The following are the Terms and Conditions under which Advanced Digital Data, Inc. (“ADD SYSTEMS”) sells its products using a Quotation rather than a formal sales agreement. These Terms and Conditions are incorporated by reference into each Quotation executed by CUSTOMER and ADD SYSTEMS. These Terms and the Quotation together comprise a binding written agreement between CUSTOMER and ADD SYSTEMS, effective as of the date of mutual execution of the ADD SYSTEMS by CUSTOMER and ADD SYSTEMS (the “Agreement”). ADD SYSTEMS may amend these Terms and Conditions at any time in its sole discretion, effective upon posting the amended Terms and Conditions at WWW.ADDSYS.COM/terms-and-conditions where the prior version of the Terms and Conditions was posted, or by communicating these changes through any written contact method we have established with you. In the event of any conflict between the provisions contained in a Quotation and these Terms and Conditions, the provisions in the Quotation shall control (provided, however, that the fact that a provision appears in a Quotation but not these Terms and Conditions, or in these Terms and Conditions but not the applicable Quotation, shall not be deemed to be a conflict for purposes of this sentence).
A BASE RATE – ADD SYSTEMS’s standard charge per hour for support and maintenance services.
B OVERTIME RATE – ADD SYSTEMS’s standard rate per hour for hours expended after hours, weekends, and holidays which rate is one and one-half (1.5) times the Base Rate.
C ADD SOFTWARE – shall mean all software created by ADD SYSTEMS set forth on the Quotations executed in connection with this Agreement.
D NON-ADD SOFTWARE – shall mean all other software not created by ADD SYSTEMS set forth on the Quotations executed in connection with this Agreement.
E SOFTWARE – shall mean ADD Software and Non-ADD Software.
F PRODUCTS – shall mean equipment and/or technical, programming, or other advice or services and/or Software, either singly or jointly as the case may dictate and may be appropriate.
G QUOTATION(S) – shall mean the sales order(s) provided by ADD SYSTEMS to CUSTOMER for Products which have been signed and accepted by CUSTOMER.
Prices are exclusive of all sales, use and like taxes. Any tax ADD SYSTEMS may be required to collect or pay upon the sale, use or delivery of the products shall be paid by the CUSTOMER and such sums shall be due and payable to ADD SYSTEMS upon invoice. Any personal property taxes levied after delivery shall be paid by CUSTOMER. It shall be solely the CUSTOMER’s obligation after payment to ADD SYSTEMS to challenge the applicability of any tax by negotiation with, or action against, the taxing authority. ADD SYSTEMS agrees to refund any tax collected which is subsequently determined not to be proper and for which a refund has been paid to ADD SYSTEMS by the taxing authority.
Delivery will be made F.O.B. the manufacturer’s plant with shipping and insurance charges prepaid and invoiced to CUSTOMER. These charges are due and payable upon receipt of invoice. Risk of loss shall pass to CUSTOMER upon delivery to CUSTOMER’s site.
In the absence of specific instructions, ADD SYSTEMS will select the carrier but shall not thereby assume any liability in connection with shipment, nor shall the carrier be construed to be an agent of ADD SYSTEMS.
If deliveries are authorized in installments, each shipment shall be paid for when due without regard to other scheduled deliveries.
ADD SYSTEMS grants to CUSTOMER a non-exclusive, non-transferable license to use the ADD Software subject to Section 33 and to the following:
A The CUSTOMER will use these programs only for processing work for the CUSTOMER and not for any other party.
B Said programs are provided for use only on a single central processing unit.
C Title to the ADD Software programs and documentation (whether or not designed specifically for CUSTOMER) supplied, or made available, by ADD SYSTEMS to CUSTOMER shall be in and remain with ADD SYSTEMS. CUSTOMER agrees that (i) ADD SYSTEMS has a proprietary interest in such Software and documentation, (ii) CUSTOMER will hold the ADD Software and documentation in confidence, (iii) the ADD Software and documentation are made available to CUSTOMER on a non-exclusive basis, and (iv) CUSTOMER will not attempt to, and will not sell, divulge, copy, replicate or make available the ADD Software or documentation in any form to others.
D Modifications to the Software, whether performed by ADD SYSTEMS or by CUSTOMER, shall in no way affect the above restrictions.
E The Software is licensed on a per user basis with the initial number of simultaneous users limited to the values specified on the Quotations. Any subsequent increase in the number of simultaneous users for any of the Software will result in an additional charge. The charge per additional user may vary by Software package. In arriving at the charge for an additional user, credit will be given for previously purchased user licenses such that the resulting charge will reflect the total volume of licenses purchased for the Software package in question. In the event that CUSTOMER acquires multiple ADD SYSTEMS systems, the charge for additional users will be based on total licenses purchased for a given Software package across all systems.
CUSTOMER’s acceptance of hardware will occur upon successful completion by ADD SYSTEMS of the manufacturer’s standard acceptance tests. Acceptance tests shall be run at CUSTOMER’s site if ADD SYSTEMS is to install the equipment, otherwise at a location designated by ADD SYSTEMS.
Software shall be deemed accepted upon demonstration of its operation on the CUSTOMER’s system. The Software acceptance test(s) will be performed when possible using CUSTOMER’s data. However, if CUSTOMER’s data cannot be made available within 10 days of hardware acceptance, ADD SYSTEMS may at its sole option, elect to utilize data provided by ADD SYSTEMS in order to accomplish the required demonstration(s). Such substitution of data shall not prejudice ADD SYSTEMS’s right to payment. ADD SYSTEMS’s delivery of contracted Software shall be discharged in full upon demonstration of said Software on CUSTOMER’s system.
Delays in utilization of the hardware or Software due to CUSTOMER causes or requests shall not effect determination of acceptance date.
A HARDWARE – All new equipment specified herein, unless specifically stated otherwise in an attachment or elsewhere in this Agreement, if warranted, is warranted by the manufacturer and not by ADD SYSTEMS. At the conclusion of the warranty period, the responsibility for any maintenance cost associated with said equipment rests on CUSTOMER. CUSTOMER has the option, both now and at the end of the warranty period, to obtain a service contract from the appropriate manufacturer, assuming there has been no improper use of the equipment as set forth below.
ADD SYSTEMS agrees to pass on to CUSTOMER any additional hardware warranties ADD SYSTEMS may obtain from its manufacturers.
The hardware supplied under this Agreement has been configured to operate the Software in its current state and while reasonable provision has been made to allow for future versions of Software which may have increased resource requirements, ADD SYSTEMS makes no guarantee that the hardware supplied hereunder will be adequate to meet those increased requirements. All the above warranties are contingent upon proper use of the equipment. These warranties will not apply if (i) adjustment, repair or parts replacement is required because of accident, unusual physical or electrical stress, neglect, misuse, failure of electric power, air-conditioning, humidity control, transportation or causes other than ordinary use, or (ii) the equipment has been installed by CUSTOMER, modified by the CUSTOMER, or where the manufacturer’s equipment serial numbers have been removed or altered without prior written approval, or (iii) the equipment has been dismantled and reinstalled by CUSTOMER without the supervision of or prior to written approval from ADD SYSTEMS or the manufacturer.
B SOFTWARE – LIMITED WARRANTY – ADD SYSTEMS warrants that the ADD Software will conform in all material respects to ADD SYSTEMS’s specifications for such ADD Software described in the reference manuals supplied by ADD SYSTEMS for ninety (90) calendar days from the date of delivery of the ADD Software to CUSTOMER. In the event the ADD Software does not conform as specified, ADD SYSTEMS’s sole obligation under the limited warranty set forth in this Section shall be to provide within a reasonable time after written notice of such nonconformance the response necessary to correct any nonconformance of the ADD Software to ADD SYSTEMS’s specifications for the ADD Software. In the event ADD SYSTEMS is unable to remedy the nonconformance within a reasonable time period, CUSTOMER’s sole remedy shall be a refund of the license fee for the nonconforming ADD Software. ADD SYSTEMS MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE OR ITS RESPECTIVE CONDITION, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. ADD SYSTEMS EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADD SYSTEMS ALSO DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR THAT ITS USE WILL BE UNINTERRUPTED. ANY PAST, PRESENT OR FUTURE REPRESENTATIONS OR WARRANTIES BY ANY PERSON, INCLUDING, WITHOUT LIMITATION, EMPLOYEES OR REPRESENTATIVES OF ADD SYSTEMS, WHICH ARE INCONSISTENT HEREWITH SHALL BE DISREGARDED BY CUSTOMER AND SHALL NOT BE BINDING UPON ADD SYSTEMS.
THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ADD SYSTEMS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE ADD SOFTWARE AND WILL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF, ADD SYSTEMS’S RENDERING OF TECHNICAL, PROGRAMMING, OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SOFTWARE LICENSED TO CUSTOMER HEREUNDER.
Software related problems which arise due to CUSTOMER’s improper or negligent use of the Software shall be addressed on a reasonable efforts basis by ADD SYSTEMS utilizing procedures determined by ADD SYSTEMS and, at ADD SYSTEMS’s sole option, billed to CUSTOMER at the then prevailing time and materials rates. This obligation will not require ADD SYSTEMS to take any actions that would disrupt its normal business operations. ADD SYSTEMS shall not be held responsible for data lost due to any Software malfunction. ADD SYSTEMS recognizes the need for prompt and adequate support of CUSTOMER in such an event and shall exert a commercially reasonable effort to place CUSTOMER’s system into a satisfactory operating state with a minimum of delay and effort to CUSTOMER. During the period of the ADD Software warranty, CUSTOMER shall make no modifications to the ADD Software without the written consent of ADD SYSTEMS. Any such unauthorized modifications shall, at ADD SYSTEMS’s option, void all of ADD SYSTEMS’s subsequent warranty obligations.
The terms and conditions set forth herein shall prevail notwithstanding any variation from said terms and conditions on any order submitted by the CUSTOMER.
10. ENTIRE AGREEMENT; AMENDMENTS
The provisions of this Agreement contain the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede all prior oral agreements, commitments and understandings pertaining to the subject matter hereof. This Agreement shall not be modified or changed in any manner except in a writing signed by both parties. Should any term or provision of this Agreement conflict or be inconsistent with any part of any prior written sales or maintenance agreement between the CUSTOMER and ADD SYSTEMS or any amendments thereto, the terms of this Agreement shall control and be binding.
A TRAINING, IMPLEMENTATION AND PROJECT MANAGEMENT – The purchase price set forth in the Quotations includes an allocation of a certain number of hours of training, implementation and project management for use during the installation of the ADD Software and system. Training, Implementation, and Project Management hours are used for, but not limited to, the following types of activities: training of customer personnel; computer file set-ups; conversion data mapping; hardware set-ups; option file set-ups and modifications; program upgrades; and working with other vendors such as a bank, parts supply house, or meter company, when implementing an ADD SYSTEMS software application that interfaces with the vendor’s product
Training may consist of both on site training at CUSTOMER’s location and training at ADD SYSTEMS’s offices. Hours spent in any training activity, regardless of location, will be charged against this training allowance.
The excess of any efforts which exceed allocations will be billed to CUSTOMER at the then prevailing rates for such activities.
B DATA CONVERSION
The data to be converted is detailed on the Quotations. Any data that is not itemized on the Quotation(s) WILL NOT BE CONVERTED.
Responsibility for the accuracy of the data provided to ADD SYSTEMS shall rest on CUSTOMER. Responsibility for providing said data in a medium (compatible data medium is a Windows operating system file) and format (data format in standard, unpacked ASCII format) that is compatible with ADD SYSTEMS shall rest on CUSTOMER. ADD SYSTEMS shall not be held responsible for delays, errors, or omissions in the conversion process due to erroneous information provided by CUSTOMER, or if the data provided by CUSTOMER was in any medium or format other than that defined above as being compatible with ADD SYSTEMS. ADD SYSTEMS shall have the option to charge additional conversion fees to account for any additional efforts incurred as a result of such erroneous data, incompatible data media or incompatible data format.
Should CUSTOMER be unable to provide his data in a compatible format or on a compatible medium as described above, and should ADD SYSTEMS agree to undertake the task of developing a method of obtaining the data from the available source, such effort on the part of ADD SYSTEMS will not relieve the CUSTOMER from his obligations above. Further, in recognition of the difficulties inherent in such an effort, CUSTOMER agrees to compensate ADD SYSTEMS for the effort expended whether the outcome is successful or not.
Time spent by ADD SYSTEMS to discuss and document the data mapping of CUSTOMER’s data from CUSTOMER’s current system to the ADD SYSTEMS and time spent by ADD SYSTEMS in the review of the results of the data conversion will be deducted from the time specified in the paragraph titled: TRAINING, IMPLEMENTATION AND PROJECT MANAGEMENT.
12. CANCELLATION AND RESCHEDULING CHARGES
A CANCELLATION CHARGES – CUSTOMER understands that ADD SYSTEMS will order the products set forth on the Quotations hereto from ADD SYSTEMS’s suppliers in reliance upon CUSTOMER’s agreement contained herein to purchase these products. In the event that CUSTOMER wishes to cancel any order or portion thereof, CUSTOMER agrees to pay to ADD SYSTEMS an amount equal to any charges, penalties or fees imposed upon ADD SYSTEMS by any of its suppliers as a result of said cancellation plus a restocking charge of 10% of the invoice price of the cancelled products. The above fees shall not operate as an election of remedies or liquidated damages, however, and ADD SYSTEMS shall retain all other rights at law or equity arising in connection with said cancellation.
B RESCHEDULING CHARGES – In the event the CUSTOMER requests a rescheduling of the delivery of some or all of the hardware purchased by CUSTOMER, CUSTOMER shall pay to ADD SYSTEMS an amount equal to any charges, penalties or fees imposed upon ADD SYSTEMS by any of its suppliers as a result of such rescheduling plus an administrative fee of ten (10%) percent of the invoice price of the rescheduled order.
13. PRODUCT SPECIFICATION CHANGES
ADD SYSTEMS reserves the right, without prior approval from or notice to CUSTOMER, to make changes to the products (i) which do not affect physical or functional interchangeability or performance at a higher level of assembly or (ii) when required for purposes of safety or (iii) to meet product specifications.
All prices, rates and allowances quoted or referenced herein are exclusive of out-of-pocket expenses incurred by ADD SYSTEMS in the performance of its obligations hereunder. CUSTOMER agrees to reimburse ADD SYSTEMS for such expenses as incurred. Such expenses include but are not limited to: travel and living associated with on-site installation, support and/or training, subcontractor charges associated with any data conversion efforts on CUSTOMER’s data and telephone charges which are incurred in supporting CUSTOMER.
Billing for the equipment, services and Software included in this Agreement will be in accordance with the Terms of Payment specified above. Accounting for and billing of hours and expenses in excess of the allowances included in this Agreement will be on a monthly basis with detailed time accounting provided to CUSTOMER for his records.
16. EQUIPMENT MAINTENANCE
CUSTOMER will be responsible for maintenance beyond that coverage afforded by the manufacturer’s warranty for all equipment not located at ADD SYSTEMS.
17. FACILITIES PREPARATION
CUSTOMER will be responsible for both the time and cost associated with performing any modifications to his facilities which are required to provide the system with an environment suitable for its proper operation. Such responsibilities include but are not limited to: (i) running any cables required to interconnect the main central processor and all terminal(s) and/or printers; (ii) electrical and air conditioning supplies; (iii) any additional construction or modification of his office(s) to meet the manufacturer’s specifications. ADD SYSTEMS will provide guidance in this area and will be the final arbiter of any problems in this area. ADD SYSTEMS will be responsible for connecting the cables to the respective devices after CUSTOMER has placed same in position.
18. INDEPENDENT CONTRACTOR
CUSTOMER understands that ADD SYSTEMS is an independent contractor and is not an agent of its suppliers.
If any provision of this Agreement is determined to be unenforceable or invalid, the remaining provisions of this Agreement shall not be affected thereby and shall remain in full force and effect.
Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage prepaid. Notice shall be effective when mailed, or upon delivery if delivered in person.
21. NO ASSIGNMENT BY CUSTOMER
CUSTOMER shall not assign this Agreement or any of CUSTOMER’s rights or obligations hereunder without the prior written approval of ADD SYSTEMS, and any attempt by CUSTOMER to assign any rights or obligations without such approval shall be void.
22. FORCE MAJEURE
ADD SYSTEMS shall not be liable for any damages resulting from any delay or failure to perform which directly or indirectly results from the elements, acts of God, delays in transportation, delays in delivery by ADD SYSTEMS’s vendors, or any other cause beyond the reasonable control of ADD SYSTEMS. Any delivery schedule shall be extended by a period of time equal to the time lost because of any such delay.
23. LIMITATION OF LIABILITY
EXCEPT AS SET FORTH IN THIS PARAGRAPH, ADD SYSTEMS SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, REVENUE, OR PROFITS RESULTING FROM, OR ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS FURNISHED BY ADD SYSTEMS HEREUNDER, WHETHER IN AN ACTION IN CONTRACT OR TORT INCLUDING NEGLIGENCE. ADD SYSTEMS SHALL ALSO NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTALLATION OR THE FURNISHING OF PRODUCTS UNDER THIS AGREEMENT OR ANY LOSS OF DATA OR INFORMATION, OR THE DISCLOSURE OF INFORMATION OR THE RESULTS OF DECISIONS MADE OR OBTAINED BY USERS OF THE PRODUCTS EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR ADD SYSTEMS’S LIABILITY OF ANY KIND, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 8.B. OF THIS AGREEMENT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
24. GOVERNING LAW; VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, exclusive of its conflicts of laws principles, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of New Jersey, excluding that State’s conflicts of laws principles. CUSTOMER consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the State of New Jersey, and CUSTOMER consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts.
25. ATTORNEY’S FEES
CUSTOMER shall pay all costs of collection including attorney’s fees incurred by ADD SYSTEMS to collect any balance due. Should either party be required to file a legal action to enforce any provision of this Agreement, the prevailing party shall be paid its reasonable attorney’s fees and costs by the other party.
Headings used in this Agreement are for reference purposes only and shall not be deemed part of this Agreement.
27. LIMITATION OF ACTION
No action, regardless of form, arising out of this Agreement may be brought by CUSTOMER more than one year after the date of this Agreement.
28. RETENTION OF RIGHTS
The waiver or failure of ADD SYSTEMS to exercise in any respect any right provided for herein should not be deemed a waiver of any further right hereunder.
29. CONSENT TO BREACH NOT WAIVER
No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.
30. FINANCE CHARGE
A late payment FINANCE CHARGE shall be applied against any remaining unpaid balance 25 days after date of invoice. The late payment FINANCE CHARGE, if any, will be imposed on the remaining unpaid balance at the periodic rate of one and one-half percent (1-1/2%) per month that is equivalent to an ANNUAL PERCENTAGE RATE of 18% per year. The remaining unpaid balance is the previous balance less payments and credits.
31. TRAVEL TIME
All time expended in traveling between the CUSTOMER’s location(s) (if more than one) and between the CUSTOMER’s location(s) and ADD SYSTEMS’s offices will be billed to the CUSTOMER at one-half (1/2) the Base Rate.
32. PROPRIETARY AND CONFIDENTIAL INFORMATION
A NON-DISCLOSURE OBLIGATIONS – Each party (“Receiving Party”) acknowledges that from time to time pursuant to this Agreement the other party (“Disclosing Party”) may disclose, make available or deliver to the Receiving Party certain Proprietary Information (as defined in the Section below entitled Definition of Proprietary Information) of the Disclosing Party. The Receiving Party shall keep confidential, and shall require its officers, directors, employees, and agents to keep confidential, all Proprietary Information furnished or made known to the Receiving Party by the Disclosing Party. The Receiving Party will not disseminate or disclose Proprietary Information to any person or entity other than those employees, agents, officers, and directors of the Receiving Party who are directly involved in the performance of the Receiving Party’s obligations under this Agreement. The Disclosing Party retains all rights to Proprietary Information disclosed to the Receiving Party, and, except as otherwise provided in this Agreement, the Receiving Party is prohibited from copying or disclosing any Proprietary Information for any purpose without the prior written authorization of an officer of the Disclosing Party. The Receiving Party will use the same degree of diligence and effort to protect the Disclosing Party’s Proprietary Information from disclosure to third parties as the Receiving Party uses to protect its own confidential information, but in no event shall the Receiving Party use less than reasonable and customary diligence and effort in protecting the Disclosing Party’s Proprietary Information.
B DEFINITION OF PROPRIETARY INFORMATION. – For the purposes of the Section entitled Non-Disclosure Obligations, the term “Proprietary Information” shall mean and include, with respect to ADD SYSTEMS’s Proprietary Information, the ADD Software, any copies thereof, any source code, object code or other form of the ADD Software and supporting or other documentation related to the ADD Software (collectively, “ADD SYSTEMS Program Information”) and, with respect to both parties, all information delivered in writing and designated as “proprietary”, “confidential”, “secret”, or similar key word, or if disclosed other than in writing, information as to which the person to whom such information is disclosed, prior to or essentially concurrent with such disclosure, is made aware that proprietary information is being disclosed. Information, other than ADD SYSTEMS Program Information, will not be deemed Proprietary Information if: (i) it is previously well known and in the public domain without the fault of the Receiving Party or person to whom the information was disclosed, directly or indirectly, by the Receiving Party; (ii) it was previously received by the Receiving Party from a third person under circumstances permitting its disclosure to the Receiving Party; (iii) it was previously and independently developed by the Receiving Party as shown by documentation sufficient to establish the fact of its previous and independent development; (iv) it becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and without breach of a similar agreement by the outside source, as shown by documentation sufficient to establish the outside source of the data; or (v) it is disclosed pursuant to an order of a court or other governmental body, provided that the Receiving Party promptly notifies the Disclosing Party so as to afford the Disclosing Party the opportunity to intervene and seek to prevent the disclosure.
C RIGHTS TO INJUNCTIVE AND EQUITABLE RELIEF – The Receiving Party’s obligations under the Section entitled Non-Disclosure Obligations are of a special and unique character which gives them a peculiar value to the Disclosing Party, and the parties acknowledge that the Disclosing Party cannot be reasonably or adequately compensated in damages in an action at law in the event the Receiving Party breaches such obligations. Therefore, the Receiving Party expressly agrees that the Disclosing Party shall be entitled to seek injunctive and other equitable relief in the event of such breach or threatened breach in addition to, and not in lieu of, any other rights or remedies in law or equity to which the Disclosing Party may be entitled.
33. TERMINATION OF AGREEMENT
A Notwithstanding the Section entitled Software above, ADD SYSTEMS may immediately terminate this Agreement and the license(s) granted hereunder upon the occurrence of any of the following:
- a breach by CUSTOMER of the provision of the Section of this Agreement entitled Software, and more particularly subsections 6A, 6B and 6C, which has not been fully cured or remedied within three (3) business days of the written notice of such breach; or
- a breach by CUSTOMER of the provisions of the Section of this Agreement entitled Proprietary and Confidential Information; or
- the failure to make any payment required hereunder or under any other agreement with ADD SYSTEMS when such payment is due which failure has not been fully cured within fifteen (15) calendar days of the written notice of such failure of payment; or
- a material breach of this Agreement other than as set forth in the preceding three paragraphs which has not been fully cured or remedied within fifteen (15) calendar days of the written notice of such breach.
B TERMINATION FOR BREACH AND LEGAL REMEDIES – Termination of this Agreement for any reason shall not act as a waiver of any breaches of this Agreement and shall not act as a release of CUSTOMER from any liability for past or future obligations under this Agreement including, without limitation, those obligations which survive or are to be performed after the termination of this Agreement. In particular, CUSTOMER will remain obligated for any amounts owed to ADD SYSTEMS at termination.
C EFFECT OF TERMINATION. Upon termination of this Agreement: (a) the rights and licenses granted to CUSTOMER pursuant to this Agreement, including all ADD Software and Non-ADD Software, will automatically and immediately terminate and CUSTOMER must immediately cease using the Software, and (b) CUSTOMER shall, within thirty (30) days, ship to ADD SYSTEMS or destroy (including purging from any system or storage media) all ADD Software and Non-ADD Software and other Proprietary Information in its possession or control, and an officer of CUSTOMER shall certify in writing that CUSTOMER has complied with the provisions of this Section and (c) ADD SYSTEMS shall within thirty (30) days destroy (including purging from any system or storage media) all Proprietary Information of CUSTOMER, and an officer of ADD SYSTEMS shall so certify in writing.
D NONEXCLUSIVE REMEDY. Termination of this Agreement by ADD SYSTEMS will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of ADD SYSTEMS.
E NO DAMAGES FOR TERMINATION. ADD SYSTEMS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED INCOME, OR DAMAGES RESULTING FROM ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY CUSTOMER ON ACCOUNT OF THE TERMINATION OF THIS AGREEMENT.
F SURVIVAL. The rights and obligations of the parties under the following Sections of this Agreement shall survive any termination of this Agreement: Section 8 (Warranty), Section 23 (Limitation of Liability), Section 24 (Governing Law), Section 25 (Attorney’s Fees), Section 27 (Limitation of Action), Section 32 (Proprietary and Confidential Information), Section 33 (Termination of Agreement) and Section 34 (Jury Waiver).
34. JURY WAIVER
EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR RELATING TO THE MAKING, ENTRY, PERFORMANCE, BREACH, OR TERMINATION OF THIS AGREEMENT.
35. SUMMARY OF CUSTOMER RESPONSIBILITIES
Below are a number of items that have occasionally been overlooked by customers. CUSTOMER is responsible for:
A all out-of-pocket expenses incurred by ADD SYSTEMS in performance of its obligations hereunder, including but not limited to telephone, travel and lodging expenses.
B the running of all cables associated with this installation including (if appropriate) cables between the equipment location(s) and termination point(s) of telephone lines.
C charges associated with the installation and monthly use of a telephone jack, internet access, and telephone number(s) to provide ADD SYSTEMS access to CUSTOMER’s system (including loaner equipment).
D the charges (both installation and monthly) associated with any telephone lines and or Internet access associated with sites remote to his main office.
E installation of an electrically clean power line from his main electrical panel to the equipment being supplied hereunder plus any electrical work required to meet the manufacturer’s specifications for such equipment.
F all charges associated with forms for use by the computer system.
G all charges associated with providing to ADD SYSTEMS error free conversion data that is medium and format compatible with ADD SYSTEMS.
H all charges associated with obtaining and maintaining in force a maintenance agreement for all equipment supplied hereunder (including any loaner equipment). Should CUSTOMER not avail himself of the maintenance coverage available (whether through a conscious decision or an oversight), he is completely responsibility for all maintenance charges.
I prompt payment of all invoices rendered to him by ADD SYSTEMS. CUSTOMER’s failure to dispute an invoice within 30 days of receipt of such invoice shall be construed to indicate agreement with that invoice.
J completion, prior to delivery, of all lease or other financing arrangements to ensure that there will be no delays in payment beyond those (if any) provided for by this Agreement.
K any charges by ADD SYSTEMS associated with the effort required to interface with or otherwise utilize equipment acquired by CUSTOMER from any source other than ADD SYSTEMS.
(Rev. September 19, 2014 – HGK)