all Change Orders.
3.2 The parties acknowledge that this Agreement is entered into under the condition that once started, all Black Box installation and testing will be performed sequentially and without interruption until complete and that the System shall be scheduled for completion as set forth in each Order and/or SOW. If Customer prevents Black Box from proceeding sequentially and without interruption hereunder, or if Customer causes Black Box not to meet its timetable as set forth under an Order and/or SOW (“Work Delay”), Customer agrees to promptly reimburse Black Box for all reasonable and customary costs and expenses incurred by Black Box as a result of any such Work Delay. Further, Customer agrees to notify Black Box in writing after it becomes aware of an event that may cause a Work Delay. Such notice shall include (i) the cause of the Work Delay and (ii) state the estimated number of days that the Work Delay may encompass. Additionally, when changes in the DAS Equipment or Services are requested by Customer or are otherwise necessitated as set forth in this Agreement, Black Box shall promptly estimate the monetary effect and so notify Customer which shall be set forth in a Change Order.
4.0 LIMITED WARRANTY
4.1 Manufacturer’s Warranty. Unless otherwise set forth in this Agreement, all manufacturer’s end user warranties for Equipment and software provided hereunder are passed through to Customer. Black Box will provide reasonable assistance to Customer in presenting any such Equipment and/or software claims to the manufacturer. The Customer’s sole and exclusive remedy for any breach of a manufacturer’s warranty shall be limited to the remedies set forth in the manufacturer’s end use warranties for Equipment and/or software. Customer agrees that installation, repair, or modification of a System by non-manufacturer certified technicians may void the manufacturer’s warranty and may result in a denial of software support services.
4.2 Services Warranty. The warranty for any Services provided by Black Box to Customer under this Agreement is limited to thirty (30) days from the date of performance of the Services.
4.3 DAS Warranty. Black Box warrants that all DAS systems only shall be free from defects in material or workmanship under proper and normal use and will conform to the Equipment specification for a period of one (1) year from the date of acceptance, provided that if a DAS system is installed in phases, the one (1) year period shall commence at the acceptance of the applicable phase.
4.4 For Cisco Products Only. The warranties for Cisco Equipment may be found at the following URL: (www.cisco.com/go/warranty). The limited warranties referenced in this Section 4.4 do not apply if the Equipment: (a) has been altered, except by Cisco; (b) has not been installed, operated, repaired, used or maintained by Black Box in accordance with instructions made available by Cisco; (c) has been subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated; or (d) is acquired by Customer for beta, evaluation, testing, demonstration purposes.
4.5 Exclusions. The warranty excludes all Equipment and Services which are made necessary by, Customer neglect, misuse or improper operation; accident, fire, water, vandalism, electrical power failure or surge, or other casualties; the action of any persons other than an authorized Black Box technician with regard to the System; Equipment or System failures induced by other products or components including but not limited to RF sources (i.e., 802.11 access points, WSP’s base stations, etc.); ordinary wear and tear; or any type of aesthetic changes due to oxidation or corrosion on stainless steel or galvanized steel parts installed in areas with corrosive atmospheres (in which case Black Box only obligation shall be to ensure that Equipment complies with Black Box published material specifications).
5.0 NEW CONSTRUCTION
5.1 In the event a building set forth on an Order and/or SOW is under construction, the following conditions regarding the System Price set forth in the applicable Order/SOW shall apply: (i) the parties agree that the applicable Order and/or SOW contemplates the development of only one DAS design; accordingly, Customer acknowledges and agrees that it shall provide Black Box with accurate and complete final built out construction drawings prior to Black Box initiating the design process and that any construction performed by Customer and/or its contractors, as applicable, complies with the construction drawings supplied to Black Box hereunder, (ii) Customer acknowledges that sufficient storage space (for Black Box’s installation materials) is located on site (at the building location) and that just-in-time deliveries are not required, (iii) all installation work performed by Black Box will occur during the building construction phase, (iv) ceilings will not be in place during Black Box’s installation and Black Box’s installation crew will be the last installation trade permitted in the ceiling space before the ceilings are installed, (v) no damage to the Equipment shall be caused by Customer and/or its contractors after installation by Black Box, (vi) Black Box will not incur delays due to building construction activity and (vii) Black Box installation shall occur as set forth in the applicable Order and/or SOW. Should any of the foregoing conditions prove false, the parties agree to process a Change Order to equitably compensate Black Box. Instances when Change Orders shall be required include, but are not limited to, the following: (i) Customer changes the construction drawings and/or the construction drawings are not accurate, and any such change or inaccuracy requires Black Box to re-design the System or a portion thereof, (ii) actual Customer construction deviates from the drawings and such deviation requires Black Box to re-design the System or a portion thereof and (iii) Customer and/or its contractors cause damage to the Equipment after Black Box installation, and such damage requires Black Box to test and/or repair the System.
6.0 INHERENTLY DANGEROUS APPLICATIONS
6.1 THE EQUIPMENT AND/OR SYSTEM ARE NOT CONSIDERED CRITICAL COMPONENTS FOR LIFE SUPPORT DEVICES OR SYSTEMS OR FOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY DANGEROUS APPLICATION. CUSTOMER’S USE OF THE EQUIPMENT AND/OR SYSTEM IN SUCH A MANNER IS AT CUSTOMER’S SOLE RISK, AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD BLACK BOX, ITS EMPLOYEES, AGENTS AND REPRESENTATIVES (“BLACK BOX INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, COSTS, EXPENSES, DEMANDS, CLAIMS, JUDGMENTS OR LIABILITY INCURRED BY BLACK BOX INDEMNIFIED PARTIES RESULTING FROM SUCH USE OF THE EQUIPMENT AND/OR SYSTEM. LIFE SUPPORT DEVICES OR SYSTEMS ARE THOSE WHICH ARE INTENDED TO SUPPORT OR SUSTAIN LIFE AND FOR WHICH THE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A SIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS ARE THOSE COMPONENTS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE FAILURE OF A LIFE SUPPORT DEVICE OR SYSTEM OR AFFECT ITS SAFETY OR EFFECTIVENESS.
