EBIZCOMPANION® HARDWARE PURCHASE AND
TERMS AND CONDITIONS
ARTICLE 1. BINDING TERMS AND CONDITIONS.
1.1 Binding Terms and Conditions. These Terms and Conditions are hereby made part of any purchase order (each, a "Purchase Order") issued by XXXXXX, Inc. (“Customer”) to eBizCompanion, (“eBizCompanion”) in connection with that certain Products and Services Quote dated XXXX, 2008 issued by eBizCompanion to Customer (the “Quote”).
1.2 No Other Terms; Acceptance of Orders. Unless otherwise set forth herein, the parties agree that these Terms and Conditions, as set forth herein and on the attached Exhibits, shall be the sole provisions governing all sales of Hardware (as defined herein), licenses of any related and integrated Firmware (as defined herein) hereunder, notwithstanding the preprinted, typewritten or handwritten terms or conditions on the face or reverse side of any Purchase Order. If the terms of any eBizCompanion invoice conflict with these Terms and Conditions, then these Terms and Conditions shall prevail. Any Purchase Order shall be subject to written acceptance by eBizCompanion within five (5) business days from receipt thereof. If a Purchase Order is not rejected within such five (5) day period, it shall be deemed accepted.
ARTICLE 2. HARDWARE AND FIRMWARE.
2.1 Purchase and Sale. Upon acceptance of a Purchase Order by eBizCompanion, eBizCompanion agrees to (a) sell to Customer those types and numbers of units of physical components known as “eBizCompanion Kiosk Systems” (the “Hardware”) set forth on the face of a Purchase Order; and (b) license any software-derived computer programs or logic embedded into the Hardware, in machine executable form only (the “Firmware”). Firmware does not include any version of a computer program incorporating high level or assembly language that generally is not directly executable by a processor for human interface, e.g., a personal computer, and from which a reader may be able to ascertain the logic and structure of computer programs (the “Source Code”).
2.2 Installation and Testing; Customization. Except for the initial implementation services contemplated by the Quote, which may or may not include full turn-key or partial installation of Hardware and Firmware, all responsibility for the installation of any Hardware sold and purchased and any Firmware licensed hereunder lies solely with Customer. All Hardware sold and purchased and any Firmware licensed hereunder is deemed to be accepted by Customer in accordance with the terms and conditions set forth in the Quote. Customer acknowledges that the Hardware sold and purchased hereunder and the Firmware licensed hereunder once delivered is considered “off the shelf”. Any customization offered or proposed to Customer is limited to the requirements as defined in the Statement of Work document and once this document is executed the Customer is not entitled to any other level of customization unless the Statement of Work is mutually amended.
2.3 Firmware License. Customer's purchase of the Hardware entitles Customer to use any Firmware that is embedded or incorporated into the Hardware at the time of shipment for the entire useful life of the Hardware. This grant of license does not in any manner entitle Customer to extract, reverse engineer, modify or customize the Firmware, or to use or permit the use of the Firmware for any purpose whatsoever except with the specific component of Hardware into which the Firmware is incorporated or embedded, and all such activities by Customer are strictly prohibited. Furthermore, the license granted herein does not entitle Customer to any Updates (as defined below) to the Firmware, except during the initial forty five (45) day warranty period applicable to New eBizCompanion Hardware (described in Section 4.1), nor does the license entitle Customer to Enhancements (as defined below) to the Firmware at any time whatsoever (during the warranty period and thereafter). After the expiration of the initial forty five (45) day warranty period (New eBizCompanion Hardware), updates to the Firmware are only available upon the execution of the Hardware/Firmware Extended Warranty Agreement described in Section 2.5 below. For the purpose of these Terms and Conditions, “Updates” mean any modifications to the Firmware which are determined by eBizCompanion to rectify or provide “fixes” to design faults, discrepancies, defects or other conditions commonly referred to as “bugs” in the Firmware that cause or may cause the Firmware to fail to perform in accordance with the Hardware/Firmware Specifications (as defined herein).
2.4 Firmware Warranty. eBizCompanion warrants that it has the right to license the Firmware to Customer, and that the grant of the Firmware license will not infringe upon the proprietary or intellectual property rights of third parties.
2.5 Hardware/Firmware Extended Warranty Agreement. Customer shall be entitled to purchase certain defined maintenance and support services for the Hardware (and related and integrated Firmware) upon the execution of eBizCompanion’s standard Hardware/Firmware Extended Warranty Agreement. eBizCompanion shall have no obligation to support the Hardware or Firmware or to provide Updates to the Firmware after the expiration of the initial forty five (45) day period applicable to New eBizCompanion Hardware in the absence of a valid Hardware/Firmware Extended Warranty Agreement 2
2.6 Enhancements. Enhancements to the Firmware may be issued from time to time at eBizCompanion’s discretion, and may be acquired by Customer only upon the payment of the then-applicable Enhancement fee. Enhancements are not provided as part of warranty coverage or under the Hardware/Firmware Extended Warranty Agreement.
ARTICLE 3. PURCHASE PRICE; PAYMENT
3.1 Hardware/Firmware Purchase Price. Customer shall pay to eBizCompanion those amounts set forth on the face of a Purchase Order for each Hardware component (including any related and integrated Firmware) purchased pursuant to a Purchase Order (the “Hardware/Firmware Purchase Price”).
3.2 Payment. Payment terms unless otherwise set forth in the Quote; shall be in the form of either a certified check or wire transfer. Where the initial 1/3 of the purchase price (which is defined as total hardware/firmware services) will be due immediately upon order. Another 1/3 of the purchase price will be due upon delivery and set-up, and all remaining balance shall be due (30) days thereafter.
3.3 Delivery and Shipment. Subject to eBizCompanion's standard minimum eight (8) week lead time after receipt of order, eBizCompanion shall deliver the Hardware to any Customer location within the United States of America that is specified in the Purchase Order, provided Customer shall arrange for shipping to the desired location, at Customer's sole expense. eBizCompanion will ship the Hardware within eBizCompanion's standard delivery interval. All shipments will be Free On Board (F.O.B.) (at eBizCompanion's business address in North Brunswick, New Jersey).
3.4 Modification of Orders. Any Purchase Orders for Hardware (and related and integrated Firmware) hereunder shall not be modified or canceled, except upon the written agreement of the parties. In addition, other than as a result of valid warranty claims, Hardware and Firmware purchased and/or licensed hereunder may not be returned by Customer.
3.5 Interest. If any fee, charge or payment payable under these Terms and Conditions are not paid on the due date thereof, it shall bear interest from the due date until the date paid at a rate equal to one and one-half percent (1 1/2 %) per month.
3.6 Taxes and Duties. Customer shall be solely responsible for and shall pay, or reimburse eBizCompanion for, all taxes (including value-added taxes), duties, import deposits, customs, assessments and other governmental charges, however designated, which are now or hereafter imposed under or by any governmental authority or agency, that are associated with the performance by eBizCompanion of its obligations hereunder or the payment of any amounts by Customer to eBizCompanion pursuant to these Terms and Conditions. All payments to be made by Customer to eBizCompanion pursuant to these Terms and Conditions represent net amounts eBizCompanion is entitled to receive and shall not be subject to deductions for any reason whatsoever.
ARTICLE 4. REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
4.1 Hardware/Firmware Warranty, Updates, Telephone Support. eBizCompanion warrants to Customer that for a period of forty five (45) days for New eBizCompanion Hardware commencing upon the shipment of each Hardware and Firmware component purchased and/or licensed hereunder, each such Hardware and Firmware component if installed and used pursuant to the then-current requirements which shall be delivered to Customer along with the Hardware and Firmware, will substantially perform in accordance with such Hardware/Firmware Specifications. In addition, Customer shall be entitled to any Updates to the Firmware that is imbedded and incorporated into any Hardware components which are under warranty at the time of issuance of such Updates by eBizCompanion (it being acknowledged and agreed by the parties that eBizCompanion has the full and absolute discretion to determine when and if Updates shall be issued). Customer acknowledges and agrees that eBizCompanion, by providing the above-stated warranty, is not making any representations or warranties relating to or concerning (a) the Customer's equipment or system or any third party equipment or software owned or licensed by Customer; or (b) the interaction and/or compatibility of the Hardware or Firmware with the Customer's equipment or system or any such third party equipment or software. eBizCompanion's warranty and support obligations do not extend to any third-party hardware, equipment or technology. In order to take advantage of this service, it is the customer’s responsibility to insure a stable internet connection is available and applicable settings on internet modem/router are set-up properly to allow remote management and troubleshooting.
4.2 No Warranty for Modifications or Misuse. The warranties set forth in Section 4.1 above shall be immediately void, and eBizCompanion shall have no liability whatsoever thereunder, if the Hardware or Firmware has been (a) modified, altered or changed in any way by Customer or any employee, representative, contractor or independent contractor of Customer; (b) used in any manner other than its intended purpose or application; (c) improperly handled or abused; (d) used in a manner inconsistent with the Hardware/Firmware Specifications or other applicable user documentation; or (e) damaged or destroyed by an act of God. 3
4.4 No Warranty Upon Failure to Pay or Breach. The warranties set forth in Section 4.1 above shall be immediately void, and eBizCompanion shall have no liability whatsoever thereunder, if Customer (a) fails to pay the Hardware/Firmware Purchase Price within the time periods specified in these Terms and Conditions; or (b) breaches any terms, provisions or conditions of these Terms and Conditions, any Hardware/Firmware Extended Warranty Agreement.
4.5 No Warranty for Hardware and Firmware Damaged During Shipment. eBizCompanion shall not be responsible, under warranty or otherwise, for any damage caused during shipment of the Hardware or Firmware sold, purchased and/or licensed hereunder, and Customer shall pursue such claims directly with the carrier.
4.6 Limitations on Warranty. eBizCompanion's obligation under any proper warranty claim shall be limited to the repair and/or replacement (at eBizCompanion's sole discretion) of the components in order to cause them to perform substantially in accordance with the Hardware/Firmware Specifications. In the event that any component cannot be repaired or replaced to meet the Hardware/Firmware Specifications, Customer's sole recourse shall be limited to a refund of the Hardware/Firmware Purchase Price paid for that component, without regard to any additional fees paid by Customer.
4.7 Disclaimer. OTHER THAN AS SPECIFICALLY PROVIDED HEREIN, EBIZCOMPANION SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES RELATING TO THE HARDWARE OR FIRMWARE COMPONENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANT-ABILITY, MARKETABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY AND ALL DEFAULT WARRANTIES AND/OR RELIEF PROVIDED BY ANY STATE'S ENACTED VERSION OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT UNLESS EXPLICITLY PROVIDED FOR HEREIN.
4.8 Return, Testing and Repair. During the initial and extended warranty periods stated in Section 4.1 above, eBizCompanion, at its option, may require that any component that Customer believes fails to substantially comply with the Hardware/Firmware Specifications be returned to eBizCompanion for testing and/or repair. If, during such testing, a non-conformity, defect or damage is found which has been caused by Customer or otherwise arises from mishandling, misuse or neglect or improper testing or repair by Customer, eBizCompanion shall return the component to Customer and shall have no obligation to repair or replace such component. In that event, Customer shall reimburse eBizCompanion for all shipping costs arising from the return of the component. In a case of a “no trouble found” conclusion as a result of testing by eBizCompanion, or if Customer requests a repair that is not covered by warranty, whether initial or extended, or if Customer requires testing of a component reasonably known by Customer to be in good condition, Customer shall be required to pay for such work at eBizCompanion's then-standard repair fee schedule, and Customer shall be solely responsible for the cost of shipping such Hardware and Firmware to and from eBizCompanion's testing and repair facility.
4.9 No Conflict. eBizCompanion and Customer warrant that they have the right to enter into and perform the agreement set forth in these Terms and Conditions. These Terms and Conditions neither contradict nor constitute a breach of any other agreement or obligation to which eBizCompanion or Customer is subject.
4.10 Non-eBizCompanion Third Party Technology. The parties acknowledge and agree that (a) for the Hardware and Firmware to function as specified, it must interact with equipment, software and other technology developed by third parties, such as properly configured server computers, operating systems and database software; (b) neither the purchase of Hardware nor the Firmware license granted hereunder entitle Customer to use any proprietary or intellectual property rights associated with, owned or controlled by such third parties; (c) eBizCompanion is neither obligated pursuant to these Terms and Conditions, nor entitled by any third parties to provide to Customer the necessary third party equipment and/or third party software needed to operate the Hardware and Firmware. eBizCompanion makes no representations or warranties relating to any third party equipment or software owned, licensed or otherwise used by Customer.
4.11 Customer Representation and Warranty. Customer represents and warrants that Customer's use of the Hardware and Firmware purchased or licensed pursuant to these Terms and Conditions will not infringe upon the rights of any third parties, and further represents that Customer's use of the Hardware and Firmware purchased or licensed hereunder will be in compliance will all applicable laws.
4.12 Customer Indemnity For Infringement. Customer shall, at its sole cost and expense, defend and hold free and harmless eBizCompanion, its officers, directors, shareholders, employees, agents, affiliate corporations, successors and assigns, for all losses, costs, expenses, judgments and damages (including all reasonable attorneys' fees, costs and expenses) incurred by any of them in connection with, or as a result of any, third party claim, action or suit arising from Customer's infringement upon any patent or proprietary rights of a third party; provided, however, that eBizCompanion may choose to be represented in any such action or suit by attorneys of its own selection, at eBizCompanion's expense.
4.13 eBizCompanion Representation and Warranty. eBizCompanion represents and warrants that (a) the intellectual property incorporated into the Hardware and Firmware, including any eBizCompanion Licensed Know-How incorporated into the Hardware and Firmware, is owned and/or licensed by eBizCompanion; and (b) by eBizCompanion's performance of these Terms and Conditions, will not infringe upon any of the patent rights, trade secrets, or any other proprietary confidential information of any third party.
4.14 eBizCompanion Indemnity For Infringement. eBizCompanion shall, at its cost and sole expense, defend and hold free and harmless Customer, its officers, directors, shareholders, employees, agents, affiliate corporations, successors and assigns, from all losses, costs, expenses, judgments and damages (including all reasonable attorneys' fees, costs, and expenses) incurred by any of them in connection with, or as a result of, any third party claim, action or suit arising from eBizCompanion's infringement upon any patent or proprietary rights of a third party; provided, however, that Customer may choose to be represented in any such action or suit by attorneys of its own selection, at Customer's expense.
ARTICLE 5. CONFIDENTIALITY.
5.1 Confidential Information. Each of eBizCompanion and Customer agree to hold the other's confidential business information, including, without limitation, technical information, interface components, intellectual property, software,, firmware (including the Firmware), discoveries, inventions, copyrights, trade methods, technology, designs, plans, drawings, business secrets, samples, schematics, blueprints, formulations, test instructions and processes, customer lists and all other confidential information (the “Confidential Information”) in confidence, and each such party shall not use or disclose such Confidential Information to third parties except as provided in these Terms and Conditions. The parties shall use their best efforts to have all Confidential Information in writing and suitably identified.
5.2 Exceptions. Not included within the restrictions set forth in Section 5.1 above shall be information: (a) published or otherwise made available to the public other than by a breach of these Terms and Conditions by the receiving party; (b) known to a party hereto before disclosure by the other party as demonstrated by suitable documentation; (c) rightfully received by a party hereunder from an independent third party without restrictions on disclosures; (d) approved in writing for release by the disclosing party; (e) independently developed by the receiving party without reference to such information; (f) furnished to a third party by the disclosing party without a similar restriction on the third party's right to publish or disseminate; or (g) disclosed pursuant to a court order, provided the other party receives prior written notification of such court order and is given the opportunity to restrict or stop such disclosure.
5.3 Return of Documents. Upon the request of either party, the receiving party shall turn over to the disclosing party all plans, specifications, drawings, documents, or other writings and recorded materials of any kind embodying the disclosing party's Confidential Information; and shall not copy or reproduce in whole or in part any such writing or recorded material without the prior written consent of the disclosing party. To be effective hereunder, written consent must be signed by officers of each party with equal authority to bind each of the parties.
ARTICLE 6. GENERAL PROVISIONS.
6.1 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR ANY OTHER CAUSE OR BASIS WHATSOEVER.
6.2 Limitation of Liability. eBizCompanion's total liability hereunder, whether arising from breach of warranty, breach of contract or tort, including liability arising from eBizCompanion's negligence, strict liability, indemnity or any other cause or basis whatsoever, is expressly limited to the total monies actually received by eBizCompanion pursuant to these Terms and Conditions.
6.3 Trademark Rights. Customer acknowledges the proprietary rights of eBizCompanion® in and to the marks (“eBizCompanion”, “eBiz”, “eBizScholar”, and “eBizGuru”) and agrees that it shall not use such marks in connection with its business or otherwise without the prior written consent of eBizCompanion in each instance.
6.4 Publicity. Unless otherwise required to do so by law, neither party shall, without the other's prior written consent, engage in advertising, promotion or any publicity relating to these Terms and Conditions. Notwithstanding the foregoing, the parties mutually agree to issue publicity releases related to this business relationship, as appropriate, subject to the good faith approval of each party's marketing department.
6.5 Governing Law. These Terms and Conditions shall be governed by and construed according to the laws of the Commonwealth of New Jersey, without regard to conflicts of laws provisions, and the parties agree to submit to the exclusive jurisdiction of such courts.
6.6 Assignment. These Terms and Conditions and the licenses, rights and obligations hereunder may not be assigned, delegated or transferred by either party without the prior written consent of the other party, which may not be unreasonably withheld. For purposes of this Section 6.6, a transfer in conjunction with the sale of all or substantially all of Customer's assets or stock, or as a result of the merger or change in control of a party (by operation of law or otherwise), shall constitute an assignment of these Terms and Conditions.
6.7 Force Majeure. Upon giving written notice to the other party, a party affected by an event of Force Majeure shall be released without any liability on its part from the performance of its obligations under these Terms and Conditions, except for the obligation to pay any amounts due and owing hereunder (and for the obligation to pay for any Hardware and Firmware subject to any minimum volume commitments), but only to the extent and for the period that its performance of such obligations is prevented by the event of Force Majeure. Such notice shall include a description of the nature of the event of Force Majeure and its cause and possible consequences. The party claiming Force Majeure shall promptly notify the other party of the termination of the event. During the period that the performance by one of the parties of its obligations under these Terms and Conditions has been suspended due to an event of Force Majeure, the other party may likewise suspend performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable. For the purpose of these Terms and Conditions, “Force Majeure” means any event or condition, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents in whole or in material part the performance by either party of its obligations hereunder, or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following shall constitute acts or events of Force Majeure: acts of State or governmental action, orders, legislation, regulations, restrictions, priorities or rationing, riots, disturbance, war (declared or undeclared), strikes, lockouts, shutdowns, prolonged shortage of energy supplies, interruption, embargo, inability to procure or shortage of supply of materials, equipment or production facilities, prohibition of import or export of goods and services covered by these Terms and Conditions, epidemics, fire, flood, hurricane, typhoon, earthquake, lightening and explosion.
6.8 Waiver. No provision of these Terms and Conditions can be waived except by a written instrument signed by the party waiving such provision, nor shall failure to object to any breach of a provision of these Terms and Conditions waive the right to object to that breach or any subsequent breach of the same or any other provision hereof.
6.9 Survival. All other provisions and sections of these Terms and Conditions providing limitation of or protections against liability of eBizCompanion, shall apply notwithstanding any other provisions or sections of these Terms and Conditions, and all such provisions and sections shall survive termination, cancellation or expiration of these Terms and Conditions.
6.10 Independent Contractor. eBizCompanion's relationship with Customer under these Terms and Conditions shall be that of independent contractor. Nothing contained in these Terms and Conditions shall be construed to constitute a relationship between the parties hereto as one of employer/employee, principal/agent, partnership, joint venture, or evidence that either party intends to constitute such a relationship.
6.11 Entire Agreement; Amendments. These Terms and Conditions, including the Quote and Exhibits referenced herein and attached hereto, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, quotations, negotiations and discussions of the parties, whether oral or written, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein and therein. No supplement, amendment or modification of these Terms and Conditions shall be binding unless executed in writing by the parties.