a. Seller shall retain full ownership of product(s) until full payment has been received in accordance with the Agreement, or sooner. Customer represents and warrants that any products received by it will be fully insured until the purchase price is paid in full.
b. Notwithstanding Seller retention of ownership, Customer shall incur all risks associated with loss or destruction of products.
c. Seller shall have the right and authority to repossess products, at Customer’s expense, if the purchase price is not paid when due.
a. Seller has created, acquired, or otherwise has rights in various concepts, ideas, methods, methodologies, procedures, know-how, and techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general-purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems. Nothing herein shall alter such ownership.
b. Customer shall provide Seller with reasonable opportunity to collect data from the Goods during any rental period or for the duration of time in which Customer receives Services from Seller following a purchase.
c. Seller shall own any and all data collected by the Goods or Customer’s employees, agents, and representatives during operation throughout rental periods or time in which Seller is providing Services, which relate to the operation of the Goods and associated equipment. Seller may use this data for updates and modifications of the Goods or any other use, which Seller deems appropriate or necessary.
1. Intellectual Property Rights
a. Seller shall own all Intellectual Property associated with the Goods and any derivative works thereto without regard to the party who may have developed such derivative works. This shall include, but not be limited to, concepts, technology or techniques developed in connection with the installation or use of any products or the provision of any Services hereunder.
b. Seller shall own all rights, title to, and interest in the copyright to works of authorship created by Customer or its employees or contracted employees, as it is related to Seller’s products and systems and Customer shall execute any documents required to establish Seller’s ownership of such copyright.
2. Intellectual Property Indemnification
a. Seller shall indemnify and hold harmless Customer and its affiliates, subsidiaries, customers, and subsequent purchasers or users from any losses or damages arising from any potential or actual claim alleging infringement or violation of intellectual property rights or licenses delivered or performed in connection with this Agreement.
b. Seller shall supersede Customer in defense of any claim, and assume and conduct the defense at Seller's sole discretion, in such an event, Customer shall be released from any obligation to pay for attorney’s fees and court costs, but shall not be released from any obligation to pay for settlement or damages, and any such release is expressly conditioned on Customer’s complete cooperation with Seller in Seller’s defense of such claim at Seller’s expense. Customer shall not enter into any settlement without Seller’s prior written consent.
3. Software License
a. Except as provided below, upon full and final payment to Seller, Seller grants Customer and its corporate affiliates, a royalty-free paid-up, worldwide, non-exclusive, perpetual, license to use the software delivered to Customer as a result of the Services and Seller’s related technology incorporated into such software. Such license may not be sublicensed without Seller’s prior written consent and may be revoked should Customer breach any of the Terms and Conditions.
4. Third-Party Software Liability
a. Seller has no liability with respect to any claims relating to or arising from the use by Customer of Third-Party Software or any other third-party products.
1. Limited Warranty
a. Seller warrants, for a period of twelve (12) months after acceptance of the products by Customer (the “Warranty Period”), that all products provided hereunder shall be: (i) free from defects in material and workmanship; and (ii) manufactured in accordance with the applicable Specifications. This limited warranty is limited to the repair or replacement of any defective product. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER SHALL CREATE A WARRANTY.
2. Pass Through of Third-Party Warranties.
a. To the extent assignable by Seller, all manufacturer warranties for any products (including software) procured by Seller on Customer’s behalf in connection with the products or services provided hereunder shall be passed through to Customer and Seller shall have no liability for same.
3. Limitation of Liability.
a. Seller, its affiliates, and each of their officers, directors, stockholders, members, managers, employees, and agents shall not be liable for any loss or damage caused by delay in providing the products or services provided hereunder, to the extent that such delay is attributable to delay by Customer or caused by a Force Majeure Event. UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, STOCKHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST DATA OR CONTENT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL), WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THIS AGREEMENT OR THE SERVICES OR PRODUCTS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The parties hereby agree that the limitations on liability set forth herein are independent of any exclusive or limited remedies, and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under the Agreement or Terms and Conditions may be brought by Customer more than one (1) year after the events which gave rise to the cause of action occurred.
4. Limitations of Warranty
a. The limited warranties set forth above in Article VI(1), shall not apply if the Product(s) or Service(s) upon which Customer's claim is based is:
i. not used in accordance with the documentation provided by Seller relating to the Products or Services;
ii. has been modified without Seller’s express authorization;
iii. fails to function due to a malfunction of Customer's or any third-party equipment;
iv. fails to function as a result of Customer's misuse, abuse, negligence, or unreasonable use in any way as determined by Seller.
v. causally related to any violation of any applicable national, state, and/or local law(s), ordinance(s), and/or regulation(s).
Article VII: Compliance and Requirements
1. Aviation Specific Requirements
a. Customer shall be solely responsible for conformance to all governmental regulations and certifications related to its aircraft, operations, operators, and other project-specific requirements as those regulations and certifications relate to Products provided by Seller.
2. Compliance with Laws
a. Seller and Customer shall comply with all applicable national, state, and local laws, ordinances, and regulations applicable to their respective performance hereunder.
b. Customer shall immediately notify Seller if Customer is suspended, disbarred, or restricted from doing business with the U.S. Government. Any such prohibition shall constitute a termination of the Agreement under Article IX(1)(c) of these Terms and Conditions.
c. Customer shall notify Seller in writing immediately, following the filing of formal charges, alleging Customer has committed fraud or corrupt practice in any federal, state, or foreign governmental criminal proceeding.
a. Customer shall cooperate with Seller in the performance by Seller of its Services hereunder, including without limitation, providing Seller with reasonable facilities and timely access to all relevant data, information, and personnel of Customer. Customer shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Seller for purposes of the performance by Seller of its Services hereunder.
Upon Customer’s request made during the Warranty Period, Seller shall deliver training data for maintenance of the Goods. The training material shall enable a technician to perform the recommended maintenance on the Goods. Additionally, Seller shall deliver a proposal to conduct practical hands-on training and instruction for the Customer, when requested. Training services shall be billed to Customer at Seller’s then standard rates.
2. Technical Support Services
Upon Customer’s request made during the Warranty Period, Seller shall deliver to Customer the technical assistance necessary to service, maintain, inspect, repair, overhaul, and operate the Goods.
3. Technical Publications
a. Seller shall keep and maintain all technical manuals and publications for the Goods and ensure that they are:
i. technically accurate; and
ii. and fully compliant with appropriate governmental specifications and requirements.
b. Upon Customer’s request, Seller shall deliver technical publications.
a. Unless otherwise agreed, each sale is a one-time event without recurrence or a renewal period.
b. For large orders extending beyond a twelve (12) month delivery schedule, Schedule II., as amended by mutual agreement, shall control any right to terminate before delivery is completed.
c. Either Party may terminate this agreement upon thirty (30) days-notice after the non-breaching Party has given the breaching Party notice of the breach and a reasonable opportunity to cure. No such notice shall be required if the default is a default in payment.
d. Upon termination, any Products, in which Seller retains title and are in Customer’s possession, shall be returned to Seller at Customer’s sole cost, provided delivery is to Seller’s facilities. One week prior to delivery of such Products, Customer will confirm the delivery location with Seller.
1. Force Majeure
a. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement for any failure or delay in fulfilling or performing any terms, when and to the extent such failure or delay is caused by: (a) acts of God; (b) flood, fire, explosion or chemical contamination; (c) epidemic, pandemic, quarantine restriction or plague; (d) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (e) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (f) national, regional, or local emergency; (g) damage to or failure of any facility from which the affected Party operates or upon which the affected Party relies for the operation of its business or any material portion thereof other than damage to or failures caused by the affected Party; or (h) national or regional shortage of adequate power, telecommunications, or transportation facilities (each of the foregoing, a "Force Majeure Event"), in each case, provided that (i) such event is outside the reasonable control of the affected Party; and (ii) such event cannot, despite the exercise of Commercially Reasonable Efforts by the affected Party, be controlled, prevented, avoided or removed the affected Party. The Party claiming excused performance by reason of a Force Majeure Event will provide reasonable notice of such claim to the other Party. A Party may unilaterally terminate the Agreement with immediate effect if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) Business Days or more.
b. Unless otherwise agreed to by both Parties, lack of financial resources will not be considered an event beyond the reasonable control of the afflicted Party.
c. To claim a Force Majeure Event, the Party shall provide notice, as described in Article XII(8) herein.
i. The notice will provide the details of the pending or existing problem, which satisfies the Force Majeure Event requirements.
ii. Notice shall be given within five (5) business days of such facts coming to the attention of the Party.
iii. Notice shall also include a plan to “work-around” the issues frustrating the satisfaction of the Agreement.
1. News Releases and Publicity
a. Customer shall not make or authorize any news release, advertisement, or other disclosure that relates to the Goods, any of its components, or the relationship between Customer and Seller without express written permission of Seller.
b. Customer shall not make use of the Seller’s name or logo without Seller’s prior express-written consent.
2. Inspection and Audit
a. Seller shall maintain complete inspection records for all Products which shall be available to Customer for six (6) months after the final payment, or final resolution of any dispute involving the Products delivered.
3. Security of Customer’s information
a. Customer and Seller acknowledge and agree that all information communicated to either Customer or Seller by the other Party in connection with the performance by a Party under the Agreement, including but not limited to purchase price, rental price, and other contract terms shall be received in confidence, shall be used only for purposes of the associated agreement, and no such confidential information shall be disclosed by the respective parties or their agents or personnel without the prior written consent of the other Party.
b. Except to the extent otherwise required by applicable law or professional standards, the Parties' obligations under this paragraph do not apply to information that:
i. is or becomes generally available to the public other than as a result of disclosure by Customer or Seller,
ii. known to either Customer or Seller or had been possessed by Customer or Seller without restriction against disclosure at the time of receipt thereof by Customer or Seller,
iii. was independently developed by Customer or Seller without violation of this paragraph, or
iv. Customer and Seller agree from time to time to disclose.
c. Each Party shall be deemed to have met its nondisclosure obligations under this paragraph as long as it exercises the same level of care to protect its own confidential information, to the extent that applicable law or professional standards impose a higher requirement. Seller may retain, subject to the terms of this paragraph, copies of Customer's confidential information required for compliance with applicable professional standards or internal policies.
d. If either Party receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose the other Party's confidential information, such Party shall, within five (5) days of receipt of the demand, provide written notice to the other Party of such demand in order to permit such other Party to, at its own expense, seek a protective order. So long as the notifying Party gives notice as provided herein, the notifying Party shall thereafter be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.
1. Terms and Conditions
a. These Terms and Conditions shall apply to the Agreement. In the event of a discrepancy between the Agreement, or any supplement, schedule, or addendum, and these Terms and Conditions, these Terms and Conditions shall prevail.
2. No Waiver
a. No failure of any Party to exercise any right hereunder, or to require compliance with the Agreement or these Terms and Conditions, shall constitute a waiver by such Party of its rights contained in the Agreement or these Terms and Conditions. No concession, latitude or waiver allowed by either Party to the other at any time shall be deemed a concession, latitude, or waiver with respect to any rights unless and only to the extent expressly stated in writing, nor shall it prevent such party from enforcing any rights in the future under similar circumstances.
3. Entire Agreement
a. The Agreement and these Terms and Conditions constitute the entire agreement between Seller and Customer with respect to the subject matter hereof and supersede all other oral and written representation, understandings, or agreements relating to the subject matter hereof.
a. No amendment to the Agreement or these Terms and Conditions will be effective unless it is in writing and signed by both Parties.
a. Except as provided below, neither Party may assign, transfer, or delegate any of the rights or obligations hereunder without the prior written consent of the other Party.
b. Seller may assign its rights and obligations hereunder to an affiliate or successor in interest to all or substantially all of the assets or business of the relevant Seller’s practice without the consent of Customer.
a. The Agreement may be signed in one or more counterparts, which together will form a single agreement.
7. Electronic Signatures
a. The Agreement may be signed electronically.
a. All notices and other communications called for shall be in writing and shall either be delivered by hand, electronically, mailed via first-class mail with postage prepaid, or sent via nationally recognized overnight courier capable of providing evidence of delivery.
b. Notices shall be sent to the address listed on the signature page of the Agreement or upon any other address agreed to, in writing, by the Parties.
9. Relationship of the Parties
a. The relationship between Seller and Customer is one of independent contractors and not of principal and agent, nor of legal partners. Neither Party shall represent itself as the agent or legal partner of the other Party nor perform any actions that might result in other persons believing that it has any authority to bind or to enter into commitments on behalf of the other.
10. Applicable Law and Forum
a. The Agreement and these Terms and Conditions shall be interpreted in accordance with the plain English meaning of its terms, and the construction thereof shall be governed by the laws in force in the State of Delaware. The parties expressly waive the jurisdiction of any foreign court or tribunal.
b. Any action arising from or related to this Agreement shall be governed by Delaware State law.
c. If Customer is entitled to immunity from legal actions on the grounds of sovereignty or otherwise, Customer shall waive and not plead such immunity in any legal action arising from the Agreement.
a. Parties agree that all actions or proceedings arising in connection with the Agreement or these Terms and Conditions shall be tried and litigated only in the state and federal courts located in the City and County of Denver, State of Colorado or, at the sole option of Seller, in any other court in which Seller shall initiate legal or equitable proceedings and which has subject matter jurisdiction over the matter in controversy. Customer and Seller hereby waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of forum non-conveniens or to object to the venue to the extent any proceeding is brought in accordance with this section.
12. Dispute Resolution
a. Parties shall attempt to resolve any disputes related to the Agreement or these Terms and Conditions through voluntary mediation; the mediator will be agreed upon by both Parties and paid for by the Party bringing the dispute unless a different arrangement is agreed upon during mediation.
b. If mediation does not resolve the dispute, Parties shall engage in binding arbitration. The arbiter, which will be agreed upon by both Parties, and the arbitration fees will be equally shared by both Parties unless a different arrangement is agreed upon or ordered by the arbiter. Arbitration shall be conducted by the Judicial Arbiter Group in Denver, Colorado. If Judicial Arbiter Group is not available, arbitration shall be through a similar private arbitration firm.
c. Each Party shall continue performing its obligations under an order pending resolution of a dispute. The dispute resolution procedures set forth in these Terms and Conditions do not supersede, delay or otherwise affect any rights of termination that are expressly set forth in Article IX.
13. Duty to Proceed
a. Except as expressly authorized in writing by Seller, no failure of Seller and Customer to reach an agreement regarding a dispute shall excuse Customer from proceeding.
a. All rights, obligations, and duties contained in the Agreement and these Terms and Conditions shall survive the expiration or termination of the Agreement.
a. In the event that any term or provision of the Agreement or these Terms and Conditions shall be held to be invalid, void, or unenforceable, the remainder of the Agreement or these Terms and Conditions shall not be affected, impaired, or invalidated, and each such term and provision of the Agreement or these Terms and Conditions shall be valid and enforceable to the fullest extent permitted by law.
(a) These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Air Rescue Systems Corporation ("Service Provider") to the party purchasing services from Service Provider ("Customer").
(b) The accompanying order confirmation (the "Order Confirmation"), Service Provider invoice (the “Invoice”), and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms, the Order Confirmation, or the Invoice, these Terms shall govern, unless the Order Confirmation or Invoice expressly states that the terms and conditions of the Order Confirmation or Invoice shall control.
(c) These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
2. Services. Service Provider shall provide the services to Customer as described in the Order Confirmation or Invoice (the "Services") in accordance with these Terms.
3. Performance Dates. Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
4. Customer's Obligations. Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services, if applicable;
(b) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(c) provide such Customer materials or information as Service Provider may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Customer's Acts or Omissions. If Service Provider'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, Service Provider 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.
6. Change Orders.
(a) 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. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 26.
(c) Notwithstanding Section 6(a) and Section 6(b), Service Provider may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
(d) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation or Invoice.
(b) Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
(c) Upon Service Provider’s acceptance of an order for Services from Customer, Service Provider shall issue an invoice for a 50% down payment for the order of Services made by Customer. Service Provider shall issue an invoice for the remaining balance to Customer within 30 days before the beginning date of Services. Customer shall pay all invoiced amounts due to Service Provider within 30 days from the date of Service Provider's invoice. Customer shall make all payments hereunder in US dollars by wire transfer. All Customer payments made to Service Provider shall be nonrefundable.
(d) In the event payments are not received by Service Provider after becoming due, Service Provider may:
(i) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.
8. Taxes. Customer shall be responsible for all sales, use and 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.
9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the "Deliverables") except for any Confidential Information of Customer or Customer materials shall be owned exclusively by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
10. Confidential Information.
(a) All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to Customer at the time of disclosure; or
(iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
(c) Service Provider shall be entitled to injunctive relief for any violation of this Section.
11. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within 10 days of the time when Customer discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 11(b), Service Provider shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
13. Limitation of Liability.
(a) CUSTOMER IS AWARE AND UNDERSTANDS THAT THE SERVICES PROVIDED BY SERVICE PROVIDER ARE A POTENTIALLY DANGEROUS ACTIVITY AND INVOLVES THE RISK OF SERIOUS INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE. CUSTOMER ACKNOWLEDGES THAT ANY INJURIES THAT MAY BE SUSTAINED BY CUSTOMER OR ITS PERSONNEL MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF THE SERVICE PROVIDER, INCLUDING NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF SERVICE PROVIDER. NOTWITHSTANDING THE RISK, THE CUSTOMER ACKNOWLEDGES AND REPRESENTS THAT CUSTOMER AND ITS PERSONNEL ARE VOLUNTARILY PARTICIPATING IN THE SERVICES WITH KNOWLEDGE OF THE DANGER INVOLVED, AND CUSTOMER HEREBY AGREES TO ACCEPT AND ASSUME ANY AND ALL RISKS AND LIABILITY OF INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE ARISING FROM CUSTOMERS’S PARTICIPATION IN THE ACTIVITY, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF SERVICE PROVIDER OR OTHERWISE.
(b) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(c) IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
14. Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Insurance. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $$8,000,000.00 with financially sound and reputable insurers. Upon Service Provider's request, Customer shall provide Service Provider with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Service Provider as an additional insured. Customer shall provide Service Provider with 10 days' advance written notice in the event of a cancellation or material change in Customer's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Service Provider's insurers and Service Provider.
16. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Force Majeure. No party shall be liable or responsible to the other party, or 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 of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) 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) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon 10 days' written notice.
18. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
19. Relationship of the Parties. 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.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.
22. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America, District of Colorado or the courts of the State of Colorado in each case located in the City and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, and Survival.
26. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.