1 - Construction and Legal Effect: The quotations contained in this Order Form are subject to change or withdrawal without notice. Your order constitutes an offer in accordance with the terms hereof and such offer, upon endorsement of acceptance by 1Micro, LLC (“1Micro”), will constitute the agreement between us. Your order, after such acceptance by 1Micro, will not be subject to cancellation, change or reduction in amount of goods purchased, or suspension by you of deliveries, unless prior to such action you have obtained 1Micro’s written consent. Any of the terms of provisions of your order which are inconsistent with theseTerms and Conditions of Sale shall not be binding on 1Micro and shall not be considered applicable to any sale made pursuant to this Order Form. 1Micro’s published or quoted prices, discounts, terms and conditions are subject to change without notice. No representation of any kind has been made by 1Micro, except as set forth herein, and this Order Form conclusively supersedes all prior writings and negotiations with respect thereto. If you take any legal action against 1Micro and fail to obtain a judgment against 1Micro on the merits, then you shall pay for 1Micro’s reasonable costs and attorneys’ fees. All legal fees, Court costs, and collection expenses will be paid by you in the event of default based on the terms of this agreement. Title for all goods and services rendered by 1Micro, LLC, shall not pass to you until all monies due are paid in full.
2 - Billing Terms: Unless otherwise stated herein, all prices are F.O.B. shipping point. Method of delivery and routing shall be at 1Micro’s discretion. Notwithstanding any agreement to pay freight, delivery of goods purchased hereunder to a common carrier or licensed trucker shall constitute delivery to you, and all risk of loss or damage in transit shall be borne by you. The amount of any applicable present or future tax or other government charge on the production, sale, shipment or use of goods ordered or sold will be added to your bill unless you provide 1Micro with an appropriate exemption certificate.
3 - Delivery, Cancellation and Returned Equipment: Deliveries will be made in accordance with 1Micro’s production schedule. 1Micro will make every effort to meet your requested delivery dates, but 1Micro shall be excused for any delay in performance due to causes beyond its control. You may defer deliveries or cancel orders only by written notice and only upon the condition that you make full payment to 1Micro for items which are within sixty (60) calendar days of availability when 1Micro receives such notice. Goods may be returned only when specifically authorized. You will be charged for placing returned goods in a salable condition, any sales expenses incurred by 1Micro, a restocking charge, and any out-going or in-coming transportation costs paid by 1Micro.
4 - Credit and Payment: Unless otherwise noted in this Order Form, terms are COD. 1Micro may decline to deliver except for cash, or stop goods in transit, whenever any reasonable doubt as to your financial responsibility develops. Prorated payments shall become due with partial shipments. If you are responsible for any delay in shipment, the date of availability of goods may be treated by 1Micro as the date of shipment for purposes of payment. Available goods will be held at your cost and risk, and you shall pay all reasonable storage and insurance expenses. Interest will be charged against monies due over ten (10) days at the lesser of 1.5% per month or the maximum interest rate permitted by applicable law.
5 - Security Interest: 1Micro reserves a purchase money security interest in the goods ordered hereby until full payment is received for all goods sold to you and, for that purpose, this Order Form is a security agreement. By signing this Order Form, you authorize 1Micro or its agent to sign any necessary financing statements on your behalf, to file a reproduction of financing statement, and/or to file this Order Form, or a copy of this Order Form, to perfect 1Micro’s security interest. If this Order Form or a copy of it is filed, information concerning the security interest may be obtained from 1Micro at the address provided on the front of this Order Form.
6 - Limited Warranty: These terms and conditions are intended to inform you of 1Micro’s policies and procedures. EXCEPT AS SET FORTH BELOW, 1MICRO MAKES NO WARRANTY EXPRESS OR IMPLIED (INCLUDING ANY REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). Except as provided in Section 9 of these Terms and Conditions of Sale, the equipment described on this Order Form is warranted to be free from material defects for a period of ninety (90) days after delivery to the F.O.B. shipping point. 1Micro will provide replacement parts and labor at no cost to you to correct any such material defects reported by you within the two year limited warranty period, so long as you are current on ALL payment obligations to 1Micro. This limited warranty covers parts and labor only. It does not include travel expenses incurred by 1Micro’s service personnel or distributor’s service personnel. Travel charges will be based on the then current travel billing policy of 1Micro or your distributor. This limited warranty DOES NOT cover: i. Damage - Damage caused to equipment due to normal wear and tear, customer negligence, improper operating procedures or improper ii. Adjustment - Adjustment to the machine such as, but not limited to, failure to clean/lubricate properly, improper touch screen interaction, or failure to supply the power to the machine properly; iii. Consumable - Consumable parts such as window labels / Buyer’s Guides, key tag labels, security fasteners, security drivers / bits, etc.; iv. Hardware - Hardware options, such as, but not limited to, license plate tags, key tags; or software.
7 - Limited Liability: 1Micro’s liability is limited to 1Micro’s stated price per unit of any defective goods, and shall in no event include your costs, lost profits, goodwill, or any special or consequential damages.
8 - Proprietary Information: You expressly agree that all ideas, concepts, know-how, documentation, drawings, specifications, software, technical data, trade secrets and technological information of whatever kind developed by 1Micro (hereinafter “Proprietary Information”) shall be the exclusive property of 1Micro and shall be treated by you and your assigns as confidential and shall not be further disclosed without the written permission of 1Micro. Your purchase of the goods ordered hereby shall NOT entitle you to any intellectual property contained in the Proprietary Information.
9 - Software: 1Micro products contain software and related documentation licensed to and/or designed by 1Micro (the “Software”). Subject to theTerms and Conditions of this Order Form, 1Micro grants you a personal, non-exclusive and non-transferable license to use the Software on 1Micro computers only. You may NOT move the Software from one computer location to another.
10 - Software Engineering: You may not reverse engineer, decompile, or disassemble any of the software.
11 - Your Use of Software: created by outside vendors and licensed to 1Micro for use in 1Micro products (“Third Party Software”) may also be subject to separate license agreement(s), which may supersede the above license grant for your use of the Software. 1Micro makes no representation or warranty as toThird Party Software, all of which is sold and licensed to you “AS IS”, and you agree to look solely to the warranties and remedies, if any, provided by the third party manufacturer of suchThird Part Software.
12 - Software Design: Software designed by 1Micro (“1Micro Software”) is warranted forThree (3) years to conform substantially to the then-current published functional specifications for such software. Accordingly, 1Micro will make reasonable efforts to correct errors in 1Micro Software reported by you during theThree (3) year warranty period. However, because not all errors in software can or need be corrected, 1Micro does not warrant that (i) all defects in 1Micro Software will be corrected, (ii) the functions contained in 1Micro Software will meet your requirements, or (iii) 1Micro Software will operate in the combinations you select.
13 - Arbitration: Any claim or controversy arising out of or relating to this Agreement which is not disposed of by agreement shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect; provided however, that the arbitrators shall not have authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be conducted in Minneapolis, Minnesota before three arbitrators, one selected by you, one selected by 1Micro, and third selected by mutual agreement. Notwithstanding the forgoing, arbitration shall not be required if 1Micro is entitled to repossess the goods purchased pursuant to this Order Form. Other than actions by 1Micro to collect payments, repossess the goods purchased pursuant to this Order Form, or protect 1Micro’s proprietary information or security interest, no arbitration proceeding or legal action, regardless of its form, related to or arising out of this Order Form, may be brought by either party more than one year after the cause of action first accrued. This Order Form, and any disputes arising there from, shall be governed and construed according to the laws of the State of Minnesota and any disputes arising in any way from this contract shall be litigated only in federal or state courts located in Minneapolis, Minnesota. i. No Waiver: Any failure or delay by 1Micro in exercising any right or remedy shall not constitute a waiver of that right or of 1Micro’s right to assert or rely upon theTerms and Conditions of this Order Form. ii. Severability: Each paragraph and provision of theTerms and Conditions of this Order Form is severable, and if one or more paragraphs or provisions are declared invalid, the remaining provisions shall remain in in full force and effect.
14 - Amendments: Amendments, modifications, additions, or deletions may only be made by a writing signed by both parties.
15 - Entire Agreement: Upon acceptance by 1Micro, this Order Form shall constitute the entire agreement between the parties with respect to the goods ordered hereby and shall supersede all prior or contemporaneous proposals, representations, discussions and understandings, whether oral or written.
Compliance with Title V of the Gramm-Leach-Bliley Act *
The privacy provisions of the G-L-B Act and Regulation P, which became effective on July 1, 2001, regulate the manner in which dealerships (such as yours) are allowed to share with others the personally identifiable financial information not otherwise generally available to the public that they obtain about their consumers (“Nonpublic Personal Information”). In connection with 1MICRO LLC’s business relationship with Client, CLIENT will share certain of its consumer’s Nonpublic Personal Information with 1MICRO, LLC. As such, 1MICRO, LLC agrees as follows:
1 - 1MICRO, LLC will use their best efforts to comply with the requirements of G-L-B Act and Regulation P, in particular, as they relate to the disclosure and protection ofTrade Secret and Nonpublic Personal Information.
2 - 1MICRO, LLC agrees to use their best efforts to keep confidential allTrade Secret and Nonpublic Personal Information received from CLIENT in accordance with the provisions of the G-L-B Act and Regulation P. In particular, 1MICRO, LLC may use the Trade Secret and Nonpublic Personal Information 1MICRO, LLC receives from CLIENT only for the purposes for which suchTrade Secret and Nonpublic Personal Information was delivered to 1MICRO, LLC and only for such other purposes permitted under the G-LB Act and Regulation P.
3 - 1MICRO, LLC agrees to use their best efforts to maintain and to cause our Affiliates to maintain physical, electronic and procedural safeguards that comply with Regulation P to guard theTrade Secret and Nonpublic Personal Information. 1MICRO, LLC further agrees to be responsible for any breach of this agreement by their Affiliates.
4 - In the eventTrade Secret and Nonpublic Personal Information is used in an unauthorized manner or disclosed in violation of the G-L-B Act and Regulation P, which unauthorized use or disclosure is caused by the action or inaction of 1MICRO, LLC, 1MICRO, LLC agrees to immediately notify CLIENT of such event. 1MICRO, LLC will indemnify and hold CLIENT harmless from all claims, damage, liability, costs and expenses (including court costs and reasonable attorneys’ fees) arising from any unauthorized use or disclosure which results directly from the action or inaction of 1MICRO, LLC. In addition, 1MICRO, LLC understands that CLIENT will be entitled to all other remedies available at law or equity, including injunctive relief.
5 - Upon written request, 1MICRO, LLC agrees to promptly returnTrade Secret and Nonpublic Personal Information received from CLI- ENT, or to promptly destroy all materials containing suchTrade Secret and Nonpublic Personal Information (and any copies, extracts, and summaries thereof) and will further provide CLIENT with written confirmation of such return or destruction upon Client’s written request.
6 - This agreement shall be binding upon and inure to the benefit of 1MICRO, LLC’s Affiliates, and successors and assigns. In the event of a conflict between the terms of this agreement and any prior agreement between the parties hereto, the terms of this agreement will control. All obligations under this Agreement shall survive termination of this Agreement for a period of 2 years, except that the obligation to maintain confidentialTrade Secret and Nonpublic Personal Information shall remain in effect for an indefinite period of time. Any failure on on the part of your dealership to insist upon the performance of this Agreement or any part thereof shall not constitute a waiver of any rights hereunder. If a court in any judicial proceeding shall refuse to enforce any of the separate covenants included in this Agreement, then such unenforceable covenant shall be deemed modified or eliminated so as to be enforceable for purposes of such proceeding.
7 - Service Provider Agreement-Safeguards Rule Clause 1MICRO, LLC, Inc. (hereinafter referred to as “1Micro”) is a Service Provider to automobile dealerships. 1Micro warrants to its dealers that it presently maintains, and will continue to maintain and periodically test the efficiency of appropriate information security programs and measures designed to ensure the security and confidentiality of “Customer Information” (as defined in 16 CFR S314.2(b)). Such information security programs and measures shall include appropri- ate procedures designed to (1) protect the security and confidentiality of such information, (2) protect against anticipated threats or hazards to the access to or use of such information, and (3) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer of Dealer.
8 - This Agreement will be governed by and construed in accordance with the laws, of the state of MINNESOTA. By signature of each authorized agent below, each party hereto hereby represents and warrants that such agent has the authority to make this Agreement on behalf of such party. CLIENT hereby authorizes 1MICRO, LLC to access Client’s computer system for the purpose of extracting Finance and Insurance Information.
Salestouchsm Kiosk Limited Warranty *
1Micro LLC. (“1Micro”) warrants this Product (including any accessories) against defects in material or workmanship as follows:
1 - LABOR: For a period of ninety (90) days from the date of purchase, if this Product is determined to be defective, 1Micro will repair or replace the Product, at its option, at no charge, or pay the labor charges to any 1Micro authorized service facility. After the Warranty Period, you must pay for all labor charges.
2 - PARTS: In addition. 1Micro will supply, at no charge, new or rebuilt replacements in exchange for defective parts for a period of ninety (90) days. After the warranty period, you must pay for all parts costs.
3 - ACCESSORIES: Warranty on parts and labor for all accessories is ninety (90) days. To obtain warranty service, you must take the Product, or deliver the Product freight prepaid, in either its original packaging or packaging affording an equal degree of protection; to any authorized 1Micro service facility, unless an onsite repair is authorized by a 1Micro service facility. This warranty does not cover customer instruction, installation, set up adjustments or signal reception problems. This warranty does not cover cosmetic damage or damage due to acts of God, accident, misuse, abuse, negligence, commercial use, or modification of any part of the Product, including the antenna.This warranty does not cover damage due to improper operation or maintenance, connection to improper voltage supply, or attempted repair by anyone other than a facility authorized by 1Micro. This warranty does not cover Products sold AS IS or WITH ALL FAULTS, or consumables (such as fuses or batteries). This warranty is valid only in the United States. Proof of purchase in the form of a bill of sale or receipted invoice, which is evidence that the unit is within the Warranty period, must be presented to obtain warranty service. This warranty is invalid if the factory-applied serial number has been altered or removed from the Product or the Product has been modified, tampered with or in any way damaged due to intrusion. Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In addition, if you enter into a service contract with 1Micro within 90 days of the date of sale, the limitation on how long an implied warranty lasts does not apply to you. This warranty gives you specific legal rights, and you may have other rights, which vary from state to state.
Data Authorization Addendum
THIS PRODUCER AGREEMENT (“AGREEMENT”) IS MADE AND ENTERED INTO AS OF THE DATE OF EXECUTION BY AND BETWEEN 1MICRO LLC, WITH OFFICES LOCATED IN EDEN PRAIRIE, MINNESOTA (HEREINAFTER REFERRED TO AS 1MICRO LLC.”) ANDTHE (HEREINAFTER REFERREDTO AS “CLIENT”), DATED , (“SERVICE AGREEMENT”). WHEREIN 1MICRO, LLC AGREES TO PROVIDE CERTAIN SOFTWARE APPLICATIONS AND SERVICES NECESSARYTO CAPTURE INFORMATION FROMTHE DEALER MANAGEMENT SYSTEMS (“DMS”) OFTHE CLIENT, AND CLIENT ACKNOWLEDGESTHAT 1MICRO LLC MUST HAVE ACCESSTO DEALER INFORMATION IN ORDERTO ACCOMPLISHTHE PURPOSE SET FORTHTHEREIN. NEGATION OF WARRANTY CLIENT EXPRESSLY AGREESTHAT ITS USE OFTHE DATA RETRIEVAL PROGRAM (HEREINAFTER REFERREDTO AS PROGRAM) IS AT CLIENT’S SOLE RISK. WHILE 1MICRO, LLC BELIEVES THAT THE PROGRAM DATABASES ARE AN ACCURATE REFLECTION OF THE DMS DATABASES, NEITHER 1MICRO, LLC NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES WARRANT THE ACCURACY, THE CORRECTNESS OF ANY DATA, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OFTHE PROGRAM,THETIMELINESS, SEQUENCE, COMPLETENESS, RELIABILITY OR CONTENT OFTHE DATA OR INFORMATION OF THE PROGRAM. ALL ACCESS TO THE PROGRAM DATABASES IS “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CLIENT BEARS ALL RISK PERTAINING TO QUALITY AND PERFORMANCE OF THE PROGRAM AND ALL INFORMATION CONTAINED INTHE DATABASES. LIMITATION OF LIABILITY IN NO EVENT, INCLUDING NEGLIGENCE, SHALL 1MICRO LLC BE LIABLETO CLIENT ANDTHEIR AFFILIATES FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATEDTOTHIS AGREEMENT,THE PERFORMANCE OR BREACH THEREOF, ORTHE ACCURACY OR CORRECTNESS OF THE INFORMATION CONTAINED HEREIN, EVEN IF 1MICRO LLC HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 1MICRO LLC’S LIABILITYTO CLIENT ANDTHEIR AFFILIATES HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AGGREGATE AMOUNT CLIENT PAID TO 1MICRO LLC IN CONNECTION WITH THE SER VICE AGREEMENT. IN NO EVENT SHALL 1MICRO LLC BE LIABLE TO CLIENT AND THEIR AFFILIATES FOR ANY DAMAGES RESULTING FROM OR RELATEDTO ANY FAILURE OR DELAY OF 1MICRO LLC IN PROVIDINGTHE DATA UNDERTHIS AGREEMENT ORTOTHE ACCURACY OR CORRECTNESS OFTHE DATA PROCESSED BY CLIENT. IN NO EVENT SHALL 1MICRO LLC BE LIABLE TO CLIENT AND THEIR AFFILIATES FOR ANY DAMAGES RESULTING FROM OR RELATEDTO ANY FAILURE OR DELAY OF 1MICRO LLCTO CONNECTTOTHE DMS DUETO ISSUES BEYOND 1MICRO LLC’S CONTROL WHICH SHALL INCLUDE WITHOUT LIMITATION SUCH INSTANCES SUCH AS BUSY LINES, CORRUPT MODEMS, LOCKED PORTS ON THE DMS, NO MODEM CARRIER ERRORS AND ALL OTHER TECHNICAL ISSUESTHAT MAY PREVENT CONNECTIVITYTOTHE DMS. CLIENT HEREBY AGREES THAT SUBSCRIBER IS SOLELY RESPONSIBLE AND LIABLE FOR ESTABLISHING, ADMINISTERING AND MONITORING ALL SECURITY AND PERSONNEL MATTERS CONNECTED WITH OR RELATED TO CLIENT’S EMPLOYEES, AGENTS OR AFFILIATES ACCESS TO AND USE OF THE PROGRAM AND ANY INFORMATION CONTAINEDTHEREIN. IN NO EVENT SHALL 1MICRO LLC OR CLIENT BE LIABLETO CLIENT, ITS EMPLOYEES, AGENTS OR AFFILIATES FOR UNAUTHORIZED ACCESS TO, OR MISUSE OF THE PROGRAM OR ANY INFORMATION CONTAINEDTHEREIN.
AGREEMENT TERM TO TERMS OF THIS AGREEMENT WILL COMMENCE ON THE EFFECTIVE DATE. TERMINATION PRIOR TO FULFILLMENT MAY BE DUETO, BUT NOT LIMITEDTO,THE FOLLOWING CONDITIONS:
1. TERMINATION OFTHE SERVICE AGREEMENT;
2. INTHE EVENT OF A MATERIAL BREACH OFTHIS AGREEMENT, ANDTHE FAILURE BYTHE BREACHING PARTYTO CURETHE BREACH WITHIN THIRTY (30) DAYS AFTER THE DATE OF WRITTEN NOTIFICATION OF SUCH BREACH; OR
3. 1MICRO, LLC’STHIRTY (30) DAY PRIORWRITTEN NOTICE DELIVEREDTO CLIENT NO UNAUTHORIZED USE OF 1MICRO, LLC’S PRODUCTS OR SERVICES CLIENT, ITS EMPLOYEES, AGENTS AND AFFILIATES WILL NOT COPY, MODIFY, DISTRIBUTE OR TRANSFER (BY ANY MEANS) SUBLICENSE, REVERSE ENGINEER, RECOMPILE OR DISASSEMBLE ANY OF THE SOFTWARE OR COMPONENTS CONSTITUTING 1MICRO LLC’S PRODUCTS OR SERVICES PROVIDED PURSUANTTOTHE SERVICE AGREEMENT AND SAME SHALL AT ALLTIMES BE AND REMAIN SOLELY AND EXCLUSIVELY OWNED BY 1MICRO LLC.
THIS SILVER LEVEL SERVICES AGREEMENT (this “Agreement”) is made as of , (the “Effective Date”) between the Customer having its principal place of business at ,
(“Customer Address”), and 1MICRO, LLC , a corporation, with offices at 902 S Pine St, Waconia, MN 55387 (“1MICRO”) (each of 1MICRO and Customer are referred to herein individually as a “Party” and collectively as the “Parties”).
In consideration of the mutual covenants and agreements herein contained, and in return for other good and valuable consideration, the receipt and sufficiency of which are hereby specifically acknowledged, the Parties hereby agree as follows:
(a) Subject to the terms and conditions of this Agreement, 1MICRO or its subcontractors will provide Customer with access to its Liquid CRM system to be used in connection with the specific service offering set forth on each particular Services Order executed by the parties in connection with this Agreement and made a part of this Agreement (the “Service”). In order to use the Service, Customer is responsible at Customer’s own expense to access the Internet, either directly or through devices that access Web-based content and pay any service fees associated with such access. In addition, Customer must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. Customer shall not attempt to access any other of 1MICRO's systems, programs or data that are not made available for public use. In furtherance of the Service, 1MICRO agrees to provide to Customer, services consisting of non-exclusive electronic access to a 1MICRO server and storage system (“Server”) to store Customer’s data, information and content, which may be supplied by Customer and modified by Customer from time to time.
(b) 1MICRO and Customer may modify the terms of a Services Order only in a written amendment which is signed by both parties. In addition, if Customer desires to purchase additional Services from 1MICRO, Customer and 1MICRO shall execute additional Services Orders which shall reference this Agreement and which shall thereafter be incorporated herein by reference. The terms and conditions of this Agreement shall govern all Services Orders executed by the parties.
(c) Any and all 1MICRO Devices such as Kiosks, Desktops, Handhelds or other electronic devices, sold by 1Micro, shall not function without this agreement or any other 1Micro Services Agreement being in effect. 1MICRO electronic devices are required to have access to 1MICRO servers in order to function properly. For purposes of this Agreement, “1MICRO Devices” means all of 1MICRO's proprietary devices (including SalesTouch Kiosk, SalesTouch Key Machines, SalesTouch Desktops, iLot Handhelds, printers, routers, modems, network switches, cameras, scanners, biometric readers, biometric scanners, and other tangible electronic device sold by 1Micro or its’ affiliates) made available to Customer by 1MICRO in providing the Service.
1MICRO Technology. In connection with the performance of the Service, 1MICRO shall operate and support the hosted environment, including, without limitation, the 1MICRO Technology, the Server hardware, disk storage, firewall protection, Server operating systems, management programs, Web server programs, documentation and all other information developed or provided by 1MICRO or its suppliers under this Agreement, as well as all other documents, software, products and services contained or made available to Customer in the course of using the Service (collectively, the “Hosted Materials”). For purposes of this Agreement, “1MICRO Technology” means all of 1MICRO's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by 1MICRO in providing the Service.
Downtime. Subject to the terms and conditions of this Agreement, 1MICRO shall use commercially reasonable efforts to provide the Service for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Customer agrees that from time to time the Service may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which 1MICRO may undertake from time to time; or (iii) causes beyond the control of 1MICRO or which are not reasonably foreseeable by 1MICRO, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). 1MICRO shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. 1MICRO shall have no obligation during performance of such operations to mirror Customer Content on any other server or to transfer Customer Content to any other server. 1MICRO shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not.
License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on each respective Services Order, 1MICRO hereby grants to Customer a non-exclusive, non-transferable, revocable license to allow Users to access the Service solely for Customer’s internal business purposes and solely for the specific service offering (as indicated on the applicable Services Order). A “User” shall mean an employee, consultant or independent contractor of Customer. This license is restricted to use by Customer and its Users and does not include the right to use 1MICRO Technology on behalf of any third party or the right to permit any non-User to access or use the Service. Customer also agrees to be bound by any further restrictions set forth on the Services Order. All rights not expressly granted to Customer are reserved by 1MICRO and its licensors. There are no implied rights.
Restrictions. Unauthorized use, resale or commercial exploitation of the Service and/or the Hosted Material in any way is expressly prohibited. Without 1MICRO’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Hosted Materials, including the 1MICRO Technology, or access the Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Service. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license or the Hosted Materials to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users authorized to access the Service pursuant to Section 4 above with all terms and conditions of this Agreement. Customer shall indemnify and hold 1MICRO harmless from and against any losses, damages and costs incurred by a breach of this Agreement by such Users. In addition to 1MICRO’s other remedies hereunder, 1MICRO reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Service if 1MICRO can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in this Agreement.
Ownership. Customer acknowledges and agrees that (i) as between 1MICRO and Customer, all right, title and interest in and to the Hosted Materials, including the 1MICRO Technology and the Service and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain 1MICRO’s or its licensors’, and this Agreement in no way conveys any right or interest in the Hosted Materials, the 1MICRO Technology or the Services other than a limited license to use them in accordance herewith, and (ii) the Hosted Materials, the 1MICRO Technology and the Service are works protected by copyright, trade secret, and other proprietary rights and laws. The 1MICRO name, the 1MICRO logo, and the product names associated with the Service, including, but not limited to 1MICRO, are trademarks of 1MICRO or third parties, and no right or license is granted to use them. Customer shall not remove any 1MICRO trademark or logo from the Service (without 1MICRO’s consent and only upon the payment of additional fees to 1MICRO).
Payment of Fees. Customer shall pay to 1MICRO the fees specified and in accordance with the schedule set forth on the applicable Services Order. Invoices are due thirty days from date of invoice. Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by 1MICRO to collect any unpaid amounts owed by Customer.
Spam Policy; Email Policy. Customer represents that the list of individual email addresses that it will use was obtained in a legal manner, and that all individuals have agreed to receive a promotion from the Customer. Customer also agrees that if at any time any person chooses to no longer receive an electronic communication from Customer it will immediately remove such person from the distribution list of any and all future communications and that Customer will keep them removed from the distribution list until such person chooses to receive the communications again. In connection with the use of the Service, Customer shall abide by and be subject to 1MICRO’s then current email policy, as amended, as published on 1MICRO’s web site at: http://www.1MICRO.com/privacy.php.
Content. All content (articles, images, and email addresses) which the Customer enters into the Service (the “Customer Content”) are stored in a private and secure fashion, and will not be used by 1MICRO except as necessary to provide the Service. During the term of this Agreement, Customer hereby grants to 1MICRO a limited, non-exclusive, non- transferable, royalty-free right to use, display, transmit and distribute the Customer Content solely in connection with providing the Service. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be Customer’s sole responsibility. Notwithstanding the foregoing, to the extent that Customer has engaged 1MICRO or one of 1MICRO’s authorized subcontractors to develop or provide content to Customer (“1MICRO Content”) such content shall be owned by 1MICRO or its authorized subcontractors as the case may be and 1MICRO hereby grants Customer, subject to Customer’s payment of all applicable fees, a non-exclusive, non-transferable license to use, display and distribute such 1MICRO Content solely during the term of this Agreement and solely in connection with the Service.
10. Customer Responsibilities. Customer is solely responsible for all Customer Content. 1MICRO does not guarantee the accuracy, integrity or quality of such Customer Content. Customer shall not use the Service to: (a) upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Content transmitted through the Service; (e) upload or otherwise transmit any Customer Content that Customer does not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Customer Content or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the Service or Servers or networks connected to the Service; or (i) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Communications Commission, Federal Trade Commission and the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (j) replace any part diagnosed by an authorized 1MICRO service technician or an authorized 1MICRO service facility as being defective within within (3) three business days after receipt of authorized replacement part from 1MICRO; (k) return shipment any part deemed defective by an authorized 1MICRO service technician or an authorized 1MICRO service facility to 1MICRO at its’ corporate address listed above within (7) seven business days after receipt of authorized replacement part from 1MICRO; (l) bare all return shipping and handling expenses related to replacement of any part deemed defective by an authorized 1MICRO service technician or an authorized 1MICRO service facility to 1MICRO at its’ corporate address listed above; (m) routinely provide maintenance, in accordance with, 1MICRO product guidelines to all 1MICRO's proprietary devices (including SalesTouch Kiosk, SalesTouch Key Machines, SalesTouch Desktops, iLot Handhelds, printers, routers, modems, network switches, cameras, scanners, biometric readers, biometric scanners, and other tangible electronic device sold by 1Micro or its’ affiliates) made available to Customer by 1MICRO in providing the Service.
11. Warranties/Limitation of Liability. Customer represents and warrants that; (i) Customer Content, including without limitation the products and services offered by Customer pursuant to such content, will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) Customer has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement, and; (iii) Customer agrees to comply with all Federal and state laws, regulations and rules, including without limitation regulations pertaining to online commerce, and consumer privacy rules promulgated the Federal Trade Commission.
Except as expressly permitted in this Agreement, Customer shall not, and shall not permit others to, (i) remove any proprietary notices or labels on the Services (including without limitation, any copyright, trademark notices), or (ii) use the Service other than as expressly permitted hereunder.
1MICRO warrants that it will provide the Service in a competent and workmanlike manner. 1MICRO does not warrant that it will be able to correct all reported defects or that use of the 1MICRO web site, or link to the site will be uninterrupted or error free. 1MICRO makes no warranty regarding features or services provided by third parties (including without limitation Internet telecommunication service or Web “browser” software). 1MICRO retains the right to modify its web sites at its discretion.
CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE SALESTOUCH KIOSK LIMITED WARRANTY, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY 1MICRO.
To the fullest extent permissible by law, 1MICRO’s liability for all claims arising out of this Agreement, whether in contract, tort or otherwise, shall not exceed the amount of fees paid by Customer to 1MICRO under this agreement during the six (6) months preceding the claim.
Customer acknowledges and agrees that in no event shall 1MICRO or its respective directors, officers, employees, technology partners, affiliates, or agents be liable for special, incidental, exemplary, consequential or indirect damages, or for the loss of anticipated profits to Customer, or its customers, or any other person under any provision of this Agreement.
12. Indemnification. 1MICRO, at its expense, shall defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that the Service infringes any copyright or trade secret of any third party. 1MICRO shall pay any award against Customer, or settlement entered into on Customer’s behalf, based on such infringement, but only if Customer notifies 1MICRO promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits 1MICRO to control the defense and settlement thereof.1MICRO shall have no obligation to defend and indemnify Customer and shall not be liable in any manner whatsoever for any damages resulting from any claim related to any third party data or content or any Customer Content. If a claim of infringement or misappropriation under this Section occurs, or if 1MICRO determines that a claim is likely to occur, 1MICRO shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Service free of the infringement claim; or (ii) replace or modify the Service to make them non-infringing. If these remedies are not reasonably available to 1MICRO, 1MICRO may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Service. Despite the provisions of this Section, 1MICRO has no obligation with respect to any claim of infringement that is based upon or arises out of Customer’s use of the Service other than in accordance with the applicable documentation or 1MICRO’s written directions or policies. 1MICRO’s liability under this Section shall not exceed the amount paid by Customer to 1MICRO pursuant to this Agreement. THIS SECTION STATES THE ENTIRE LIABILITY OF 1MICRO AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT BY THE SERVICE.
Customer shall defend, indemnify, and hold 1MICRO harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against 1MICRO and its employees and affiliates arising from or connected with (i) any claim that the Customer Content or the Customer’s e-mail address list infringes or misappropriates any third party intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by Customer.
The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement.
Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successor and assigns. Customer may not, without the prior written consent of 1MICRO, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall at 1MICRO’s election be deemed a material default of this Agreement and at 1MICRO’s election shall be void, provided that Customer may assign this Agreement without consent in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred provided that such successor agrees in writing to be bound by the terms of this Agreement.
Entire Agreement. This Agreement, including each Services Order contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile shall be deemed effective as delivery of a manually- executed counterpart. Any conflict between the terms set forth on a Services Order and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
Termination and Suspension. Unless terminated earlier as set forth below, this Agreement shall terminate upon the date that there are no valid Service Orders in effect. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. 1MICRO may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and 1MICRO shall no longer provide access to the Service to Customer and (ii) Customer shall cease and cause its Users to cease using the Service and the 1MICRO Content. Upon termination of this Agreement by 1MICRO due to Customer’s uncured breach, in addition to any other remedies 1MICRO may have for such breach, Customer shall pay 1MICRO for all fees that had accrued prior to the termination date and continue to pay 1MICRO for all monthly service fees that will accrue through the end of the then current term. In addition to the foregoing, 1MICRO also reserves the right, in its sole and absolute discretion, to suspend providing the Service and Customer agrees that 1MICRO may shut off and suspend Customer’s access to the Service at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. 1MICRO will not be obligated to restore access to the Service until Customer has paid all fees owed to 1MICRO. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. TERMINATION OF THIS SERVICE AGREEMENT SHALL IN NO WAY TERMINATE, AFFECT OR NULLIFY ANY ASSOCIATED LEASES REGARDING 1MICRO EQUIPMENT USED TO ACCESS 1MICRO SERVICES.
Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (a) is in the public domain at the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees and Users of their confidentiality obligations with respect to the Confidential Information and shall require its employees and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive three years beyond the expiration or termination of this Agreement.
Miscellaneous. Any notice required or permitted hereunder shall be delivered to the contact person listed on the Dealer Signature Packet as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section. Customer agrees to work with 1MICRO on potential marketing programs that may make mention of the Customer or the Customer’s marketing. Sections5, 6, 7, 10, 11, 12, 14, 15, 16 and 17 and all payment obligations hereof will survive termination of this Agreement. This Agreement shall be interpreted according to the laws of the State of Minnesota without regard to or application of choice-of- law rules or principles. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (a “force majeure event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Customer will not be excused from the payment of any sums of money owed by Customer to 1MICRO that accrued prior to the force majeure event; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within thirty (30) days, the other party may terminate this Agreement. Neither this Agreement nor the Service Order Forms (and other schedules and exhibits thereto) may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above-written. This Agreement may be executed by facsimile in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument.
As a 1Micro client, 1MICRO will develop, publish and deploy program updates, hardware maintenance, part replacement or repair under the following conditions for your SalesTouch Kiosk:
Diagnose and provide replacement any physical part of the SalesTouch Kiosk, deemed by 1Micro, to be inoperative, unusable or defective within a 72 hour timeframe of final diagnosis.
Any routine maintenance, according to 1MICRO product guidelines, needed to make the SalesTouch Kiosk function including, but not limited to, cleaning, lubrication, mechanical adjustments and worn part replacement is to be done by the Customer. The Customer will bear all costs, associated with routine maintenance, for labor and part replacement.
Distribution of program updates to your SalesTouch Kiosk, as those updates become publicly available, and does not include automatic involvement of beta updates or testing of any kind. These updates include any and all third party licensed data that 1Micro incorporates on behalf of Customer.
24X7 Hosted Liquid CRM environment access, subject to section 3 “Downtime” of 1Micro SILVER Level Services Agreement.
Silver Level Services Agreement