TERMS AND CONDITIONS
Services. Customer shall be responsible for providing the hardware, software and materials and for providing Seller with the information and access to Customer’s facility as are necessary for Seller to render the Services. Except as otherwise expressly provided herein, Customer shall be responsible for the application, operation, maintenance and support of its systems, hardware and software and all components thereof including, but not limited to, the implementation of appropriate procedures, training, safeguards and routine backups. To the extent required by Seller, Customer shall provide Seller with a reasonable amount of secure space at Customer’s facility for storage by Seller of repair and maintenance materials as Seller deems necessary to perform the Services.
Except as set forth herein, Customer shall have no proprietary rights in any software, processes, know-how and the like used by and created by Seller in the performance of the Services, or in the intellectual property contained therein, or any documentation related to the Services. Customer shall have a personal, non-transferable and non-exclusive license to use any software and documentation provided by Seller solely in connection with the Services. Customer agrees not to duplicate such software or documentation, or any part thereof, except that Customer may retain one copy for the purpose of backup. Customer agrees not to assign, sublicense, transfer, lease, rent or share any license granted to Customer hereunder, and not to reverse assemble, engineer, or decompile such software, or any part thereof, or otherwise misappropriate any of the intellectual property of Seller. To the extent that any software is used by Seller in the performance of the Services, such software may be subject to a separate license agreement, if required by Seller.
To the extent that Seller agrees to maintain and support any product of a third party manufacturer or creator, and such third party discontinues such product or support for such product, Seller may decide to terminate any maintenance and support hereunder for such product and the Maintenance Fees hereunder shall be adjusted accordingly.
Maintenance Fees. For the Services, Customer shall pay to Seller on the basis set forth herein the Maintenance Fees as set forth herein (the “Maintenance Fees”). In addition to such fees, Customer shall pay Seller for all reimbursable expenses and other charges set forth herein and for all materials which Seller utilizes in the performance of the Services. If Seller is required to perform the Services at Customer’s facility or any facility outside of Seller’s offices, Customer shall reimburse Seller for all travel and travel related expenses directly related to the conduct of such Services, provided that such expenses are reasonable and necessary and are approved in advance by Customer. Customer shall be responsible for payment of all taxes based upon or related to the Services and the materials utilized by Seller in performance of the Services, other than taxes based upon Seller’s net income.
Payment Terms. The Maintenance Fees, and all other amounts payable to Seller hereunder, shall be payable in full by Customer to Seller on the basis set forth herein upon receipt of Seller’s invoice by Customer. Any deposits paid by Customer hereunder shall be refundable only in the event of expiration or termination of this Agreement by Customer pursuant to the terms hereof. Late payments shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by applicable law, whichever is lower.
Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
Seller hereby warrants that the Services shall be performed by Seller in a workmanlike manner, consistent with generally prevailing industry standards for comparable services, and in compliance with the requirements of this Agreement.
Customer acknowledges that materials utilized by Seller in the performance of the Services may be manufactured or created by third parties and not Seller. Seller hereby warrants that any of the materials manufactured or created by Seller and utilized by Seller in the performance of the Services, when properly installed, used and maintained, shall conform to the published specifications of Seller and shall be free from defects in material and workmanship under normal use and service for a period of 30 days from the date of shipment, or 15 days from the date of installation, of such materials, whichever occurs first. If during such period, Customer provides Seller with written notice of a defect in such materials, and such defect is proven by Customer, Seller shall correct such defect, replace such defective materials, or return to Customer the total amount paid by Customer to Seller for such defective materials, and Customer shall have no other remedies hereunder. To the extent required by Seller, any defective materials must be returned by Customer to Seller or any repair facility designated by Seller for inspection at Customer’s expense.
All warranties set forth in this Agreement shall be null and void if the materials utilized by Seller in the performance of the Services are: (1) altered, modified or repaired by persons other than Seller or persons approved by Seller, including, without limitation, the installation of any attachments, features or devices not supplied or approved by Seller; (2) misused, abused or not operated in accordance with specifications of Seller or the manufacturers of the materials by persons other than Seller or persons approved by Seller; or (3) subjected to improper site preparation or maintenance by persons other than Seller or persons approved by Seller. Seller shall not be responsible for any malfunction, nonperformance or degradation of performance of the materials utilized by Seller in the performance of the Services caused by or resulting directly or indirectly from installation of such materials by Customer any alteration, modification or repair of such materials that was not made by Seller or persons approved by Seller or any causes external to such materials, such as, but not limited to, power failures or surges. Customer shall comply at all times with all applicable specifications, laws, regulations and ordinances relating to its use of such materials. To the extent that the materials utilized by Seller in the performance of the Services are manufactured or created by any third party, the warranties related to such materials come solely and exclusively from such third party.
Indemnification. If the Services or the materials manufactured or created by Seller and used by Seller in the performance of the Services are proven to infringe a third party’s trademark, patent, copyright or other intellectual property right, or Seller determines that the Services or any of such materials shall infringe such rights, or Customer is enjoined from using any of such materials, or any part of same, then Seller, at Seller’s expense and sole option, shall (1) replace such infringing Services or materials with a non-infringing, equivalent and conforming Services or materials, (2) modify such infringing Services or materials, so such Services or materials become non-infringing but continue to provide the same type and quality of performance and services, or (3) procure the right for Customer to continue using such infringing Services or materials. This Section shall not apply to any materials manufactured or created by any third party or manufactured or created by Seller to Customer’s design or specifications. This Section shall also not apply to the extent the claim of infringement is caused by Customer’s misuse, abuse or modification of such materials, Customer’s failure to use corrections or enhancements made available by Seller, or Customer’s use of such materials in combination with any product not supplied or approved by Seller. This Section states the entire liability of Seller and the exclusive remedy of Customer for infringements by the Services or materials utilized by Seller in the performance of the Services.
Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER, ANY EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SELLER’S LIABILITY TO CUSTOMER HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SELLER PURSUANT TO THIS AGREEMENT FOR THE SERVICES AND ALL MATERIALS WHICH SELLER UTILIZES IN THE PERFORMANCE OF THE SERVICES.
Confidentiality. “Confidential Information” of a party hereto shall be deemed to include all information, materials and data disclosed or supplied by such party (“Disclosing Party”) to the other party hereto receiving such information (“Receiving Party”), that Disclosing Party designates to be of a confidential nature. If disclosed in written or other tangible form or electronically, Confidential Information shall be marked by Disclosing Party as “Confidential”. If disclosed orally or visually, Confidential Information shall be identified as such by Disclosing Party at the time of disclosure and designated as “Confidential” in a written memorandum of such disclosure, summarizing the Confidential Information sufficiently for identification, to be delivered by Disclosing Party to Receiving Party within thirty (30) days of such disclosure.
The following information shall not be considered Confidential Information hereunder: (1) information of Disclosing Party that is or becomes generally known within the relevant industry through no wrongful act or omission of Receiving Party or breach by Receiving Party of its obligations under this Agreement; (2) information which Receiving Party can establish and document by contemporaneous written proof was in the possession of or known by such party prior to its receipt of such information from Disclosing Party, without any obligation of confidentiality to Disclosing Party; (3) information that is rightfully disclosed to Receiving Party by a third party with no obligation of confidentiality to Disclosing Party; and (4) information which is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party, with Receiving Party bearing the burden of proving such independent development.
Confidential Information of Disclosing Party may not be used by Receiving Party for any purpose except in the performance of Receiving Party’s obligations on behalf of Disclosing Party under this Agreement and engaging in related discussions with Disclosing Party. Receiving Party shall maintain the confidentiality of all of Disclosing Party’s Confidential Information disclosed to Receiving Party hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in this Agreement.
Receiving Party shall promptly return to Disclosing Party all correspondence, memoranda, papers, files, records and other tangible materials embodying Disclosing Party’s Confidential Information or from which such information may be derived, including all copies, extracts, or other reproductions thereof, when Receiving Party no longer needs such Confidential Information to accomplish the performance of Receiving Party’s obligations on behalf of Disclosing Party under this Agreement or when Disclosing Party requests its return, whichever occurs first, or certify to Disclosing Party that all such materials have been destroyed if Disclosing Party requests such destruction.
A breach of this Section by a party hereto cannot reasonably or adequately be compensated in damages in an action at law and shall cause irreparable harm and significant injury and damage to the other party hereto. By reason thereof, the aggrieved party hereto shall be entitled, in addition to any other remedies it may have under this Agreement or otherwise, to seek and obtain immediate preliminary, interim and permanent injunctive or other equitable relief to prevent or curtail any actual or threatened breach of this Section
Non-Solicitation. During the Term, and for a period of 2 years thereafter, Customer agrees not to, directly or indirectly, solicit, recruit or employ any employee of Seller without Seller’s prior written consent.
Termination. The parties hereto may terminate this Agreement, and their respective obligations hereunder, as follows: (1) by mutual, written consent of the parties hereto; (2) by Seller, if Customer fails to pay to Seller the Maintenance Fees when due, as contemplated by this Agreement; (3) by any party hereto upon 60 days written notice if the other party hereto materially breaches any term or condition of this Agreement or otherwise fails to satisfy any promise or covenant made herein, and further provided that such party shall fail to cure said breach or failure within such period; (4) by any party hereto upon written notice to the other party hereto if a proceeding is brought by the other party hereto in any court or under supervision of any court-appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency or debt readjustment law, or if any such proceedings are instituted against the other party hereto and it fails to obtain dismissal of such proceeding within 30 days after the same has been instituted; and (5) by any party hereto at any time, with or without cause, by giving at least 60 days’ written notice of intent to terminate this Agreement to the other party hereto. This Agreement will renew automatically at the term of the contractual date for a one (1) year term and will continue to auto-renew unless either party terminates the contract in writing 60 days in advance. All letters of termination can be issued via email: sales@hmxtech.com on an attached letterhead memo signed or by certified mail to 4915 Paseo Del Norte NE Suite A, Albuquerque, NM 87113. In the event that this Agreement expires or is terminated, Customer shall be responsible for all Charges incurred prior to such expiration or termination and 33% of contract value as restitution for design engineering and solution development. Terms and Conditions may be updated periodically at www.hmxtech.com/legal
The provisions of this Section and of the Sections entitled Warranties, Indemnification, Limitation of Liability, Confidentiality and Non-Solicitation shall survive any expiration or termination of this Agreement.
Modification or Waiver. The parties hereto may, by mutual agreement, amend any provision of this Agreement, and any party hereto may grant consent or waive any right to which it is entitled under this Agreement or any condition to its obligations hereunder, provided that each such amendment, consent or waiver shall be in writing
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico and the federal laws of the United States of America. The parties hereto consent to submit to the jurisdiction of the Courts of the State of New Mexico for any actions, suits or proceedings arising out of or relating to this Agreement.
Severability. In the event that any provision of this Agreement or any word, phrase, clause, sentence or other provision thereof should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner so as to make this Agreement as modified legal and enforceable to the fullest extent permitted under applicable laws.
Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties hereto with respect to such subject matter.