Stand Alone Terms
Exhibit A
Terms and Conditions
These Terms and Conditions govern Customer's purchase of specific hardware and software products and original manufacturer-provided services (each "Products" and "OEM Services" respectively, collectively ("Products")) and ENNOVATEC-provided professional services ("Services") as outlined in the Statement of Work ("SOW ") or Sales Quote to which they are attached. The Products and Services ENNOVATEC may sell are outlined in the following attachments: OEM Resale (Attachment 1) and Professional Services (Attachment 2). The term "Agreement" includes the SOW OR SALES QUOTATION, the general terms and conditions outlined in the body of this document (the "General Terms"), as well as the provisions of each of the attachments hereto, which are incorporated by this reference. If any of the General Terms conflict or are inconsistent with the Attachments, the Attachments shall prevail. In the event of a conflict between the Attachments and the SOW OR SALES QUOTATION, the SOW OR SALES QUOTATION shall prevail.
Application; Period. These General Terms and the applicable Attachment shall apply to and commence on the commencement date of the SOW OR SALES QUOTATION ("Effective Date") and shall continue for the period set forth therein (the "Contract Period").
Credit Support. Any payment terms afforded by ENNOVATEC to Customer hereunder are based on Customer's creditworthiness as of the Effective Date. Past due amounts shall bear interest greater than 1.5% per month or the maximum interest changeable under law. The customer shall be liable for all expenses, including legal fees, relating to the collection of past-due amounts. Should the Customer's financial responsibility become unsatisfactory to ENNOVATEC in its sole reasonable discretion, ENNOVATEC may require cash or advance payments, letters of credit, or parent guarantees for future deliveries. ENNOVATEC shall have the right, among other remedies, to terminate the Agreement if Customer fails to make any payment when due.
Confidentiality. "Confidential Information" shall mean any information in whatever form, including, without limitation, all code, documentation, product plans, trade secrets, business plans, customer lists, know-how, and other information of whatever nature related to or incorporated into the business of a party or other business entity which is an affiliate of a party and which is reasonably understood to be confidential. Confidential Information includes information of others that a party has agreed to keep confidential or that is conceived, compiled, developed, discovered, or received by or made available by a party to the other party ("Receiving Party") in any manner. Confidential Information shall not include information or materials that (i) is otherwise rightfully known to the Receiving Party; (ii) is released by a party to any other person, firm, or entity without restriction; (iii) is generally known or readily ascertainable by non-parties of ordinary skill; (iv) is in the public domain through no fault of the Receiving Party; or (v) is lawfully obtained by the Receiving Party from a third party. Suppose a Receiving Party is required by legal process to disclose Confidential Information to the extent permissible under law. In that case, it will give the other party reasonable notice of such disclosure and an opportunity to attempt to preclude or limit such production. Nothing in this Section shall be construed to allow a party to reverse engineer or decompile the other party's or a third party's code. For a period of five (5) years from the receipt of any information deemed Confidential Information hereunder, each party hereto shall take all reasonable steps that are necessary or reasonable to safeguard the secrecy and confidentiality of, and proprietary rights to, the Confidential Information disclosed or provided by another party, and shall not disclose the preceding to any third party (other than any employee, agent, director, officer, consultant or contractor, legal counsel or other professional advisors informed on a "need to know" basis who have been advised of the confidential nature thereof). Each party shall be responsible for such third parties' compliance with the restrictions outlined in this Section. Each party shall make no use of any Confidential Information of the other party except as required in connection with the performance of its obligations under the SOW OR SALES QUOTATION and by the terms hereof. Upon a party's request at any time and for any reason, the other parties shall, to the extent feasible, promptly destroy, render unreadable, or deliver to the requesting party all materials (including all copies) in its possession that contain Confidential Information of that party; provided, however, that this requirement does not apply to data that may be kept during the ordinary course of business in email or back-up systems. Receipt of Confidential Information under the SOW OR SALES QUOTATION shall not create any obligation limiting or restricting the assignment or reassignment of a party's employees.
Insurance; Indemnity. The following provisions apply to the extent that either party conducts work on the other party's property: (a) Each party will ensure that any of its employees, agents or representatives entering the other party's premises shall abide by the workplace rules and policies of the other party, to the extent such rules and policies are communicated to the persons entering the premises; (b) During the term of this Agreement, each party will maintain, at its expense, the insurance required by applicable law and will provide the other with a certificate of insurance evidencing such coverage upon request; and (c) Each party agrees to hold harmless and indemnify the other party against all claims, losses, liabilities and damages, and to pay all claims, judgments, awards, costs and expenses, including legal fees, to the extent arising out of or related to claims of death, personal injury or property damage resulting from the gross negligence or willful misconduct of the indemnifying party or its employees.
Remedies. EXCEPT WHERE A DIFFERENT REMEDY IS EXPRESSLY OUTLINED IN THIS AGREEMENT, IN NO EVENT SHALL ENNOVATEC'S AGGREGATE LIABILITY TO CUSTOMER UNDER THE SOW OR SALES QUOTATION EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ENNOVATEC FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PERSON FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA, LOST BUSINESS OR LOST PROFITS, HOWEVER ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Compliance with Laws. Compliance with Laws. Each party shall perform under the SOW OR SALES QUOTATION in compliance with all applicable laws of any jurisdiction, regulations, codes, and sanctions.
Notices. All notices required or permitted under this Agreement shall be in writing and delivered in person or sent by post or facsimile, which shall be deemed duly given (a) when delivered by hand one (1) day after delivery by recognized overnight delivery or (b) when sent by post two (2) business days after being mailed by post, or (c) when sent by facsimile upon despatch, subject to confirmation of facsimile transmission. In each case, notice must be sent to the address and facsimile number for the other party noted in the SOW OR SALES QUOTATION or to such other address and facsimile number as either party shall furnish to the other in writing by this Section.
Assignment. Customer shall not assign any of its rights or delegate any of its responsibilities under this Agreement (by operation of law or otherwise) without the written consent of ENNOVATEC, which consent shall not be unreasonably withheld, and any purported attempt to do so will be null and void.
Relationship of the Parties. The parties hereto shall be deemed independent contractors, and the employees of one party shall not be deemed employees of the other. This Agreement shall not be interpreted as a joint venture, partnership, agency relationship, or formal business organization. There are no third-party beneficiaries to this Agreement. Neither party shall make any public announcement or press release concerning the SOW OR SALES QUOTATION or the terms hereof or the business relationship between Customer and ENNOVATEC without the prior written consent of the other.
Legal Costs. Suppose it becomes necessary for either party to institute any legal action against the other party. In that case, the prevailing party in such action shall be entitled to its reasonable attorneys' fees and legal costs.
Governing Law; Venue. Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed by the law of the State of New York without reference to conflicts of law. The United Nations Convention on the International Sale of Goods (1980) (as amended occasionally) shall not apply to this Agreement.
Force Majeure. Neither party shall be liable for any failure to perform due to acts of God, natural disasters, riots, war, terrorism, civil disorder, court order, labor dispute, or any other causes beyond that party's reasonable control, including but not limited to failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines, and other similar causes beyond its reasonable control ("Force Majeure") provided that the party subject to the Force Majeure give prompt notice to the other party and take commercially reasonable steps to remedy the Force Majeure and mitigate the damages from that place. To avoid doubt, a change in market conditions (including ENNOVATEC's ability to sell a Product or Service at a higher price and the Customer's ability to economically use a Product or Service or buy it at a lower price) shall not be considered a Force Majeure.
Severability; Waiver. If any provision of this Agreement is unenforceable under any law of any jurisdiction, neither the legality, validity, or enforceability of the remaining provisions of this Agreement under the law of that or any other jurisdiction shall be affected or impaired thereby. Neither party's failure to exercise any rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.
Entire Agreement; Amendment and Modification. Save as expressly provided otherwise, this Agreement supersedes all other prior communications, negotiations, and oral or written statements relating to its subject matter. No change, modification, rescission, discharge, abandonment, or waiver of this Agreement shall be binding upon either party unless made in writing and signed by their duly authorized representatives. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and signed by the parties. No modification shall be affected by ENNOVATEC's receipt or acceptance of Customer's purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein, all of which are objected to by ENNOVATEC. All typographical or clerical errors are subject to correction.
Attachment 1 to Exhibit A - OEM Resale
Price and Taxes. The prices charged for the Products shall be outlined in the SOW OR SALES QUOTATION All prices in the SOW OR SALES QUOTATION are exclusive of any costs of any goods and services, sales, use, value-added, excise, gross receipts, business, and occupation, or similar present or future taxes imposed by any governmental body on the sale, delivery, use or another handling of the Products or in connection with any related or contemplated transactions. Such taxes are the Customer's responsibility and may be billed to the Customer as a separate line item on each invoice. The customer is responsible for identifying any taxes imposed after importing products.
Products & Licensing. Products resold under this Attachment 1, as well as related maintenance or support services, will be governed by either the license agreement between Customer and the original equipment manufacturer (OEM) or if no such agreement exists, the OEM's standard license and support agreements as provided by the OEM on its website or with the Product or which ENNOVATEC will forward to Customer at the time of delivery of the Product when provided to ENNOVATEC by the OEM. ENNOVATEC acknowledges that all such separate terms and conditions, rights, and responsibilities by and between OEM and Customer will pass to any order placed by Customer hereunder, provided that Customer acknowledges that ENNOVATEC is not a party to any such terms between Customer and OEM and Customer agrees to look solely to the OEM for the satisfaction of any license support claims or obligations related to that OEM's Product but may request assistance from ENNOVATEC with their claim, which assistance ENNOVATEC shall use commercially reasonable efforts to provide.
OEM Services. ENNOVATEC may act as a reseller of OEM Services to Customers. OEM Services are sold only under the terms and conditions offered by the providers of such service, who are not agents or subcontractors of ENNOVATEC. ENNOVATEC MAKES NO WARRANTIES OR REPRESENTATIONS RELATED TO ANY OEM SERVICES. Except for the obligation to sell the Service, the third-party service provider is the only party responsible for providing OEM Services to the Customer. The customer is directed to contact the OEM service provider directly with any issues, claims, or damages related to such OEM Services and, at this moment, release ENNOVATEC and affiliates from any claims arising from or relating to the purchase or provision of any OEM Services.
Warranty. The customer understands that ENNOVATEC is not the manufacturer of the products or the provider of OEM services. To the extent transferable, ENNOVATEC will pass any warranty extended by the original manufacturer to the customer. THE PRECEDING ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY ENNOVATEC CONCERNING THE OEM PRODUCTS AND SERVICES AND ARE INSTEAD OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The customer's sole and exclusive remedy for any breach of warranty under Attachment 1 shall be the replacement or repair of the defective item or a refund of the purchase price, all at ENNOVATEC's option. Non-conforming Products may only be returned by the manufacturer's return policy, which is in effect occasionally. Customer assumes all responsibility and liability for any loss, damage, or injury to persons or property arising directly or indirectly out of, connected with, or resulting from the use of Products, either alone or in combination with other products/components.
Shipment and Delivery. Shipments are made at the OEM shipping point of FCA (Incoterms 2010). Title and risk of loss or damage and responsibility shall pass from ENNOVATEC to Customer upon delivery and receipt by carrier. Any claims for shortages or damages suffered in transit are the Customer's responsibility and shall be submitted directly to the carrier by the Customer. Shortages or damages must be acknowledged and signed for at delivery time. While ENNOVATEC will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by ENNOVATEC, all shipping dates are approximate and not guaranteed. ENNOVATEC reserves the right to make partial shipments. ENNOVATEC, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Customer for any reason, and ENNOVATEC is not able to postpone or delay its purchase of such product from the OEM, Customer agrees to reimburse ENNOVATEC for any costs and expenses resulting from that place and, if ENNOVATEC is able and agrees to hold such Product for Customer, Customer will bear the risk of loss while it is in ENNOVATEC's custody and control.
Payment Terms. ENNOVATEC will invoice the customer upon receipt of the Purchase Order, and payment terms are net thirty (30) days from the date of ENNOVATEC's invoice in the currency specified in the SOW OR SALES QUOTATION
Returns and Cancellations. Products may only be returned or canceled by the applicable manufacturer's return policy. In the event of approval of a return request, (i) any allowed outgoing prepaid freight costs will apply, (ii) all returns must be shipped freight prepaid at the Customer's expense, and (iii) the Customer must pay ENNOVATEC's return charge. Customer may cancel orders only upon reasonable advance written notice and upon ENNOVATEC's approval and payment to ENNOVATEC of ENNOVATEC's cancellation charges, which include, among other things, all costs and expenses incurred, and to cover commitments made by ENNOVATEC and a reasonable profit thereon. ENNOVATEC's determination of such cancellation charges shall be conclusive.
Excuse of Performance. If ENNOVATEC determines that its ability to supply the total demand for the Products is hindered, limited, or made impracticable due to a Force Majeure event, ENNOVATEC may allocate its available supply of Products or such material (without obligation to acquire other supplies of any such Products or materials) among itself and its customers on such basis as ENNOVATEC determines to be equitable without liability for any failure or performance which may result from that place.
Attachment 2 to Exhibit A - Professional Services
Services. ENNOVATEC shall, itself or through a subcontractor, perform the services outlined in the SOW OR SALES QUOTATION by the terms of this Attachment 2. ENNOVATEC shall assign a sufficient number of personnel to provide the Services. Should ENNOVATEC's personnel (each a "Consultant") be unable to perform the scheduled Services because of illness, resignation, or other causes beyond ENNOVATEC's control, ENNOVATEC will replace such Consultant within a reasonable time. Still, ENNOVATEC shall not be liable for failure to replace such Consultant within the schedule. ENNOVATEC will perform Services during the hours specified in the SOW OR SALES QUOTATION, Monday through Friday, excluding ENNOVATEC holidays. Customers may request extended hours beyond the regular service hours in writing at the prevailing surcharge rates. Customer shall furnish ENNOVATEC, at Customer's expense, all technical data and information as may be determined by ENNOVATEC to be necessary for the performance and delivery of the Services. Customer shall grant ENNOVATEC such access to its system as ENNOVATEC may require for the performance of the Services. The customer shall be responsible for ensuring that its system is configured and secure as may be necessary for the performance of the Services. ENNOVATEC shall not be liable for any delay or failure to perform any of the Services outlined in an SOW OR SALES QUOTATION or obligations set forth herein due to causes beyond its reasonable control, and performance times shall be extended for some time equivalent to the time lost because of such delay.
Payment Terms. The customer agrees to pay for all Services performed by ENNOVATEC in the amounts outlined in the SOW OR SALES QUOTATION In addition to the fees for the Services prescribed under the SOW OR SALES QUOTATION, Customer shall reimburse ENNOVATEC for all reasonable out-of-pocket expenses, including lodging, travel, and meals when such expenses are approved in writing in advance by Customer and are incurred in connection with ENNOVATEC's performance of the Services. The customer agrees to reimburse ENNOVATEC for any unique or unusual expenses incurred at the Customer's request. Customers will be invoiced monthly for Services rendered in the prior month. All invoices are due and payable in full upon receipt. All charges and rates outlined in the SOW OR SALES QUOTATION are exclusive of goods and services, sales, use, value-added, excise, gross receipts, business, and occupation, or similar present or future taxes imposed by any governmental body on the provision or receipt of the Services or in connection with any related or contemplated transactions. Such taxes are the Customer's responsibility and may be billed to the Customer as a separate line item on each invoice. All charges and rates are subject to change by ENNOVATEC upon ninety (90) days' prior written notice.
Control and Supervision. While present on Customer's premises for the sole purpose of performing Services under the SOW OR SALES QUOTATION, each Consultant shall abide by Customer's published policies and procedures (to the extent copies are provided to or available for review by ENNOVATEC and each Consultant) and shall abide by Customer's reasonable directions which are consistent with the SOW OR SALES QUOTATION
Standard Services. In the ordinary course of business, ENNOVATEC routinely performs services ("Standard Services") for all of its customers, utilizing the same essential ENNOVATEC intellectual property, skill sets, tools, know-how, and other methodologies, allowing ENNOVATEC to provide better service to all of its customers. These Standard Services include but are not limited to, the installation and configuration of hardware and software, proof of concepts, and consulting and advisory services. Therefore, any skill sets, tools, know-how, methodologies, and any other intellectual property rights owned by ENNOVATEC ("ENNOVATEC Intellectual Property") before the Effective Date or subsequently developed by ENNOVATEC, whether under or independent of the SOW OR SALES QUOTATION for itself, Customer or a third party shall remain in ENNOVATEC's ownership and shall not become the property of Customer; provided, however, that Customer shall have the right to use such ENNOVATEC Intellectual Property as necessary to its use and enjoyment of the Services.
Consultant(s). The parties recognize that ENNOVATEC and any Consultant(s) provided under the SOW OR SALES QUOTATION may perform similar Services from time to time for others. Accordingly, this Agreement shall not prevent ENNOVATEC from performing similar Services or restrict ENNOVATEC's use of the same Consultant(s). Customer and ENNOVATEC acknowledge and agree that any Consultant(s) provided under the SOW OR SALES QUOTATION is significant to the success of ENNOVATEC in fulfilling the intent of this Attachment 2. Accordingly, Customer at this moment agrees that it will not, either directly or indirectly, solicit, divert or hire, or attempt to solicit, divert, or hire any Consultant(s) engaged in providing the Services under the SOW OR SALES QUOTATION during the Contract Period and for a period of twelve (12) months after the date ENNOVATEC last provided Services.
Disclaimer of Warranty. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY WARRANTY AGAINST INFRINGEMENT, CONCERNING THE SERVICES OR INFORMATION FURNISHED UNDER THE SOW OR SALES QUOTATION ENNOVATEC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND DOES NOT WARRANT THE RESULT OF ANY SERVICE OR THAT THE SERVICE WILL MEET THE CUSTOMER'S REQUIREMENTS.
Data Protection. ENNOVATEC is not in the business of hosting, processing, or storing customer data and will not have access to It. As such, Customer will not provide to ENNOVATEC or grant ENNOVATEC access to any personally identifiable information, protected health information, customer information, or other structured personal information as defined by applicable data protection laws (collectively "Protected Data"). If Customer inadvertently provides Protected Data to ENNOVATEC, it will promptly notify ENNOVATEC, ENNOVATEC will take commercially reasonable measures to secure such Protected Data, and Customer will indemnify and hold ENNOVATEC harmless for such disclosure. If ENNOVATEC has access to aggregated or blind data on Customer's systems, ENNOVATEC and Customer will agree upon the nature of such access in a separate written document if not addressed in the SOW OR SALES QUOTATION
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