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W shall be used solely for Customer's internal business
<br />purposes;
<br />(c) shall not be reproduced or copied, in whole or in part,
<br />except as necessary for use as authorized herein; and
<br />(d) shall, together with any copies thereof, be returned or
<br />destroyed, or may, if in the form of software recorded on an
<br />erasable storage medium, be erased when no longer needed
<br />or permitted for use with the product for which it was ini-
<br />tially furnished.
<br />3. Unless ABI consents in writing, such information except for
<br />any part thereof which is known to Customer free of any obliga-
<br />tion to keep in confidence, or which becomes generally known to
<br />the public through acts not attributable to Customer or is inde-
<br />pendently developed by Customer, shall be treated in confidence
<br />by Customer.
<br />4. Such information may be disclosed to other persons, solely
<br />for the purpose of installing; operating or maintaining the par-
<br />ticular product for which it was furnished, provided such other
<br />person agrees in writing to the same conditions respecting use
<br />and confidentiality of information contained in this paragraph 14
<br />and ABI is furnished with a copy of such writing.
<br />IS. EXCLUSIVE REMEDIES
<br />A. If Customer experiences a defect or any partial or total fail-
<br />ure in any product or service provided under this Agreement,
<br />Customer shall, as a condition to any claim for refund or recov-
<br />ery of damages, promptly notify ABI.
<br />B. If a failure or defect in a product under a service order con-
<br />tinues for more than twenty-four (24) hours, Customer's account
<br />then shall be credited in an amount equal to any recurring charge
<br />applicable to the failed or defective products or services for the
<br />period of such failure or defect.
<br />C. Customer's sole remedies against ABI or any affiliated sub-
<br />contractor or supplier for loss or damage caused by any product
<br />defect or any partial or total failure of any product or service
<br />provided under this Agreement or arising from the performance,
<br />delays, or nonperformance of any installation, maintenance,
<br />warranty or repair work under this Agreement; regardless of the
<br />form of action, whether in contract, tort including negligence,
<br />strict liability or otherwise, shall be, where applicable (i) Cus-
<br />tomer's right to receive the repair or replacement service
<br />described in Section 12, (ii) Customer's right to receive the credit
<br />set forth in (B) above for products provided under service or-
<br />ders, (iii) Customer's right to terminate under Section 17 (c), and
<br />(iv) the lesser of (a)the amount of actual direct damages which
<br />are proven or (b)the equivalent of one (1) month's recurring
<br />charges for the products or services directly involved which
<br />would apply if they were provided on a month-to-month service
<br />agreement at the time of loss.
<br />D. The foregoing remedies of Customer, together with the rem-
<br />edies provided in the section entitled "Patent and Copyright In-
<br />demnity," shall be exclusive of all other remedies at law or in
<br />equity except for. Customer's right to claim damages for bodily
<br />injury to any person caused by the negligence of ABI.
<br />16. LIMITATIO,V OF LIAHIL/ TY
<br />Notwithstanding any other provision of this Agreement:
<br />1. Neither ABI nor its affiliates, subsidiaries, parent corpora-
<br />tion, or any of its parent's affiliates or subsidiaries shall be liable
<br />for any indirect. incidental, or consequential damages (including
<br />lost profits) sustained or incurred in connection with installa-
<br />tion, maintenance or repair work perforated under this Agree-
<br />ment or the use or operation of the products and services pro-
<br />vidcd or sold hereunder•, r"ardless of the form of action,
<br />whether in contract, tort including negligence, strict liability or
<br />otherwise, and whether or not uch damages were foreseen or
<br />urtorescen:
<br />2. '.either Afll nor its affiliates. subsidiaries, parent corpora -
<br />:ion. or any of its parent's affiliates or subsidiaries shall be liable
<br />in any way for delay, failure in performance, loss or damaee due
<br />to any of the following force majcure a 11,hEions: fire, strike.
<br />embar¢o, e%ploston, power biackout, earthquake, volcanic ac-
<br />tion, ilood, wit, water, the elements. labor disputes, civil distur-
<br />bances, government requirement. civil or mtiitary authorir:. ,is
<br />of God or public enemy, irtabtltr' to secure raw matertats, inabtl-
<br />OEC .7 193
<br />t
<br />ity to secure products, transportation facilities, acts or omissions
<br />of carriers, or other causes beyond its reasonable control,
<br />whether or not similar to the foregoing;
<br />3. ABI shall not be liable for any delay, loss, damage or prod-
<br />uct failure attributable to any service, equipment or actions of
<br />any person other than ABI, its employees and agents;
<br />4. Any legal action arising from or in corinection with (a)any
<br />product defect or any partial or total failure in any product or
<br />service provided to Customer, or (b)any installation, mainte-
<br />nance or repair work performed for Customer, must be brought
<br />within two (2) years after the cause of action arises; and
<br />5. It is understood and agreed that ABI is not an insurer and
<br />that the prices of the products and services, including installa-
<br />tion, maintenance and repair, provided, sold or performed here-
<br />under are based solely on their value and the scope of the liabili-
<br />ties set forth in this Agreement and are unrelated to the potential
<br />for indirect, incidental, consequential or other damages. ABI
<br />and Customer agree that this allocation of risk and liability is
<br />fair, reasonable and not unconscionable.
<br />17, ?'ERMINATION
<br />A. This Agreement and any service order which becomes part
<br />of this Agreement may be terminated by Customer on thirty (30)
<br />days' written notice to ABI. If termination precedes expiration
<br />of the service period shown on any service order, Customer will
<br />be liable for termination charges as follows: one-half (I!2) of the
<br />monthly payments for the original term or 70 percent (7007a) of
<br />the -sum of all remaining monthly payments, whichever is less. If
<br />any service order is canceled prior to installation/delivery. Cus-
<br />tomer will pay ABI for the costs incurred by ABI in preparing to
<br />provide the products or services canceled, not to exceed the ter-
<br />mination charges.
<br />B. Accepted purchase orders for products, which are unde-
<br />livered on the date of termination of this Agreement, shall be
<br />filled under the terms of this Agrdement.
<br />C. Customer may terminate this Agreement, subject to accrued
<br />charges but without liability for termination charges, if ABI fails
<br />to perform or observe any term or condition of this Agreement
<br />and such failure shall continue unremedied for thirty (30) days
<br />After ABI's receipt of notice thereof from Customer. ABI may
<br />terminate this Agreement or any service orders 'or unfilled pur-
<br />chase orders accepted hereunder, and Customer shall be in de-
<br />fault of this Agreement, if Customer fails to pay any -charge
<br />when due or fails to perform or observe any other term or condi-
<br />tion of this Agreement and such failure shall continue unreme-
<br />died for thirty (30) days after receipt of notice thereof from ABI.
<br />In the event of such termination by ABI, applicable termination
<br />charges under service orders will apply.
<br />D. Upon termination of this Agreement or any service orders
<br />hereunder. Customer will make the product un er a
<br />affected service orders available for removal, which shall be ac-
<br />complished in a careful and reasonably expeditious fashion. The
<br />products will h: returned to ABI in the same condition as origi.
<br />nally installed, ordinary wear and tear excepted, or Customer
<br />will pay for file restoration of the products to such condition.
<br />ABI shall not be obligated to restore the premises to their origi-
<br />nal condit'ditt*`'If CtWotner does not make the products available
<br />for rernov:d by ,.*Al,rthen 4U addition to all other remedies at law
<br />or equity awiifat le to ABI all•ybligations of Customer under .his
<br />Agreement shall remaui qn tot;s and effect until removal is ac
<br />cumplished. td: charges paid 6y Customer for the services dur-
<br />ing such per:ed slialt be ABPs then current charges for the ser
<br />vices when provided on a month-to-month basis in lieu of any
<br />other charges listed in the sir•ice order.
<br />18. A.SS/G,VttfEVT
<br />This Agreement is not assignable by either party without the
<br />written consent of the other; except that ABI may, without Cus-
<br />tomer's consent, assign this Agrcetnent :o an affiliate or subsidi.
<br />ary or assign its right to receive payment hereunder.
<br />00K 5'
<br />D PAC:;
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