Each Statement of Work (SOW) and/or quotation issued by NE KEY.COM LLC (“Vendor” or “NE KEY”) is an offer to sell Products and/or Services (herein defined) to purchaser (“Customer”) and includes, is governed by, and Customer agrees to be bound by, this Master Services Agreement. Vendor’s SOW and/or quotation and this Master Services Agreement shall be deemed accepted by Customer upon Vendor’s receipt of a purchase order or a signed SOW. Acceptance of Vendor’s SOW and/or quotation and this Master Services Agreement is expressly limited to the terms contained in Vendor’s SOW and/or quotation and this Master Services Agreement. Vendor rejects any terms and conditions contained in Customer's forms that are additional to or different from those set forth in Vendor’ SOW and/or quotation or in this Master Services Agreement.
NE KEY is in the business of providing certain information technology services.
Customer desires to retain certain information technology services from NE KEY and NE KEY is willing to perform such services.
In consideration of the mutual covenants and agreements set forth in this Agreement, the parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined in the text of this Agreement are set forth and defined in the “Glossary of Terms” set forth on Schedule 1 attached to this Agreement and incorporated herein by reference.
2.1 NE KEY shall provide the Services to Customer (as described in more detail in each Statement of Work) in accordance with the terms and conditions of this Agreement. If there is a conflict between the SOW and this Agreement, then this Agreement will control.
2.2 Each Statement of Work will include the following information, if applicable: (a) a description of the Services to be performed; (b) the date upon which the Services will commence and the term of such Statement of Work; (c) the fees and costs to be paid to NE KEY; (d) the Project implementation plan and/or timetable; (e) Project Milestones and payment schedules; (f) any other criteria for completion of the Services; and (g) any other terms and conditions agreed upon by the parties in connection with the Services.
2.3 All Services will be scheduled and performed in the prioritized manner NE KEY deems reasonable and necessary. Exact start dates may vary or deviate from the dates NE KEY states to Customer depending on the Service being provided and the extent to which prerequisites (if any), such as transition or onboarding activities, must be completed. NE KEY will respond to any notification received by NE KEY of any error, outage, alarm, or alert pertaining to the Environment in accordance with the priority table(s) supplied to Customer in the SOW. In no event will NE KEY be responsible for delays in its response or NE KEY’s provision of Services during (a) those periods of time covered under the Transition Exception, (b) periods of delay caused by Scheduled Downtime, Customer-Side Downtime, Subvendor-Side Downtime, (c) periods in which NE KEY is required to suspend the Services to protect the security or integrity of the Environment or NE KEY Equipment, or (d) delays caused by a Force Majeure Event. NE KEY will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Customer-Side Downtime or Subvendor-Side Downtime.
2.4 Each party is, and will remain, the owner and/or licensor of all works of Intellectual Property Rights owned by such party and nothing in this Agreement, any SOW, or the provision of any Service shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property Rights to the other party unless expressly set forth and described in a SOW. For the purposes of clarity, Customer understands and agrees that NE KEY owns any software, codes, algorithms, or other works of authorship that NE KEY creates while providing the Services to Customer. If NE KEY provides licenses to Customers for Products, then Customer understands and agrees that such Products are licensed, and not sold, to Customer. Customer may use such Products subject to the terms and conditions (a) of this Agreement, (b) of the applicable SOW, (c) written directions that NE KEY supplies to Customer, (d) any applicable EULA; no other uses of such Third Party Products are permitted, and (e) the Terms Applicable to Product Sales attached hereto as Addendum A and incorporated herein by reference.
(a) appoint (i) a NE KEY employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of NE KEY in connection with matters pertaining to this Agreement (the “NE KEY Contract Manager”), and (ii) NE KEY Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;
(a) cooperate with NE KEY in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the “Customer Contract Manager”) . If no Customer Contract Manager is identified in an applicable SOW or if a previously identified Customer Contract Manager is no longer available to NE KEY, then the Customer Contract Manager will be the person (i) who accepted the SOW, and/or (ii) who is generally designated by Customer during the course of relationship to provide NE KEY with direction or guidance. NE KEY will be entitled to rely upon directions and guidance from the Customer Contract Manager until Customer notifies NE KEY of a change of status of the Customer Contract Manager. Customer agrees that it will not use a ticketing system or help desk request to notify NE KEY about the change of a Customer Contract Manager nor leave a recorded message for NE KEY informing it of a change to the Customer Contract Manager.
(b) provide NE KEY Personnel such access to Customer’s premises, office accommodation, and other facilities, equipment, and networks as may reasonably be requested by NE KEY for the purposes of performing the Services . Without limiting the generality of the foregoing, Customer hereby grants to NE KEY and NE KEY’s designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment as necessary to enable NE KEY or Third Party Providers, as applicable, to provide the Services and/or Third Party Services. Where necessary for the Services, Customer acknowledges that NE KEY may be required to install one or more software agents into the Environment through which access may be enabled. It is Customer’s responsibility to secure, at its own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for NE KEY or its Third Party Providers to provide Services to the Environment and, if applicable, at Customer’s designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by Customer at all times for NE KEY Personnel while on Customer’s premises. NE KEY shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve;
(e) provide such Customer Materials and/or information as NE KEY may request, in order to carry out the Services in a timely manner and ensure that Customer Materials are complete and accurate in all material respects (including the maintenance and preservation of all passwords, keys, access codes, activations codes and other similar words, phrases and codes);
(f) refrain from modifying or moving the Environment or installing software in the Environment unless NE KEY expressly authorizes such activity and to take all actions reasonably necessary to prevent any third party from making any alterations to any hardware or software monitored as part of the Services. In all situations (including those where NE KEY is co-managing an Environment with Customer’s internal IT department), Customer agrees and understands that NE KEY will not be responsible for changes to the Environment not made by NE KEY or issues that arises from those changes that are not authorized by NE KEY;
(h) obtain and maintain all necessary licenses and consents and comply with all applicable Laws in relation to the Services, the Environment, installation of any NE KEY Equipment, the use of Customer Materials, and the use of the Customer Equipment in relation to the NE KEY Equipment, in all cases before the date on which the Services are to start. Customer will provide NE KEY with evidence of software authenticity and/or licensing upon request. . NE KEY will be relieved of its obligations to the extent that they are affected by Customer’s failure to promptly obtain and provide any required consents . Customer agrees to implement and maintain any minimum hardware or software requirements contained in the SOW (the “Minimum Requirements”) before the commencement of Services and as an ongoing requirement of the Services;
(j) notify NE KEY promptly of any operational or other errors or problems with the hardware or software subject to the Services. Further, Customer will maintain reasonable and appropriate levels of physical and electronic security for their Environment. In the event a hardware or software issue requires NE KEY or Original Equipment Manufacturer (“OEM”) support, NE KEY may contact the NE KEY or OEM (as applicable) on Customer’s behalf and invoice Customer for all fees and reasonable costscharged by the OEM;
(l) except when performed by NE KEY under a SOW, to install all patches and updates on hardware or software in the Environment recommended by the manufacturer ( the “Update(s)”) in a timely manner .If Updates are provided to Customer as part of the Services, NE KEY will implement and follow the manufacturers’ recommendations for the installation of Updates, however, Customer agrees and understands that NE KEY (i) does not warrant or guarantee that any Update will perform properly, (ii) will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) reserves the right, but not the obligations, to refrain from installing an Update until NE KEY has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware subject to the Services;
(n) Customer shall encrypt at the application level all Confidential Information and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Customer's contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver's license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
4.2 If NE KEY’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, NE KEY shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Similarly, if NE KEY’s performance of its obligations under this Agreement is affected or otherwise prevented or delayed by any decision, recommendation, act or omission of Customer’s prior technology consultants (including, artifacts, or other unfinished/unsecured/unaddressed problems), NE KEY shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay
4.3 Without limiting the generality of the foregoing, Customer agrees and understand that it alone, and not NE KEY, is responsible for Customer’s own compliance with all Laws,including all confidentiality and security requirements, and any and all such requirements of the HIPAA, Gramm-Leach-Bliley Act, USA Patriot Act (along with all network rules applicable to VISA, MasterCard, Discover, and/or other networks).Unless otherwise expressly stated in a SOW, the Services are not intended, and will not be used, to bring Customer into full regulatory compliance with any Law, rule, regulation, or requirement that may be applicable to Customer’s business or operations. Depending on the Services provided, the Services may aid Customer’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution. Notwithstanding any language to the contrary, the Services are not, nor shall they be, construed as constituting legal advice or the provision of legal services for or on behalf of the Customer.
4.5 Customer understands and agrees that data loss or network failures in its Environment may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure, Customer must maintain proper security for its computer and information systems, including Updates. Customer will adhere to Updates and maintain specific security standards, policies, procedures such as those set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework . It is understood that the Services do not include any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or monitoring for other cyber threats for Customer unless expressly specified in a Statement of Work.
4.6 Customer understands and agrees that no security solution is one hundred percent effective and any security paradigm may be circumvented and/or rendered ineffective by certain malware (e.g. ransomware or rootkits) that was unknown to the malware prevention industry at the time of infection. NE KEY does not warrant or guarantee that all malware or malicious activity will be detected, avoided, quarantined, or removed, or that any data deleted, corrupted, or encrypted by malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in an SOW, post-breach work, including forensics and the actual or attempted recovery of Impacted Data is out-of- scope. Moreover, unless expressly stated in an SOW, NE KEY will not be responsible for activating multifactor authentication in any application in or connected to the Environment. Except as otherwise expressly set forth in this Agreement, Customer will hold NE KEY harmless from any costs, expenses, or damages arising from or related to cyberattacks, data loss, malware-related matters, and privacy-related breaches.
4.7 Customer acknowledges that from time to time, NE KEY may provide Customer with information and directions related to hardware, software, or the Environment (“Advice”). For example, Advice may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or refraining from engaging in acts that disrupt the Environment or that make the Environment less secure. Customer acknowledges that Advice may require Customer to make additional purchases or investments in the Environment at its sole cost. Customer acknowledges and agrees that NE KEY is not responsible for any problems or issues (such as downtime or security-related issues) caused by Customer’s failure to promptly follow Advice. If, in NE KEY’s discretion, Customer’s failure to follow Advice renders part or all of the Services economically or technically unreasonable to provide, then NE KEY may terminate the applicable Services for cause in accordance with Section 6.4. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by Customer’s failure to follow Advice, or Customer’s unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope and not included in the Services.
5.1 If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing in accordance with the notice provisions in Section 17.4. NE KEY shall, within a reasonable time (not to exceed 14 days) after receiving a Customer-initiated request, or at the same time that NE KEY initiates such a request, provide a written estimate to Customer of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; (d) any other impact the change might have on the performance of this Agreement; and (e) any other information reasonably requested by the Customer.
6.1 Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to thisSection 6 (the “Term”). The termination of Services under one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties.
6.2 Termination for Financial Insecurity. Either party may terminate this Agreement and all SOWs upon written notice if the other party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization. Termination shall be effective upon receipt of the written notice.
6.3 Other Termination. Either may terminate this Agreement at any time without cause, . Any such termination shall be effective upon natural expiration of all SOWs or upon notice if no SOWs are in progress. Any ability to terminate a SOW early, if any, shall be contained in the SOW. Unless otherwise specified, if Customer terminates a SOW for convenience, or if NE KEY terminates this Agreement (or any applicable SOW) for a reason set forth in Section 6.4 below, in addition to any other amounts due to NE KEY under this Agreement, Customer shall pay to NE KEY not as a penalty but as an early termination fee an amount equal to one hundred percent (100%) of the fees due during the remaining portion of the SOW in effect at the time of such termination. For the avoidance of doubt and where applicable, the foregoing sentence will apply such that Customer will also be responsible to pay to NE KEY an amount equal to one hundred percent (100%) of the fees that would otherwise be due and payable under an upcoming Renewal Term (as may be defined in the SOW) if Customer fails to abide by the requirements of the SOW. Furthermore, and without limiting the generality of the foregoing, Customer shall remain liable for any and all license fees and related costs and expenses incurred in connection with EULAs and/or Third Party Providers, including, but not limited to, residual license fees and related charges arising with respect to Microsoft NCE.
(a) Either party may terminate this Agreement or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Partymaterially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; .
(b) In the event that Customer or any of its staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to Customer, then in addition to NE KEY’s other rights under this Agreement, NE KEY will have the right upon providing Customer with ten (10) days prior written notice, to terminate the Services, this Agreement, and/or any applicable SOW.
6.5 Effects of Termination or Expiration . Upon expiration or termination of this Agreement for any reason:
(d) In the event that Customer requests NE KEY’s assistance to transition away from the Services, NE KEY will provide such reasonable assistance if (i) all fees due and owing to NE KEY are paid to NE KEY in full prior to NE KEY providing its assistance to Customer , and (ii) Customer agrees to pay NE KEY’s then-current hourly rate for such assistance, with up-front amounts to be paid to NE KEY as it may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Customer also understands and agrees that any software configurations that NE KEY custom creates or programs for Customer are NE KEY’s proprietary information and shall not be disclosed to Customer under any circumstances. Unless otherwise agreed between the parties, NE KEY will have no obligation to store or maintain any Customer data in its possession or control beyond five (5) calendar days following the termination of the applicable Services, this Agreement and/or the applicable SOW. Customer will indemnify and hold harmless NE KEY for any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, NE KEY’s deletion of Customer’s data beyond the time frames described in this section.
7. Fees and Expenses; Payment Terms.
7.1 In consideration of the provision of the Services by the NE KEY and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Statement of Work.
7.2 Where the Services are provided on a time and materials basis: (a) the fees payable for the Services shall be calculated in accordance with NE KEY’s daily or hourly fee rates set forth in the applicable Statement of Work; (b) Customer shall reimburse NE KEY, at NE KEY’s actual cost, for any supplies, machinery, equipment (collectively, “Materials”), and third-party services, including Third Party Providers, reasonably necessary for the provision of the Services. Except as otherwise provided in this Agreement, NE KEY shall obtain Customer’s written consent prior to the purchase of all Materials and third party services, which shall not be unreasonably withheld; and (c) NE KEY shall issue invoices to Customer monthly in arrears for its fees for time and expenses for the immediately preceding month, calculated as provided in this Section 7.2, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 7.4.
7.5 The parties agree that NE KEY may increase its standard fee rates specified in the applicable Statement of Work upon written notice to Customer; provided, that: (a) NE KEY provides Customer written notice of such increase at least thirty (30) days prior to the effective date of such increase; and (b) such increases occur no more frequently than once per every six (6) months of the Term.
7.7 Customer shall be responsible for all sales, use, excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. Any such taxes, duties, and charges currently assessed, or which may be assessed in the future, that are applicable to the Services are for the Customer’s account and Customer hereby agrees to pay such taxes. This provision shall not apply to any taxes for which Customer is exempt and for which Customer has furnished NE KEY with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.8 Amounts owing to NE KEY that remain unpaid after the due date will be subject to interest on the unpaid amount(s) until and including the date payment is received at 1% per month or the maximum allowable rate of interest permitted by applicable Law, whichever is less. NE KEY reserves the right (in addition to and not in lieu of its other rights hereunder), but not the obligation, to suspend part or all the Services without prior notice to Customer in the event that any portion of undisputed fees are not received by NE KEY. Monthly and/or recurring charges (as applicable) shall continue to accrue during any period of suspension. Notice of disputes related to fees must be received by NE KEY within thirty (30) days after the applicable Service is rendered or the due date of the invoice, whichever is later; otherwise, Customer waives its right to dispute the fee thereafter. A re-connect fee of up to five percent (5%) of the monthly recurring charges may be charged to Customer to NE KEY resume the Services after a suspension due to non-payment. Time is of the essence in the performance of all payment obligations by Customer. If NE KEY is required to refer Customer’s account to Collections or to start any Collections-related action to recover undisputed fees, NE KEY will be entitled to recover all costs and fees NE KEY incurs in the Collections process, including, but not limited to, reasonable attorneys’ fees and costs.
8. Third Party Services; Equipment.
8.1 Portions of the Services may be acquired from, resold from, and/or rely upon the services of, third party vendors, manufacturers, or providers (each a “Third Party Provider”). Third Party Providers may provide services such as data hosting services, help desk services, malware detection services, domain registration services, data backup/recovery services, other security related services, and/or next generation technology solutions (each, a “Third Party Service”). Not all Third Party Services will be expressly identified as being provided by a Third Party Provider and at all times NE KEY reserves the right to utilize the services of any Third Party Provider or to change Third Party Providers in its sole discretion as long as the change does not materially diminish the Services that NE KEY is obligated to provide to Customer. Customer understands and agrees that Third Party Providers are not NE KEY’s contractors, subcontractors, or otherwise under its managerial or operational control. While NE KEY will endeavor to facilitate a workaround for the failure of a Third Party Service, NE KEY will not be responsible, and will be held harmless by Customer, for any failure of any Third Party Service as well as the failure of any Third Party Provider to provide such services to NE KEY or to Customer.
8.4 Customer hereby represents and warrants that NE KEY is authorized to access all devices, peripherals, and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by Customer. Unless otherwise stated in writing by NE KEY, Devices may not receive or benefit from the Services while the Devices are detached from, or unconnected to, the Environment. Customer will refrain from connecting Devices to the Environment where such devices are not previously known to NE KEY and are not expressly covered under a managed service plan from NE KEY (“Unknown Devices”). NE KEY will not be responsible for the diagnosis of, any failures due to, or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and NE KEY will not be obligated to provide the Services to any Unknown Devices.
8.5 All NE KEY Equipment used to provide Services to Customer is licensed to Customer and is neither owned by Customer nor leased to Customer. Upon the termination of applicable Services, Customer’s license to use the NE KEY Equipment shall immediately terminate and thereafter all NE KEY Equipment must be returned to NE KEY immediately at Customer’s expense. All configurations on the NE KEY Equipment are NE KEY’s proprietary information and will not be circumvented, modified, or removed by Customer without NE KEY’s prior written consent.
9.1 The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however , that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables; (c) to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party; and (d) it will use the same care and discretion to avoid disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care).
9.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
9.3 Upon termination of this Agreement or upon Disclosing Party’s request at any time, Receiving Party agrees to promptly return to Disclosing Party all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Receiving Party shall certify to Disclosing Party promptly that all such Confidential Information, including all copies thereof, has been totally and permanently destroyed.
10. Representations and Warranties.
10.1 Each party represents and warrants to the other party that:
(e) it is in compliance with, and will continue to comply during the Term, all applicable Laws.
10.2 NE KEY represents and warrants to Customer that:
(a) it shall perform the Services using personnel of required skill, experience, and qualifications, and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;
(b) the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work for a period of five (5) days after delivery to Customer. In the event of NE KEY’s breach of the foregoing warranty, NE KEY’s exclusive obligation and liability and Customer’s exclusive remedies shall be as follows:
(i) NE KEY shall use commercially reasonable efforts to reperform the Services; provided, that if NE KEY cannot provide conforming Services within a mutually acceptable timeline (but no more than 60 days) after Customer’s written notice of such non-conformance, Customer may, at its option, terminate the SOW for the non-conforming Services.
(ii) In the event the Agreement is terminated in accordance with Section 10.2(d), NE KEY shall within 60 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for such Service or Deliverable less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
10.3 Customer represents and warrants to NE KEY that: (a) it owns, or is a licensee of, having the right to sublicense, their data and software and that Customer has the right to grant NE KEY the rights that Customer purports to grant in this Agreement; (b) NE KEY’s possession or use of the Customer data or software does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
10.4 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) NE KEY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF NE KEY IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF NE KEY. CUSTOMER IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH NE KEY CANNOT BE HELD LIABLE.
11.1 Customer shall defend, indemnify, and hold harmless NE KEY and NE KEY’s Affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against all Losses arising out of or resulting from any third-party action arising out of or resulting from: (a) real property damage or personal injury, including death, directly caused by Customer; and (b) Customer’s breach of any representation, warranty, or obligation of Customer in this Agreement.
11.2 Subject to the terms and conditions in this Agreement, NE KEY will, at its cost, (i) defend Customer and its officers, directors, shareholders, employees, agents, successors and assigns (collectively the “Customer Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Customer Indemnified Parties to the extent based upon (a) real property damage or personal injury, including death, solely and directly caused by NE KEY’s employees or contractors in the course of performance under this Agreement; and (b) any allegation that Customer’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) NE KEY shall pay any final award of damages (or settlement amount approved by NE KEY in writing and) paid to the third party that brought any such Claim.
11.3 A party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 10. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
11.4 At any time after notice of an IP Claim, or if NE KEY believes there is a basis for an IP Claim, NE KEY has the right, at NE KEY’s sole option and expense, to either (a) procure the right for Customer to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that NE KEY believes would not be subject to the IP Claim. If NE KEY deems (a) or (b) not feasible or not commercially reasonable, NE KEY has the right to terminate the applicable SOW. In the event of any such termination, NE KEY will refund to Customer the unused portion of any amounts paid by Customer for the affected Service. In addition, upon any such termination, Customer shall cease the use of the applicable Service.
11.5 Notwithstanding anything to the contrary, NE KEY shall have no obligations or liability under Section 11.2 if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by NE KEY, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Customer’s failure to comply with NE KEY’s direction to cease any activity that in NE KEY’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a NE KEY Service, or that does not reference a feature of function of a NE KEY Service, or (e) any IP Claim for which Customer does not promptly tender control of the defense thereof to NE KEY.
11.6 THE TERMS IN THIS SECTION 11 (INDEMNIFICATION) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND NE KEY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11 (INDEMNIFICATION), NE KEY SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR THIRD PARTY CLAIMS.
11.7 .
12.1 EACH PARTY ACKNOWLEDGES THAT THE FOLLOWING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CUSTOMER FOR THE SERVICES WOULD HAVE BEEN HIGHER.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NE KEY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THIS AGREEMENT, ANY SOW, OR FOR ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY SOW, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (b) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (c) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE..
13.1Each party shall, at all times during the Term of this Agreement and for a period of three years thereafter, procure and maintain, at its sole cost and expense, insurance each deems necessary to protect their individual interests from such claims, liability or damages which may arise out of the performance of their respective obligations under this Agreement including without limitation, comprehensive commercial general liability, professional liability, workers compensation, and cyber liability..
13.3 Section 13 shall not be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations imposed under this Agreement (including but not limited to, any provisions requiring a party hereto to indemnify, defend, and hold the other harmless under this Agreement).
14.1 During the Term of this Agreement and for a period of one (1) year thereafter, Customer shall not, directly or indirectly, in any manner employ, solicit, or induce for employment any person who performed any work under this Agreement who is then, or was in the past twelve (12) months, in the employ of NE KEY. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 14.1, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section 14.1.
14.2 If Customer breachesSection 14.1, it shall, on demand, pay to NE KEY as liquidated damages and not a penalty an amount equal to one year’s base salary or the annual fee that was payable by NE KEY to that employee, worker, or independent contractor as applicable plus the recruitment costs incurred by NE KEYin replacing such person.
15. Non-Exclusivity. NE KEY retains the right to perform the same or similar type of services to other parties during the Term of this Agreement.
16.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the Impacted Party’s reasonable control, including without limitation the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) unforeseeable government order, Law, or action©(e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) internet outages, shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 60 days of the Force Majeure Event to the other party, stating the period of time the occur©ence is expected to continue.
16.3 The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of 60 days following written notice given by it under this Section 16, the other party may thereafter terminate this Agreement upon 15 days’ written notice.
17.2 Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated on the most recent SOW or quotation.
17.5 Construction. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
17.6 Entire Agreement. This Agreement, together with all Schedules, Exhibits, and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits and Schedules (unless a Statement of Work expressly sets forth otherwise); (b) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to this Agreement; and (d) fourth, the NE KEY Proposal. Any terms specified in in Customer’s purchase order or other documents are excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of NE KEY.
17.12 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States for the District of New Jersey or the Superior Court of Camden County in the State of New Jersey and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service, this Agreement, or any SOW (except for issues of nonpayment by Customer) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
17.13 Arbitration. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Except for undisputed collections actions to recover fees due to NE KEY (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA-certified arbitrator available within a twenty (20) mile radius of NE KEY office, then by any arbitration forum as determined by NE KEY, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in a venue of NE KEY choice. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
17.14 Equitable Relief. Each party acknowledges that a breach by a party of Section 9 (Confidentiality), and Section 14 (Non-Solicitation) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
17.16 Survival. The rights and obligations of the parties set forth in Section 1, Section 9, Section 10, Section 12, Section 6.5, Section 13, Section 14, and Section 17, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
17.17 Subcontractors. NE KEY may engage subcontractors to perform services under any SOW. Except as provided herein, NE KEY shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
SCHEDULE 1
(GlossAry of Terms)
“AAA” has the meaning set forth in Section 17.13.
“Advice” has the meaning set forth in Section 4.7.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Change Order” has the meaning set forth in Section 5.2.
“Collections” has the has the meaning set forth in Section 17.13.
“Confidential Information” means any information that is treated as confidential by a party, including, but not limited to, all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Customer” has the meaning set forth in the preamble.
“Customer Contract Manager” has the meaning set forth in Section 4.1(a) .
“Customer Equipment” means any computers, equipment, systems, cabling, or facilities provided or otherwise owned by Customer and used directly or indirectly in the provision of the Services.
“Customer Materials” any documents, data, know-how, methodologies, software, and other materials provided to NE KEY by Customer or otherwise owned by Customer, including computer software, programs, reports, and specifications.
“Customer-Side Downtime” means any period of time during which delays or deficiencies are caused by Customer actions or omissions, including, but is not limited to, any period of time during which NE KEY requires Customer participation or NE KEY require information, directions, or authorization from Customer but cannot reach the Customer Contract Manager.
“Defaulting Party” has the meaning set forth in Section 6.4(a).
“Deliverables” means all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of NE KEY in the course of performing the Services, including any items identified as such in a Statement of Work.
“Devices” has the meaning set forth in Section 8.4.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Environment” means, collectively, any computer network (cloud- based or otherwise), computer system, peripheral or device (virtual or physical) acquired, installed, maintained, monitored, or operated by NE KEY for Customer or on Customer’s behalf.
“EULA” has the meaning set forth in Section 8.2.
“Force Majeure Event” has the meaning set forth in Section 16.
“Impacted Data”has the meaning set forth in Section 4.6.
“Impacted Party”means the party effected by a Force Majeure Event.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Materials” has the meaning set forth in Section 7.2
“Minimum Requirements” has the meaning set forth in Section 4.1(h).
“OEM” has the meaning set forth in Section 4.1(j).
“Person” means an individual, corporation, partnership, joint venture, corporation, governmental authority, unincorporated organization, trust, association, or other entity.
“Products” has the meaning set forth in Addendum A.
“Project” means a project as described in a Statement of Work.
“Rules”has the meaning set forth in Section 17.13.
“Scheduled Downtime” means those hours, as determined by NE KEY but which will not occur between the hours of 8:00 AM and 5:00 PM Eastern Time, Monday through Friday (Federal holidays excluded) without Customer authorization or unless exigent circumstances exist, during which time NE KEY will perform scheduled maintenance or adjustments to the Environment. NE KEY will endeavor to provide Customer with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
“Services” mean the services to be provided by NE KEY under this Agreement, as described in more detail in a Statement of Work, and NE KEY’s obligations under this Agreement.
“Statement of Work” or “SOW” means each Statement of Work entered into by the parties as contemplated by this Agreement , each of which describes, summarizes, and/or defines the scope and provision of the Services .
“Subvendor-Side Downtime” means any delays or deficiencies caused by Third Party Providers, third party subvendors, third party licensors, or “upstream” service or product subvendors, including, but not limited to, Office 365/Azure.
“Term” has the meaning set forth in Section 6.
“Transition Exception” means the first forty-five (45) days following the commencement date of any Service, as well as any period of time during which NE KEY is performing off-boarding-related services (e.g., assisting Customer in the transition of the Services to another provider, terminating a service, etc.).
“Third Party Provider” and “Third Party Service” have the meaning set forth in Section 8.1.
“Unknown Devices” has the meaning set forth in Section 8.4.
“Updates” has the meaning set forth in Section 4.1(l).
“Vendor” has the meaning set forth in the preamble.
“NE KEY Contract Manager” has the meaning set forth in Section 3.1(a).
“NE KEY Equipment” means any equipment, systems, cabling, or facilities provided by or on behalf of NE KEY and used directly or indirectly in the provision of the Services.
“NE KEY Personnel” means all employees and Permitted Subcontractors, if any, engaged by NE KEY to perform the Services.
“NE KEY Proposal” means Customer’s Request for Proposal for the Services and NE KEY’s response, describing how NE KEY proposes to carry out the Services and/or a Project.
ADDENDUM A:
TERMS SPECIFIC TO PRODUCT SALES ONLY
This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Resold Services (“Products”) made by Customer, for its own internal use and not for resale, pursuant to a quotation issued by NE KEY (“Quotation”). As used in this Addendum A, the term “Resold Services” refers to services, which although ordered from NE KEY, are procured from and supplied by a third party (i.e., NE KEY does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.
1.Product Returns and Warranty Assistance.
(a) Customer acknowledges that NE KEY is reselling all Products purchased by Customer and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, NE KEY shall pass through to Customer the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will NE KEY provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).
(c) Customer acknowledges that the terms and conditions governing the use of Products shall be solely between Customer and the manufacturer of such Products.
2.Product Use and Product Warranty Disclaimer. Customer will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that NE KEY is not liable for any claim or damage arising from such use.
NE KEY MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. NE KEY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
3. Shipment and Risk of Loss for Product Sales. All shipments of Products to Customer will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Customer’s identified point of delivery will be the responsibility of Customer. Risk of loss will pass to Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Customer’s representative at the point of shipment.
4.Product Security Interest.Customer grants NE KEY a security interest in the Products detailed in each Quotation, as security for payment in full. Customer authorizes NE KEY to file and/or record any documents it deems necessary to perfect this security interest.
5.Permitting Compliance for Product Sales.Customer will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
6.Price and Payment.The prices set forth in any Quotation are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Prices quoted are firm for thirty (30) days unless otherwise specified in the Quotation. Payment is due thirty (30) days from the date of the invoice. In the event Customer chooses to finance its purchase using a third party, Customer remains liable for payment to NE KEY until NE KEY receives complete payment from such third party. All payments will be made in US currency. Customer will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed.
7.Export.Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp (or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Customer certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products by NE KEY, Customer acknowledges that it is not relying on NE KEY for any advice or counseling on export control requirements. Customer agrees to indemnify, to the fullest extent permitted by law, NE KEY from and against any fines, penalties and reasonable attorney fees that may arise as a result of Customer’s breach of this Section.
8.Cancelation.The purchase of Products may be canceled by Customer only upon written approval of NE KEY and upon terms that indemnify NE KEY against all losses related to such cancelation.
9.Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM NE KEY FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL NE KEY’S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. NE KEY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS ADDENDUM A, EVEN IF NE KEY HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.