|
W shall be used solely for Customer's internal business
<br />purposes;
<br />(c) shall not be reproduced or copied, in whole or is 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) Customers'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." ,hall be exclusive of all other remedies at law or in
<br />equity except tar Customer's right to claim dama;es for bodily
<br />injury to any person caused by the negligence of ABI.
<br />16. LI RT4TIU.\"t)FLiABILITF
<br />Notwithstanding any other provision of this Agreement:
<br />1. Neither ABH nor its affiliates, iubsidians, Arent :otpora-
<br />tion, or any of its parent's affiliates or subsidiaries shall be liable
<br />for any indirect, incidental, or consequential dama_es tindud:ng
<br />lo,t profits) ,u,tained or incurred in connection .%idi instaila-
<br />tion. maintenance or repair %k rk performed under this Agree-
<br />ment or the u.c or operation o: the produtii and ,e:vitcs lets•
<br />vidcd or ,old hercutwer, %z'ArJh!5s of the corm at action.
<br />%liether �n Contract, tort indu Ging negagencv. <U'i i nubility i+r
<br />otherwise, and whether or v '.1ch Js l ge, ,terc foreseen it
<br />,:Wor.scen:
<br />_. ': seller \ill nor :t. affi;i.:::,. suhsidiarics, a,rert eorpura-
<br />•n. •r city w i:, parent`, att:!:.ites or subsidiaries >hull be- lianl,
<br />ill ally t%av r: r oeiav, f:l:.'urc is ,,, forintlnce. !oK, or damage
<br />o .0:v W the ', ihiysin fort; :naicure ,•:lai:;ons: fire. ,rrtke,
<br />crnrurdo. :;i,wn. :Myer Ci wi uut. :1P.ay ua eC. tDlcanic 4-
<br />lwn, i:oLw, tar, .truer, ;: c e:rncnts.'.abor ai,vtites. civil 1i,ru-
<br />bances, bUvernlncnt regwrume:::, civil or tniiiiar%:.:!dorsa,
<br />of Col or puciic ciletiiy. I:la:na' c0 secure raw mat.:lal.i, :aaoll-
<br />�A 4 1984
<br />.N
<br />�w?L`:�s3eW ��...a�.'t. ,:.t."+�5e_,a +a.5�..uk..� .e .n....-.•__.. �... ,. ... -. ,. .-, ..
<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 connection 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 />S. 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. TERMINAT1oN
<br />A. This Agteement 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 -halt' (1/2) of the
<br />monthly payments for the original term or 70 percent (7001o) 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 Agreement.
<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. CLB;1mer will make the products a ed under sir
<br />affected sen ice orders available for removal, which shall be ac-
<br />compiished in t Careful and reasonably expeditious fashion. Th. -
<br />products will 11, returned to ABI in the same condition as origi-
<br />nally install::, ordinary wear and tear excepted, or Customer'
<br />ks will pay for restoration of the products to such condition.
<br />ABI shall not t%: obligated to restore the premises to their origi-
<br />nal condit'on't'l t Clsto'rer does not make the products available
<br />for remOV11 by ,>.31, to+ n 'res addition to all other remedies at law
<br />or equity av ii,ahle to Aral all�ehiigatiuns of Customer under .his
<br />A;reemenr chap remain•in rofc.t Ind effect until removal is as
<br />campli.,hed. V h char3u nate by Customer for the services dur-
<br />:lg �utli TMJ d ,Bali •\I 1'i ih.n current charges for :;ie s,7/
<br />lice: when pro%ided on a month-to-month basis in lieu of any
<br />orrier charces tiered in the service ,)rder.
<br />l8- .- SSiG Vt• EAT
<br />his Agreement is not :t.;ignanle r+y either party mwnom the
<br />antler cun,ent of the uth.r: rs pt i;;1t ABI may; o-ithout Cus-
<br />tomer'c consi:nt, assign tlui Aer.:nic:tt :p aced atii!iatc or iubsidi-
<br />ary or assign its right to recto c payment here::nJer.
<br />BooK 55 mf- 746
<br />
|