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HomeMy WebLinkAboutAgreement_General_12/11/2008Teffns and Conditions Please reference the Ouote Number (92573-3080725) at the top of this quotation in your purchase order. Offer valid 30 days from Quote Date. Payment Terms are Net-30. Taxes, duties, shipping and similar costs not included unless otherwise stated above. The attached'Xiotech's Terms and Conditions of Sale' apply and are incorporated herein by this reference. If you did not receive'Xiotech's Terms and Conditions of Sale', please contact Xiotech immediately. Customer expressty agrees that all purchases from Xiotech will be governed by the'Xiotech's Terms and Conditions of Sale' ~JXiotech~ Terms and Conditions of Sale These Terms and Conditions of Sale Agreement (Agreement) govern any sale of products by Xiotech Corporation ("Xiotech"). Xiotechs fulfillment of any quotation provided to Customer is subject to this Agreement. Any terms proposed by Customer, by purchase order or otherwise, which add, modify, limit, or conflict with Xiotechs offer are objected to. This Agreement is effective upon acceptance by Xiotech of Customers purchase order referencing the quotation provided by Xiotech, or as of the date signed by Xiotech and Customer, whichever is eadier (the "Effective Oate"). Xiotech and Customer agree as follows: 1. PURPOSE. This Agreement states the rights and obligations of the parties regarding products ("Products") and installation and support services ("Services") to be provided by Xiotech as described in the Quotation or Siatement of Work. Products sold by Xiotech under this Agreement will be used for the purchaser's internal business purposes only and solely in acwrdance with related documentation and any applicable specifications provided by Xiotech, and may not be distributed or resold. Any software installed on the Products. or otherwise provided by Xiotech ("Software') shall not be considered Products for purposes of the Agreement. Customer's rights and obligations with respect to Software will be governed by a separate End lJser License Agreement, which is incorporated herein by reference. 2. ORDERS AND ACCEPTANCE Customer's purchase order is deemed an acceptance of the terms of the Quotation and the terms of this Agreement, both of which Customer acknowledges receipt of prior to Customer's delivery of its purchase order to Xiotech. All purchase orders submitted by Customer may be accepted or rejected by Xiotech, in its sole discretion, and shall be subject to this Agreement. Xiotech's acceptance shall only occur upon delivery of its written acknowledgment ("Order Acknowledgment") to Customer. This Agreement supersedes ail communications or agreements between the parties relating to the subject matter herein, whether or oral or written, including, but not limited to, Custcmer's purchase orders. 9. SHIPMENT, RETURNS. (a) Shipping, Duties and Taxes. Shipment within the continental United Stales will be F.O.B. shipping point and international shipments will be EXW shipping point (Incoterms 2000), at which time (the "Shipment Date"} title and risk of loss for the shipped Products will pass to Customer. All duties, import and export licenses and permits, custom charges and duty fees, taxes, excises, freight, insurances and other shipping expenses will be paid by Customer. All delivery dates are estimated in good faith with no liability incurred by Xiotech for late delivery or performance under this Agreement. Subject to the return policy stated in Subsection 3(b) below, Products will be deemed to be accepted by Customer on the Shipment Date. (b) Returns. Products may be returned in undamaged condition to Xiotech, at Customer's expense, within thirty (30) days after the Shipment Date if: (i) the quantity or type of Products received fail to conform to the purchase order, and (ii) written approval is given by Xiotech (which approval will not be unreasonably withheld). Customer must enclose proof of purchase and a written description of the reason for return of the Products. Upon proper return of the Products as required above, Xiotech will refund the purchase price paid by Customer for the returned Products. 4. PRE. Xiotech will invoice Customer for amounts payable under this Agreement, and Customer will pay the full invoiced amount within thirty (30) days after the invoice date. Any late payments-will bear interest at the lesser of 1.5 % per month or the maximum rate permitted by law. All pdces and payments shall be in U.S. dollars. Xiotech retains a security interest in aN Products to Sectue the timely payment of aN amounts due under this Agreement. Upon Customer's failure to pay arty amount when due, Xiotech may exerase aN of the rights of a secured creditor under the Uniform Commercial Code. 5. WARRANTY. (a) Standard Limited Warranty. The limited warranties described below are subject to Xiotech's current standard limited warranty as set forth in Xiotech's current published Product datasheet ("Datasheet"), incorporated by this reference. The warranty period commences on the Shipment Date and ends on the date descdbed in the Datasheet. Xiotech warrants that Product bearing the Xiotech name will substantially conform to Xiotech's published specifications in effect as of the date of shipment and will be free from substantial defects in material and workmanship, as more fully set forth in the Datasheet. Xiotech further warrants that ail Services performed by Xiotech for Customer will be provided in a workmanlike manner. These limited warranties are contingent upon proper use of the Product for the purpose intended and in accordance with the related documentation and any spec cations provided by Xiotech, and without modification, movement or attempted movement of the Product from its initial installation position except as directed or performed by Xiotech. Customer shall have no Gaim [o Product that was replaced or the components therein which were replaced. If Xiotech provides any replacement parts on a cross ship or exchange basis and Customer fails to return to Xiotech the part for which Xiotech has provided a replacement within thirty (30) calendar days of Xiotech shipping such replacement part to Customer, Xiotech will invoice Customer and Customer agrees to pay for such non-returned part at Xiotech's then current part cost plus any shipping costs incurred by Xiotech for the replacement part. (b) No Other Warranty. F~CCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, XIOTECH GRANTS NO OTHER WARRANTIES, F~(PRESS OR IMPLIED, BY STATUTE OR OTHERIMSE, REGARDING THE PRODUCTS OR SERVICES, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCFUWTABILITY, NONINFRINGEMENT OROTHERWISE.ALL WARRANTIES OTHER THAN THE EXPRESSED LIMITED WARRANTY STATED ABOVE ARE DISCLAIMED AND EXCLUDED BY XIOTECH. ALL EQUIPMENT, PARTS AND SOFTWARE NOT BEARING XIOTECH'S NAME, ARE SUPPLIED "AS IS"AND CUSTOMER WILL LOOK SOLELY TO THE WARRANTIES AND REMEDIES, IF ANY, PROVIDED BY THE EQUIPMENT MANUFACTURER. (c) Exclusive Remedy under W arranty. XIOTECH'S LIABILITY UNDER ANY WARRANTY IS LIMITED T0. IN XIOTECH'S SOLE DISCRETION, REPAIRING OR REPLACING PRODUCT WITH A CONFORMING PRODUCT, OR IN THE CASE OF SERVICES, REPERFORMANCE OF SUCH SERVICES. ALTERNATIVELY, XIOTECH MAY, IN XIOTECH'S SOLE DISCRETION, REFUND THE SALES PRICE TO CUSTOMER FOR SUCH UNIT OF PRODUCT. 6. LIMITATION OF LIABILITY. XIOTECH WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, WITH THE EXCEPTION OF BODILY INJURIES, DEATH OR DAMAGE TO TANGIBLE PROPERTY DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF XIOTECH. IN NO EVENT SHALL XIOTECH BE LIABLE FOR ANY DAMAGES FOR OR RESULTING FROM LOSS OF OR DAMAGE TO DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS AND XIOTECH FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF XIOTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY, DISCLAIMERS AND OTHER EXCLUSIONS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING ANYTHING ELSE, XIOTECH'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR SOFTWARE PRODUCT HEREUNDER THIS LIMITATION APPLIES TO ALL SOFTWARE PRODUCTS, SPECIFIED XIOTECH PRODUCTS, AND/OR PRODUCTS AND ALL SERVICES PERFORMED DURING AND AFTER THE WARRANTY PERIOD. 7. PROPERTY RIGHTS AND CONFIDENTIALITY. (a) Property Rights. Nothing in this Agreement grants to Customer any right, title, or interest in any of Xiotech's intellectual property including without limitation patents, trademarks, trade names, logos, inventions, copyrights, know-how, or trade secrets in any way relating to the design, manufacture, operation, use or service of the Products ("IP"). Use by Customer of Xiotech's IP is authorized solely to the eMent set forth in the EULA. (b) Confidentiality. Each party agrees to keep confidential any and all information received from the other party that is marked Confidential or information that should reasonably have been understood by either party, because of legends or other markings, the circumstances of disclosure, or the nature of the information itsetf, to be proprietary and confidential to the other party ("Confidential Information") including, but not limited to, the terms of this Agreement. Neither party will use or disclose the other's Confidential information for any purpose, except to employees on a "need to know" basis, who have been informed of (heir obligations under this Agreement. Each party hereto shall remain liable to the other party for the use or disclosure of Confidential Information by any of its employees or agents in a manner inconsistent with this paragraph. All Confidential Infornation, and any notes, documents or recordings containing Confidential Information, will be returned to the appropriate party immediately upon termination of this Agreement. I/Customer is a government entity subject to public records laws, each party agrees that any Xiotech technology made available to Customer under this Agreement constitutes Xiotech trade secret information or similarly-designated information exempt from disclosure to the maximum extent permitted under public records law. (c) Prohibition Against Impairment of IP Interests. Customer will not alter or remove any trademark, service mark, trade name, logo or other designation applied to a Product or its packaging by Xiotech. Customer will not, whether acting alone, with or through others, in any way harm, use or impair, or attempt to harm, use or impair, any right, title or interest of Xiotech in any IP, or any application or registration for such IP, incuding without limitation attempting to register or use any trademark, service mark, trade name, patent, copydght or other intellectual property which may in any way be confusingly similar to any IP. 8. INDEMNIFICATION AND HOLD HARMLESS FOR INFRINGEMENT BY XIOTECH. (a) Indemnification. Subject to the limitations stated below, Xiotech will defend, indemnify and hold harmless Customer from any Gaim, suit, or proceeding to the extent made against Customer for infringement of any United States patent, copyright, or trademark by the Products sold to Customer under this Agreement. Xiotech will have sole control of any such claim, suit or proceeding including, in its sole discretion and at its own expense, the right to settle. Xiotech will be relieved of any or all of its obligations under this provision, in its sole discretion, if Customer fails to: (i) promptly send notice to Xiotech of any such claim, suit or proceeding; or (ii) give Xiotech all information, authority and assistance reasonably necessary to settle andlor defend any such claim, suit, or proceeding. (b) Limitation. Notwithstanding Subsection 8(a) above, Xiotech assumes no liability for any claim, suit or proceeding for infringement arising or alleged to arise from use of a Product as part of any completed equipment or software not supplied by Xiotech, or as part of any assembly, circuit, combination, method or process not supplied by Xiotech. Xiotech assumes no liability for any claim, suit or proceeding arising or alleged to arise from: (i) any marking or branding applied to a Product by a party other than Xiotech; (ii) any marking or branding applied to a Product by Xiotech at the request of Customer; (iii) modification or servicing of all or pan of a Product by any party other than Xiotech (except as expressly authorized by Xiotech in writing); or (iv) modification of all or part of a Product by Xiotech at Customer's request. (cj Entire Liability. This Section 8 states the entire liability and obligations of Xiotech, and the exclusive remedy of Customer, with respell to any actual or alleged infringement of any United States patent, copyright, trademark and/or other intellectual property dght by the Products, Services or any part thereof. 9. SERVICES. Services shall be provided as specified in Xiofech's most current Datasheet available at the time Customer purchases such Services. Customer understands Xiotech has relied on Customer's commitment for the length and scope of Services set forth in the Datasheet in determining the fee payable by Customer for any Services purchased. Based on that reliance, anon-renewal or termination charge may apply to any eady termination of Services by Customer. Xiotech may charge Customer an inspection or re-certification fee for reinstatement of a lapsed or terminated support period. Fees will be based on then current time and Products charges. Xiotech may refuse to perform Services in its sole discretion if (a) Customer Fails to use a Product consistent with related documentation and any applicable specifications provide by X~^tech, (b) a Product is moved from its initial install position, (c) Customer attempts any modification or repairs of the Pr:~duct without Xiotechs approval, or (d) Customer fails to perform under any provision of this Agreement. 10. RESPONSIBILITIES OFCUSTOMER. Customer agrees to: a) maintain operating conditions within the common environmental range of all Products wvered under this Agreement in accordance with manufacturers' or Xiotech's specifications; b) notify Xiotech immediately of any Product failures or defects; c) provide a[ feast sixty (60) calendar days written notice to Xioterh of its intent to relocate or remove a Product from Customer's premises (No such removal may occur without Xiolech's prior written consent); d) nay all amounts payable under this Agreement when due; e) d9`ssis[ and cooperate with Xiotech by snaking personnel available for consultation and to provide other information and data required for performance under this Agreement, whenever such assistance, personnel, information and data are reasonably requested by Xiotoch; f) be solely responsible for preparation of the site, at which Xiotech will perform the Services, to the specifications and in accordance with the time schedule stated in the applicable Xiotech quotation or support option and use best efforts to make certain the site is safe; g) fully comply, without exception, with all applicable laws (federal, state and local), govemmental orders and maintain and pay for all registrations required under such laws, orders or ordinances necessary for performance under this Agreement and ultimately the purchase and use or receipt of the benefit of Products. Customer will maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to properly conduct commercial business; and h) prior to the date specified in [he Quotation andlor Statement of Work for the performance of Service, (i) obtain and pay for all govemmental or third party consents, permits, approvals, licenses and public and private easements necessary for Xiotech's unrestricted access to any site or location needed for performance of the Services and delivery of the Products, and (ii) will notify Xiotech in advance of any requirements including all local laws, regulations, ordinances and the like to which Xiotech is or will be required to comply in the rendering of Services and in the supplying of Products hereunder. 11. ALLOCATION OF RISK. CUSTOMER AGREES THAT THE DISCLAIMER OF WARRANTIES, LIMITATIONS ON LIABILITY, AND INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT REPRESENT AN AGREED UPON ALLOCATION OF RISK BETWEEN CUSTOMER AND XIOTECH AND FORM AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH XIOTECH WOULD NOT ENTER INTO THIS AGREEMENT. 72. GENERAL PROVISIONS. (a) Governing Law/Venue. These terms and conditions shall be construed, interpreted and applied in accordance with the internal laws of the State of Minnesota (not including its law of conflicts) and the United States, inducting U.S. copyright laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any transaction between the parties. (b) Dispute Resolution. (i) The parties desire to resolve, whenever possible, any controversy, claim or dispute arising out of or relating to this Agreement or the breach or making thereof, including claims of fraud in the inducement, without litigation, (ii) A party which believes that a dispute, controversy or claim has arisen under or relates to this Agreement will notify the other party regarding the dispute, controversy or claim and attempt to negotiate a resolution between the parties. If such dispute, controversy or claim is not resolved within thirty (30) calendar days after the commencement of such negotiations, it shall be submitted to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association subject to subsection (iii). (iii) The arbitration sessions will be conducted in English and wilt take place in Minneapolis, Minnesota, USA. Such sessions may 6e conducted in person or, if permitted by the arbitrator, by telephone conference call or videoconference. The arbitrator will resolve the dispute within thirty (30) calendar days after selection. The losing party shall bear its own costs and expenses of such arbitration and the fees and expenses of the arbitrator. The arbitrator will award to the prevailing party, if any, its reasonable attorneys fees and expenses incurred in connection with the dispute and its resolution, in addition to any other damages, however, the arbitrator may not assess punitive or exemplary damages. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. (iv) Nothing contained herein will preclude Xiotech from seeking injunctive relief from a court of competent jurisdiction pending the resolution of any dispute. (c) Entire Agreement. This Agreement and EUI.A sets forth the entire agreement and understanding of the parties regarding the subject mailer hereof, and merges all prior discussions between the parties. Modifications of or amendments to this Agreement must be written and signed by both parties to have effect. (d) Notices. To be effective, all notices required by this Agreement must be written and must be sent by overnight mail. Notices must be addressed and sent to the respective addresses shown above, or as may be designated in writing by a party from time to time. Notice pedods begin lg run on the date notice is received. (e) Force Maieure. Nonperformance of either party (other than failure to pay amounts due hereunder) will be excused only to the eMent performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party. (f) Nonassignability. Customer may not assign all or any part of this Agreement or move or transfer the Product without the prior written consent of Xiotech. In the event Xiotech expressly or impliedy consents to an assignment of all or any part of this Agreement Permitted Assignment, such Permitted Assignment shall not remove Customer's obligation to honor the terms and conditions to the extent that Customer remains in possession of Xiotech Products and Software or continues to receive Services. (g) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one contrail or document. (h) Import and Export Controls. Customer understands and acknowledges that Xiotech is subject to regulation by agencies of the U.S. government which prohibit export or diversion of certain products and kechnology to certain countries. Customer shall not export, re-export or transship, directly or indirectly, any copies of the Products, except in compliance with the Export Administrative Regulations and applicable law of the United States and any other country having jurisdiction. (i) Survival of Certain Terms and Obligations. Termination will not relieve either party of obligations incurred prior to termination. All payment obligations of Customer and the terms and provisions of Sections 5, 6, 7, 8 and 12 will survive any termination of this Agreement. TERMS AND CONDITIONS QUOTE !192573-30>iO725 AMENDMENT ir~1 This Amendment #!1("Amendment") to Terms and Conditbns is made and entered Into th~3~day of December, 2008, between Xbtech Corporation ("Xbtech")and V81age of Tequests, Fbrida ("Customer"). A. Xiotech and Customer have entered or propose to enter into certain Terms and Conditions (the "Agreement") in conhectbn with Quotation 692573-3080725 for tl~e sate by Xiotech and purchase by Customer of urtain Emprise 5000 computer equipmtnt described in an attachment to the Agreement. 8. The partks wish hereby to amend certain provisions of the Agreer~nt. Accordingly, the parties agree as follows, any thing contained M the Agreement to the contrary notwithstanding: 1. Terms used in this Amendment shall have the same meaning as those used in the Agreement, unless the context hereof dearly requires a different meaning. 2. The parties affirm the Agreement, as modified by this Amendment. 3. Section 7(b) of the Agreement is amended to strike the existing wording thereof and to read in its entirety as follows: To the extent permitted by law, including, but not limited to Chapter 119, and Sections 812.041, 815.04 and 815.045, Florida Stariutes, any software or related documentation whkh meets the definition of "trade secrets" shall be considered confidential anal exempt from disclosure under Florida's public records laws, and shall not be disclosed by Customer pursuant to a public records request or otherwise, except to empbyees of Customer who may need to have such informatbn for operational purposes. 4. Section 9 of the Agreement is amended to add the following sentence: Nothing herein shall be construed to require Customer to enter into or to renew any contact for servkes, and no charge shall be imposed upon Customer in connectbn therewith. For purposes of clarifiCatbn, service agreement early terminatbn charges shah only be Imposed on Customer by Xbtech ifi Customer terminates an existir~ written senrke agreement prbr to Its stated expiratbn date, in which case Xbtech's standard early terminatbn fees wi8 app~r, whkh in any case wgi rat exceed the fees due during the remaining term of the service agreement. Subject to the foregoing, Customer may terminate any agreement for services upon 60 days' prior written notice to Xbtech. 5. Section 12(a) of the Agreement is amended to read in its entirety as follows. Governin¢ Law/Venue. FLORIDA LAW WILL GOVERN THE AGREEMENT. VENUE FOR ANY DISPUTE RESOLUTION, WHETHER LITIGATION, ARBITRATION, MEDIATION OR OTHERWISE IS IN PALM BEACH COUNTY, FLORIDA. EACH PARTY SHALL BEAR ITS OWN COSTS OF LITIGATION, MEDIATION OR ARBITRATION AND SHALL SHARE EQUALLY IN THE COST OF ANY MEDIATOR OR ARBITRATOR. In witness whereof, the parties have signed this Amendment as of the date given above. Village of Tequesta By: Print N e: t ~ Title: ( r~ ~~'--,,~~ ialft~nSc Xiotech Corporation By. ,r~ ~~~~~ Print Name:.~(VIYI /ti/~~nY1~-fit Title: CFO I~eS+ Q11 ~ ~ C,(,c~,1.,(,Q.~ p~._ Lo!'• mCWi llip~»S~ Cmc U i l lo~~ CI~G~O'F~~~T!„r'~ I I t ~ D j. SEAL `~ INCORPORATED ,Xiotech END USER LICENSE AGREEMENT NOTICE TO USER: This is a legal agreement between you, the end with other software, or of the Related Documentation is expressly user ("You"), and Xiotech Corporation (including its affiliates) ("Xiotech") forbidden. Any copies that You are permitted to make pursuant to this regarding the use of Xiotech software (including firmware) ("Xiotech EULA must contain the same copyright and other proprietary notices as Software") and/or third-party software ("Third-Party Software") provided to they appear on or in the Software Product and Related Documentation. You by Xiotech either separately or as incorporated into Xiotech or third- 7. Trade Secrets. The Software Product, Related party hardware (hereinafter referred to collectively as "Software Product"), Documentation and Specified Xiotech Product contain trade secret and the use of Related Documentation provided therewith. By reviewing, information of Xiotech. You agree to keep such trade secret information installing and/or using the Software Product and/or Related confidential and not to use or disclose any of it except as needed to use Documentation accompanying this document (referred to as "EULA" or the Specified Xiotech Product in accordance with the Related "End-User License Agreement"), You agree to be bound by all of the Documentation and in accordance with applicable specifications. You terms and conditions set forth herein. If You do not agree to all of the also agree not to modify, prepare derivative works, reverse engineer, terms of this EULA, Xiotech is unwilling to license the Software Product to decompile, disassemble or otherwise attempt to discover the source code You. In such event, You may not use or copy the Software Product, and of the Software Product or any Related Documentation, except and only You should promptly return this EULA along with the Software Product, to the extent that such activity is expressly permitted by applicable law Related Documentation, product packaging and any other accompanying notwithstanding this limitation. In the event that and solely to the extent items to Xiotech or the location where You obtained them in accordance that applicable law permits any of the foregoing, You agree that (i) the with the applicable return policy. results of any such activity ("Permitted Results") shall be confidential Xiotech grants to You a nonexclusive, nontransferable, nonsublicensable, .trade secret information of Xiotech; (ii) any Permitted Results shall be limited license to use, without modification, the Software Product and used only for the express purposes permitted by applicable law and (iii) Related Documentation, provided that You agree to the following: the Permitted Results shall not be disclosed to any other party. 1. Software. You agree to use the Software Product only on the 8. Transfer. Under no circumstances may You distribute, specified Xiotech product (identified by the Xiotech system serial number transfer, rent, sell, offer to sell, lend, lease, sublease, assign, in whole or as provided on the certification card enclosed with such Software/Xiotech in part, any of Your rights and/or obligations under this EULA and/or any product(s) ("Specified Xiotech Product")) and only in accordance with the portion of the Software Product ,Related Documentation or Permitted Related Documentation and applicable specifications. You are permitted Results to a third party, whether by assignment, merger, transfer of to make one copy of the Software Product to maintain as a replacement assets, sale of stock, operation of law or otherwise, and any attempt to do copy in the event that the original copy fails or becomes unusable. In the so shall be deemed void. event the Software Product fails or becomes unusable, You shall 9. Confidentiality. To the extent permitted by law, including but promptly return the failed or unusable Software Product to Xiotech for not limited to Chapter 119, and Sections 812.041. 815.04 and 815.045 replacement. Florida Statutes, anv software or related documentation which meets the 2. Related Documentation. You agree to use the operating definition of "trade secrets" shall be considered confidential and exempt manuals, charts, tables, written descriptions and handbooks in any from disclosure under Florida's public records laws and shall not be medium related to the Software Product ("Related Documentation") only disclosed by Customer pursuant to a public records request or otherwise in conjunction with the Specified Xiotech Product. You are not permitted except to emplovees of Customer who may need to have such to make additional copies of the Related Documentation without the information for operational purposes Subiect to the foregoing vaFou shall express written consent of Xiotech. In the event the Related maintain the confidentiality of the terms of this EUI.A, the Software Documentation is lost or destroyed, upon Your request, Xiotech will Product, Related Documentation and Permitted Results and any other provide a replacement copy of the Related Documentation at its then confidential information provided to You by Xiotech, by taking those current standard fee. precautions in protecting the Software Product and Related 3. License Fee. In consideration of the license granted to You Documentation You employ to protect Your own confidential information herein, You agree to pay the license fee for the Software Product as set which shall in no case be less than a reasonable amount of care. You forth in documentation between You and Xiotech related to the purchase ' shall insure that the Software Product, Related Documentation and of the Specified Xiotech Product, within the terms of such documentation. Permitted Results are not made available by You or by any of Your 4. Term and Termination. Subject to termination for breach as employees, agents, clients or customers to any other person, firm or set forth in the following sentence, the term of the license granted by this corporation. You shall notify Xiotech promptly, in writing, of the EULA shall extend for as long as You own the Specified Xiotech Product; circumstances of any event of unauthorized possession, use or and, upon temlination of Your ownership of the Specified Xiotech knowledge of the Software Product, Related Documentation or Permitted Product, Your license to use the Software Product and Related Results. You agree that any unauthorized distribution transfer sale offer Documentation shall automatically terminate. Without prejudice to any , , , for sale, reproduction, or use of the Software Product, Related other rights, Xiotech may terminate this EULA and Your license and Documentation and/or Permitted Results will cause irreparable harm to rights to the Software Product and Related Documentation with no prior Xiotech for which money damages would not be a adequate remedy. notice if You fail to comply with each of the terms and conditions as You shall inform Your employees having access to the Software Product stated herein. Upon termination of this EULA for any reason, You shall and/or Related Documentation of the limitations and obligations of You immediately destroy or return all originals and all copies of the Software regarding non-disclosure and copying of the Software Product, Related Product, Related Documentation, Permitted Results and all of their Documentation and Permitted Results. This section shall survive component parts as directed by Xiotech. These terms and conditions take termination of this Agreement. precedence over any terms and conditions of any other agreement 10. Upgrades. You agree that any and all upgrades, between Xiotech and You regarding the Software Product. The modifications, patches and the like supplied You for the Software Product provisions contained in this EULA that protect the interests of Xiotech in or Related Documentation shall be used only in accordance with this the Software Product and/or Related Documentation shall survive the EULA, and that the terms and conditions of this EULA shall apply to such termination of this EULA. upgrade(s), modifications, patches, etc., to the same extent as they apply 5. Ownership. All right, title and interest in and to and the to the Software Product and Related Documentation. Software Product (including but not limited to any images, photographs, 11. Warranty. Xiotech warrants to You that the Xiotech Software animations, video, audio, music, test, and "applets" incorporated into the will perform substantially in accordance with the Related Documentation Software Product), Related Documentation, Permitted Results and all for a period of ninety (90) calendar days ("Warranty Period") from the copies thereof, including without limitation the copyrights, patent rights, date of shipment from Xiotech ("Limited Warranty"). trade secrets and other proprietary rights, are, and shall continue to be, 12. Limitation of Warranty. A. Xiotech does not warrant that the owned by Xiotech or its licensors, applicable, regardless of the form or operation of Xiotech Software or the media on which it is contained will media in or on which the original and other copies may exist. The parties be uninterrupted or error-free. Xiotech furthermore states that not all agree that nothing herein is, or shall be deemed to be, a sale or errors in Xiotech Software or its media can be corrected or need assignment of the Software Product, Related Documentation, Permitted correction, nor does Xiotech warrant that all defects in Xiotech Software Results or any portion or copy of any of the foregoing. or its media will be corrected. Xiotech has no control over the conditions 6. Copyright. United States copyright laws and international under which You use the Xiotech Software or media and does not and treaty provisions protect the Software Product and the Related cannot warrant the results obtained by such use. Xiotech does not Documentation. Unauthorized use or copying of the. Software Product, warrant that the functions contained in the Xiotech Software will meet including Software Product that has been modified, merged, or included Your requirements or that Xiotech Software or its media will operate in 1 of 3 .>Ciatech END USER LICE combination with other software or hardware selected by You for use by You. B. Any Third-Party Software delivered by Xiotech, is supplied "AS IS." In the case of Third-Party Software and/or third party hardware, You will look solely to the warranties and remedies, if any, provided by the Third- Party Software and/or hardware manufacturer. You understand and agree that Third-Party Software may be subject to additional terms and conditions imposed by the applicable licensor of such Third-Party Software. C. Xiotech is not responsible for problems caused by changes in or modrfications to the operating characteristics of any computer or operating systems for which the Software Product is being licensed, nor is Xiotech responsible for problems which occur as a result of the use of Software Product in conjunction with any software supplied not supplied by Xiotech or with a computer which is incompatible with the Software Product or the operating system for which the Software Product is being licensed or any use not in accordance with the Related Documentation and applicable specifications. D. Xiotech's entire liability and Your sole, exclusive remedy shall be, at Xiotech's sole discretion, the replacement of the Software Product that does not meet the Limited Warranty and which is returned to Xiotech within the Warranty Period, or, the reimbursement of the license fee paid by You for such Software Product. This Limited Warranty is void if failure of the Software Product has resulted from accident, misuse, abuse, attempted repair or maintenance, causes external to the Specified Xiotech Product, Software Product or Related Documentation such as electrical power fluctuations or failure, neglect, water, fire, normal wear and tear, failure to follow supplied user instructions or misapplication of either the Software Product or the Specified Xiotech Product. Any replacement Software Product will be warranted as provided above from the date of replacement by Xiotech for the remainder of the original Warranty Period or thirty (30) calendar days, whichever is longer. XIOTECH DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE PRODUCT AND THE RELATED DOCUMENTATION. 12. LIMITATION OF LIABILITY. XIOTECH WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, WITH THE EXCEPTION OF BODILY INJURIES, DEATH OR DAMAGE TO TANGIBLE PROPERTY DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF 'XIOTECH. IN NO EVENT SHALL XIOTECH BE LIABLE FOR ANY DAMAGES FOR OR RESULTING FROM LOSS OF OR DAMAGE TO DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS AND XIOTECH FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF XIOTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY, DISCLAIMERS AND OTHER EXCLUSIONS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING ANYTHING ELSE, XIOTECH'S TOTAL AGGREGATE LIABILITY UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR SOFTWARE PRODUCT HEREUNDER. THIS LIMITATION APPLIES TO ALL SOFTWARE PRODUCTS, SPECIFIED XIOTECH PRODUCTS, AND/OR PRODUCTS AND ALL SERVICES PERFORMED DURING AND AFTER THE WARRANTY PERIOD. 14. Construction. Xiotech is willing to license the Software Product to You only in consideration of and in reliance upon the provision of this EULA limiting the exposure of Xiotech to liability. Such provisions constitute an essential part of the bargain underlying this EULA and have been reflected in the license fee and other consideration specified in this EULA. 15. U.S. Government Restricted Rights. The Software Product and Related Documentation have been developed exclusively at private expense by Xiotech or its suppliers. The Software Product and Related :NSE AGREEMENT Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Xiotech Corporation (or its affiliates), 6455 Flying Cloud Drive, Eden Prairie, MN 55344-3305. 16, Governing LawNenue. FLORIDA LAW WILL GOVERN THE AGREEMENT. VENUE FOR ANY DISPUTE RESOLUTION. WHETHER LITIGATION, ARBITRATION, MEDIATION OR OTHERWISE IS IN PALM BEACH COUNTY, FLORIDA. EACH PARTY SHALL BEAR ITS OWN COSTS OF LITIGATION, MEDIATION OR ARBITRATION AND SHALL SHARE EQUALLY IN THE COST OF ANY MEDIATOR OR ARBITRATOR.T"° •Prms and senditiens shall " ~a a 17. Dispute Resolution. A. The parties desire to resolve, whenever possible, any controversy, claim or dispute arising out of or relating to this EULA or the breach or making thereof, including claims of fraud in the inducement, without litigation. B. A party which believes that a dispute, controversy or claim has arisen under or relates to this EULA will notify the other party regarding the dispute, controversy or claim and attempt to negotiate a resolution between the parties. If such dispute, controversy or claim is not resolved within thirty (30) calendar days after the commencement of such negotiations, it shall be submitted to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association subject to subsection (C) below. C. The arbitration sessions will be conducted in English and will take place in Palm Beach County. Florida, USA. Such sessions may be conducted in person or, if permitted by the arbitrator, by telephone conference call or videoconference. The arbitrator will resolve the dispute within thirty (30) calendar days after selection. _ Each party shall bear its own fees and costs associated with anv dispute resolution includino mediation, arbitration and/or litigation and the costs of anv arbitrator or mediator shall be shared evenly by the parties. tThe arbitrator or mediator may not assess punitive or exemplary damages. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. D. Nothing contained herein will preclude Xiotech from seeking injunctive relief from a court of competent jurisdiction pending the resolution of any dispute. 18. Severability. If any provision or any part of a provision of these terms and conditions are held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather the entire EULA shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly. 19. Export. You may not export the Software Product or any portion thereof outside of the United States without first obtaining all required licenses from the United States Department of Commerce and any other United States or foreign governmental agency. 20. Entire Agreement. These terms and conditions represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede and replace any and all prior representations, and negotiations whether written or oral. No modifications or waiver of these terms and conditions hereof will be binding upon Xiotech unless approved in writing by an authorized representative of Xiotech. 21. Governing Language. The parties hereto hereby confirm that they have agreed that all written agreements between them be prepared in the English language only and such language shall be the governing language. Les parties aux pr~sentes conferment qu'elles ont agree que tous les documents entre eux par ~crit soit redig~ dans la langue anglaise seulement, et telle langue sera la langue de contrdle. 2 of 3 x~ate~n END USER LICENSE AGREEMENT XIOTECH is the trademark of Xiotech Corporation. Copyright ©1999-2007 Xiotech Corporation. Printed in the United States of America Rev 061218. 3 of 3 Page 1 of 6 This message was sent with high importance. Gomberg, Brad From: Langer, Richard E. [Dick_Langer@Xiotech.com] Sent: Wed 12/3/2008 3:37 PM To: Gomberg, Brad; Jones, Bernard Cc: Subject: RE: Network Backup System Attachments: Brad: This is fine; these documents are acceptable to Xiotech. Thanks for making these changes. Please let me know the timing of your approvals going forward, and what I can do here to finalize these documents. Dick -----Original Message----- From: Gomberg, Brad [mailto:bgombera@tequesta.ora] Sent: Wednesday, December 03, 2008 2:24 PM To: Langer, Richard E.; Jones, Bernard Subject: FW: Network Backup System The revised documents. Please send me your approval or disapproval asap. Thank you, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Trela White [mailto;trela@corbettandwhite com] Sent: Wednesday, December 03, 2008 3:22 PM To: Gomberg, Brad Subject: RE: Network Backup System Brad: As you requested, please find the 2 documents with my revisions. Thank you, Trela https://teq-exh/exchange/bgomberg/Inbo~c/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 2 of 6 -----Original Message----- From: Gomberg, Brad [mailto_bgomberg~atequesta_o~) Sent: Wednesday, December 03, 2008 1:28 PM To: trela@corbettandwhite.com Subject: FW: Network Backup System I believe the last issue that Keith had found was making sure the EULA language doesn't conflict with the new amendment page. Both are attached. If you can please send me an approval the unresolved items (if found) ASAP I would greatly appreciate it. Thank you for your time. Thank you, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Langer, Richard E. [mailto:Dck_Langer@Xotech.com] Sent: Wednesday, December 03, 2008 11:14 AM To: Gomberg, Brad; Jones, Bernard Subject: RE: Network Backup System Here is the EULA. I think these mods address your issues, but if not please make more. Is the Amendment now OK? rel -----Original Message----- From: Gomberg, Brad [mailto~bgomberg tequesta org] Sent: Wednesday, December 03, 2008 9:59 AM To: Langer, Richard E.; Jones, Bernard Subject: RE: Network Backup System Hello Richard. Any update on this? I need to have this done today or we will need to wait another month for approval. Thank you for your assistance. Thank you, Brad Gomberg Director of IT / IS https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 3 of 6 The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Langer, Richard E. [mailto:Dick_Langer@Xiotech,com] Sent: Tuesday, December 02, 2008 6:25 PM To: Jones, Bernard Cc: Gomberg, Brad Subject: RE: Network Backup System I sent it to you earlier. r From: Jones, Bernard Sent: Tuesday, December 02, 2008 4:46 PM To: Langer, Richard E. Cc: Gomberg, Brad Subject: FW: Network Backup System Richard, Thanks for preparing the Amendment to the T&C, but it looks like we still need to address the EULA. See the comment below. Thanks BJ From: Gomberg, Brad [mailto.bgomberg@tequesta.org] Sent: Tuesday, December 02, 2008 5:43 PM To: Jones, Bernard Subject: Fw: Network Backup System Please see below regarding the EULA. The other issue has been resolved. ----- Original Message ----- From: keith W. Davis <keith@corbettandwhite.com> To: Gomberg, Brad Cc: McCollom, William Sent: Tue Dec 02 17:40:54 2008 https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 4 of 6 Subject: RE: Network Backup System Brad: Attached is the Amendment to the Agreement which I modified as to the changes to paragraph 12 of the original Agreement. The previous language I provided was in the line of direction as opposed to actual text. I have therefore fixed it with actual language as attached. However, the other issue, as I stated yesterday, is that the EULA must also be revised to reflect these changes, in paragraphs 9 and 17 of the EULA. Otherwise, we will have conflicting language. Keith W. Davis, Esq. Corbett and White, P.A. Tel: (561) 586-7116 -----Original Message----- From: Gomberg, Brad [mailto:bgomberg tequesta.oro] Sent: Tuesday, December 02, 2008 4:52 PM To: keith@corbettandwhite.com Cc: McCollom, William Subject: FW: Network Backup System Importance: High Hello Keith. I just received the revisions you suggested from Xiotech. The come in an amendment form. Can you please review them for legal sufficiency. Thank you for your time. Regards, Brad Gomberg Director of IT / IS The Village of Tequesta 561-744-4055 561-262-5173 C. www.tequesta.org -----Original Message----- From: Jones, Bernard [maitto.bj^jones@xiotech.com] Sent: Tuesday, December 02, 2008 4:42 PM https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 5 of 6 To: Gomberg, Brad Cc: Langer, Richard E. Subject: FW: Network Backup System Importance: High Brad, Here is the Terms and Conditions document as requested. Please let me know if this addresses all concerns. Thank you for your patience. BJ Bernard Jones Account Executive CXE, BCFP, CNE, MCP, VSP Xiotech Corporation bj_jones@xiotech.com <mailto;bj_jones_ xio_tec__h.com?subiect=Xiotech> 941 743 7350 (Office) 941 661 9993 (Mobile) 941 743 8911 (Fax) www.xiotech.com <http://www.xiotech.com> :Toll-Free 866 472 6764 Technical Support: 1-800-734-4716 Xiotech Website <htt~lLwww.xiotech.comJe_malsg.aspx?personID=bj_j_o_nes xiotech.com> From: Langer, Richard E. Sent: Tuesday, December 02, 2008 4:34 PM To: Jones, Bernard Cc: Arnold, Christopher D. Subject: RE: Network Backup System Importance: High BJ: I think this should do. Please pass this back to the Village. Call with questions. Dick *** eSafe scanned this email for malicious content *** *** IMPORTANT: Do not open attachments from unrecognized senders *** https://teq-exh/exchange/bgomberg/Inbox/RE:%20Network%20Backup%20System-14.E... 12/3/2008 Page 6 of 6 No virus found in this incoming message. 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