These General Terms and Conditions are attached to, or entered into in connection with the execution of, an agreement or agreements (the “Agreements”) containing specific purchase terms of products or services sold by Temenos USA, Inc. or TriNovus Systems, LLC, each referred to herein as applicable as the “Company”.
These General Terms and Conditions are attached to, or entered into in connection with the execution of, an agreement or agreements (the “Agreements”) containing specific purchase terms of products or services sold by Temenos USA, Inc. or TriNovus Systems, LLC, each referred to herein as applicable as the “Company”. The different products and services being purchased from the Company may include any of the following: equipment purchases, hardware maintenance (for equipment purchased from the Company or from third parties), software licenses, software support, and other services. Only the provisions of these General Terms and Conditions that, as the context indicates, relate to the specific products or services being purchased pursuant to each Agreement apply to that Agreement. The Miscellaneous provisions apply to all Agreements.
1. Purchase of Equipment:
1.1 Purchase Terms:
(a) Title – Title to the Equipment passes to Customer on the shipment date. Customer is responsible for all risk of loss or damage on and after the date of shipment. The Company reserves a purchase money security interest in the Equipment until it is paid for in full.
(b) Price Protection – The Company guarantees the Purchase Price of the Equipment up to and including the installation date. If the Equipment has not been accepted by Customer on or prior to the installation date through no fault of the Company, the Company shall have the right to change such prices as appropriate to reflect changes in the prices it must pay for the Equipment.
(a) The Equipment is to be installed by the Company or its designee. Customer will provide a proper environment for installation and operation of the Equipment in accordance with the manufacturers’ specifications and recommendations and provide the Company reasonable access to Customer’s premises to allow installation.
(b) Installation of workstations is limited to those provided by the Company. Any connectivity of additional workstations will be at an extra charge.
(c) Host interface solutions and cabling are offered at an additional cost.
(a) Customer understands that none of the Equipment is manufactured by the Company. The Company makes no warranty, either express or implied, on the Equipment. Customer understands that the warranty, if any, on the Equipment is extended by the manufacturers of the Equipment.
(b) The Company warrants that the Equipment will be installed in accordance with manufacturers’ specifications and recommendations.
(c) THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(d) Customer hereby expressly waives any claims against the Company for loss, injury or damages of any kind directly or indirectly resulting from Customer’s use of the Equipment or from any defects therein except as specifically provided herein and except for claims arising from the gross negligence or willful misconduct of the Company, its officers or employees.
1.4 Maintenance Contracts:
It shall be the responsibility of the Customer to properly maintain or contract maintenance of the Equipment. Equipment warranties will be those provided directly by the original manufacturer, if applicable. Third party software warranties and/or support will be those provided directly by the manufacturer, developer or owner of such software.
Because of rapid evolution and technology advances the Equipment is subject to change based on advances or discontinuances from the manufacturer. In the event of any such advances or discontinuances, the Company may provide substitute hardware and/or software which in the Company’s opinion is equivalent or better.
Customer shall indemnify, defend and hold harmless the Company, its employees and representatives from and against any and all claims, causes of action, liabilities, damages, judgments, costs and expenses (including attorneys’ fees) of every kind whatsoever, whether known or unknown, absolute or contingent, which the Company may incur or be subject to or caused by the improper or negligent use of the Equipment by the Customer or any person or entity that obtained the Equipment from the Customer.
2. Hardware Maintenance:
2.1 Access; Customer Repairs:
Customer shall give the Company full and free access to the Hardware to provide maintenance as necessary. Customer personnel shall not attempt any repair or maintenance on the Hardware while the Maintenance Agreement is in effect unless recommended in writing by an authorized representative of the Company.
2.2 No Warranty:
The Maintenance Agreement is not a warranty or guaranty of the Hardware. The Company’s liability to the Customer resulting from the performance of maintenance services shall be limited to restoring the Hardware to good operating condition. Repair or replacement of Hardware necessitated by fire, water, other casualty, Acts of God, Customer’s negligence, movements or Acts of a third party is not included in the Maintenance Agreement and shall be provided at Customer’s expense. EXCEPT FOR THE OBLIGATIONS TO MAINTAIN THE HARDWARE SPECIFIED HEREIN, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event shall the Company be liable for indirect, special or consequential damages arising out of or in connection with the furnishing, performance or use of the Hardware or the maintenance provided hereunder, including, but not limited to, lost profits.
Hardware maintenance is available Monday-Friday, 8 AM to 5 PM Central time. In the event that maintenance of any part of the Hardware is needed, the obligations of the Company and the Customer will be as follows:
(a) The Company Provided and non-Company Provided Hardware Maintenance:
(1) Customer shall request technical support from the Company. Customer shall cooperate with the Company in identification, verification and resolution of the Hardware Maintenance.
(2) The Company shall use its best efforts to resolve the problem via telephone support.
(b) Company Provided Maintenance:
(1) If the problem cannot be resolved by telephone, the Company shall ship a loaner replacement Monday through Friday, except on days when the Company’s main office is closed. Customer will properly pack and return to the Company or its designee the Hardware for repair. The returned Hardware will be repaired or replaced with new or equivalent equipment at the Company’s discretion. The replaced Hardware will remain with the Customer unless otherwise directed by Customer.
(2) Customer agrees to pay freight charges associated with the return of Hardware to the Company.
(3) On-site assistance is not provided under the Maintenance Agreement. On-site assistance may be requested by Customer and may be provided on a best efforts basis at the Company’s then prevailing time and materials rates plus travel and lodging reimbursement.
(c) Non-Company Provided Maintenance:
(1) If a call is received by the Company for customer hardware that falls under a third party agreement, the Company will refer the call to third party.
(2) Maintenance charges are estimated, and actual charges may be higher.
The maintenance obligations of the Company will cover modifications, additional features or accessories purchased by Customer from the Company only if such modifications, features or accessories are specifically added to the Maintenance Agreement at the time purchased by amendment to the Maintenance Agreement. The Company may, at its option, increase the maintenance fee payable pursuant hereto to cover such modifications, features or accessories. The Company will give customer thirty (30) days notice of such increase.
3. Software Agreements:
3.1 Scope of License:
The Temenos Software are copyrighted software product developed and owned by the Company (the “Software”). All rights are reserved worldwide. Customer shall not sell, lease, copy, distribute, transfer, assign or sublicense the Software to any third party. Customer will make no more than two (2) copies of the Software for backup and archival purposes and may make no copies for any other purpose. Customer is responsible for maintaining backup copies of the Software. The Software is licensed for use on individual computers and individual network workstations. Customer may change the location at which the Software is used only after written notification to the Company specifying the new location. The license granted hereby shall commence upon the delivery of the Software and shall continue until terminated in accordance with the terms contained herein.
3.2 Limited Warranty:
(a) The Company’s sole obligation under the software agreement shall be to correct the Software to perform as specified in the user level documentation provided with the Software. If the Company delivers to Customer written notice that the Company is unable, after reasonable efforts to correct the Software as required hereby, Customer may either retain the Software in its then current condition or terminate the software agreement and receive a refund of all charges actually paid by Customer to the Company. In order to terminate the software agreement as provided in this paragraph, Customer must provide written notice to the Company of its intent to do so within thirty (30) days after receiving written notice from the Company that the Company is unable to make the required corrections. In the absence of such notice, Customer shall be deemed to have elected to retain the Software in its then current condition.
(b) The Company shall use due care in providing the Services hereunder in a professional manner, but recognizing that such Services involve certain possibilities of errors, omissions, delays, loss or mutilation of documents and other occurrences which may give rise to loss or damage. The Company’s responsibility in the event of any such defects, errors or omissions shall be limited to the correction of any errors which are due to mistakes by employees of the Company or to the malfunction of the Company’s equipment.
(c) The Company shall not be held responsible for the correctness and integrity of the data stored or produced by the Software. It is the responsibility of Customer to establish proper procedures to verify the correctness and integrity of the data stored or produced by the Software and to provide for backup methods for Customer’s data. Failure on the part of the Customer to establish proper procedures to store data shall in no way constitute any type of liability or breach of agreement on the part of the Company. .
(d) Altering, modifying, maintaining or servicing the Software by anyone other than the Company shall relieve the Company of any obligation under the software agreement. The Company shall have no liability for any failure of the Software due to the failure of Customer to use the Software in accordance with the documentation provided by the Company or if the Software is not workable because of the malfunction of Customer’s hardware or operating system or the failure of such hardware or operating system to perform as represented, or for any other cause beyond the Company’s control.
(e) THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE COMPANY FOR LOSS, INJURY OR DAMAGE OF ANY KIND, DIRECTLY OR INDIRECTLY RESULTING FROM CUSTOMER’S USE OF THE SOFTWARE OR FROM ANY DEFECTS THEREIN, EXCEPT AS PROVIDED HEREIN AND EXCEPT FOR CLAIMS ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY, ITS OFFICERS AND EMPLOYEES.
(f) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY MAKES NO WARRANTY WITH RESPECT TO (1) SERVICES PROVIDED OR ORIGINATED BY THIRD PARTY OR OTHER VENDORS WHICH ARE PASSED THROUGH BY THE COMPANY, (II) ANY SERVICES NOT PROVIDED DIRECTLY BY THE COMPANY, OR (III) ANY EQUIPMENT WHICH IS BEING PURCHASED BY THE CUSTOMER.
3.3 Rights to Software; Indemnification of Customer:
The Company warrants that it has the right to grant the license to use the Software herein granted. The Company will indemnify and save the Customer harmless from and against any and all liabilities, losses, costs or expenses including reasonable attorney’s fees which may result by reason of infringement or claim of infringement of any United States patent or copyright or any trade secret or proprietary right of any other person by the Software or any part thereof, and the Company shall defend or settle, at its own expense, any claim, action or suit against the Customer so far as the same may be based on an allegation of infringement of any such right. The Company’s obligation hereunder shall be subject to the Customer’s prompt notification of the Company in writing of any notice of such claim, action or suit and the Company being given reasonable information and assistance for defense of such claim, action or suit, and the Company’s right to sole control of the defense thereof and all negotiations for settlement or compromise. If the Customer’s use of the Software or any part thereof is prevented by injunction or court order because of a purported infringement, the Company will, at its election, provided that the Customer is not in default of any payment obligations hereunder, at no cost or expense to the Customer either (a) replace the Software with a functionally equivalent system which is free of infringement, (b) modify the software so that it becomes non-infringing, (c) procure for the Customer the right to continue using the Software, or (d) promptly remove the Software from the place of installation and refund to the Customer all sums paid for the Software by the Customer during the preceding twelve (12) month period. The remedies set forth in this paragraph 3.3 shall not apply if any infringement or claim of infringement of a United States patent or copyright or trade secret or proprietary right of any other person is due to the Customer’s design, modification of the Software by the Customer, or use of the Software in combination with equipment or software not provided or approved by the Company and such infringement would not have existed but for such design, modification or combination. The remedies set forth in this paragraph 3.3 constitute the sole obligation of the Company under the warranty contained in this paragraph 3.3.
3.4 Indemnification of the Company:
Customer shall indemnify, defend and hold harmless the Company, its employees and representatives from and against any and all claims, causes of action, liabilities, damages, judgments, costs and expenses (including attorneys’ fees) of every kind whatsoever, whether known or unknown, absolute or contingent, which the Company may incur or be subject to or caused by the improper or negligent use of the Software by the Customer or any person or entity that obtained the Software from the Customer.
(a) The entire right and title to the Software shall remain with the Company, and the Company has the right to protect by copyright or otherwise, to reproduce, publish, sell and distribute the Software to anyone. The Customer shall place on each copy or reproduction of the Software and on documentation related thereto the identical notice contained on the Software furnished by the Company to the Customer. Any alterations, corrections, enhancements or improvements of the Software made by the Company shall be the property of the Company and subject to the terms and conditions of the Software Agreement. Customer shall not make any modifications to the Software or reverse assemble or reverse compile the Software, and any modifications made by Customer in violation of this provision shall be the exclusive property of the Company.
(b) Customer shall not disclose to any person or entity other than to its authorized employees the Software and documentation delivered hereunder. Customer shall use its best efforts to prevent its employees and such other persons as come in contact with the Software and documentation from making any such disclosures. The provisions of this Section may be enforced by injunction or other equitable relief, and the parties do hereby specifically recognize that the Company has no adequate remedy at law in order to compel the enforcement of the provisions of this section.
3.6 Software Support:
The Company will provide to Customer improvements or enhancements as these are developed for the Software. Program improvements or enhancements shall mean changes to the programs furnished as part of the Software which result in the correction of program errors, more efficient processing, a reduction in memory requirements, or procedural changes to allow more effective use of the Software. The Company shall use reasonable efforts to correct any errors in the Software that are reported to the Company in writing during the term of the Software Agreement, provided such errors can be recreated with the Company’s then current version of the Software. Unlimited phone support is provided during normal Company business hours, Monday through Friday from 7:30 a.m. until 5:30 p.m. Central time. Software support excludes support required to recover data following Customer’s failure to backup system and excludes support required to install or change any software or hardware, such as a new method of download. These are not to be considered the only exclusions to software support. On-site services are not provided. In the event the Customer should desire any additional support services relating to the Software, Customer will be billed at the Company’s then prevailing time and materials rates and travel and lodging reimbursement cost.
3.7 Delivery and Installation:
The Software will be delivered to the Customer at the time and location designated by the parties or, if the necessary computer equipment and an appropriate installation environment are not available at such time, as soon after such time as the equipment and environment are available as is reasonably practicable. The Company shall install the Software, but it shall be the responsibility of the Customer to provide an appropriate and adequate work environment.
4. Service Agreements:
(a) The parties hereto agree not to employ, make an offer of employment to, or enter into a consulting relationship with any employee of the other party who is in any way involved with the performance of the services to be provided hereunder while such employee is employed by the other party or for one (1) year after the termination of such employment, except upon the prior written consent of the other party. The obligations of the parties specified in this Section 4.1 shall survive the expiration or termination of the Service Agreement.
(b) The Company may subcontract any or all of the Services to third parties and may use independent consultants or other contractors to assist it in the Services. Services supplied by third party vendors shall be subject to the terms and conditions of the Service Agreement and these Terms and Conditions as if supplied by the Company.
(a) The Company shall use due care in providing the services hereunder in a professional manner, but recognizing that such services involve certain possibilities of errors, omissions, delays, loss or mutilation of documents or data and other occurrences which may give rise to loss or damage. The Company’s responsibility in the event of any such defects, errors or omissions shall be limited to the correction of any errors which are due to mistakes by employees of the Company or to the malfunction of the Company’s equipment.
(b) While an effort has been made to provide accurate and complete services and products, THE COMPANY MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, ABOUT THE ACCURACY, COMPLETENESS OR CORRECTNESS OF THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO CASE, SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, CAUSED AS A RESULT OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER.
(c) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY MAKES NO WARRANTY WITH RESPECT TO (I) SERVICES PROVIDED OR ORIGINATED BY THIRD PARTY OR OTHER VENDORS WHICH ARE PASSED THROUGH BY THE COMPANY, (II) ANY SERVICES NOT PROVIDED DIRECTLY BY THE COMPANY, OR (III) ANY EQUIPMENT WHICH IS BEING PURCHASED BY THE CUSTOMER.
4.3 Default; Termination:
(a) Either party may terminate the Service Agreement in the event of a material breach by the other party that is not cured within thirty (30) days following written notice of breach, such notice specifying the nature of the breach with reasonable explanatory information.
(b) Unless sooner terminated pursuant to Section 4.3(a) above, the Company may terminate the Service Agreement by delivery of written notice to the Customer upon the occurrence of any of the following:
(1) the Customer shall fail to pay any amounts due to the Company hereunder within thirty (30) days after written notice from the Company; or
(2) a receiver, liquidator or trustee for the Customer is appointed by a court or regulatory authority with jurisdiction over the Customer and such order stays in effect for thirty (30) days or more, the Customer is adjudicated bankrupt or insolvent or is taken over by a regulatory authority; or a petition is filed against the Customer or voluntarily by the Customer under any bankruptcy, reorganization, insolvency, dissolution or liquidation statute of any jurisdiction, whether now or hereafter in effect, and is not dismissed within thirty (30) days after such filing; or the Customer ceases to do business, makes an assignment for the benefit of creditors or is unable or admits its inability to pay its debts when they mature.
(c) Unless sooner terminated pursuant to Section 4.3(a) above, the Customer may terminate the Service Agreement by delivery of written notice to the Company if a receiver, liquidator or trustee for the Company is appointed by a court, and such order stays in effect for thirty (30) days or more; the Company is adjudicated bankrupt or insolvent or a petition is filed against the Company or voluntarily by the Company under any bankruptcy, reorganization, insolvency, dissolution or liquidation statute of any jurisdiction, whether now or hereafter in effect, and is not dismissed within thirty (30) days after such filing; or the Company ceases to do business, makes an assignment for the benefit of creditors or is unable or admits its inability to pay its debts when they mature.
(d) No termination pursuant to any of the provisions of this Section 4.3 shall relieve either party of its respective obligations to the other hereunder that arose prior to the effective date of termination. In the event that the Customer shall default for failure of payment, the Company may retain all of the Customer’s information in its possession until receipt of full payment and interest thereon. The provisions of this Section 4.3 shall not be in limitation of any other right or remedy available at law or in equity to the non‑defaulting party.
(e) If the Service Agreement is terminated pursuant to Section 4.3(b) above or for any reason other than the material breach of the Service Agreement by the Company in the manner described in Section 4.3(a), all remaining payments for the full remaining term of the Service Agreement shall immediately become due and payable. The Customer shall indemnify the Company for all costs and expenses incurred in connection with any collection activity required to collect any payments under the Service Agreement, including legal fees and expenses.
The undersigned acknowledges that he or she has read and understands these terms and conditions, has the authority to, and by executing either the Equipment Purchase Agreement, the Hardware Maintenance Agreement, the Software Agreement or the Service Agreement, (individually referred to herein as the “Agreement”) and these Terms and Conditions do bind the Customer to the terms hereof. The Agreement(s) and these Terms and Conditions and any related agreements executed simultaneously herewith are the complete and exclusive statement of the agreement between the parties, which supersedes all proposals oral or written and all other communications and prior agreements between the parties relating to the subject matter of the Agreement(s) and these Terms and Conditions. The terms of the Agreement(s) and these Terms and Conditions may not be amended, modified or rescinded except by a written instrument signed by both parties.
5.2 Proprietary Rights:
(a) Any ideas, concepts, know-how or techniques relating to the products and services provided hereunder or developed in connection with said products or services used by the Company during the course of the Agreement(s), including without limitation, software programs, screen layouts, graphics, report formats and user manuals shall be the exclusive property of the Company. The Customer agrees to treat such information as intangible proprietary information of the Company, intellectual property, and a trade secret and to use reasonable care in maintaining the confidentiality of such information.
(b) All proprietary rights relating to any data, text or other items delivered or transmitted to the Company by the Customer, including trademarks, trade-names, service marks and other proprietary items of the Customer shall remain the exclusive property of the Customer. The Company agrees to treat such information and items as proprietary to the Customer.
(c) No ideas, information, documentation or other material submitted by the Customer for use by the Company in connection with the Agreement(s) will violate any copyright, trademark or patent or infringe on any proprietary right. The Customer will hold the Company harmless from and will defend any action alleging the infringement of such rights that may be brought against the Company by reason of the Company’s use of any such ideas, information, documentation or other material provided by the Customer. The Company shall have the right to refuse to use any idea, information, documentation of other material provided by the Customer which the Company shall, in its sole discretion, consider to violate any copyright, trademark, patent or other proprietary right.
(d) The Customer shall have no proprietary rights in or to any software, documentation, materials or other items that are part of or related to the Services to be provided by the Company hereunder, whether owned by the Company or owned by third party vendors and provided to the Customer by the Company. The Customer shall not attach, challenge or contest the Company or any third party’s proprietary rights to such information, services or products or its rights to license the same, and the Customer shall not aide others in doing so.
(e) Each party acknowledges that the breach of the provisions of this Section 5.2 will cause irreparable harm and the extent of injury may be impossible to ascertain. Accordingly, each party agrees that the other party shall have, in addition to any other rights and remedies available to it, the right to immediate injunction enjoining any breach of this Section 5.2. Nothing herein shall be construed to preclude the aggrieved party from obtaining injunctive relief in the case of breach of the provisions of any other section of the Agreement(s) or these Terms and Conditions. The obligations of the parties specified in this Section 5.2 shall survive the expiration or termination of the Software Agreement.
(f) Neither party receiving information from the other shall have any obligation to keep secret any confidential or proprietary information: (i) which is, or becomes part of the public domain not due to the fault of the receiving party; (ii) which the receiving party knew prior to the disclosure of such information to it or any of its employees by the disclosing party; or (iii) which prior to the time of disclosure is revealed to the receiving party by a third party who has the right to do so without violating any law, or any agreement of which the receiving party was aware or with reasonable care should have been aware.
(g) The Company reserves the right to develop software, services, materials and products that are competitive with the Services and to market such products to other customers so long as they do not infringe upon any patent, trademark, copyright or other proprietary right of the Customer.
5.3 Privacy and Confidentiality:
(a) Both parties acknowledge that in the course of performance of the Services the parties may have access to the other party’s trade secret, confidential, proprietary, business and/or customer information, including, without limitation, “nonpublic personal information” (as such term is defined in the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.) and the terms and conditions of the Agreement (collectively all of these types of information are known hereinafter as “Confidential Information”). The parties agree that they will not use or disclose this Confidential Information for any purpose other than as required for the performance of their obligations with regard to the Agreement(s) without the written permission of the party to whom the information belongs. Any dissemination of the Confidential Information within a party’s own business entities and its affiliates and to its subcontractors shall be on a “need to know” basis for the sole purpose of performance of obligations under the Agreement(s). Upon termination of the Agreement(s), both parties shall return all such Confidential Information to the owner of such Confidential Information upon receipt of all amounts at that time owed by the party to whom the Confidential Information is to be returned pursuant hereto. Both parties shall comply in full with the privacy requirements of the Gramm-Leach-Bliley Act and the rules and regulations promulgated thereunder (as any of the same may be amended or superseded from time to time). Each party shall, and shall cause its employees and subcontractors to, implement and maintain customer information security measures designed to comply with the requirements of all applicable laws (including, without limitation, the satisfaction of the objectives of the Interagency Guidelines Establishing Standards for Safeguarding Customer Information issued pursuant to the Gramm-Leach-Bliley Act, as amended). The parties agree that from time to time the other party may monitor the party’s or any employee’s or subcontractor’s compliance with such requirements.
(b) The Company agrees to cooperate and assist the Customer in connection with any examination by regulatory authorities or any internal or external audit of the Customer; provided, however, that the Customer shall reimburse The Company for all out of pocket expenses incurred and will pay The Company its standard hourly rates for time spent in any such effort.
5.4 Limitation of Liability; Indemnification:
(a) The parties agree that the Company shall not be liable for any loss or liability suffered by the Customer in connection with the services provided by the Company hereunder unless caused by the Company’s gross negligence. The Customer agrees that the Company shall be excused from the performance and shall not be liable for any delay in delivery or non-delivery due to contingencies beyond the control of the Company, including, but not limited to, war, riot, sabotage, judicial or governmental action or inaction, strikes or other labor dispute, accident, fire, explosions, flood, earthquakes, acts of terrorism, acts of extortion, or other natural disasters or any act of God or other causes or events beyond its control.
(b) The Customer further agrees that in no event will the Company be liable for indirect, special, collateral, incidental or consequential damages. The Customer further agrees that in no event will the total aggregate liability of the Company for any damages arising under this contract and services performed hereunder exceed the total amount paid by the Customer to the Company during the preceding twelve (12) month period (or, should the contract have been in effect less than twelve (12) months, for the time from the effectiveness of the contract).
(c) The Company shall not be liable for any claim made by any party other than the Company or the Customer against the Customer for damages incurred by such person, directly or indirectly, as a result of any error or omission by the Company or the Customer related directly or indirectly to the performance of the Services. The Company shall not be liable to the Customer or any other person for noncompliance by the Customer or any other person with any applicable law or regulation regarding the Services performed by the Company pursuant hereto.
(d) It is the Customer’s responsibility to enter into appropriate agreements with its customers and other parties and to obtain appropriate indemnities and limitations on the Customer’s liabilities and to carry appropriate insurance to cover its liabilities to its customers. The Customer shall, therefore, indemnify and hold the Company harmless from and against any and all claims, causes of action, liabilities or losses (including reasonable attorneys’ fees) by or on behalf of any party other than the Customer or the Company arising out of, or in any way related to, any goods or services provided by or through the Customer to any person other than the Company. The Customer’s obligations under this Section 5.4(d) shall survive the termination or expiration of the Service Agreement.
(e) The Customer acknowledges that the Customer retains the risk of security failures as a result of flaws in its systems. The Customer hereby specifically releases the Company from any liability for failure of the measures implemented to prevent any loss, damage, destruction or theft of data or to prevent any breach of security, and the Customer agrees to indemnify and hold harmless the Company for all damages, liabilities, costs and expenses (including legal fees and expenses), relating to the failure of the Customer’s systems to prevent loss, damage, destruction or theft of data or to prevent any breach of security. The Customer further releases the Company from any liability for any loss, damage, destruction or theft of data or for any breach of security resulting from failure of third party equipment or software to operate as anticipated, including, but not limited to, telephone or other telecommunications lines or other equipment utilized by Customer or any other systems, whether or not such equipment or systems are within the Customer’s control.
5.5 Third Party Vendors:
(a) The Customer acknowledges that some products and services provided under the Agreement(s) may be provided by third parties which are not a party to the Agreement(s), and some of the services provided by the Company may be provided utilizing software or systems owned by or licensed from third party vendors. The Customer agrees to execute appropriate software license agreements with such third party vendors as required by such third party vendors.
(b) The Customer agrees to treat any information, services or products provided by such third party vendors as intangible, proprietary information, intellectual property, and trade secrets, whether or not any portion thereof is or may be validly copyrighted or patented. The Customer’s interests in such information, services or products is only the non-exclusive right to use thereof as herein provided, and the Customer shall have no interest therein or rights thereto other than the non-exclusive right to use as herein provided.
(c) The Customer agrees that the Company, at its sole discretion, may change any third party vendor and provide a substitute for the third party vendor’s respective products, software, or services.
5.6 Default in Payment:
The Customer shall pay all amounts due under this Agreement no later than ten (10) days after receipt of each invoice and the Customer shall pay a service fee equal to one and a half percent (1.5%) per month, or if lower, the highest rate legally permitted, for any late payments plus all associated collection and legal expenses if applicable. In the event that the Customer shall default for failure of payment, the Company shall have all rights and remedies available at law or in equity to the Company.
5.7 Return of Materials:
Within thirty (30) days after the effective date of any termination of the Agreement(s), the Customer shall return all materials relating to the Services and shall deliver to the Company a certificate executed by a duly authorized officer that the Customer and the Customer’s agents and employees and contractors have returned to the Company all such materials and have not retained copies of any software or documentation which is related to the Services.
The parties hereto shall endeavor in good faith to resolve all claims, controversies and disputes arising from, or in connection with, the Agreement through informal discussions and negotiations either between themselves or between respective legal advisors appointed by each party. If the parties fail to resolve a claim, controversy or dispute among themselves, they will submit any unresolved claim, controversy or dispute to binding arbitration pursuant to the provisions of the Federal Arbitration Act. All disputes, controversies or claims arising out of the Agreement shall be settled by arbitration in Malvern, Pennsylvania, before a single arbitrator pursuant to the Rules of the American Arbitration Association (the “Rules”). Arbitration may be commenced by either party giving written notice to the other party that the dispute has been referred to arbitration under this Section. The arbitration shall be selected by the joint agreement of the parties, but if they do not agree within twenty (20) days after the date of the notice referred to above, the selection shall be made pursuant to the Rules from the panels of arbitrators maintained by such Association. Any award rendered by the arbitrator shall be conclusive and binding upon the parties; provided, however, that any such award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award. This provision for arbitration shall be specifically enforceable by the parties, and the decision of the arbitrator in accordance herewith shall be final and binding, and there shall be no right of appeal therefrom. Each party shall pay its own expenses of arbitration, and the expenses of the arbitrator shall be equally shared; provided, however, that if in the opinion of the arbitrator any claim under the Agreement or any defense or objection thereto was unreasonable, the arbitrator may assess, as part of his or her award, all or any part of the arbitration expenses of the other party (including reasonable attorney’s fees) and of the arbitrator against the party raising such unreasonable claim, defense or objection. No suit at law or in equity based upon claims, disputes or controversies arising under the Agreement shall be instituted by any party if such claims, disputes or controversies are subject to arbitration, except an action to compel arbitration pursuant to the Agreement or an action to enforce the award of the arbitrators.
The Agreement(s) and the information herein are confidential and provided to Customer for internal use only. The Agreement(s) and information contained herein may not be copied, distributed, or viewed by any third party without the written permission of the Company.
5.10 Third Party Warranties and Maintenance Contracts:
Except as provided herein, the Company is obligated to provide no maintenance and provides no warranties for any computer hardware, equipment or computer software or any other products manufactured, developed or owned by parties other than the Company. The Customer agrees that it will look to the manufacturers, developers or owners of such hardware, equipment and software for any warranty claims relating thereto.
Amounts payable pursuant to the Agreement(s) shall be free and clear of any present or future income or other taxes, including federal, state, county, local or other taxes that may be levied based upon payments made pursuant to the Agreement(s), withholding taxes, deductions, fees, or other levies. If the Customer is required by law to make any deductions or withholdings from payments to Company, the Customer shall pay such additional amounts to Company as may be necessary to ensure that the actual amount received by Company after deduction or withholdings (and after payment of any additional taxes due as a consequence of such additional amount) shall equal the amount that would have been payable to Company if such deductions or withholdings were not required. The Customer shall indemnify and hold Company harmless from and against any claims, liabilities, or expenses (including any interest or penalties) arising out of the Customer’s failure to withhold or timely remit such taxes to the proper governmental authority.
All notices, demands, and other communications to be given hereunder shall be in writing and deemed properly given when delivered by express mail service such as Federal Express or by registered or certified mail (return receipt requested) or by hand to the parties at their respective addresses shown on the Agreement(s) or to such other address as shall have been specified in writing by the party to whom such notice is to be given. Notice given as above shall be deemed to be delivered when deposited in the mail or with the express mail service; provided, however, that notices not given as above shall be deemed to have been delivered when actually received by the party to whom addressed.
5.13 Assignment; Amendment:
(a) The Agreement(s) and these Terms and Conditions are not assignable by Customer without the prior written consent of the Company. Any attempt by Customer to assign any of its rights, duties or obligations under the Agreement(s) or these Terms and Conditions without such consent is void. The Company may assign its rights and obligations under the Agreement(s) and these Terms and Conditions, without the consent of the Customer, to an affiliate or upon the sale by the Company of all or substantially all of its assets, and the Company may subcontract the performance of its obligations hereunder as otherwise provided herein.
(b) The Agreement(s) and these Terms and Conditions can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Customer and of the Company, and variance from or addition to the Terms and Conditions or the Agreement(s) in any order or other written notification from the Customer will be of no effect.
If any provision or provisions of the Agreement(s) shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the other provisions shall not, in any way, be affected or impaired thereby.
No waiver of any contract provision shall be deemed a waiver of future enforcement of that or any other provision.
5.16 Force Majeure:
Neither party shall be responsible for the failure to fulfill its obligations under the Agreement(s) or these Terms and Conditions due to acts of God, acts of nature, acts of terrorism, strikes, walkouts, problems with communications or equipment, or other causes beyond a party’s control.
5.17 Governing Law:
The Agreement(s) and these Terms and Conditions and any dispute arising hereunder shall be governed by the laws of the
Commonwealth of Pennsylvania. Any cause of action arising out of this Agreement, shall be brought in the appropriate court in Chester County, Pennsylvania.