Hospitality Terms & Conditions for Amadeo Products
Section 1. Defined Terms
Initially capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of this Agreement:
1.1 This “Agreement” means all of the Terms and Conditions of Product Sales, Services and Software License contained in this agreement, together with the Corserva Proposal, which, when signed by Client and us, is the Sales Order Form entered into between Client and us; and all Schedules attached to the Sales Order Form or this Agreement; the AUP; and all written amendments entered into between Client and us.
1.2 “AUP” means our Authorized Use Policy regarding the Client’s use of the Services, as it may be amended from time to time in accordance with Section 7.3.
1.3 “Business Day” means Monday through Friday, 8:00 a.m. to 6:00 p.m., United States Eastern Time, excluding any federal public holiday or other day that is a Corserva holiday.
1.4 “Client” means the customer or client identified in the Corserva Proposal and Sales Order Form
1.5 “Product” means any goods delivered by Corerva in connection with a Sale.
1.6 “Protected Information” means any (i) “non-public personal information,” as that term is defined in the Gramm-Leach-Bliley Act, (ii) “protected health information” as that term is defined in the regulations under to the Health Insurance Portability and Accountability Act, (iii) all information that identifies an individual, such as name, social security number or other government issued identification number, date of birth, mother’s maiden name, unique biometric data, unique electronic identification number, address, or telecommunication number and (iv) all other information that is the subject of legal or regulatory security requirements; in each case, as in effect as of the Effective Date and as subsequently enacted.
1.7 “Service” means the information technology services, including consulting, and other services as described in a Sales Order Form, and any Supplemental Services, that we provide to Client.
1.8 “Service Commencement Date” means the date on which the Service is made available for access by Client in accordance with this Agreement, unless the applicable Sales Order Form specifies a different Service Commencement Date. Client will be notified that the Service is available through email or text notice, which may include access codes and/or passwords.
1.9 “Sales Order Form” means a Corserva Proposal that has been signed (which includes an electronic or facsimile signature) by Client and us. Each Corserva Sales Order Form incorporates this Agreement by reference, as it may be amended from time to time in accordance with this Agreement.
1.10 “Software License”, “Software” and “Licensed Software” refer to all system software included with the Products.
1.11 “Supplemental Services” means the services described in Section 2.2 below.
1.12 “Term” means the Initial Term and any Renewal Term or Extended Term, collectively.
Section 2. Product Sales
2.1 Exclusive Terms.
These Terms and Conditions for the sale of Products by Corserva (each a “Sale” and, collectively, “Sales”) to Client are the exclusive terms and conditions upon which Corserva makes all of its Sales. Corserva will not accept any other terms and conditions for any Sale for any Products, unless Client and an authorized officer of Corserva have executed a written agreement that specifically modifies, supersedes and replaces these Terms and Conditions in whole or in part as expressly set forth in such written agreement. Acceptance of all purchase orders from a buyer of a Product sold by Corserva is expressly made conditional upon the buyer’s assent, express or implied, to these Terms and Conditions without any modification, unless expressly set forth in such written agreement.
2.2 Acceptance of Terms and Conditions
Client’s acceptance of these Terms shall be indicated by any of the following, whichever first occurs: (a) Client’s submission of a purchase order to Corserva in connection with a Sale; (b) Client’s written acknowledgment of these Terms and Conditions; (c) Client’s acceptance of any shipment of any Product in connection with a Sale; or (d) any other act or expression of acceptance by Client. All terms, conditions or proposals submitted by Client before or after these Terms (whether oral or in writing) that are inconsistent with or in addition to these Terms are objected to and are hereby rejected by Corserva. Corserva’s silence or failure to respond to any such term, condition or proposal shall not be deemed to be Corserva’s acceptance or approval thereof.
Unless otherwise agreed in writing by Corserva, delivery of Products shall be made in accordance with Corserva’s shipping policy in effect on the date of shipment. For all domestic transactions, unless otherwise stated in the Corserva Proposal and Sales Order Form, title to all Products and all risk of loss or damage with respect to the Products shall pass to Client upon delivery by Corserva to the carrier or Client’s representative at Corserva’s logistics center. Unless otherwise agreed in writing by Corserva, delivery of services in connection with a Sale shall be made in accordance with this Agreement. Client shall be responsible for any cost of storage of Products after their delivery to Client. All delivery times are estimates and are subject to the force majeure provisions of this Agreement, as well as delays caused by our suppliers and manufacturers of products.
2.4 Product Installation
Product installation guidelines and Product information for Amadeo Products can be obtained directly from the manufacturer and can be downloaded from the manufacturer’s website at www.amadeosystems.com.
2.5 Manufacturers’ Warranties
Corserva shall deliver to Client any warranty provided to Client by the Product manufacturer. The availability of such manufacturer’s warranties is subject to compliance with all of manufacturer’s requirements, which may include but not be limited to: (i) timely Product registration, (ii) Products repair and maintenance only by manufacturer’s authorized personnel, (iii) no unauthorized components having been incorporated into any Product, (iv) no force majeure having occurred causing, in whole or in part, a security issue, (v) Product having been operated and maintained properly, (vi) Product having been originally installed only by manufacturer’s authorized personnel, (vii) all updates and upgrades communicated as being available from manufacturer (1) have been incorporated into the Products and (2) all charges, if any, for such update or upgrade have been paid, and (viii) timely reporting of Product defects and making the Product available for inspection by manufacturer. Exclusions for irrelevant defects, parts that wear out and consequential damages may apply.
With respect to Amadeo Products, the warranty for Product defects provides as follows:
(w) Any defects in Amadeo Products shall be reported by Client to Corserva, only in writing, immediately. The liability period for any defects shall be limited to 24 months from the date of delivery of the Amadeo Product. In the case of a justified claim, Amadeo shall, at its choice, remedy the defects by repairing or exchanging the Product at Amadeo’s premises. If the remedy of the defects is only possible at Client’s premises, Amadeo shall perform the necessary repair services there. All of the repairs discussed in this Section 2.5(w) shall be at Amadeo’s expense. Alternatively, Amadeo may credit the purchase price of the Amadeo Products upon return of the defective Amadeo Products by Client to Corserva. On demand by Amadeo, Amadeo Products shall be sent to Amadeo’s premises at Client’s expense for check-up and remedy of defects. In order to claim free services (repair or exchange of Amadeo Products) during the defects liability period, Client must provide the invoice reference with which the Amadeo Products were invoiced. Amadeo strictly does not compensate for any consequential harm caused by a defect. Client is not entitled to refuse Amadeo Products because of irrelevant defects.
(x) Any further warranty liability exceeding the 24 months defects liability does not exist unless agreed in writing before these Terms and Conditions are entered into.
(y) Client may avail itself of additional warranty services upon concluding a separate service contract with Amadeo. Wearing parts and services for the repair/exchange of such are always excluded from free warranty services. Making changes or modifications to the Amadeo Product or selling/passing an Amadeo Product on to a third party voids all warranty claims.
(z) Unless there are other statutory provisions in place, claims based on Amadeo warranties shall be barred 24 months after transfer of risk of the Amadeo Product.
2.6 Product Returns; DisclaimerAny return of Products by Client shall be governed by Corserva’s product return policies in effect on the date of the Corserva Proposal and Sales Order Form, or as otherwise provided by Corserva to Client in writing. Corserva’s product return policies can be found at www.corserva.com and are incorporated by this reference into these Terms and Conditions. Corserva reserves the right to modify or eliminate such policies at any time. Although Corserva’s policies may permit Client to return Products claimed to be defective under certain circumstances, Corserva makes no representations or warranties of any kind with respect to the Products, the Software Licenses or the Services.
Limited Warranty; Limitation of Liability: The manufacturer’s warranty referenced in Section 2.5 above is Purchaser’s sole remedy. CORSERVA DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PRODUCTS, SOFTWARE OR SERVICES OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CORSERVA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. CORSERVA EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CLIENT WITH RESPECT TO THE PRODUCTS, SOFTWARE OR SERVICES OR ANY PART THEREOF. CORSERVA WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE ARISING FROM A SALE OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES. The right to return defective Products, as previously described, shall constitute Corserva’s sole liability and Client’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Product, whether such claim is based upon principles of contract, tort or otherwise. If Corserva issues a return authorization to Client allowing Client to return a Product to Corserva, Client will deliver the Product to Corserva’s address in the United States at its cost and expense, if so required by Corserva, and Client shall be responsible for all applicable federal, state, municipal and other government taxes (such as sales and similar taxes) as well as export, import or customs duties, license fees and similar charges, however designated or levied, on any replacement Products to be shipped by Corserva to Client. In addition to the replacement Products prices set forth on the Corserva Proposal and Sales Order Form, Corserva includes applicable taxes, duties, fees and charges for payment to Corserva by Client. Such inclusion shall in no way vary or limit Client’s payment responsibility for all such taxes, duties, fees and charges. Client is also responsible for the payment to Corserva for all shipping charges that are included on the Corserva invoice for replacement Products to be shipped by Corserva to Client.
Section 3. Services
3.1 ServicesContingent upon Client’s satisfaction of our credit approval requirements and our verification of the information provided by Client for the purpose of establishing the Services, we shall provide the Services in accordance with the terms and conditions of each Sales Order Form entered into pursuant to this Agreement and the other terms of this Agreement.
3.2 Supplemental Services
In addition to the Services, we may from time to time perform certain additional services on an hourly or fixed fee basis, which may include the customization of the Services at Client’s request and other professional computer software and services related to the Services. Supplemental Services will be performed only with Client’s written agreement in advance and will be invoiced at our then current rates or other rates approved in advance in writing by Client and us. We may also perform services as described in the AUP for the fees stated in the AUP as necessary to remediate Service problems caused by AUP violations by Client without obtaining Client’s consent.
Section 4. Term
This Agreement shall remain in effect for so long as any Sales Order Form incorporating this Agreement is in effect. The term of each Sales Order Form begins on the Service Commencement Date for that Sales Order Form and continues for the period stated in that Sales Order Form (the “Initial Term”). We and Client may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial Term (each a “Renewal Term”). If upon the expiration of the Initial Term, no Renewal Term has been established by the agreement of the parties, the Sales Order Form shall automatically renew for consecutive terms of 12 months (each, an “Extended Term”) until we or Client provides the other party with at least 30 days advance written notice of non-renewal of this Agreement.
Section 5. Payments
5.1 Price and Payment for Products, Software Licenses and Services
Client shall be responsible for all applicable federal, state, municipal and other government taxes (such as sales and similar taxes), as well as export, import and customs duties, license fees and any other similar charges, however designated or levied on a Sale, the delivery of the Products, Services or Software License, measured by the purchase price paid for the Products, Services or Software Licenses. In addition to the prices set forth on the Corserva Proposal and Sales Order Form for the applicable Products, Services and Software Licenses, Corserva includes applicable taxes, duties, fees and charges for payment to Corserva by Client. Such inclusion shall in no way vary or limit Client’s payment responsibility for all such taxes, duties, fees and charges. Client is also responsible for paying Corserva for all shipping charges that are included on the Corserva Proposal and Sales Order Form. Tax exemption certificates must be presented by Client to Corserva before shipment of any Products for such exemption to be honored by Corserva.
5.2 General Payment Terms and Grant of Security Interest
Unless otherwise specified in a written agreement between Client and Corserva, the payment terms are COD. Corserva, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid amounts due under the Proposal and Sales Order Form or any invoices shall bear interest at an amount equal to one-and-one-half percent (1½%) of the outstanding balance per month (or the maximum rate of interest allowed by law, whichever is less), commencing upon the date payment is due. Client’s failure to make timely payment may, at the discretion of Corserva, result in the commencement of proceedings for collection, revocation of credit, stoppage of shipment, cessation of Services, termination of Software Licenses, delay or cessation of future deliveries of Products and Services, repossession of unpaid delivered Products and termination of any one or more agreements in connection with a Sale. Notwithstanding any “net” payment provisions specified on the Corserva Proposal and Sales Order Form or any invoice, Corserva shall have no continuing obligation to deliver Products, Services or Software Licenses on credit, and any credit approval may be withdrawn by Corserva at any time and without prior notice to Client. Corserva retains (and Client grants to Corserva by submitting a purchase order) a security interest in the Products and Software Licenses to secure payment in full therefor and compliance with these Terms. Upon notice from Corserva, Client agrees to execute and deliver to Corserva any additional documents necessary to perfect such security interest. If a Sale requires Products to be shipped and or Services to be delivered outside of the United States, Client acknowledges and agrees that the amount due Corserva shall be paid in United States Dollars. Any payment by Client in local currency or the receipt by Corserva of local currency as a consequence of any collection or enforcement actions against Client will be deemed an authorization for Corserva to use such local currency to purchase United States Dollars. Any deficiency as a result of the conversion of such local currency into United States Dollars shall be the responsibility of Client, and Client shall immediately pay the amount of any such deficiency to Corserva upon demand.
5.3 Service Fees
Client shall pay the fees stated in the Sales Order Form and the fees for any Supplemental Services. Our first invoice under a Sales Order Form shall include any applicable set up fees and a prorated part of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month containing the Service Commencement Date. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance on or about the first day of each calendar month and are due within 15 days following our sending Client an invoice. Invoices for Supplemental Services are due within 15 days following our sending Client an invoice for any such Supplemental Services. Following the expiration of the Initial Term, unless we and Client have agreed to a Renewal Term as described in Section 3 that modifies our fees for the Services, we may modify the monthly recurring fees for any Service not fewer than 30 days after giving written notice to Client.
If Corserva places any outstanding amounts dues under the Corserva Proposal and Sales Order Form or any invoice with an attorney or collection agency for collection, with or without judicial proceedings, or for enforcing Corserva’s security interest in the Products Software Licenses, Client agrees to pay any and all costs associated with such collection effort, including, without limitation, court costs and expenses and attorneys’ and collection agency’s fees and costs, incurred by Corserva including, without limitation, collection, bankruptcy and or other creditor’s rights proceedings. We may suspend any or all Services and Software Licenses not fewer than 10 days after giving written notice to Client if payment is overdue by more than 30 days. Client shall pay our then current reinstatement fee following such a suspension.
5.5 Early Termination
Client acknowledges that the amount of the monthly recurring fee for Services is based on Client’s agreement to pay the monthly recurring fees for the entire then current Term. Without limiting any other remedy available to us arising from an early termination of this Agreement, if we terminate this Agreement for Client’s breach of this Agreement in accordance with Section 12.2 (i), (ii) or (iii), all fees due under this Agreement, including the monthly recurring fees for the remaining part of the Term, are due 15 days following such termination of the Service.
All federal, state or local taxes applicable to the Services shall be added to each of our invoices for the Services. Client shall pay all such taxes to us unless a valid exemption certificate is furnished to us for each of the states of use of the Service by Client.
Section 6. Software License
Software provided under this Agreement is protected by copyright law and international treaties. Unauthorized reproduction of the Licensed Software, or any portion of it, may result in civil and criminal penalties. All title, ownership rights, and intellectual property rights in and to the Licensed Software is and shall remain owned by Corserva or its licensors. Client agrees to abide by copyright law and all other applicable laws of the United States including, but not limited to, export control laws. Client acknowledges and agrees that the source code form remains a confidential trade secret of Corserva and/or its licensors, and Client specifically agrees not to reverse engineer, decompile, disassemble or otherwise translate or analyze the Licensed Software or allow any other person to reverse engineer, decompile, disassemble or otherwise translate or analyze the Software. Corserva hereby grants Client a non-exclusive, nontransferable revocable license to use the Licensed Software at Client’s facility for its internal business purposes, subject to the terms and conditions of this agreement. This agreement conveys only a limited right of use, revocable in accordance with the terms of this agreement and does not convey to the Client any interest in or to the Software or related materials. The Client may make one copy of the software solely for backup and archive purposes. An annual software licensing fee is required on some AAH systems.
6.2 Licensed Software and Devices Proprietary Notices
Client shall not remove, modify or obscure any copyright, trademark or any other proprietary rights notice that appears on any software or devices provided by us to Client. Client shall not reverse engineer, decompile or disassemble any software or devices provided by us to Client.
Section 7. General Terms and Conditions
7.1 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF CORSERVA FOR CLAIMS OF ANY KIND, WHETHER IN CONTRACT, LIABILITY OR OTHERWISE, ARISING OUT OF, CONNECTED WITH OR RESULTING FROM CORSERVA’S PERFORMANCE OF SERVICES OR BREACH OF THIS AGREEMENT, OR PRODUCTS, SERVICES OR SOFTWARE FURNISHED UNDER THIS AGREEMENT, IN THE AGGREGATE, SHALL IN NO EVENT EXCEED THE TOTAL OF ALL MONETARY CONSIDERATION CORSERVA HAS RECEIVED FROM CLIENT UNDER THIS AGREEMENT DURING THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM OF LIABILITY. CORSERVA SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE OF PRODUCT OR ANY OTHER PRODUCT SOFTWARE, SYSTEM, OR FACILITY, LOSS OF DATA OR INFORMATION, LACK OF LOSS OF PRODUCTIVITY, INTEREST CHARGES OR COST OF CAPITAL, COST OF SUBSTITUTE PRODUCT, SOFTWARE, SYSTEMS OR SERVICES, COST OF PURCHASES OR REPLACEMENT POWER, DOWNTIME COSTS.
CORSERVA SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH A SALE OF ANY PRODUCTS OR SERVICES, OR ANY SOFTWARE, TO CLIENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS OR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OR ANY SUMS PAID BY CLIENT TO THIRD PARTIES EVEN IF CORSERVA IS INFORMED OR IS OTHERWISE AWARE OR SHOULD BE AWARE OF THEIR LIKELIHOOD, POSSIBILITY OR PROBABILITY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE.
7.2 Force Majeure
Corserva shall not be liable for any delay or failure to perform any Sale or provide any Software or Service due to events beyond its control including, without limitation, failure of a part of the power grid, failure of the Internet, natural disaster, war, riot, insurrection, epidemic, pandemic, strikes or other organized labor action, terrorist activity or other events of a similar magnitude or type, accidents, shortages and governmental laws and regulations. If due to any such event, Corserva is unable to ship all the Products or deliver all the Services to Client and other customers of Corserva in connection with a Sale, Corserva may allocate the available supply of products and services among Client and Corserva’s other customers as Corserva shall deem reasonable.
7.3 Acceptable Use Policy (AUP) Compliance and Suspension of Service
We may, in our reasonable commercial judgment, amend the AUP from time to time to describe reasonable restrictions and conditions on Client’s access to and use of the Services. Any such amendments to the AUP are effective on the earlier of 15 days following our notice to Client that an amendment has been made, or the commencement date of any Renewal Term or Extended Term, as the case may be. However, if: (i) the amendment would materially and adversely affect Client, and (ii) Client provides us with a written notice describing its objection to the amendment in reasonable detail within 10 days of the effective date of the amendment, and (iii) we do not agree to waive the amendment as to Client within 5 days after such Client notice, then Client may terminate this Agreement as provided in Section 12.1 (iii). We may suspend Services to Client without liability if: (i) we reasonably believe that the Services are being used in violation of this Agreement or applicable law; (ii) Client fails to cooperate with any reasonable investigation by us of any suspected violation of the AUP; (iii) there is a denial of service attack on Client’s servers or other event for which we reasonably believe that the suspension of Services is necessary to protect our network or our other Clients or (iv) requested by a law enforcement or government agency. Information on our servers will be unavailable during a suspension of the Services. We shall give Client written notice at least 24 hours in advance of a suspension under this Section7.3, unless a law enforcement or government agency directs otherwise, or suspension on shorter or contemporaneous notice is necessary to protect us or our other Clients from an imminent and significant risk. We shall not suspend the Services if the grounds for the suspension are cured during the notice period. We shall promptly reinstate suspended Services when the reasons for the suspension of Services are cured.
Section 8. Representations and Warranties
We represent and warrant to Client, and Client represents and warrants to us, that: (i) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents or any agreement to which it is a party.
Client represents and warrants to us that: (i) the information Client has provided to us for the purpose of establishing an account with us is accurate; (ii) Client will not use the Services in violation of any federal, state or other law, rule or regulation (iii) Client shall not resell or make available any of the Services to any person or entity and (iv) Client shall perform its security and other obligations set forth in this Agreement, including but not limited to the Sales Order Form, the AUP, the General Terms and Conditions, and all Schedules attached to the Sales Order Form or this Agreement, and all written amendments entered into between Client and us.
Section 9. Unauthorized Use of Services
We shall perform the specific security services described in the Sales Order Form. Client shall be responsible for all unauthorized use of the Services by any person or entity, except as otherwise expressly set forth in this Agreement.
Section 10. Indemnification
10.1 Indemnification Exclusive
The indemnification obligations set forth in this Section 10 shall be the parties’ exclusive rights and remedies with respect to this Agreement.
10.2 Indemnity by Client
Client shall indemnify and hold harmless us, our affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) the actual or alleged use of the Services in violation of: (a) the AUP, (b) any other part of this Agreement or (c) applicable law or (ii) any breach by Client of any of its obligations under this Agreement.
10.3 Reciprocal Indemnification
Each party shall indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence, (ii) willful misconduct or (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right.
A party seeking indemnification under this Section 10 shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section 10 unless and to the extent that the failure materially prejudices the defense of the claim. The indemnifying party may select counsel to defend the indemnified party in respect of any indemnified claim under this Section 10; provided, however, that the counsel selected must be qualified to defend the indemnified claim in the judgment of the indemnified party, which judgment shall not be unreasonably withheld or delayed. The indemnified party shall keep the indemnifying party fully informed of the status of the claim, including all communications from the claimant, and shall cooperate with the indemnifying party with respect to any judicial proceeding or dispute resolution procedure. The indemnifying party shall not settle any claim covered by this Section 10 without the written consent in advance of the indemnified party, which consent shall not be unreasonably withheld or delayed. If, however, such settlement shall be only for a monetary amount covered by the indemnifying party’s indemnification obligation under this Section 10 and shall not impose any other liability on the indemnified party, then, no consent shall be required from the indemnified party. Notwithstanding anything in this Section 10 to the contrary, if we are indemnifying multiple Clients related to the subject matter of the indemnification claim, we shall have the right to seek consolidation of all such actions and to select counsel to defend the actions.
10.5 Patent, Copyright, Trade Secret
Notwithstanding any other provision in this Section 10, if we determine in our sole discretion that any Product or Licensed Software may become subject to a claim of infringement or misappropriation, we may elect to (a) obtain the right of continued use of such product, or (b) replace or modify such product to avoid such claim. If we do not elect to do so, then all applicable licenses involving the product shall terminate. This Section 10.5 states our entire liability and Client’s sole and exclusive remedies for patent or copyright infringement and trade secret misappropriation.
Section 11. Limitation of Damages
THE CREDITS DESCRIBED IN ANY APPLICABLE SERVICE LEVEL AGREEMENT AND SALES ORDER FORM ARE CLIENT’S SOLE REMEDY FOR OUR FAILURE TO MEET THE SERVICE REQUIREMENTS STATED IN SUCH DOCUMENTS.
11.2 No Consequential Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.
11.3 Monetary Limitation
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR MAXIMUM AGGREGATE MONETARY LIABILITY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY AND INFRINGEMENT) SHALL NOT EXCEED THE FEES PAID UNDER THE SALES ORDER FORM DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE TIME OF THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
Section 12. Termination
12.1 By Client
Client may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to us (except for amounts due for Services through the effective date of such termination and subject to Section 4) as follows: (i) we fail in a material way to provide the Service in accordance with the terms of this Agreement and do not cure the failure within 10 days following receipt of Client’s written notice describing the failure in reasonable detail; (ii) we materially violate any other provision of this Agreement and fail to cure the violation within 30 days following receipt of Client’s written notice describing the violation in reasonable detail or (iii) 30 days after written notice, in the event of an amendment to the AUP that materially and adversely affects Client that is not waived by us as provided in Section 7.3.
12.2 By Us
We may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to Client as follows: (i) upon not fewer than 5 days written notice, if Client is overdue by more than 60 days on the payment of any amount due under this Agreement; which overdue payment shall continue to be due and payable by Client following such termination and subject to Section 4; (ii) Client materially violates any other provision of this Agreement and fails to cure the violation within 10 days after a written notice from us describing the violation in reasonable detail or (iii) after notice to Client of at least 90 days, if we are threatened with a claim for intellectual property misappropriation or infringement related to the provision of the Services and, in our sole discretion, we are unable to modify the Services in a manner that avoids a potential risk of liability pursuant to such claim.
Section 13. Confidentiality
13.1 Confidential Information
“Confidential Information” means all information disclosed by one party to the other, whether before or after the execution of this Agreement, including: (i) with respect to us, our unpublished prices and other terms of the Services, audit and security reports, server configuration designs, data center designs (including non-graphic information observed by Client on a tour of a data center), and all other trade, business, financial and technology information about us and our operations that we consider to be our confidential and proprietary property, (ii) with respect to Client, content transmitted to or from, or stored by Client on, our servers and (iii) with respect to both parties, all other information that is marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given by the disclosing party to the receiving party within 15 days following such disclosure. Confidential Information shall not include any information that (a) was in the public domain or enters the public domain through no act or omission on the part of the receiving party; (b) is rightfully disclosed to the receiving party by a source not bound by a confidentiality agreement with the other party hereto; (c) was in the possession of the receiving party prior to receipt from the disclosing party as evidenced by the books and records of the receiving party or (d) is developed by the receiving party after receipt of Confidential Information from the disclosing party independent of the Confidential Information of the disclosing party and such independent development is evidenced by the contemporaneous books and records of the receiving party.
13.2 Use and Disclosure
Each party agrees not to use the other party’s Confidential Information except in connection with the performance or use of the Services, as the case may be, or the exercise of its rights under this Agreement. Each party agrees not to disclose the other party’s Confidential Information to any person or entity except as provided in Section 13.3 and to its employees and consultants who have a need to know the Confidential Information; provided, that such employees and consultants are advised that the Confidential Information so disclosed is the Confidential Information of the other party and such employees and consultants are bound by confidentiality restrictions in a writing at least as protective as those set forth in this Agreement.
13.3 Disclosure of Confidential Information
Notwithstanding anything to the contrary contained in this Section 13, each party may disclose any of the Confidential Information of the other party if, and only to the extent, required to do so by law, governmental regulation or court order; provided, that the party making such disclosure shall give prompt notice thereof to the other party in as far in advance as practicable prior to such disclosure and shall cooperate with the other party, at such other party’s expense, to obtain a protective order regarding such disclosure.
Section 14. Administration
14.1 Exclusive Terms and Conditions
Unless Client and Corserva have executed a written agreement that specifically modifies, supersedes and replaces these Terms and Conditions, the Corserva Proposal and Sales Order Form and these Terms and Conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all Sales by Corserva to Client and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions shall become a part of any agreement for any Sale unless expressly accepted in writing by an authorized officer of Corserva.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights and all other intellectual property of such other party, and that we shall own all right, title and interest in and to all ideas, concepts and inventions and all intellectual property rights related thereto that we may develop in the course of performing the Services.
14.3 No Assignment
Client shall not assign this Agreement or any part hereof without our prior written consent, which consent shall not be unreasonably withheld or delayed. Client shall not sublicense any of its rights under this Agreement, nor shall Client delegate or subcontract to any person or entity any of the performance of Client’s duties hereunder.
14.4 No waiver
Any waiver by Corserva of one or more of these Terms and Conditions or any default hereunder shall be in a writing executed by a duly authorized officer of Corserva and shall not constitute a waiver of any other of these Terms and Conditions or of any prior or future default. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights.
Any provision of these Terms and Conditions that is determined to be invalid or unenforceable by a court of competent jurisdiction shall not impair or invalidate the remaining provisions of these Terms and Conditions.
14.6 Choice of Laws, Jurisdiction and Venue
All Sales, Software Licenses and Services shall be deemed made in, and shall be governed by, the laws of the State of Connecticut without regard for its conflict of laws principles. Client hereby irrevocably and unconditionally submits to the jurisdiction of the federal and state courts located within the State of Connecticut for the purpose of any suit, action or other proceeding arising out of or based upon these Terms and Conditions.
All notices and other communications under this Agreement shall be in writing and shall be delivered personally, by nationally recognized overnight courier or by electronic mail to the appropriate party at its address set forth in the Sales Order Form, or at such other address as such party may provide in writing to the other party hereto in accordance herewith from time to time. Any such other notice so delivered shall be effective when personally delivered or sent by electronic mail with a copy thereof retained by the sender, or one (1) day after deposit with such courier with delivery charges prepaid.
14.8 Entire Agreement
This Agreement (consisting of all of the Terms and Conditions of Product Sales, Services and Software License contained in this agreement, together with the Corserva Proposal, which, when signed by Client and us, is the Sales Order Form entered into between Client and us; and all Schedules attached to the Sales Order Form or this Agreement; the AUP; and all written amendments entered into between Client and us) constitutes the entire understanding between the parties hereto with respect to the subject matter hereof. The parties hereto agree that this Agreement supersedes and replaces any and all other agreements, whether oral or in writing, regarding the subject matter hereof.
14.9 No Third-Party Beneficiary
This Agreement shall be binding upon and inure to the benefit of the parties hereto and our successors and assigns. No other person or entity is an intended third-party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.
Money damages would not be a sufficient remedy for a breach of certain of Client’s obligations under this Agreement. In addition to any other remedies that might otherwise be available to us at law or in equity, we may seek and obtain specific performance and injunctive relief against the commission or continuation of any such breach or any anticipatory breach of this Agreement by Client, without bond.
The following Sections of this Agreement shall survive any termination or the expiration of this Agreement: Sections 1, 2.5, 2.6, 5.6, 6, 7, 8, 9, 10, 11, 12, 13, and 14.
14.12 Independent Contractor
Client shall at all times act as and be considered an independent contractor hereunder. Nothing herein contained shall create any employment, agency, partnership, distributorship, joint venture or any other business relationship between Client and us, other than that of an independent contractor user of the Services. Client shall have no authority to obligate or bind us with respect to any matter, or make any contract, sale, agreement, warranty or representation, express or implied, on our behalf.
14.13 Limitation on Actions
No legal action, regardless of its form, whether in contract or tort, including negligence, related to or arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action first accrued.
14.14 Attorneys’ Fees
In disputes concerning this Agreement, we shall be entitled to the costs of collection, enforcement, and injunctive relief, including but not limited to reasonable attorney’s fees and court costs, post-judgment collection expenses, and all necessary expenses, regardless of whether litigation is commenced.
14.15 Terms Generally
The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof. The definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Sections and Exhibits shall be deemed to be references to Sections of, and Exhibits to, this Agreement unless the context shall otherwise require. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice may be deferred until, or may be taken or given on, the next Business Day. Unless otherwise specifically indicated, the word “or” shall be deemed to be inclusive and not exclusive.