GENERAL TERMS AND CONDITIONS OF SALE
Agilysys, Inc. (hereinafter “Seller”) is a value-added reseller of computer systems (including, but not limited to, hardware, software, documentation, media) (“Products”) and value-added services, including but not limited to design, engineering, installation, integration, maintenance, consulting and professional services, which services may be provided by Seller’s Professional Services Group (“PSG Services”), or which services may be resold by Seller and provided by Seller’s supplier (“Third Party Services”) Collectively, PSG Services and Third Party Services are referred to herein as “Services”. These General Terms and Conditions of Sale (hereinafter “Terms and Conditions”) shall apply to all sales of Products and Services by Seller and its subsidiaries and affiliates to Buyer. Seller’s manufacturers, suppliers, vendors, service providers and licensors are collectively referred to as “Suppliers
1. Entire Agreement. Notwithstanding any different or additional terms or conditions contained in Buyer’s purchase order or other communication, Seller accepts Buyer’s order only on the condition that Buyer expressly accepts these Terms and Conditions. In the absence of Buyer’s acceptance hereof, Seller’s commencement of performance or Seller’s acknowledgment of Buyer’s purchase order shall be for Buyer’s convenience only and shall not be construed as Seller’s acceptance of any of Buyer’s terms. Any confirmation by Buyer that states different or additional terms shall operate as an acceptance of these terms, but Seller hereby objects to and rejects such different or additional terms and any such different or additional terms shall be deemed to be material alterations and notice of objection to them is hereby given. Buyer’s acceptance of any Products and/or Services shall be deemed to be acceptance of these Terms and Conditions. Seller hereby objects to any additional, contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the Products and/or Services. Any notice by Buyer objecting to these terms must be in a writing separate from any form purchase order. Seller’s failure to object specifically to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms and Conditions. Any amendment, waiver or other alteration of these Terms and Conditions by a party shall be effective only if made in a writing signed by a designated officer or director of both parties.
2. Quotations; Orders. Seller’s written price quotations are valid for the length of time, if any, indicated on the quotation; if no length of time is specified, quotations are subject to change at any time after issuance due to Supplier price or discount changes. Unless otherwise specified, prices do not include shipping, handling, special packing and insurance charges. Unless otherwise mutually agreed by the parties in writing, Seller shall pre-pay and add to Buyer’s invoice all freight, handling, delivery, special packing and insurance charges for shipments of Products and Buyer agrees to pay for such charges. All orders for Products and/or Services will be evidenced by Buyer's firm purchase orders, which must, at a minimum, identify the Products and/or Services being ordered and the quantity of such Products, request a delivery date, and provide shipping instructions and shipping address. All orders for Products and Services are subject to approval by Seller at its corporate headquarters in Cleveland, Ohio.
3. Statements of Work. Sales of certain Services may require a mutually agreed-upon written statement of work and, if applicable, specifications provided by Buyer. For PSG Services, Seller and Buyer will mutually agree upon and sign a written statement of work, which, upon such signature, shall be incorporated herein by reference (“Statement of Work”). To the extent any terms of the Statement of Work conflict with these Terms and Conditions, the Terms and Conditions shall govern. To the extent any terms of the Statement of Work are additional terms, the Statement of Work shall govern. For Third Party Services, Buyer acknowledges and agrees that the Supplier may have a service contract that Seller may be obligated to provide to and/or obtain Buyer’s acceptance of or signature on prior to the sale of such Third Party Services. Buyer represents and warrants that it owns and/or has the right to use any intellectual property contained in any specifications provided to Seller and/or its Suppliers or subcontractors. Buyer agrees to indemnify and hold harmless Seller, its Suppliers and subcontractors (which parties shall be third party beneficiaries of this Section 3 from any third party claims of infringement of intellectual property rights that may arise out of Buyer’s specifications (including, but not limited to, reasonable attorney fees, court costs and costs of investigation and defense) provided to Seller and/or its Suppliers or subcontractors.
4. Software. When the sale of Product involves software, including software developed, authored, prepared by or which Agilysys claims a proprietary interest in, in any form, including any extracts from or derivative works of such programs, or collective work (“Agilysys Proprietary Software”), Seller sells and transfers to Buyer only the rights to the software extended by either Agilysys or the original Supplier, as contained in the software’s specifications. Buyer acknowledges and agrees that either Agilysys’ or the original Supplier’s standard license agreement shall govern Buyer’s right to use or sublicense the software and that Seller may be obligated to provide to and/or obtain Buyer’s acceptance of or signature on prior to the sale of such software. The software license may also be in the form of a “click-to-accept” license or “shrink-wrap” license. Click here for the Agilysys Software License Agreement.
5. Cancellation and Rescheduling. Buyer may cancel or reschedule orders prior to delivery to the carrier only with Supplier’s written consent. If Supplier consents to the cancellation or re-scheduling of an order, Buyer shall pay Seller any restocking fee and reasonable cancellation charges charged to Buyer by Supplier. If Buyer requests an accelerated delivery date, Seller will use its commercially reasonable efforts to meet such request.
6. Delivery. Products are shipped F.O.B. point of origin [ExWorks Seller’s facility]. Title and risk of loss shall pass to Buyer upon Seller’s delivery of Products to the carrier. Unless otherwise mutually agreed in writing, choice of carrier and shipping method and route shall be at Seller’s election. Seller shall have the right to deliver all Products covered hereby at one time or in partial shipments from time to time, within the agreed time for delivery. Seller shall not be liable for delays in delivery or for other failure to perform due to causes beyond the reasonable control of Seller.
7. Acceptance. Upon receipt of Products, Buyer agrees to inspect Products for shipping damage or discrepancies. Inspection shall be completed promptly and in no event later than 10 days after delivery of Products. Products shall be deemed accepted by Buyer unless Buyer provides Seller, within 10 days of the initial inspection period, a written notice specifying all shipping damage or discrepancies in the Products. Buyer’s acceptance of Services shall be addressed in the PSG Statement of Work or Third-Party Services contract, as applicable.
8. Payment. Invoices are due and payable net thirty (30) days from date of invoice. Buyer shall pay (and prices do not include) all sales, use, services, excise, tariffs, duties or similar taxes or charges unless Buyer provides Seller with a valid tax exemption certificate(s). Buyer’s outstanding unpaid balances shall be subject to a finance charge of 1-1/2% per month (or such lower rate as may be the maximum permitted by law) until paid in full. Buyer shall also pay Seller’s cost of collection (including reasonable attorney’s fees) regardless of the manner or method in which the costs are incurred. Payments received from Buyer may be applied by Seller against any obligation owed by Buyer to Seller. Seller may refuse or delay shipments if Buyer fails to pay promptly any payments due Seller. All payments must be in U.S. Dollars. All credit memos issued by Seller shall permanently expire one (1) year from the date of issuance. Seller shall issue refunds for all expired credit memos.
9. Security for Obligations. To secure the payment of the purchase price of Products sold, Buyer grants Seller a purchase money security interest in all Products sold under this Agreement whether constituting equipment, inventory, goods, fixtures, payment intangibles and/or general intangibles, including all accessions to and replacements thereof, and all proceeds of the foregoing. Buyer authorizes Seller to file one or more financing statements signed only by Seller without Buyer’s signature and to use a copy of this Agreement as an exhibit to any financing statement. Upon Seller’s request, Buyer shall execute any additional documents, instruments, financing statements or amendments to perfect or continue the security interest created by this Agreement. Seller shall have all of the rights and remedies of a secured party under the Uniform Commercial Code in effect in the State of Ohio from time to time, which remedies shall be cumulative and not exclusive.
10. Returns. Buyer may only return Products if Seller receives consent to return Products from the Supplier. Upon confirmation of right to return, Seller shall issue or cause to be issued a RMA. Buyer shall return Products freight prepaid, in accordance with Seller’s instructions in original packaging and in good condition, without alteration. Buyer assumes risk of loss for returned Products until receipt by Seller or its Supplier at the designated return location. Upon receipt of returned Products which comply with this Section 11, Seller has the right to issue and Buyer agrees to accept a credit memo in the amount of the value of the returned Products which may be used as a credit toward future purchases for a period of one (1) year after issuance. Defective Products shall be governed under Section 11 below.
11. Warranty and Warranty Limitations. Buyer acknowledges that Seller acts as a reseller of Products and Third Party Services and that the Supplier of such Products and Third Party Services is responsible to Buyer, Seller and third parties for all defects, breaches, liability, claims, damages, obligations, costs and expenses (whether legal or equitable) (“hereinafter “Claims”) related to the manufacture, performance and functionality of the Products or provision of Third Party Services. Buyer agrees to look solely to the Supplier of Products and Third Party Services for all Claims arising from breach of Supplier’s warranty for Products and Third Party Services. Seller agrees to transfer, assign or “pass through” to Buyer any transferable warranty made to Seller by Supplier to the extent transferable and permitted by law. Seller makes no representation, covenant or warranty with respect to the extent or enforceability of Supplier’s warranty. Seller warrants that PSG Services will be performed in a workmanlike manner and will substantially conform to the agreed to specifications at the time of performance. Seller does not warrant results or achievements of Services. Seller makes no other warranty, express or implied, with respect to Products or Services. SELLER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO (A) THE MERCHANTABILITY OF PRODUCTS, (B) THE FITNESS OF PRODUCTS FOR ANY PARTICULAR PURPOSE OR USE OF BUYER, (C) WHETHER THE USE OF THE PRODUCTS OR SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE, (D) WHETHER THE PRODUCTS OR SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR OTHER MALFUNCTION CAUSED BY THE PROCESSING OF OR OCCURRENCE OF ANY DATE, (E) ARISING BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (F) NONINFRINGEMENT OR (G) TITLE TO SOFTWARE. Buyer’s sole and exclusive remedy for nonconforming Products and Services shall be, at Seller’s option, the replacement or repair of Products or re-performance of Services at Seller’s cost or Seller’s refund of the purchase price of the applicable Products and/or Services. No repair, replacement or re-performance shall extend any warranty period.
12. Limitation of Liability. IN NO EVENT SHALL SELLER’S LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED TWO TIMES THE VALUE OF THE PURCHASE BY BUYER IN THE CALENDER YEAR IN WHICH THE PURCHASE AT ISSUE IS MADE.
13. Limitation of Damages. BUYER SHALL IN NO EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, PROMOTIONAL AND/OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION AND/OR LOSS OF CUSTOMERS OR DATA.
14. Supplier Restrictions as to Use of Products. Buyer acknowledges that Products are not designed for and are not permitted to be used in connection with the manufacture, construction or operation of nuclear facilities, nuclear systems or weapons, Buyer acknowledges this notice of Supplier’s restrictions with regard to the use of Products.
15. Intellectual Property. Seller shall have no liability or obligation in connection with any claims of infringement by Products or Third Party Services to any patent, trademark, copyright, trade secret or other proprietary right or information.
16. Advice. Unless itemized in a Statement of Work for PSG Services, if technical advice is offered or provided in connection with the sale of any Products or Services, it is provided as an accommodation to Buyer, without charge, and Seller does not warrant and has no responsibility or liability whatsoever for the content of or use of such advice.
17. Confidentiality. Both parties acknowledge that, by reason of their relationship, they may have access to and/or disclose certain information and materials concerning the business, plans, products and customers of each other which is confidential and of substantial value to the other party, whether disclosed in writing, verbally or by its nature the receiving party knows or should know the confidential nature of the information (“Confidential Information”), which value would be impaired if such information were disclosed to third parties. The term Confidential Information shall not include information which is: (a) in the public domain other than by a breach of this Agreement by the receiving party; or (b) rightfully received from a third party with no duty of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or disclosure prior to its receipt from the disclosing party; or (d) independently developed by employees, agents or consultants of the receiving party; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. The parties hereto agree to maintain as confidential and not to disclose any Confidential Information learned by virtue of the parties’ business relationship to any third party or use any Confidential Information for purposes other than performance of its obligations hereunder. The parties agree that this obligation of confidentiality shall survive termination of this Agreement.
18. Compliance with Export Laws; Foreign Corrupt Practices Act. Buyer agrees to comply will all U.S. export, import and antiboycott laws and with the United States Foreign Corrupt Practices Act, Buyer agrees to indemnify, defend and hold harmless Seller and its Suppliers from all losses, claims and damages incurred (including, but not limited to, reasonable attorneys fees, court costs, and costs of investigation and defense) by Seller and its Suppliers because of Buyer’s failure to comply with this Section 18.
19. Government Contracts. In addition to these Terms and Conditions, Products purchased in support of Buyer’s U.S. Government contract shall be governed by those Federal Acquisition Regulations or Defense Federal Acquisition Regulations (“FARS” and “DFARS”) which pertain to the sale of “commercial items” (as defined in the FARS or DFARS, as the case may be). No other FARS or DFARS shall form a part of these Terms and Conditions and Seller does not agree to any such additional FARS or DFARS.
20. Disputes. All unresolved disputes concerning or in connection with Products and/or Services shall be resolved in the state Court of Common Pleas of the State of Ohio, Cuyahoga County. Buyer consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. Buyer expressly waives its right to trial by jury. No action or other claim, regardless of form, arising out of or in any way connected with or related to Products and/or Services, may be brought by Buyer more than one (1) year after the cause of the action or claim has accrued.
21. General. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Seller and Buyer. Buyer agrees that its conduct and use or resale of Products sold by Seller shall be in compliance with all applicable laws. These Terms and Conditions are not assignable by either party without the other party’s prior written consent. Facsimile signatures or other reliable means of authentication by which Buyer signifies its assent to these Terms and Conditions shall be effective to bind Buyer. The waiver by either party of any breach or default shall not be deemed to be a waiver of any later breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. If any provision or portion of this Agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions shall not be affected. The headings are used for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. Any clerical errors are subject to correction. This Agreement shall be governed by the laws of the State of Ohio and incorporates the terms of the Uniform Electronic Transactions Act as enacted in Sections 1306.01 et. seq. of the Ohio Revised Code, including, but not limited to, the definitions of “Electronic Record”, “Electronic Signature”, and “Contract”, whether or not capitalized herein. All shipping terms shall be interpreted in accordance with INCOTERMS 2000. This Agreement shall not be governed by the UN Convention on the International Sale of Goods.
This Order with Agilysys, Inc. and subsidiaries ("SELLER") is subject to the terms and conditions ("Terms") below:
1. Entire Contract. These Terms constitute all of the terms of this agreement between BUYER and SELLER, notwithstanding any contrary provision in any document of BUYER. BUYER agrees to be bound hereby. All orders are subject to approval by SELLER. No waiver or alteration of these Terms shall be binding unless agreed to in writing by both parties. No agent, salesman or other party is authorized to bind SELLER to any understanding not expressed herein.
2. Price. All prices are F.O.B. point of origin, unless agreed to in writing by BUYER and SELLER. Prices quoted are those in effect at the time of quotation and are valid for 30 days from the date of quotation. Until the purchase price and all other sums due are paid in full, BUYER grants SELLER a security interest in the Goods described on the face hereof ("Goods"). Payment is due net 30 days from shipment.
3. Services. Services performed by SELLER to add value to Goods ("Services") shall be governed by a written Statement of Work, which in addition to these Terms shall constitute the complete specifications ("Specifications") and shall become part of this Agreement. BUYER shall be solely responsible for the accuracy and completeness of the Specifications and shall indemnify SELLER for any harm caused to it by any inaccuracy or incompleteness therein. In the event that BUYER requests a change to this Agreement or the Specifications, or if any information or the Specifications provided by the BUYER is determined by SELLER, in its sole discretion, to be inaccurate or incomplete, SELLER reserves the right to (a) stop work until an agreement with BUYER on changes and an equitable solution is reached or (b) upon 10 days prior notice, terminate this Agreement immediately, without liability to SELLER, and assess BUYER cancellation charges.
4. Acceptance. Goods and Services shall be deemed accepted unless BUYER provides written notice to SELLER within five days after receipt of shipment, describing any defect or discrepancy.
5. Transportation. If BUYER does not specify otherwise, SELLER shall choose the method of shipment. Costs of premium transportation, required by BUYER, will be borne by BUYER.
6. Title and Risk of Loss. Title to Goods sold and risk of loss shall pass to BUYER at the F.O.B. point.
7. Limited Warranty for SELLER's Workmanship and Assembly. SELLER warrants Goods and Services to be free from defect in SELLER's workmanship or assembly for 90 days following the date of shipment. If any of the Goods and Services are found by SELLER to be defective by reason of SELLER's workmanship or assembly, SELLER's liability for the Goods and Services shall be limited, at SELLER's option, to repairing or replacing the Goods and Services or to refunding the purchase price of Goods and Services. The foregoing warranty is in lieu of all other warranties or conditions, express or implied, statutory or otherwise, including those of merchantability or fitness for any particular purpose. SELLER's warranty does not apply to any Goods which have been subject to misuse, mishandling, misapplication, neglect, accident, modification, improper installation, adjustment or repair by BUYER or any third party.
8. Other Warranties. Applicable manufacturer warranties will be assigned to or passed through to BUYER by SELLER to the extent agreed to by the manufacturer, if required and as permitted by law.
9. Disclaimer of Consequential Damages. In no event shall SELLER be liable for any indirect, incidental or consequential damages arising out of, or in connection with, this Agreement, including, any breach of any obligation, warranty or condition imposed on SELLER hereunder.
10. Delays. SELLER will not be liable for any nonperformance of the Agreement caused by causes or conditions beyond SELLER's reasonable control. In the event of such delay or nonperformance, SELLER may, at its option, and without liability, cancel any portion of this Agreement or extend any date upon which any performance is due.
11. Taxes. Unless specifically provided herein, the price for Goods and Services does not include applicable sales, use, excise or similar taxes. BUYER is responsible for all applicable taxes.
12. Termination. SELLER shall not be required to proceed with the performance of any obligation and may terminate this Agreement, if the BUYER is in breach of any of its obligations or becomes insolvent. No delay or omission by SELLER in exercising any right or remedy shall constitute a waiver of such right or remedy. Termination, for any reason, shall in no way interfere with the obligations of BUYER to pay all monies payable as of the effective date of termination or which become payable for Goods or Services ordered and delivered after such termination.
13. Returns and Cancellations. BUYER may not cancel any order or return any Goods, or terminate this Agreement with respect to any Goods that have been specially or custom ordered or manufactured, or classified as non-returnable.
14. Patents and Copyrights. In no event shall SELLER be liable for damages arising from infringement of patents or copyrights. In the event that BUYER should be enjoined in a suit or proceeding from using any of the Goods purchased pursuant to this Agreement, SELLER, at its option, shall either (a) secure termination of the injunction and procure for BUYER the right to use such Goods without obligation or liability, or (b) replace or modify such Goods with non-infringing materials to BUYER's reasonable satisfaction, or (c) remove infringing Goods at SELLER's expense and refund the purchase price of the infringing Goods to BUYER; provided, however, that in no event shall SELLER be liable for or have any obligations under this Section if the alleged infringement is by reason of the Specifications provided by BUYER.
This shall be BUYER's exclusive remedy against SELLER, with respect to patent or copyright infringement.
15. Manufacturer Liability. Unless specifically agreed to in writing by the manufacturer, SELLER and BUYER, BUYER represents to SELLER and the manufacturer that the Goods sold pursuant to this Agreement do not constitute standard components intended for use by BUYER or another in life support systems, surgical implantation, nuclear facilities, or for any other application in which the failure of the Goods or the product in which the Goods are to be used could create a situation where personal injury or death may occur.
16. Credit Terms. All orders and shipments shall, at all times, be subject to the approval of SELLER's Credit Department.
17. Substituted or Repaired Goods. These Terms shall be applicable to substitute, additional or repaired Goods or repair parts purchased by BUYER from SELLER.
18. General. This Agreement shall be governed by the laws of the Province of Ontario. BUYER may not assign or transfer this Agreement in whole or in part, without the prior written consent of SELLER.
La présente commande auprès de Agilysys, Inc. et filiales (le "VENDEUR") est assujettie aux modalités et aux conditions (les "modalités") énoncéesci-après :
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1. Contrat intégral. Ces modalités constituent la totalité des modalités du présent contrat entre l'ACHETEUR et le VENDEUR, nonobstant toute disposition contraire dans tout document de l'ACHETEUR. L'ACHETEUR convient qu'il y est lié. Toutes les commandes sont assujetties à l'approbati on du VENDEUR. Aucune renonciati on ni aucune modification de ces modalités n'aura force exécutoire à moins que les deux parties ne les acceptent par écrit. Aucun représentant, vendeur ni aucune autre partie n'est autorisé à lier le VENDEUR par aucune entente qui ne soit pas exprimée aux présentes.
2. Prix. Tous les prix sont F.A.B., point de départ, à moins d'une entente par écrit entre l'ACHETEUR et le VENDEUR. Les prix cotés sont ceux qui sont en vigueur au moment de la fixation des prix et sont valides pendant 30 jours à compter de la date de la fixation des prix. Jusqu'à ce que le prix d'achat et toutes les autres sommes dues soient payés en entier, l'ACHETEUR accorde au VENDEUR une sûreté à l'égard des produits décrits au recto (les "produits"). Le paiement est dû net 30 jours à compter de l'expédition.
3. Services. Les services rendus par le VENDEUR qui ajoutent de la valeur aux produits (les "services") sont régis par un état des travaux écrit qui, en plus de ces modalités, constitue les stipulations complètes (les "stipulations") et, de ce fait, fait partie intégrante du présent contrat. L'ACHETEUR assume l'entière responsabilité de l'exactitude et de l'intégralité des stipulations et s'engage à indemniser le VENDEUR pour tout dommage qui lui est causé en raison de toute inexactitude ou du caractère incomplet de ces stipulations. Si l'ACHETEUR demande que le présent contrat ou les stipulations soient changés ou si tout renseignement ou des stipulations fournis par l'ACHETEUR sont considérés par le VENDEUR, à son entière discrétion, comme inexacts ou incomplets, le VENDEUR se réserve le droit : a) d'interrompre les travaux jusqu'à ce qu'une entente avec l'ACHETEUR ne soit conclue en ce qui concerne les changements et jusqu'à ce qu'une solution équitable soit trouvée; ou b) sous réserve d'un préavis de 10 jours, résilier le présent contrat immédiatement et ce, sans responsabilité aucune pour le VENDEUR, et fixer les frais de résiliation de l'ACHETEUR.
4. Acceptation. Les produits et les services sont réputés acceptés à moins que l'ACHETEUR ne donne un avis écrit au VENDEUR dans les cinq jours après réception de l'expédition, décrivant toute défectuosité ou divergence.
5. Transport. Ä moins de précision contraire de la part de l'ACHETEUR, le VENDEUR choisit la méthode d'expédition. L'ACHETEUR assume les coûts du transport de première qualité qu'il exige.
6. Titre de propriété et risque de pertes. Le titre de propriété des produits vendus et le risque de pertes passeront à l'ACHETEUR au point
7. Garantie limitée pour la fabrication et l'assemblage du VENDEUR. Le VENDEUR atteste que les produits et les services ne comportent aucun défaut de fabrication ou d'assemblage de la part du VENDEUR au cours d'une période de 90 jours suivant la date de l'expédition. Si le VENDEUR constate que des produits et des services sont défectueux en raison de la fabrication ou de l'assemblage du VENDEUR, la responsabilité des produits et des services du VENDEUR sera restreinte, au choix du VENDEUR, aux réparations ou remplacements des produits et des services ou au remboursement du prix d'achat des produits et des services. La garantie précitée remplace toutes les autres garanties ou conditions, explicites ou implicites, prévues par la loi ou autrement, y compris celles de qualité loyale et marchande ou de pertinence à toute fin particulière. La garantie du VENDEUR ne s'applique pas aux produits qui ont été assujettis à un usage abusif, à un mauvais traitement, à un mauvais emploi, à la négligence, à un accident, à une modification, à une installation inadéquate, à un réglage ou à une réparation par l'ACHETEUR ou tout tiers.
8. Autres garanties. Les garanties pertinentes du fabricant seront cédées ou transmises à l'ACHETEUR par le VENDEUR comme convenu par le fabricant, dans la mesure où la loi l'exige ou le permet.
9. Exonération de dommages indirects. Le VENDEUR n'est en aucun cas responsable de tout dommage indirect ou accessoire découlant du présent contrat ou s'y rapportant, y compris tout manquement à toute obligation, garantie ou condition imposée au VENDEUR en vertu des présentes.
10. Délais. Le VENDEUR ne sera pas responsable de toute inexécution du contrat attribuable à des causes ou des conditions qui sont hors du contrôle raisonnable du VENDEUR. En cas de tel délai ou de telle inexécution, le VENDEUR peut, à son gré et sans responsabilité, annuler toute partie du présent contrat ou proroger toute date d'échéance quant à son exécution.
11. Taxes. Ä moins de disposition précise énoncée aux présentes, le prix des produits et services ne comprend pas les taxes de vente, les taxes d'usage, les taxes d'accise ou taxes semblables. L'ACHETEUR est responsable de toutes les taxes pertinentes.
12. Résiliation. Le VENDEUR ne sera pas tenu de procéder à l'exécution de toute obligation et peut résilier le présent contrat, si l'ACHETEUR manque à l'une de ses obligations ou s'il devient insolvable. Aucun délai ni aucune omission de la part du VENDEUR quant à l'exercice de tout droit ou recours ne constitue une renonciation à un tel droit ou recours. La résiliation ne porte aucunement atteinte, pour quelque raison que ce soit, aux obligations de l'ACHETEUR quant aux paiements de toutes les sommes payables à la date de prise d'effet de la résiliation ou des sommes qui deviennent payables pour les produits ou services commandés et livrés après une telle résiliation.
13. Retours et annulations. L'ACHETEUR ne peut annuler aucune commande ni aucun retour de tout produit ou résilier le présent contrat à l'égard de tous produits qui ont été commandés ou fabriqués sur demande ou d'une façon particulière ou classés comme ne pouvant être retournés.
14. Brevets et droits d'auteur. Le VENDEUR n'est en aucun cas tenu responsable des dommages découlant de la violation de brevets ou de droit d'auteur. Si l'on interdisait à l'ACHETEUR dans le cadre d'une poursuite d'utiliser l'un des produits achetés aux termes du présent contrat, le VENDEUR, à son gré : a) obtiendra la résiliation de l'injonction et procurera à l'ACHETEUR le droit d'utiliser de tels produits sans obligation ou responsabilité; ou b) remplacera de tells produits par des matériaux qui ne constituent pas une contrefaçon ou modifiera de tels produits d'une manière raisonnablement satisfaisante pour l'ACHETEUR; ou c) enlèvera les produits qui constituent une contrefaçon aux frais du VENDEUR et remboursera à l'ACHETEUR le prix d'achat des produits qui constituent une contrefaçon; pourvu, toutefois, que le VENDEUR ne soit en aucun cas responsable et n'ait aucune obligation aux termes du présent article si la violation prétendue est attribuable aux stipulations fournies par l'ACHETEUR.
Cela constitue le recours exclusif de l'ACHETEUR contre le VENDEUR à l'égard d'une violation du brevet ou du droit d'auteur.
15. Responsabilité du fabricant. Ä moins d'une entente explicite par écrit entre le fabricant, le VENDEUR et l'ACHETEUR, l'ACHETEUR déclare au VENDEUR et au fabricant que les produits vendus conformément au présent contrat ne constituent pas des composantes standard visant à être utilisées par l'ACHETEUR ou quiconque aux fins d'équipement de vie, d'implantation chirurgicale, d'installations nucléaires ou de toute autre application pour laquelle le défaut des produits ou le produit dans lequel les produits seront utilisés pourrait créer une situation susceptible d'entraîner des blessures personnelles ou le décès.
16. Modalités de crédit. Toutes les commandes et les expéditions sont assujetties, en tout temps, à l'approbation du service du crédit du VENDEUR.
17. Produits remplacés ou réparés. Ces modalités s'appliquent aux produits réparés, additionnels ou de remplacement ou aux pièces de réparation achetées par l'ACHETEUR auprès du VENDEUR.
18. Aspects généraux. Le présent contrat est assujetti aux lois de la province de l'Ontario. L'ACHETEUR ne peut céder ni transférer le présent contrat en totalité ou en partie, sans le consentement par écrit au préalable du VENDEUR.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“Agreement”) is made and entered into as of __________, 2006 by and between Agilysys Inc. ("AGILYSYS"), with its principal offices at 3550 Rutherford Road, Taylors, SC 29687; and ________________, ("You" or “Your”), with its principal offices at _________________________.
1. DEFINITIONS. As used in herein, the following definitions shall apply:
a) "Licensed Product" shall mean collectively the Licensed Software and Licensed Documentation (as hereinafter defined).
b) "Licensed Software" or "Software" shall mean: the software, identified in Schedule A, “Licensed Software”, attached hereto and made a part hereof; and all permitted copies of the foregoing, consisting of a series of instructions or statements in machine readable form and all updates, revisions and modifications thereto and copies thereof.
c) "Licensed Documentation" shall mean all documentation, other than the Licensed Software, related to the Licensed Software supplied by AGILYSYS hereunder.
d) "Use" shall mean the reading into and out of memory of the Licensed Software and the execution thereof, in whole or in part, and any other similar use of such Software on computer hardware owned and/or leased by You.
e) “Per User” shall mean per copy of the Software.
2. PER USER SITE LICENSE. Subject to the provisions of this Agreement, AGILYSYS hereby grants to You, and You hereby accept a Per User, nonexclusive, nonassignable and nontransferable limited license to use the Licensed Software and Documentation during the Term of this Agreement. Your use of the Licensed Product is solely limited to internal use at the specified Per user location listed in Schedule A, "Designated Locations." Furthermore, AGILYSYS grants to You a limited license to create Derivative Works as that term is defined under the Copyright Act. It is understood and agreed that this limited license is a license for machine readable object code of the underlying Licensed Software.
3. LICENSE FEE AND TAXES. The fee for the license herein granted, as provided for herein, shall be as set forth in Schedule A, "License Fee", which shall be payable as stated therein. You will pay all applicable taxes based on or in any way measured by this Agreement, the Licensed Product or any portion thereof, or any services related thereto, excluding taxes based on AGILYSYS’ net income, but including personal property taxes.
4. TERM. This Agreement shall be effective as of the date set forth in the first paragraph above and shall remain in effect unless and until terminated per the provisions of this Agreement.
5. ASSIGNMENT. Neither this Agreement nor any Licensed Product to which it applies may be assigned, sub-licensed or otherwise transferred by You without the prior written consent of AGILYSYS.
6. LICENSE PRODUCT OWNERSHIP AND PROTECTION.
You acknowledge and agree that AGILYSYS owns and shall continue to fully own the right, title and interest in and to the Licensed Product and to all corrections, modifications, programs, enhancements, updates, upgrades, information and work product conceived, created or developed by AGILYSYS, alone or with You or others, as a result of or related to the performance of this Agreement or related agreements, including all proprietary rights therein or based thereon. You further acknowledge and agree that all Derivative Works are the sole and exclusive ownership of AGILYSYS. You further acknowledge and agree that the foregoing, which includes but is not limited to the Licensed Product and all copies thereof, are AGILYSYS’ sole exclusive intellectual property, are confidential and constitute a valuable trade secret of AGILYSYS. You shall not disclose or make available to third parties the Licensed Product or any portion thereof without AGILYSYS' prior written consent. Access to the Licensed Product shall be limited to Your employees who require access to the Licensed Product to perform their designated responsibilities as an employee of Yours. You will take such steps as may be reasonably requested by AGILYSYS to protect AGILYSYS’ interest in the Licensed Product. You will take such reasonable action as may be necessary and appropriate, by instruction, agreement or otherwise, to insure that any person having access to the Licensed Products through You has knowledge of and complies with Your obligations under this Agreement. Upon termination, cancellation or expiration hereof, You will immediately return the Licensed Product and all copies thereof to AGILYSYS or, at AGILYSYS’ request, destroy the same and all copies thereof. You will insure, prior to disposing of any media with any Licensed Product contained thereon, that the Licensed Product has been erased or otherwise destroyed.
7. CONFIDENTIALITY.
Both parties acknowledge that, by reason of their relationship, they may have access to and/or disclose certain information and materials concerning the business, plans, products and customers of each other which is confidential and of substantial value to the other party, whether disclosed in writing, verbally or by its nature the receiving party knows or should know the confidential nature of the information (“Confidential Information”), which value would be impaired if such information were disclosed to third parties. The term Confidential Information shall not include information which is: (a) in the public domain other than by a breach of this Agreement by the receiving party; or (b) rightfully received from a third party with no duty of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or disclosure prior to its receipt from the disclosing party; or (d) independently developed by employees, agents or consultants of the receiving party; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. The parties hereto agree to maintain as confidential and not to disclose any Confidential Information learned by virtue of the parties’ business relationship to any third party or use any Confidential Information for purposes other than performance of its obligations hereunder. The parties agree that this obligation of confidentiality shall survive termination of this Agreement.
8. REPRODUCTION AND MODIFICATION OF LICENSED PRODUCT.
You may reproduce the Licensed Software solely for Your backup purposes; provided, however, not more than one backup copy, in whole or in part, of the Licensed Software may be in existence at any one time. You will only use the Licensed Software at the Designated Locations. All copies of the Licensed Software, in whole or in part, shall contain all of AGILYSYS’ restrictive and proprietary notices as they appear on the copies of Licensed Software provided by AGILYSYS. In no event will You have the right to duplicate, in whole or in part, the Licensed Documentation without AGILYSYS’ prior written consent.
You may not modify the Licensed Software or merge it into existing software without AGILYSYS’ prior written consent. In the event AGILYSYS permits any modification or merger ("Modified Software"), the Modified Software and all portions thereof shall continue to be subject to all of the terms and provisions of this Agreement. Upon any termination, cancellation or expiration of any license granted hereunder, You will remove the Licensed Software and all portions hereof from the Modified Software, and will have no right thereafter to use the Licensed Software or any portion thereof. All intellectual property in any modifications of the Software made by AGILYSYS, subcontractors, authorized third parties and/or the Licensee become the exclusive intellectual property of AGILYSYS and are deemed to form part of and merge into the Software. AGILYSYS grants to the Licensee a perpetual, royalty-free license to the subcontractor’s, authorized third party’s and/or Licensee’s modifications of the Software. All hard copies of the Software must be marked confidential and identify AGILYSYS as the owner. In copying or modifying the Software, the Licensee must not remove the notice in the Software that identifies the Software as the property of AGILYSYS.
9. WARRANTY.
AGILYSYS warrants for a period of 90 days following the initial installation of the Licensed Software the following (“Limited Warranty”):
i) The media on which the software was delivered will be, under normal use and service, reasonably free from defects in material and workmanship. Otherwise, AGILYSYS does not warrant that the Licensed Software is free from bugs, errors or omissions.
ii) The Licensed Product will substantially conform to the published Licensed Software specifications.
Any such warranties will be effective upon delivery of Licensed Software to You. In the event that You are in default in Your payments for such Licensed Software, this limited warranty is void and AGILYSYS will not be obligated to honor this limited warranty until You make payment in full for the Licensed Software.
If the Licensed Software fails to meet the warranty and AGILYSYS is given written notice of the problem during the limited warranty period, together with sufficient information to either diagnose or recreate the problem, AGILYSYS shall attempt to correct errors, malfunctions and defects in the software. Such correction may include a work-around, either as a permanent resolution or until a permanent correction to the problem can be found. If AGILYSYS is unable to correct the problem within a reasonable period of time, You may return the malfunctioning Licensed Software to AGILYSYS for a pro rata refund.
Unless specifically stated otherwise, the only warranty sold or provided with any third party software sold or provided by AGILYSYS is the express or implied warranty from the manufacturer directly to You. AGILYSYS DOES NOT ADOPT ANY MANUFACTURER’S WARRANTY.
Support for the Licensed Software beyond this LIMITED WARRANTY period is dependent upon the execution of and payment under an AGILYSYS Software Maintenance Contract.
10. DISCLAIMER OF WARRANTIES
Failure of the Licensed Software due to misuse, accident, unauthorized modification of the equipment on which the Licensed Software operates, operation of such equipment in an unsuitable physical or operating environment as described in the equipment’s specifications, operation of the Licensed Software in other than the specified operating environment, improper maintenance by You, or caused by a product or licensed software AGILYSYS did not provide will void the warranties. THE LIMITED WARRANTIES REFERRED TO IN THIS AGREEMENT SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND AGILYSYS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT AND ANY IMPLIED WARRANTY OF TITLE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY WARRANTY CLAIM IS REPAIR OR REPLACE OF THE LICENSED PRODUCT THAT, AT AGILYSYS’S SOLE DISCRETION.
11. LIMITATION OF LIABILITY
AGILYSYS SHALL HAVE NO LIABILITY WHATEVER FOR DIRECT, INDIRECT, OR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR LOST PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AGILYSYS’S FULL LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE FEES PAID TO AGILYSYS DURING THE PRECEDING TWELVE MONTHS.
12. INTELLECTUAL PROPERTY INDEMNIFICATION
AGILYSYS shall indemnify and hold You harmless for any claim or action of any kind against You for infringement of any U.S. patent or U.S. copyright of a third party based on Your use or possession of the Licensed Software furnished under this Agreement. AGILYSYS shall have the right to conduct the defense of any such claim or action and all negotiations for settlement or compromise, unless otherwise mutually agreed to in writing by the parties hereto. The following indemnification obligation is contingent upon a) You giving AGILYSYS reasonably prompt notice in writing of any such suit and permit AGILYSYS, through counsel of its choice, to answer the charge of infringement and defend such claim or suit; (b) You provide AGILYSYS information, assistance and authority to enable AGILYSYS to defend such suit; and (c) AGILYSYS shall not be responsible for any settlement made by You without AGILYSYS' written permission. If the Licensed Software furnished under this Agreement becomes, or in Your opinion is likely to become, involved in any claim or action described above, or is held to constitute an infringement or misappropriation of a third party's intellectual property rights, then AGILYSYS will:
(1) procure for You the right to continue using Licensed Software;
(2) modify Licensed Software so that its use by You is lawful;
(3) replace Licensed Software with equally suitable, compatible and functionally equivalent programs; or
(4) if none of the foregoing alternatives is reasonably available to AGILYSYS, a pro rata refund the license fee of the Licensed Software.
Notwithstanding anything herein to the contrary, AGILYSYS shall have no liability pursuant to AGILYSYS’ indemnification obligations for any claim or suit where such claim or suit would have been avoided but for the effect on the Licensed Product caused by: (i) other software or hardware included in the configuration utilized in any of Your systems; (ii) modifications made to the Licensed Products by a party other than AGILYSYS, even if requested by You and authorized by AGILYSYS; (iii) improper installation services provided by any party other than AGILYSYS; or (iv) use of the Licensed Product in any manner for which the Licensed Product was not designed or not permitted pursuant to the terms of this Agreement. THIS SECTION SETS FORTH AGILYSYS’S TOTAL RESPONSIBILITIES, LIABILITIES, AND REMEDIES TO YOU FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTIES.
13. TERMINATION/CANCELLATION.
AGILYSYS may terminate/cancel this Agreement and any license granted hereunder if: (1) You fail to pay AGILYSYS any license fee or other associated charge; or (2) You are in default of any other material provision of this Agreement and such default is not cured within thirty (30) days after AGILYSYS gives You written notice thereof.
In the event of any termination/cancellation hereof or of any license granted hereunder, AGILYSYS may: (1) require that You cease any further Use of the Licensed Product or any portion thereof and immediately return the same and all copies thereof, in whole or in part, to AGILYSYS; and (2) cease performance of all AGILYSYS’ obligations to You without liability to You and AGILYSYS shall be entitled to declare all amounts owed to it by You immediately due and payable. If Licensor terminates an Order because of Licensee’s breach, the Licensee must immediately cease to use the Software and, as directed by the Licensor, destroy or return to the Licensor the original and all copies of the Software. In such circumstances, the Licensee will not have any right to a refund of any fees paid for the Software’s use, support or maintenance. AGILYSYS’ foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to AGILYSYS in law and in equity.
14. INVALIDITY OF ANY PROVISION.
If any provision of this Agreement shall be held to be invalid under any applicable statute or rule of law, such provision shall to that extent be deemed omitted and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.
15. UPDATE.
Provided Licensee continues to subscribe to Maintenance, Licensee is entitled to e-fixes, updates and applicable enhancements to the supported Licensed Products as e-fixes, updates or enhancements become generally available including documentation on these e-fixes, updates and applicable enhancements, providing You are using a supported level of code as designated from time to time by AGILYSYS. Other efforts than the above described e-fixes, updates and applicable enhancements shall be chargeable at AGILYSYS’ then current rates.
16. PERFORMANCE AND EXCUSABLE DELAY
Neither party shall be liable to the other for any delay or failure to perform under an Order if the delay or failure to perform is without the fault or negligence of the party claiming excusable delay and is due to causes beyond the control of said party, including, but not limited to: acts of God; war; acts of the government; fires; floods; epidemics; quarantine restrictions; strikes, labor disputes or work stoppages; transportation contingency; and freight embargoes; other catastrophes or any similar occurrences beyond AGILYSYS’ reasonable control.
17. APPLICABLE LAWS AND VENUE.
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of laws. The application of the model Uniform Computer Information Transactions Act approved by the National Conference of Commissioners on Uniform State Laws (as enacted and/or modified into any state law in the U.S.A.), is expressly excluded and shall not apply. All actions shall be brought and before the United States District Court for the Northern District of Ohio, Eastern Division, or any state court in Ohio, if federal court jurisdiction is unavailable. Both parties consent to such jurisdiction and venue. Any action or proceeding by You arising out of or in connection with this Agreement must be brought no later than one (1) year after it has occurred.
18. INTEGRATION.
This Agreement is the complete and exclusive statement of the understanding between us relating to the subject matter hereof and supersedes all proposals or prior agreements, oral or written, and all other communications between us. This Agreement may be amended only by a writing executed by the authorized representatives of both parties. You agree to sign such other documents as may be reasonably required to protect AGILYSYS’ interest in the Licensed Product or to implement the provisions of this Agreement.
19. NOTICES.
All notices required herein shall be in writing ("Notices"). Notices shall be delivered personally (obtaining a signed receipt), sent by certified mail (return receipt requested) or by recognized overnight courier, to the addresses first indicated above or such change in address as may be given by notice as required herein.
20. INJUNCTIVE RELIEF.
You acknowledge and agree that AGILYSYS will be irreparably damaged if You breach this Agreement and that a remedy at law may be inadequate. AGILYSYS therefore shall be entitled to specific performance and/or injunctive relief against You and against any third party in order to enforce the rights of AGILYSYS hereunder to prevent any such breach or threatened breach of the provisions of this Agreement. Such remedies shall not be exclusive and shall be in addition to any other remedy that may be available to AGILYSYS.
21. SURVIVAL.
Any termination, cancellation or expiration of this Agreement notwithstanding, provisions of this Agreement and Your obligations hereunder which are intended to survive and continue shall so survive and continue.
22. SUBCONTRACTING.
Except as provided otherwise in this Section, neither party shall subcontract, assign or otherwise transfer any rights or obligations under this Agreement or any Order without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Any such assignment made without prior written consent of the other party shall be void. AGILYSYS may sub-contract part or all of the services to be provided to the Licensee pursuant to this agreement to a subcontractor. The Licensor will ensure that any subcontractor is adequately trained and qualified in relation to the Software. Where the subcontractor provides services to the Licensee outside the scope of this agreement, the Licensor will not be liable for any liability, costs and expenses to the Licensee arising in relation to those services
23. NON-WAIVER
No course of dealing or failure of either party to enforce strictly any term, right, obligation or provision of this Agreement or any Order or to exercise any option provided hereunder or thereunder shall be construed as a waiver of such provision.
24. NON-EXCLUSIVITY
This Agreement does not grant to Licensor any exclusive privileges or rights to provide to Licensee, Software or related services and Licensee may obtain comparable products and services from other providers.
25. RESTRICTIONS.
You shall not market, sell, distribute, sublicense, use, modify, translate, reproduce, dispose of, rent, lease, or authorize or permit use of any portion of the Licensed Product except as expressly permitted in this Agreement. You may not cause or permit decompilation, reverse compilation, reverse engineering, or reverse assembly of all or any portion of the Software, except as expressly provided by applicable law. You may not export or use the Software or Documentation in violation of U.S. law, including Department of Commerce export administration regulations. You shall indemnify, defend and hold harmless AGILYSYS against any damages resulting from any violations of the aforementioned restrictions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
Agreed to:
Agilysys, Inc.
By:
Authorized signature
Name:
Type or print
Date:
The Software products covered by this license include:
Use of Licensed Software is limited to the following locations:
The fee for use of Licensed Software is:
Fee is payable upon execution of this Agreement.