'ABC' shall mean ABC (China) Electronics, Ltd. 'Customer' shall mean the customer named in the Agreement; and 'Product' shall collectively mean the Equipment and Software which ABC and Customer agree to be serviced pursuant to this Service Agreement. Such Product is listed on the first page of this Agreement.
The terms and conditions set forth on all twelve pages of this Agreement is an offer to purchase Service by Customer which shall become a Service Agreement when acknowledged in writing by ABC''s Service Department; and the banking, negotiation or other use of any payment shall not constitute an acceptance by ABC. It is agreed that Service shall be provided only on the terms and conditions contained in this Agreement. ABC shall not be bound by terms and conditions in Customer''s purchase order or elsewhere unless expressly agreed to in writing. Both parties to this Agreement agree that upon acceptance by ABC''s Service Department, ABC''s interest in the Agreement is assigned to ABC, Inc. (MINC).
3. Service Defined
ABC agrees to provide service for the Customer for the Product listed on the first page of this Agreement. Such Products shall be serviced according to the terms and conditions on all twelve pages of this Agreement ('Service'). The Service shall begin and end on the dates set forth on the first page of this Agreement. ABC shall also Service other Product manufactured by MINC. or MINC''s subsidiaries and purchased by customer during the term of this Agreement on the same terms and conditions set forth in this Agreement at the then current service fees for such Product. Upon delivery of such other Product to Customer, service fees for Service of such other Product shall be added to the billing cycle following expiration of the labor warranty on such other Product. In the event of loss, damage, theft or removal from Service of any Product, Customer shall immediately report the loss, damage, theft or removal in writing to ABC. In this event, Customer''s obligation to pay service fees with respect to any such Product shall terminate at the end of the month in which ABC receives such written report.
Mobile Product shall be removed and reinstalled in different vehicles at Customer''s request for the service fee in effect at the time of Customer''s request.
This Agreement does not include service of any transmission line, antenna, tower or tower lighting, unless such work is described on the first page of this Agreement. Service shall include the labor and parts required to repair Product which has become defective through normal wear and usage. This does not include consumable and their installation. Service does not include the repair or replacement of Product which has otherwise become defective, including, but not limited to, damage caused by accidents, physical or electronic abuse or misuse, acts of God, fires or other casualty. Service performed for non-covered repairs shall be billed at ABC''s above contract rate applicable for such Service. Product under contract must be maintained in environmental conditions as set forth in the Product specifications and damage resulting from environmental conditions not conforming to the specifications is not covered by this Agreement.
Where telephone lines and Product are used in conjunction with ABC maintained Product, ABC shall have no obligation or responsibility for such telephone lines or Product but shall, upon request, assist the Telephone Company in repairing such upon payment at the appropriate above contract rate.
Customer shall indicate on the first page of this Agreement any Product which is intrinsically safe so that appropriate parts and procedures may be used to maintain such status.
At the expiration of twelve (12) months after the commencement of Service hereunder (or any time thereafter), if Product cannot in ABC''s opinion be properly or economically repaired, because (but not limited to) excessive wear, deterioration or unavailability of parts, ABC at its sole option, upon thirty (30) days prior written notice to Customer sent by certified mail, may either: (1) remove such Product from this Agreement; or (2) may increase the price to Service such Product. Customer shall have thirty (30) days from receipt of notice of price increase to object to such increase. If Customer properly objects to such increase, ABC shall then have the option to remove such Product from coverage by this Agreement. Customer''s obligation to pay Service fees with respect to Product removed from this Agreement shall terminate at the end of the month during which such Product is removed.
The Product shall be serviced by ABC in accordance with the following standards: (i) ABC parts or parts equal quality shall be used; (ii) the Product shall be serviced at levels set forth in ABC''s product manuals; and (iii) routine service procedures prescribed from time to time by ABC for its Product shall be followed.
5. Time And Place of Service.
Service shall be done at the location specified on the first page of this Agreement. Where Service is to be performed at the location of the Product, Customer shall furnish shelter, heat, light and power at these locations, Customer shall notify ABC immediately of Product failure, allow ABC full and free access to the Product, and cooperate fully with ABC in ABC''s servicing of the Product. Waiver of liability by ABC against Customer or other restrictions shall not be imposed by Customer as a site access requirement. Customer shall allow ABC full and free access to the Product. Customer shall allow ABC to use necessary machines, communications, facilities, features and other product (except as normally supplied by ABC) at no charge. Mobiles and removable Product shall be delivered by Customer to the ABC Service Center indicated on the first page of this Agreement.
Hours of Service under this Agreement shall be the normal working hours, excluding holidays, of ABC''s Service Center unless otherwise indicated on the first page of this Agreement.
Each payment is due on or before the date set forth on the first page of this Agreement. ABC may terminate this Agreement by giving Customer ten (10) days notice by certified mail if Customer defaults in its payment to ABC. Customer shall reimburse ABC for all property taxes, sales and use taxes, excise taxes, and the taxes or assessments now or hereafter imposed by authority of any National or Local law, rule or regulation with respect to the Service of the Product except income taxes or other legally reimbursable taxes of ABC.
7. Right to Subcontract.
ABC shall have the right to subcontract in whole or in part the Service called for by this Agreement. ABC shall notify Customer of the name and address of each subcontractor.
8. Revision of Fees.
Prior to an Anniversary of the 'Expiration Date' indicated on the first page of this Agreement, ABC may revise the Service fees set forth on the first page of this Agreement by giving Customer written notice of the amount of the increase at least sixty (60) days in advance of that Anniversary date. Upon receipt of any such notice, Customer may terminate this Agreement on the Expiration Date or any Anniversary of it upon thirty (30) days prior written notice to ABC sent by certified mail to the address indicated in this Agreement; otherwise the new fees shall become effective on the Anniversary date. In the event of such termination, all accrued and unpaid charges shall be due and payable immediately upon termination.
9. Automatic Renewal.
After the Expiration Date indicated on the first page of this Agreement, this Agreement shall continue for successive additional periods of one year, provided that either ABC or Customer may terminate this Agreement on the Expiration Date or any Anniversary of it upon thirty (30) days prior written notice to the other party sent by certified mail to the address indicated in this Agreement.
10. Interruption of Service.
Customer shall notify the servicing agency in the event of the failure of any Product. If the servicing agency fails to repair the Product within a reasonable time, Customer shall notify the ABC office designated by ABC. After said notice from Customer to the servicing agency and to the ABC office designated by ABC, ABC shall be liable for any interruption or interference affecting the use or transmission through the Product maintained to the extent of a pro rata allowance based on the monthly service fee for the time such interruption or interference is attributable to the fault of ABC or its subcontractor. ABC does not assume and shall have no ability under this Agreement for failure to provide or delay in providing service for the Product due directly or indirectly to causes beyond the control of ABC, including, but not restricted to, acts of God, acts of the public enemy, acts of the PRC, the United States, any State, Territory of the United States, or any political subdivision of the foregoing, or the District of Columbia, acts of failure to act of the Customer, its agents, employees or subcontractors, fires, floods, casualty, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather conditions or defaults of ABC subcontractors due to any such causes.
11. Warranty Limitations.
Except As Specified in This Agreement. ABC Disclaims All Warranties, Express or Implied, Including, Without Limitation, the Implied Warranties of Merchantability and Fitness for A Particular Purpose. In No Event Shall ABC Be liable for Incidental or Consequential Damages to the Full Extent Such May Be Disclaimed by Law.
12. SRRC or MPT and Other Government Matters.
Although ABC may assist in preparation of the SRRC or MPT license application, Customer is solely responsible for obtaining any licenses or other authorizations required by the State Radio Regulatory Commission ('SRRC') or Ministry of Post and Telecommunication, or any other National and/or Local governmental agency. Customer is solely responsible for complying with applicable SRRC or MPT rules and regulations and the applicable rules and regulations of any other National and/or Local governmental agency. Neither ABC nor any of its employees is an agent of Customer in SRRC or MPT or other governmental matters. ABC, however, may assist in preparation of the SRRC or MPT license application at no charge to Customer.
13. Entire Agreement.
Customer acknowledges that it has read and understands the terms and conditions of the Agreement and agrees to be bound by them, that it is the complete and conclusive statement of the agreement between the parties and that this Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter hereof and all understandings and agreements, oral and written, heretofore made between ABC and Customer, are merged in this Agreement which alone fully and completely expresses their agreement.
No modification of or additions to this Agreement shall be binding upon ABC unless such modification is in writing and signed by the ABC Division Service Vice President authorized to make such revisions and an authorized agent of Customer.
If any term or provision of this Agreement shall to any extent be held by a court or other tribunal to be invalid, void or unenforceable, then that term or provision shall be inoperative and void insofar as it is in conflict with law, but the remaining terms and provisions of this Agreement shall nevertheless continue in full force and effect and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid, void or unenforceable.
Section and paragraph headings used in this Agreement are for convenience only and are not to be deemed or construed to be part of this Agreement.
This Agreement and the Rights and Duties of the Parties Shall Be Governed and Interpreted in Accordance With the Laws of the PRC.
No assignment or transfer, in whole or in part, of this Agreement by Customer shall be binding upon ABC without its prior written consent.
Failure or delay on the part of ABC or Customer to exercise any right, power or privilege under this Agreement shall not operate as a waiver of any right, power or privilege of this Agreement.
20. Time To Sue.
Except for money due upon an open account, no action shall be brought for any breach of this Agreement more than two (2) years after the accrual of such cause of action except where a shorter limitation period is provided by applicable law.
This Agreement is executed in both Chinese and English versions. In case of any discrepancy, the English version shall prevail.