|
r__
<br />DEC 15 1982
<br />Products available for removal by Company,
<br />then in addition to all other remedies at law
<br />or equity available to Company all the
<br />obligations of Customer under this Agree-
<br />ment shall remain in force and effect until
<br />remora, is accomplished. The charges paid
<br />b. Customer for the Services during such
<br />period shalt he Company's then current
<br />ch rge, l,. the Scrvices whctt provided on a
<br />it h:.ms in lieu of any oti.e:
<br />b. Erenr,� of Default an.1 Remedicc
<br />ne foliouaif •nail constitute events it;
<br />default by Customer:
<br />(a) Customers failure to pax .,it% charge•
<br />hereunder when due ur failure to per-
<br />form or obsenc any other terns,
<br />,onditum or covetutnt of this Agree.
<br />Wren., tf such failure shall continue
<br />unremedied for a period of ten (10).
<br />.aa% s after Customer's receipt of notice:
<br />,nercot from Compam
<br />(b) 1'he institution again., Customer of
<br />ruroceedings undr at.,., bankruptcy
<br />nsolvency or simoa. dation, or the
<br />appointment for Cu.st:c: (or any of
<br />its property, of a receiver or similar
<br />officer, if such proccediri;s or appoint.
<br />;hent, shall not be vacs:ed, or fuliy
<br />,..ye;:. wit ca,. twenty (2ty days after
<br />:he .r-titutior. or.vcurrence thereof.
<br />. i L t. ,mer s making, an assignment for
<br />:he benefit of creditors,., bull: transfer
<br />of :csn;tire. ...rna):i,gs, fixture>,
<br />eoi..pmem or •r+ca;ori.,:rCastome;'s
<br />admisshul in'A:itijig of its inability is
<br />pay .rF. debts generaiiv a•. they become
<br />a ue.
<br />;d) Customer's attempt, v anout Cor+.-
<br />pa,w'+ writic. ,:i)nscnt, to remove, sell,
<br />::ansfer, encumber. pari with posses-
<br />sion. or ;ease any ilerti of IAC Products.
<br />te) An actual or threate;.ed 1.v% o: zxec..-
<br />tion upon the Products.
<br />ion the occurrence ofany event ofdefaui;.
<br />Co.npany may exercise any or all rights ,;.
<br />re:necaes a-va:lablc to it, including, but not
<br />GA::ted to. n•rminaiion o: ii:_ services.
<br />case Customer :hail he ohii*atc.i tri
<br />pa. ;epi.ciihicu•rill nation charkcs(as spec.-
<br />l.cu ir. Sectioit 2) as lhciu,n C „stoner h..,.
<br />,erminated uric of the Serb icc>.
<br />in :he event airy action a nroutht .:
<br />Company for the breach of, or to enforce -
<br />;i.% Agrer:acni or to 'protect Compam'.
<br />.ille:2�l in :he Prcxf IieLs, i�t:cl,)tik:r a1:reC. ; •,
<br />p:., the c.:st thereof: re.isunab.:
<br />attorney's tees at trial or on appeal, costs an,i
<br />expenses. Company's decision not t•:
<br />exercise any orali of its rights o: remedies it,
<br />the even: of Customers default sisal: not
<br />,ons,itute a waivei of any of Compaii'll
<br />rigntseithci ge1wrally or with respcc. to 111—
<br />,.elault.
<br />No Warranties
<br />r X(*FPT 41 SPE:C'IFIC'ALI.Y MADt.
<br />lit ,Ri.*iN,t OMPANY MAKFSNOWAk
<br />JxAN'Tli WHATEVER, EXPRESS OR
<br />IMPLIED, AND SPECIFICALLY
<br />DISCLAIMS ANY WARRANTY OF
<br />MERCHANTABILITY OR FITNESS
<br />FOR A PARTICULAR PURPOSE AS
<br />TO THE SERVICES AND PRODUCTS
<br />WHICH WILL BE PROVIDED TO CUS-
<br />TOMER BY COMPANYUNDER THIS
<br />AGREEMENT OR THE USE OF THOSE
<br />SERVICES AND PRODUCTS IN CON-
<br />JUNCTION WITH EQUIPMENT, PRO-
<br />GRAMS OR OTHER MATERIAL
<br />PROVIDF,D BY CUSTOMER
<br />8. Limitalions of Liability, Exclusive Remedy
<br />In the event Customer espe ncnces a partial
<br />or total lailure, malfunction of defect in any
<br />of the Services provided pursuant to this- `•
<br />Agreement, Customer shall, as a condition- :
<br />to any claim for refund or recovery of
<br />damages, immediately notify Company by '
<br />telephone call to the designated service
<br />office. Customers account shall then be
<br />credited in an amount equal to any usage or
<br />recurring charge applicable to any such ,
<br />defective Services for the period of such
<br />failure, malfunction or defect.
<br />Customers sole and exclusive remedy for
<br />any such partial ortotal failure, malfunction
<br />or defect of Services, whether resulting from
<br />breach ofsontract; tort including negligence,
<br />fault or other breach of duty,, or.from `any
<br />other cause whatever, shall be limited to such
<br />credit and, where proven, general money
<br />damages to the extent provided in the
<br />following paragraph. Customer shall have
<br />no remedy hereunder for any failure, mal-
<br />function or defect attributable to any service
<br />or equipment provided by, or to the actions
<br />of, any person other than Company.
<br />Company's liability for damages sustained
<br />by Customer for any partial or total failure,
<br />malfunction or defect c_ Sc. -vice, whether
<br />caused by breach of contract, negligence,
<br />fault or other breach of duty. or by any other
<br />cause whatgyer, and regardless of the form of
<br />action, whether in equity, contract, ton, or
<br />otherwise, shalt be limited to an amount not
<br />exceeding the lesser of the amount of actual
<br />direct damages which are proven or one.
<br />month's charges appiicable to the Services
<br />directly involved in the failure, malfunction
<br />or defcc:.
<br />ivny legal action arising out of or involving
<br />anv partial or total failure, malfunction or
<br />defect in any of the Services provided to
<br />Custotuer must be brought within one year
<br />of the occurrence.
<br />Neither Company, affiliates or subsidiaries
<br />ofCompany its parent corporation, nor any
<br />of as parent's alfli c; or subsidiaries shall
<br />lil ,i,y way be iiahie for any indirect,
<br />incidental, con,eyuentiai or puniiive
<br />dartagessustaine_ orincarred in cornecuon
<br />*-to la, use or operatior. of the :,ervices
<br />,,^.rovide., undc- Ag;-cc:rent, whether
<br />trial: daGlare:. arihai. ori) hr.:,,Cit Jf a,nera.,.
<br />negliernrc, laiuli ai other orcacil ,if.luty, or
<br />Prot„ am; other cause whsteveruad whether
<br />or not such damages were foreseen or
<br />unforeseen.
<br />9. Miscellaneous
<br />Neither Company, affiliates or subsidiaries
<br />of Company, its parent corporation, norany
<br />of its parent's affiliates or subsidiaries shall
<br />BOOK �, Fr���r •
<br />be liable in any way for losses or damages of
<br />Customer due to events beyond Company's
<br />control, including but not limited to fires,
<br />power failures or surges, strikes, riots, war,
<br />governmental regulation or appropriation,
<br />failure to perform of suppliers or vendors,
<br />acts of God or similar causes.
<br />Except as provided in paragraph 2 of the
<br />Agreement, nen het Customer nor( smpany
<br />may assign its ,v%pect;ve rigiits.an,. ,,buga-
<br />lions under this Ap-villem w.thout the prior
<br />wntici eonsen. .,, the other: provided,
<br />ho(vrver, that Company may, without C'us-
<br />tomer's consent. assign its rights to receiv,
<br />payments hereunder to another party.
<br />Any notice required to be given under the
<br />terms of this Agreement (except notices of
<br />tauure. malfunction ordefect in the Services)
<br />shall he considered to have been given whet.
<br />such notice is mailed or personally delivered
<br />to such address as may be designated from
<br />time fp time by Company or Customer,
<br />provided that notices relating to termination
<br />of service or default shall be given by
<br />registered or certified mail return receipt
<br />requested or, if personally delivered, a
<br />receipt for delivery shall be obtained.
<br />THIS AGREEMENT CONSTITUTES
<br />THE ENTIRE AGREEMENT BETWEEN
<br />THE PARTIES AND, EXCEPT TO THE
<br />EXTENT THE TERMS HEREOF PRO-
<br />VIDE FOR SEPARATE AGREEMENTS
<br />BETWEEN THE PARTIES, SUPER-
<br />SEDES ALL PRIOR AGREEMENTS,
<br />PROPOSALS OR UNDERSTANDINGS,
<br />WHETHER WRITTEN OR ORAL. AND
<br />NO REPRESENTATIVE OF THE
<br />COMPANY IS AUTHORIZED TO
<br />AMEND THE TERMS HEREOF
<br />EXCFPT AS PROVIDFD IN THE
<br />FOLLOWING PARAGRAPH.
<br />No amendment or waiver of any provision of
<br />this Agreement, nor consent to any depar-
<br />ture by the Customer or Company there-
<br />from, shall be effective unless the same shall
<br />be to writing and signed by authorized agents
<br />of both parties. Only officers or assistant
<br />officers of the Company will be authorized
<br />to amend or waive provisions of this
<br />Agreement.
<br />If any term or provision of this Agreement
<br />shall be held invalid o"negtorceable, the
<br />remainder of this Agreement shat, not be
<br />affected thereby and each term and provision
<br />hereof shall be valid and enforced to the
<br />fullest extent permitted by law.
<br />This Agreement ;hal: be construed in ac-
<br />cordance with and governed by the laws of
<br />the State of New Jersey.
<br />Receipt of ,opy of Attachment 4 Terms and
<br />Conditions ACKnowledgew
<br />Authorized Customer NtgatattA`—
<br />Date:
<br />_- .
<br />
|