TITLE: Title to all hardware, including all accessories and consumables/supplies delivered hereunder shall be clear of all liens or encumbrances and shall vest in Customer upon delivery and payment in accordance with this Agreement.
HARDWARE MAINTENANCE: Hardware maintenance provided hereunder shall be for the period and for the charges set out above from the date of installation through termination, for which Customer shall receive all on-site labor and parts required to maintain the equipment listed herein in operating order, and all repairs thereon resulting from normal wear and tear. Unless written notification to terminate the Hardware Maintenance Agreement is received by ACOM sixty (60) days prior to the end of the contract term and any extensions or renewals thereof, the Agreement will be automatically renewed. Maintenance service will be provided on call during ACOM’s normal service hours of 6:00 AM to 4:00 PM Pacific time, Monday through Friday (Holidays excepted), unless otherwise set out above. Customer on-site maintenance service is provided 8:00 AM to 5:00 PM local time. Maintenance service required outside ACOM’s normal service hours will be rendered on an on-call basis at ACOM’s standard rates then in effect. Charges for such services will be billed separately. Where a MICR printing solution is sold hereunder, use of consumables other than those provided or approved by ACOM will void any warranties express or implied and this Maintenance Agreement if the use of such consumables results in unacceptable rejection rates measured by ABA or equivalent standards.
SUSPENSION OF SERVICES: In addition to its other rights and remedies provided for herein and pursuant to applicable law, ACOM may suspend action on the Customer’s account and suspend any or all of its obligations hereunder if Customer fails to perform its obligations as defined in this Contract.
FORCE MAJEURE: ACOM will be excused from performance under this contract as a result of any of the following: (a) acts of God including, but not limited to earthquakes, landslides, etc., (b) actions or omissions of Customer, (c) third party non-performance, (d) failure of or defects and errors in third party software or hardware, or (e) acts of government, acts of terrorism, civil unrest, or acts, omissions, events, causes or conditions not reasonably foreseeable and could not be avoided by exercise of due care.
TERMINATION FOR CAUSE: In the event that either party defaults in the performance of any of its duties or obligations set forth in this Agreement, and such default is not substantially cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of the date specified in such notice of termination. If ACOM is the defaulting party, Customer shall be entitled to receive a refund for all monies paid to ACOM for the product and or services impacted by the default. A refund is the sole and exclusive remedy of Customer for termination of this Agreement for cause by ACOM and Customer shall not be entitled to, and hereby waives, any and all claims for lost profits and all other damages and expenses. If Customer is the defaulting party, which includes but not limited to default in the payment for products or services delivered hereunder, or refusal to accept such products or services when delivered or attempted to be delivered in accordance with the terms of this Agreement, then there shall be due and payable to ACOM the full list price for such products and/or services set out above, in addition to such other remedies as may be afforded for breach of the terms herein set out.
WARRANTY AND REPRESENTATION: ACOM hereby represents and warrants to Customer that ACOM is the owner of the Software or otherwise has the right to grant to Customer the rights set forth in this Agreement and that the Services and any work product thereof do not and will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. ACOM represents and warrants that ACOM has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with ACOM's obligations under this Agreement. ACOM will not knowingly infringe upon any copyright, patent, trade secret or other property right of any third party in the performance of this Agreement. ACOM warrants that all products and services delivered hereunder shall be in good working condition. . ACOM’s liability pursuant to the foregoing warranty shall be limited to repairing or replacing, at its sole option, any defective product or service, without charge or to refund to Customer all monies paid for such defective product or service if ACOM fails to repair or replace defective products or services. In no event shall ACOM be liable for any indirect incidental or consequential damages whatsoever arising out of the use or inability to use products or services sold hereunder.
LIMITS OF LIABILITY: Except only as may be expressly set forth herein, ACOM expressly disclaims any and all warranties of any kind, whether express or implied, including without limitation any warranties of merchantability, fitness for a particular purpose, error-free operation, performance, accuracy, or infringement. In no event shall ACOM be liable to customer for indirect, incidental, consequential, reliance, exemplary, or special damages including, without limitation, damages for lost profits, lost revenues, lost data or other information, or lost business opportunity, regardless of the form of action, whether in contract, indemnity, negligence, warranty, strict liability, or tort, even if ACOM has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any remedy. ACOM’s entire liability and Customer’s sole and exclusive remedy from any cause of action whatsoever (regardless of the form of action, whether in contract, tort or under any other legal theory, and whether arising by negligence, intended conduct, or otherwise) shall not exceed the amounts paid by Customer to ACOM under this Contract. No claim may be asserted under this Article after one (1) year from the date that such claim accrues.
CONTRACTOR RELATIONSHIP: In performing the responsibilities described in this Agreement, ACOM or its authorized representatives is at all times acting and performing as an independent contractor in relation to Customer. Nothing in this agreement is intended to create an employer/employee relationship, joint venture, partnership or other such relationship between Customer and ACOM or between Customer and any employee, contractor, agent or partner providing services on behalf of ACOM.
NON-SOLICITATION: During the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, neither party shall, directly or indirectly, solicit for employment or engagement or employ or engage, whether as an employee, independent contractor or otherwise, any person then employed or engaged by the other party or at any time employed or engaged by the other party within the preceding 12-month period without the prior written consent of the other party.
CONFIDENTIAL INFORMATION. Both ACOM and Customer acknowledge and agree that in the course of the discharge of the duties hereunder, each of the Parties may have access to and become acquainted with Confidential Information of the other Party, including without limitation; personnel, trade secrets, patents, research and development, processes, formulas, products and services, business and marketing methods, business plans, budget, pricing information, customer and vendor information, rates of compensation paid to the parties' respective personnel, financial information, ideas, discoveries, concepts, know-how, techniques, software and other business information of a confidential information ("Confidential Information"). Both Parties specifically agree that they shall not misuse, misappropriate, or disclose any such Confidential Information, directly or indirectly, to any other person or use them in any way, either during the term of this Agreement or at any other time thereafter, except as is required in the course of their duties hereunder.
GOVERNING LAW: This Agreement shall be governed by the laws of the State of California. The parties hereby consent to the exercise of exclusive jurisdiction in the County of Los Angeles, State of California for any claim relating to the enforcement of, or any rights under, this Agreement.
