By accepting the attached Proposal and Quote, Purchaser (“Customer”) agrees to be bound by the following terms and conditions (the “Standard Terms and Conditions”), which shall be the only terms governing the sale of the Telkonet, Inc. (“Telkonet”, “the Company”) equipment and goods (the “Goods”) and services (the “Services”) by Telkonet to Purchaser. These Standard Terms and Conditions, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Goods and Services, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Proposal. Purchaser’s acceptance of the Proposal is expressly limited to these Standard Terms and Conditions. These Standard Terms and Conditions prevail over any terms or conditions contained in any other documentation and expressly exclude any of Purchaser’s general terms and conditions or any other document issued by Purchaser in connection with this transaction.
- INVOICE & PAYMENTS: All pricing is in US dollars (USD) and valid for sixty (60) days unless otherwise noted.. Telkonet shall invoice Purchaser for all Goods shipped and for all work performed on-site and off-site. Purchaser agrees to pay Telkonet the amount invoiced according to the agreed upon terms. Waivers of lien will be furnished upon request, as the work progresses, to the extent payments are received. Telkonet reserves the right to assess a finance charge of 1.5% per month (18% per annum) on invoices not paid within terms. Purchaser agrees to pay any attorney or collection agency fees incurred by Telkonet in an effort to collect delinquent invoices. Contingent upon the amount, Visa and MasterCard are accepted as a method of payment.
- ECOCARE: EcoCentral Licenses and/or Phone Support: Systems that include network communications may rely on paid services to provide full functionality.
- SERVICE LEVELS: For the term quoted and purchased, Company shall provide the Services, force majeure events excepted, during the applicable Service Windows and in accordance with the applicable Service Level Standards.
- FAILURE TO MEET SERVICE LEVEL STANDARDS: In the event Company does not meet a Service Level Standard, Company shall use its best efforts to ensure that any unmet Service Level Standard is subsequently met. Notwithstanding the foregoing, Company will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Service
- TERM: This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein. Unless this Agreement is terminated earlier in accordance with the terms set forth herein, (the “Initial Term“) shall commence on the Start Date and continue until the End Date. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, Subscription shall automatically renew for successive one (1) year terms (each, a “Renewal Term“) at the current MSRP (“Listed Rate”) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then-current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.
- TERMINATION FOR CAUSE: Without limiting the right of a party to immediately terminate this Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non-breaching party may terminate this Agreement for cause as of a date specified in such notice.
- PAYMENTS UPON TERMINATION: Upon the termination of this Agreement, Customer shall pay to Company all undisputed amounts due and payable hereunder, if any.
- RENEWALS: Upon expiration of the original Term or any renewal Term of the Services, Customer’s Term shall be automatically renewed for a one (1) year period at the Listed Rate unless, at least sixty (60) days prior to the renewal date, either party gives the other party written notice of its intent not to continue the Services. During any renewal Term of Services, the terms, conditions and provisions remain in effect.
- BILLING PROCEDURES: Company shall bill to Customer the sums due pursuant to Quote by Company’s invoice, which shall contain: (a) Company’s invoice number; (b) description of Services for which an amount is due; (c) the fees that are due; (d); taxes, if any; and, (e) total amount due.
- SHIPMENT AND DELIVERY OF GOODS:
- TRANSPORTATION: PRICES ARE BASED ON DELIVERY F.O.B. SHIPPING POINT. SHIPPING AND HANDLING COSTS ARE SUBJECT TO CHANGE AND WILL BE FINALIZED AT TIME OF INVOICE. PURCHASER WILL ARRANGE FOR ANY FREIGHT INSURANCE.
- RISK OF LOSS: For all Goods, transfer of ownership shall occur and risk of loss will pass from Telkonet to Buyer upon delivery to carrier (FOB shipping point) and are not contingent upon completion of other contractual elements, performance conditions and and/or final acceptance by Purchaser. Notwithstanding the delivery term, insurance coverage of Telkonet Goods at Purchaser’s site prior to final acceptance, or of Purchaser’s equipment at Telkonet site, will be provided by the party having ownership of the Goods.
- DELIVERY SCHEDULE: Schedule dates will be agreed on by the parties and are contingent upon prompt receipt by Telkonet of all necessary payment, approvals, information, and support agreements on such dates or with such lead times as may be specified by Telkonet. Telkonet will use reasonable efforts to achieve schedule dates.
- PACKING AND CRATING: Goods will be packed in accordance with Telkonet standard commercial practice. Special packing or crating will be provided only at Purchaser’s request and expense.
- SHIPMENT DELAYS: If shipment of Goods is delayed at the request of, or due to acts or omissions of, Purchaser, Telkonet may store such Goods in any commercially reasonable manner at Purchaser’s sole risk and expense. Any payments that would be due Telkonet, had such Goods been shipped as scheduled, will be considered due and owing, and Telkonet may invoice Purchaser on schedule.
- INSPECTION AND REJECTION OF NONCONFORMING GOODS: Purchaser shall inspect the Goods within five (5) days of receipt. Purchaser will be deemed to have accepted the Goods unless it notifies Telkonet in writing of any Nonconforming Goods during the inspection period and furnishes such written evidence or other documentation as required by Telkonet. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Purchaser’s purchase order, or (ii) product’s label or packaging incorrectly identifies its contents.
If Purchaser timely notifies Telkonet of any Nonconforming Goods, Telkonet shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Good, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. If Purchaser fails to notify Telkonet of any Nonconforming Goods within the defined inspection period, than Purchaser shall ship, at its expense and risk of loss, the Nonconforming Goods in their original packaging without damage or defacing, to a location designated by Telkonet. If Telkonet exercises its option to replace Nonconforming Goods, Telkonet shall, after receiving Purchaser’s shipment of Nonconforming Goods, ship to Purchaser, at Purchaser’s expense and risk of loss, the replaced Goods.
Purchaser acknowledges and agrees that the remedies set forth in Section 2(F) are Purchaser’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section, all sales of Goods to Purchaser are made on a one-way basis and Purchaser has no right to return Goods purchased under this Agreement to Telkonet.
Purchaser shall ship, at its expense and risk of loss, Conforming Goods in their original packaging without damage or defacing, to a location designated by Telkonet. Conforming Goods are subject to a restocking fee not to exceed fifty (50%) percent of the Good’s price.
- PURCHASER INFORMATION: PURCHASER WILL PROVIDE TELKONET WITH ACCURATE AND COMPLETE INFORMATION IN ORDER TO PERMIT TELKONET TO SUCCESSFULLY UNDERTAKE AND COMPLETE THE WORK. IF PURCHASER INFORMATION IS INCOMPLETE OR INCORRECT, RESULTING IN DELAY OR EXTRA WORK, TELKONET WILL BE ENTITLED TO ADJUSTMENT BY CHANGE ORDER.
- DOCUMENT APPROVAL: Telkonet may request that Purchaser review documents developed by Telkonet for conformity with Purchaser requirements or specifications. If requested, Purchaser will provide approval of these documents in writing within fifteen (15) days. ANY DELAY IN THE APPROVAL OF THESE DOCUMENTS MAY AFFECT THE TOTAL TIMELINE FOR THE PROJECT AND PURCHASER SHALL NOT HOLD TELKONET ACCOUNTABLE FOR SUCH DELAYS. AFTER DOCUMENT APPROVAL, ANY CHANGES MADE AT THE DIRECTION OF PURCHASER WILL ENTITLE TELKONET TO ADJUSTMENT BY CHANGE ORDER.
- WARRANTY: Unless superseded by the warranty policy for a specific product, Telkonet warrants that the Goods manufactured shall be free from defects in material and workmanship arising from normal usage for a period of one (1) year from delivery of said Goods, or if installed by Telkonet, for one (1) year from installation. Telkonet warrants that for goods furnished and/or installed but not manufactured by Telkonet, Telkonet will extend the same warranty terms and conditions which Telkonet receives from manufacturer of said equipment for Goods installed by Telkonet, if Purchaser provides written notice to Telkonet for any such defect within thirty (30) days after the appearance or discovery of such defect. Repairs or replacements attributable to inadequate preventive maintenance, normal wear and usage, fault of Purchaser or its’ agents, inadequate power sources, connections resulting in lack of performance or site damages, devices not authorized in writing by Telkonet, unauthorized applications or modifications of hardware or firmware, improper overloading of hardware or loading of software, or unsuitable environmental conditions, are expressly excluded from warranty coverage. Warranty does not extend to any Goods which have been repaired, abused, altered, misused, or have not been properly or reasonably maintained. The foregoing warranty is in lieu of all other warranties and no representations, guarantees, or warranties expressed or implied, including but not limited to, a warranty of merchantability or fitness for a particular purpose, is made by Telkonet in connection with the manufacture or sale or installation of its Goods.
- REMOTE SUPPORT: Telkonet will, at its option, repair, replace or correct any portion of Goods that do not conform to the warranty and of which Telkonet is given written notice during the warranty period. Any hardware will be returned to Telkonet. F.O.B. designation, transportation charges, freight and insurance prepaid by Purchaser. Repaired, replaced or corrected items will be warranted for the remainder of the original 1-year warranty, or 90 days, whichever is longer.
- EXCLUSIONS: Repairs or replacements attributable to inadequate preventive maintenance, normal wear and usage, fault of Purchaser or others, power sources supplied by others, attachments, features, or devices not specifically authorized in writing by Telkonet, any unauthorized modification or alteration of hardware, software or firmware, improper loading of software, or unsuitable environmental conditions, are expressly excluded from warranty coverage. Unauthorized modifications void the warranty for any affected portion of the system. These warranties do not extend to any goods which have been repaired by others, abused, altered, or misused, or which has not been properly and reasonably maintained. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
- The Company makes no express or implied warranties and specifically disclaims any implied warranty of fitness for a particular purpose with regards to any site’s network or wireless communication performance or capabilities. The aforementioned limitation of liability stated above is specifically in lieu of any express or implied warranty, including any implied warranty or any other such obligation on the part of the Company to provide or develop solutions for site conditions that prevent proper communication related to the Company’s platform of equipment.
- The Company’s Zigbee networks operate in the 2.4Ghz wireless spectrum. This spectrum is the same signal space as used by other technologies such as WIFI and Bluetooth providers. While coexistence of all types of networks happens frequently, it does require a coordinated effort from others to ensure proper spacing of traffic is accounted for in configurations. Proper channel selection can be performed to avoid conflicts within the 2.4Ghz wireless space. Survey data is only relevant to devices that are in existence at the survey date and becomes obsolete as new products are added. The survey process is challenging for any site, knowing that new devices can be phased in during different parts of any construction project, the Company and its’ affiliates rely on proper coordination by others to understand the specifics of their wireless devices within a building. The Company makes no warranties against wireless conflicts caused by unknown wireless devices or newly installed wireless devices within a building or space where the Company equipment could be affected. The Company, unless contracted specifically for a survey of spectrum analysis, will not be held responsible for any rework that is required due to wireless interference.
- LIABILITY: Telkonet shall not be liable for any special, indirect or consequential damages arising in any manner from the Goods furnished or the Services performed pursuant to this agreement.
- TAXES: PURCHASER SHALL PAY, IN ADDITION TO THE STATED PRICE, ALL TAXES NOT LEGALLY REQUIRED TO BE PAID BY TELKONET OR, ALTERNATIVELY, SHALL PROVIDE TELKONET WITH ACCEPTABLE TAX EXEMPTION OR RESALE CERTIFICATES. TELKONET SHALL PROVIDE PURCHASER WITH ANY TAX PAYMENT CERTIFICATE UPON REQUEST AND AFTER COMPLETION AND ACCEPTANCE OF THE WORK. TAXES ARE SUBJECT TO CHANGE AND WILL BE FINALIZED AT TIME OF INVOICE.
- DELAYS: Telkonet shall not be liable for any delay in the performance of the work resulting from or attributed to acts or circumstances beyond Telkonet’s control, including, but not limited to, acts of God, fire, riots, labor disputes, conditions of the premises, acts or omissions of the Purchaser, owner or other contractors or delays caused by suppliers or subcontracts of Telkonet.
- COMPLIANCE WITH LAWS: Telkonet shall comply with all applicable federal, state and local laws and regulations and shall obtain all temporary licenses and permits required for the prosecution of the work. Licenses and permits of a permanent nature shall be produced and paid for by the Purchaser. Telkonet shall supply UL Certified and Approved Goods when required by NEC Codes, Standards and Practices, and shall maintain a UL file on record with the agency for such Products. It is the joint responsibility and accountability of the Purchaser and Installer to have such Goods installed by a licensed electrician at the job site in accordance with NEC installation codes, standards and practices for UL Certified Product.
- DISPUTES: All disputes involving more than $15,000 shall be resolved by arbitration in accordance with the rules of the American Arbitration Association. The prevailing party shall recover all legal costs and attorney’s fees incurred as a result. Nothing here shall limit any rights under construction lien laws. All other legal suits, actions, or proceedings arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Wisconsin, in each case located in the counties of Milwaukee or Waukesha, Wisconsin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- BONDING AND INSURANCE: Bonding and insurance coverage in excess of Telkonet’s standard limits will be furnished when required and be at the sole cost of the Purchaser. No credit will be given or premium paid by Telkonet for insurance afforded by others.
- INDEMNITY: The Parties agree to indemnify each other from any and all liabilities, claims, expenses, losses or damages, including attorney’s fees, which may arise in connection with the execution of the work herein specified and which are caused, in whole or in part, by the willful misconduct or negligent act or omission of the indemnifying party.
- OCCUPATIONAL SAFETY AND HEALTH: The parties hereto agree to notify each other immediately upon becoming aware of an inspection under, or any alleged violation of, the Occupational Safety and Health Act relating in any way to the project or project site.
- CHANGES: No change or modification of any of the terms and conditions stated herein shall be binding upon Telkonet unless accepted by Telkonet in writing.
- TERMINATION. In addition to any remedies that may be provided under these terms, Telkonet may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (a) fails to pay any amount when due under this Agreement, and such failure continues for thirty (30) days after Purchaser’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- WAIVER. No waiver by Telkonet of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Telkonet. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise of any other right, remedy, power or privilege.
- ASSIGNMENT. Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Telkonet. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
- RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
- GOVERNING LAW. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin.
- NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), electronic mail, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- SEVERABILITY. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
- Data Privacy and Information Security.
- Undertaking by Company. Without limiting Company’s obligation of confidentiality as further described herein, Company shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; (c) protect against unauthorized disclosure, access to, or use of the Customer Data; (d) ensure the proper disposal of Customer Data; and, (e) ensure that all employees, agents, and subcontractors of Company, if any, comply with all of the foregoing. In no case shall the safeguards of Company’s data privacy and information security program be less stringent than the safeguards used by Customer.
- Customer’s Right to Termination for Deficiencies. Customer reserves the right, at its sole election, to immediately terminate this Agreement without limitation and without liability if Customer reasonably determines that Company fails or has failed to meet its obligations under this Section.
Pre-existing Materials. Customer acknowledges that, in the course of performing the Services, Company may use software and related processes, instructions, methods, and techniques that have been previously developed by Company (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Company.
No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
The provisions of this Section shall survive the termination of this Agreement.
Indemnification; Limitation of Liability; Insurance.
- General Indemnification. Company agrees to indemnify, defend, and hold harmless Customer and its officers, directors, agents, and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim,” and collectively, the “Claims“), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Company, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any payment required to be paid to subcontractors, if any, of Company; (c) any material misrepresentation or breach of warranty of any representation or warranty set forth in this Agreement; or, (d) any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee.
- Proprietary Rights Indemnification. Company agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Company is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Customer is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Company shall, at its expense: (a) obtain for Customer the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Customer; or, (c) in the event that Company is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Company shall reimburse to Customer any prepaid fees and the full cost associated with any Transition Services.
- Indemnification Procedures. Promptly after receipt by Customer of a threat, notice, or filing of any Claim against an Indemnitee, Customer shall give notice thereof to Company, provided that failure to give or delay in giving such notice shall not relieve Company of any liability it may have to the Indemnitee except to the extent that Company demonstrates that the defense of the Claim is prejudiced thereby. Company shall have sole control of the defense and of all negotiations for settlement of a Claim and Customer shall not independently defend or respond to a Claim; provided, however, that: (a) Customer may defend or respond to a Claim, at Company’s expense, if Customer’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (b) Customer shall have the right, at its own expense, to monitor Company’s defense of a Claim. At Company’s request, Customer shall reasonably cooperate with Company in defending against or settling a Claim; provided, however, that Company shall reimburse Customer for all reasonable out-of-pocket costs incurred by Customer (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
- Third-Party Beneficiaries. For the purposes of this Section and Company’s obligations hereunder, non-party Indemnitees are third-party beneficiaries of this Agreement in accordance with its terms. Any action or consent taken by Customer on its own behalf is binding upon the non-party Indemnitees for the purposes of this Section. Other than as provided for in this Section, this Agreement is for the sole benefit of the signatories hereto and their permitted successors and assigns. Nothing, express or implied, in this Agreement is intended to create or be construed to create any rights of enforcement in any persons or entities who are neither signatories to this Agreement nor non-party Indemnitees.
- Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.
- Insurance. Company shall, at its own expense, procure and maintain in full force and effect during the term of this Agreement, policies of insurance, of the types and in the minimum amounts as follows, with responsible insurance carriers duly qualified in those states (locations) where the Services are to be performed, covering the operations of Company, pursuant to this Agreement: commercial general liability ($1,000,000 per occurrence, $2,000,000 aggregate); excess liability ($1,000,000 per occurrence, $2,000,000 aggregate); workers’ compensation (statutory limits) and employers’ liability ($500,000 per accident); and, professional liability ($1,000,000 per occurrence, $1,000,000 aggregate). Customer shall be named as an additional insured in such policies which shall contain standard cross liability clauses. Company shall cause the liability it assumed under this Agreement to be specifically insured under the contractual liability section of the liability insurance policies. The liability policy shall be primary without right of contribution from any insurance by Customer. Such policies shall require that Customer be given no less than thirty (30) calendar days prior written notice of any cancellation thereof or material change therein. Customer shall have the right to request an adjustment of the limits of liability for commercial general liability and professional liability insurance as Company’s exposure to Customer increases. Company shall provide Customer with certificates of insurance evidencing all of the above coverage, including all special requirements specifically noted above, and shall provide Customer with certificates of insurance evidencing renewal or substitution of such insurance thirty (30) calendar days prior to the effective date of such renewal or substitution.
- Relationship between Customer and Company. Company represents and warrants that it is an independent contractor with no authority to contract for Customer or in any way to bind or to commit Customer to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Customer. Under no circumstances shall Company, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of Customer. In recognition of Company’s status as an independent contractor, Customer shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Company or Company’s agents or staff, if any. Customer shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Company nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Customer.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Wisconsin and the federal laws of the United States of America. Company hereby consents and submits to the jurisdiction and forum of the state and federal courts in the Wisconsin in all questions and controversies arising out of this Agreement.
- Attorneys’ Fees and Costs. In any arbitration, litigation, or other proceeding, informal or formal, by which one party either seeks to enforce this Agreement or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable attorneys’ fees.
- Compliance with Laws; Customer Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable. Company shall comply with Customer policies and procedures where the same are posted, conveyed, or otherwise made available to Company.
- Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Company will cooperate with any Customer supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to Customer, including, without limitation, the Successor Company. Company agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
- Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Company fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. A force majeure event does not excuse Company from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of Customer Data. In no event shall any of the following constitute a force majeure event: (a) failure, inadequate performance, or unavailability of Company’s subcontractors, if any; or, (b) configuration changes, other changes, Viruses, or other errors or omissions introduced, or permitted to be introduced, by Company that result in an outage or inability for Customer to access or use the Services. Within thirty (30) calendar days following the Effective Date and on an annual basis thereafter until the termination of this Agreement, Company shall provide its then-current business continuity plan (“Business Continuity Plan”) to Customer upon Customer’s request. The Business Continuity Plan shall include: (a) Services and Customer Data backup and recovery procedures; (b) fail-over procedures; and, (c) how Company will interact with its business continuity suppliers, if any. Company shall test its Business Continuity Plan on an annual basis until the termination of this Agreement and shall provide the test results to Customer upon Customer’s request.
- Advertising and Publicity. Company shall not refer to Customer directly or indirectly in any advertisement, news release, or publication without prior written approval from Customer.
- No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
- Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
- Assignment of Agreement. This Agreement and the obligations of Company hereunder are personal to Company and its staff. Neither Company nor any successor, receiver, or assignee of Company shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Company’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Customer. In the case of an assignment by Company, Company represents and warrants that it has all requisite rights and power to transfer any agreements or other rights with third-parties whose software is incorporated into the Services or who are necessary for the performance and use of the Services. Customer, at Customer’s sole election, may assign any and all of its rights and obligations under this Agreement to any company that succeeds to substantially all of Customer’s business.
- Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
- Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Company as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
- Cumulative Remedies. All rights and remedies of Customer herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Company for the enforcement of this Agreement, and temporary and permanent injunctive relief.