HomeMy WebLinkAboutAttachment1. Payment. The Buyer agrees 1u payment terms
per Remarks section of Schedule. Late payment
fees will he charged as follows: (a) one percent
(1%) per month or part thereof will he charged for
any payment that is more than 30 days late: (b)
Payment should be made to:
AWS Convergence Technologies, Inc.
12410 Milestone Center Drive, Suite 300
Germantown, Maryland 201.76
2. inspection and Acceptance. It is Buyer's
responsibility to inspect and accept each unit at the
lime of delivery. Failure of Buyer to inspect and
accept the unit at that time waives Buyer's rights to
inspection and acceptance as a term of the contract.
However, any actions under this clause shall not be
deemed a waiver of any warranty contained herein,
3. WeatherBug Achieve Annual Subscription
Fee. In return for the annual subscription fee,
Seller agrees to provide to Buyer: ( I ) complete
access to WeatherBug Achieve; (2) full community
access privileges (home and school use); (3)
Provide adequate bandwidth and server capacity;
(4) Provide toll -free technical support. The above
services will be provided for the term of one year
from the date of execution of this agreement, if
purchased separately, or for the term of one year
beginning 60 days after the date of execution, if
purchased with a Weather Station, and will
automatically renew, at the then current annual
subscription fee, for additional one-year terms,
unless terminated by either party with written
notice, to be received at least 30 days prior to the
expiration of the then current term.
4. Dispute. The parties agrees that any dispute, other
than those relating to payment, due and owing from
Buyer to Seller, arising out of or relating to this
Agreement, shall be subject to binding arbitration
pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. The parties shall
jointly request that an Arbiter be appointed by the
Alternative Dispute Resolution Administrator for the
Circuit Court for Montgomery County, Maryland, to
serve as the final arbiter of any dispute. Any award of
the Arbiter shall be enrollable in the applicable court
for enforcement. Both Buyer and Seller agree that
the finding of the arbitrator is binding and no other
remedy, including legal remedies, is permitted.
5. Warranty. The Seller warrants the hardware
and software purchased by the Buyer against
defects in workmanship and materials for a period
of one (1) year from date of delivery under this
contract. The Seller shall, at its sole option, either
repair or replace defective items. Buyer is
responsible to return of defective items to Seller by
means specified by the Seller. The Buyer shall bear
all shipping expenses. Packing of defective items
for return is responsibility of Buyer. Damage due to
natural causes (storms, lightning, flying debris, etc.)
is not covered by this warranty. Damage resulting
from Buyer negligence or mishandling of hardware
and software is not covered by this warranty.
6. Alterations and Attachments. If Buyer makes
alterations or attaches a device or any other item to
the AWS unit as sold and installed, the warranty is
voided and Seller has no further obligation under
the warranty.
7. Disclaimer of implied Warranties. Seller
disclaims the implied warranty of fitness for a
particular purpose and the implied warranty of
merchantability.
8. Liability. Buyer and subsequent users of
hardware and software agree to waive any liability
Attachment 1 Sales Tenns and Conditions
of Seller I'or damage caused by hardware and
software installation and operation on any user
premises.
4. Limitations/Disclaimer of Liability. Except for
damages caused by Seller's willful misconduct,
recklessness, or gross negligence, the parties agree
that to the extent permitted by applicable law, Seller
limits or disclaims liability related to the
manufacture, delivery, or use of the equipment, the
software and/or supplies used in connection with
the equipment or the provision of services for the
equipment, as follows: (a) For direct damages,
Seller liability is limited to the greater of the
amounts paid by Buyer or 10% of the amount
required to he paid by Buyer for the equipment,
software, supplies or services giving rise to, or
which are the subject of the claim, whether such
claim alleges breach of contract, or tortuous
conduct including but not limited to negligence or
any other theory. (b) Seller disclaims liability for
indirect, incidental, special, or consequential
damages (including but not limited to, loss of use,
revenue, or profit) whether such claim alleges
breach of contract, tortuous conduct including but
not limited to negligence, or any other theory.
10. Data Rights. Seller retains all rights to data
and/or video images (hereinafter "data") generated
by the AWS system(s). Seller grants Buyer a
limited license for use of such data, in connection
with Buyer's school , but for no other purpose.
Seller has exclusive rights for resale or to otherwise
use data from the installed system(s). Buyer and
users of hardware and software under this contract
cannot provide access to third parties without the
express written consent of Seller. Requests for
access must be in writing to the Seller at the Seller's
place of business. Seller grants Buyer a royalty free
license to use and disseminate data generated by the
Buyer's AWS system for educational purposes,
save and except that Buyer is expressly prohibited
from disseminating data to media outlets (such as
TV stations, cable channels. radio stations,
newspapers, and magazines). Buyer is expressly
prohibited from disseminating data from any other
AWS system.
11. Access To Communication Line. Buyer
agrees to connect, at Buyer expense, the AWS
;mitts) to a dedicated, full-time Internet connection.
Buyer further agrees to maintain the AWS system
in an operational mode at all times and to permit
Seller authorized outside access to system data
through the telecommunication line.
Telecommunication line expense is solely the
obligation of Buyer. Buyer agrees to follow all
procedures outlined in the Operations Manual to
ensure system access is maintained.
12. Non -Waiver of Rights. The failure of Buyer or
Seller to insist upon strict performance of the terms
and conditions of this Contract or to exercise any
rights or remedies, shall not be construed as a
waiver or its rights to assert any of same rights or to
rely an any such terms or conditions at any time
thereafter.
13. Governing Law. This Agreement shall be
governed by the laws of the State of Maryland.
14. Atlorney's Fees/Costs. In any action by a
party to enforce its rights hereunder, the
nonprevailing party shall pay the prevailing party's
costs and expenses (including reasonable anorney's
fees & other arbitration costs).
15. Extraordinary Circumstances. Except for
obligations of payment, neither Seller nor the Buyer
shall he liable for nonperformance caused by
circumstances beyond their control, including but
not limited to, work stoppages, floods, lightning and
all other acts of God.
16. Breach. Either party may terminate this
Agreement on breach by the other party of any
material term or condition hereof 10 clays after
written notice is given to the breaching party by the
non -breaching party if such breach is not cured.
17. Order Fulfillment. If this is a multiple unit
order and/or includes promotional goods, credits,
services, and the Buyer does not fully complete the
terms of the Order agreement, Seller reserves the
right to rebill at standard prices or to retrieve the
promotional items, unless the Buyer reconciles by
acquiring another AWS product eligible for such
promotional items/discounts.
18. Patent indemnity. Seller will defend the
Buyer from, and pay for ultimate judgment or
liability for infringement in the United States by
equipment or operating system software
("Software") of any patent, trademark, trade secret,
protected semiconductor chip mask work, or
copyright if Buyer promptly notifies Seller in
writing of any alleged infringement, allows Seller to
defend, and cooperates with Seller. Seller is not
responsible for any non-AWS litigation expenses or
settlements unless AWS agrees to them in writing.
Seller is not liable for any infringement due to
equipment or software being made or modified by
the Buyer or Buyer requested specification or
designs, or being used or sold in combination with
equipment, software, or supplies not provided by
Seller. IMPORTANT: SELLER MAKES NO
OTHER EXPRESS OR IMPLIED WARRANTY
OF NON -INFRINGEMENT AND HAS NO
OTHER LIABILITY FOR INFRINGEMENT OR
ANY DAMAGES THEREFROM. To avoid an
infringement (even if not alleged) Seller may, at its
option, at no charge to Buyer, obtain a license to
use, modify, or substitute an equivalent item for the
infringing equipment or software.
19. Purchase Orders. Except for identifying
goods, services or software ordered, prices and
quantities, the terms and conditions contained or
referenced in Buyer purchase order or other
ordering documents shall be of no force or effect.
20. Necessary Maintenance by AWS. Buyer will
provide upon reasonable notice by Seller access 10
the system(s) for the purpose of supplying
necessary maintenance and/or the installation of
additional sensor equipment.
21. Severability. If any provision of this
Agreement shall be held to be invalid or
unenforceable, the remainder of this Agreement
shall not be affected thereby and shall remain valid
and enforceable.
22. Modification. This contract shall not be varied
in its terms or conditions by any oral Agreement or
representation, but only by an instrument in writing
of even or subsequent date thereto. properly
executed by both the Seller and Buyer.
23. Entire Agreement. The terms and conditions
contained or referenced in this Order Agreement are
the complete and entire agreement between Seller
and Buyer respecting the subject matter of this
Agreement.
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