SEYMOUR Advanced Technologies LLC
a. SEYMOUR Advanced Technologies, LLC, a North Carolina limited liability company (“PROVIDER”) is a custom machinery manufacturer, value-added designer and manufacturing process consultant. These General Terms and Conditions (“Terms and Conditions”) shall apply to all proposals, orders and sales with [INSERT NAME OF COMPANY], a [INSERT ENTITY TYPE] (“CLIENT”). These Terms and Conditions are subject to any additional terms contained in an Order (as defined below) or other writing signed by PROVIDER and CLIENT (collectively referred to as the “Agreement”), and each such writing is deemed to incorporate these Terms and Conditions as if fully set forth therein.
b. For purposes of these Terms and Conditions, PROVIDER’s manufacturers (including original equipment manufacturers), suppliers, vendors, services providers and/or licensors are collectively referred to herein as “SUPPLIERS” and individually as a “SUPPLIER”.
2. ACCEPTANCE OF ORDERS/PROCUREMENT:
a. All Orders shall be valid for thirty (30) days and are subject to approval by PROVIDER at its corporate headquarters in Denver, North Carolina. The PROVIDER shall furnish a written “order acknowledgment” which shall constitute the PROVIDER’s acceptance of the Order upon the terms and conditions specified in the “order acknowledgment”. If rejected, any additions and/or modifications proposed by PROVIDER and agreed to in writing by the CLIENT shall become a part of the Order. If the PROVIDER rejects the additions and/or modifications, such Order shall be null and void. All Orders must clearly state the name and address of CLIENT, shipping instructions, and all conditions, mechanical and otherwise, with which the manufacturer is expected to comply.
a. Sale of Equipment. PROVIDER agrees to sell and CLIENT agrees to buy the Equipment described in the Order. PROVIDER shall grant to CLIENT all right, title and interest in and to the Equipment, upon payment in full of the amounts set forth on the applicable Order, including all amounts due in connection with Equipment transportation and delivery.
b. Right of Inspection. CLIENT agrees to inspect and/or test the Equipment upon receipt. Such inspection or testing shall be completed promptly but in no event later than seven (7) calendar days after CLIENT’S receipt of the Equipment. The Equipment shall be deemed accepted by CLIENT unless CLIENT provides PROVIDER, within seven (7) calendar days of the initial inspection period, a written notice specifying all defects or discrepancies in the quality or quantity of Equipment. PROVIDER’s standard installation test procedures conducted by PROVIDER’s representative in CLIENT’s facilities shall be the criteria for acceptance, unless otherwise specified in the Order and agreed upon in PROVIDER’s order acknowledgment. PROVIDER will advise CLIENT in the order acknowledgment of what additional charges may be required to conduct CLIENT’s acceptance procedures.
c. Delivery; Risk of Loss. PROVIDER shall ship the Equipment and individual or compoment parts of Equipment as set forth in the Order within fourteen (14) days of PROVIDER’S receipt of the Fees or down payment by CLIENT, as applicable, unless otherwise specified in the Order. CLIENT shall be responsible for all costs and expenses incurred for shipping and delivery. Nothwithstanding the foregoing, the shipping date is subject to change caused by modifications in the Order and as mutually agreed in writing between the parties. Risk of loss for any item of Equipment passes to CLIENT upon shipment of the Equipment item from the shipping location.
d. Security Interest. CLIENT hereby grants PROVIDER, to secure the payment and performance in full of all of CLIENT’S obligations pursuant to these Terms and Conditions, a continuing security interest in the Equipment, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof. CLIENT shall cooperate with PROVIDER to sign and deliver any and all documents, certificates, and instruments necessary to perfect the security interest granted to PROVIDER as PROVIDER reasonably requests.
e. Electrical Equipment. CLIENT shall be responsible for obtaining any and all wiring, protective conduit and other electrical equipment (“Electrical Equipment”) necessary for use of the Equipment. Such Electrical Equipment shall comply with PROVIDER’s written specifications and will be subject to a mutually agreed installation charge for mounting and wiring at PROVIDER’s factory.
f. Machine Placement; Connection and Line Drop(s).
i. If a standard machine drawing is supplied, it includes plan and elevation view. Due to many variations in building designs, electrical supply, pneumatic supply, network supply, etc. the CLIENT is responsible for the line length, physical condition, and supplied media produced from said lines, to meet the machine. The line/s drops must also be installed prior to the machine installation date or at minimum to the date programming work supplied by PROVIDER will take place.
ii. The foundation that the machine will be placed on must adactyly support the machine from movement and vibration that could affect its performance. The foundation is not guaranteed and PROVIDER shall not be responsible for any inaccuracy, which may result from an inadequate or insufficient foundation. Nor for any hidden conditions including but not limited to toxic/waste(s), rock formations, and all other similar conditions not visible or apparent.
a. Grant of License. PROVIDER hereby grants to CLIENT, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable license to use the Software set forth on any purchase order, quotation or any other written document executed by the PROVIDER (“Order”) attached hereto for the Term of this Agreement. The Software may be used solely for execution on the unit of the equipment originally delivered to CLIENT with such Software installed (“Equipment”, and, collectively the Equipment and the Software shall be the “Product”) at a single site (“Site”) and only in combination with the Equipment on which it is loaded. CLIENT may not sublicense or give any other entity permission to use the Software, may not transfer ownership or possession of the Software and may not make copies of the Software (except for a reasonable number of backup copies for CLIENT’s own use in the event of emergency or as required by law). Each component of the Software and related equipment is licensed as a single product and no part of the component shall be used except as an integral part of such equipment component. No third party may acquire from CLIENT any right to use the Software without the express prior written consent of PROVIDER. The term “Software” also includes the following, as made available by PROVIDER or its licensors to the CLIENT and listed on the Order accompanying this Agreement, or later licensed from PROVIDER: documentation; modified versions of the Software; enhancements; derivations; upgrades; data tables; support services, including software code; and future versions of Software (collectively, “Updates”).
b. Limtations. CLIENT may not (a) reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software; (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software); (b) modify, adapt, alter, translate, or create derivative works of the Software; (c) merge the Software with any other software, except as set forth herein; (d) redistribute, lease, rent, resell, encumber, sell, transfer or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or in the output of the Software; (f) publish any results of benchmark tests run on the Product to a third party without PROVIDER’s prior written consent; (g) use the Software in violation of any import, export, re-export or other applicable laws or regulations; (h) attempt to deactivate, bypass, or otherwise circumvent the license keys, remote monitoring, or other security measures for the Software; (i) use the Software in any manner on equipment that the CLIENT did not originally purchase or lease from PROVIDER; (j) disclose the results of testing or benchmarking of the Software to any third party without the prior written consent of PROVIDER or (k) use the Software except on the Equipment on which it is delivered. The foregoing licenses are expressly limited to installation and operation of the Software for CLIENT’s internal business purposes, in binary executable code form only, solely in accordance with the associated documentation, in compliance with all applicable law and regulations, and further subject to this Agreement.
c. Third Party Licenses. Software created and owned by other organizations (“Third Party Software”) is licensed by those organizations as set forth in the Software documentation. Copies of Third Party Software licenses are furnished in whatever manner the various vendors of the Third Party Software customarily disseminate their license agreements (generally in shrink-wrap form, electronic form or in separate written materials). Third Party licenses are not returnable.
d. Installation and Implementation. PROVIDER shall assist CLIENT in installing and implementing the Products within seven (7) days upon CLIENT’s receipt of the Equipment or as mutually agreed between the parties. CLIENT shall designate a member of its staff (or a readily available third-party) who is familiar with CLIENT’s computer network to assist in the installation and implementation, make decisions on behalf of the CLIENT and act as the principal person of contact with PROVIDER, with respect to installation and implementation. Prior to installation of the Product, CLIENT shall certify to PROVIDER that all required equipment is properly installed, configured and networked and the CLIENT has taken all other actions requested by PROVIDER to prepare CLIENT’s network for installation of the Product.
e. Support and Maintenance. PROVIDER shall provide support and maintenance for the Software as provided in the owner’s manual and as mutually agreed between the parties.
a. PROVIDER will provide technical, non-managerial engineering expertise and advice to CLIENT upon request and as set forth on any Order, quotation or any other written document executed by PROVIDER (“Services”), including, but not limited to, any training and support; provided, however, notwithstanding anything to the contrary in this Agreement, in no event shall provision of the Services exceed ten (10) years from the date of PROVIDER’s order acknowledgment.
b. If technical advice is offered or provided in connection with the sale of any products, it is provided as an accommodation to CLIENT, without charge, and, notwithstanding Section 6, PROVIDER does not warrant and has no responsibility or liability for the content of or use of such advice.
6. acceptance of products; RETURNS:
a. Final acceptance or rejection of the Products by CLIENT shall be made within thirty (30) days after delivery, except as otherwise provided in the Order.
b. If CLIENT rejects the Products, in no case shall CLIENT return the Products without first obtaining written permission from PROVIDER; provided, however, that in no event shall CLIENT be permitted to return any custom designed Product(s). In the event that PROVIDER give written permission to CLIENT to return the Products, the CLIENT must pay all transportation charges and shall bear risk of loss or damage to the Products while in transit. A restocking charge of 25% (twenty-five percent) of the initial value of the returned Products will apply and must be paid by CLIENT.
a. Mutual Warranties. Each of the parties represents and warrants to the other that (i) it is a legal entity in good standing and that it is authorized to carry on business and to perform the obligations set forth in this Agreement and this Agreement is valid, binding and enforceable against it (subject to applicable principles of equity and bankruptcy and insolvency laws); (ii) it has the full power and ability to grant the rights granted to the other party and their permitted assigns herein; and (iii) it possesses or will possess all necessary rights, licenses and certifications required to grant the rights and to perform its obligations hereunder.
b. CLIENT Warranties. In exercising its rights and obligations under this Agreement, CLIENT shall comply with all applicable international, national and local laws and regulations, including all applicable United States and foreign export laws and regulations. CLIENT shall provide information and approvals or other permits, licenses or authorizations required for the shipment of Product to CLIENT. CLIENT warrants and represents that CLIENT’s use of any products purchased from PROVIDER shall comply with all applicable law in the jurisdiction in which CLIENT implements such products. To the extent any personal data generated by CLIENT in the use of any Products within the European Union or is otherwise subject to the General Data Protection Regulation (“GDPR”) or other applicable data protection laws, CLIENT warrants and represents CLIENT shall comply with the GDPR and all applicable law governing the use of personal data in any use of the products. CLIENT agrees to indemnify and hold harmless PROVIDER for any liabilities arising from noncompliance with the GDPR or violation of any applicable data protection law. To the extent any personal data generated directly by PROVIDER originates within the European Union or is otherwise subject to the GDPR or other data protection laws, PROVIDER warrants that it shall comply with applicable law governing the use of personal data in its own processing of such personal data.
c. Equipment Warranties.
1) To the extent that any Equipment fails to materially comply with PROVIDER’S written specifications under normal operating circumstances in the plant of the original CLIENT (1) up to ninety (90) days during which the Equipment is not in use by CLIENT, or (2) up to one (1) year from the Go Live date, the Equipment will be repaired or replaced at PROVIDER’S option, free of charge, freight on board (F.O.B.) PROVIDER; provided that CLIENT promptly sends to PROVIDER notice of the non-compliance and establishes that the EQUIPMENT has been properly installed, maintained and operated within the limits of rated and regular usage, as determined in PROVIDER’s sole discretion. For purposes of this Section 7, the “Go Live Date” is the date by which the CLIENT will cause the Equipment to be fully operative and in use by the CLIENT.
2) The warranties provided by PROVIDER do not in any way extend to any products or EQUIPMENT covered by PROVIDER’s quotation on the Order which has a life under normal usage, inherently shorter than one (1) calendar year period indicated above. Certain items including, but not limited to, clutches, bearings, motors, pumps, supplies, and other purchased items necessary for use of the EQUIPMENT will be warranted only to the extent that they are warranted by the manufacturers thereof. Expendable items such as bulbs, filters, fuses, inserts, etc. are excluded and no warranty applies.
3) If CLIENT modifies or changes any structural portion, products portion, electrical circuit, interlock, safety device or software materials existing in one of PROVIDER’s products as initially delivered, then all warranties provided in this Section 5(c) shall become void and of no effect.
d. Disclaimers. EXCEPT AS SET FORTH IN THIS SECTION 6, THERE ARE NO OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOR OTHER WARRANTIES, EXPRESS OR IMPLIED (BY OPERATION OF LAW OR OTHERWISE), BY PROVIDER WITH RESPECT TO THE PRODUCTS OR ANY OTHER GOOD OR SERVICE PROVIDED UNDER THIS AGREEMENT. Specifically, PROVIDER does not warrant that the Products or Services will be error-free or operate without interruption. Additionally, when a material, article or piece of equipment is identified in the specifications of the Equipment, or otherwise by reference to a brand name, manufacturers’ or vendors’ names, trademarks, catalog numbers, etc., it is intended merely to establish a general quality standard and not to require the use of a particular material, article or piece of equipment.
8. term and termination:
a. The initial term of this Agreement shall begin on the Effective Date and continue for a term of (1) year, unless otherwise terminated in accordance with the terms of this Agreement (the “Term”). Provided the CLIENT is not in breach or default of any of its obligations under this Agreement, does not become bankrupt or insolvent, and timely pays applicable annual fees to PROVIDER to renew this Agreement, this Agreement will automatically renew for successive one (1) year terms, unless one party gives written notice to the other of its intent not to renew this Agreement at least thirty (30) days prior to the end of the then current term. Either party may terminate this Agreement upon ninety (60) days written notice to the other party if: (1) the other party materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days of receipt of a notice of the breach, or (2) the other party becomes insolvent, bankrupt or reorganized under bankruptcy laws. Notwithstanding anything in this Agreement to the contrary, PROVIDER, in its sole discretion, may suspend its obligations under this Agreement during any period of time CLIENT fails to comply with any material term of this Agreement; provided however, that such suspension shall not extend the term of this Agreement. Further, notwithstanding the foregoing, the following paragraphs shall survive termination of this Agreement: 7 through 17.
9. duties upon termination:
a. Upon termination of this Agreement for any reason, CLIENT’s license(s) to use the Software shall terminate and CLIENT shall cease any use of the Software or Equipment not purchased by CLIENT. CLIENT shall return any unpurchased Equipment and the Software to PROVIDER, including all copies thereof, and, if return is not possible, permanently delete all Software from all computers or storage devices under CLIENT’s control. Within ten (10) days following termination of this Agreement, CLIENT shall certify in writing that all Software had been returned or deleted. Notwithstanding anything herein to the contrary, to provide an orderly transition from the use of the Software and the support and maintenance provided hereunder, upon the stated date of termination of this Agreement, CLIENT shall have the option to extend the terms and conditions of this Agreement or any particular support or maintenance on a month-to-month basis for a period of up to three (3) months pursuant to the applicable terms and prices and payment provisions under the Agreement (the “Disengagement Period”) provided that CLIENT and PROVIDER have come to agreement on reasonable terms for all past due and current payment obligations. During the Disengagement Period, the terms of this Agreement and the obligations of the parties hereunder shall continue to apply in full force. The Disengagement Period shall commence upon the stated date of termination and shall continue during the Disengagement Period until CLIENT provides at least twenty (20) days prior written notice of its election to terminate the Disengagement Period as of a month end. The charges to CLIENT for the Disengagement Period shall be the charges that would otherwise be paid under this Agreement, on a pro-rated basis.
10. Fees and PAYMENT TERMS:
a. Invoices and Payment.
i. PROVIDER shall invoice CLIENT for fees in the amounts set forth in the Order. The fees shall be paid in the manner set forth below unless otherwise specified in the Order:
1) Products in the amount less than or equal to $50,000: payment is due within thirty (30) days of CLIENT’s receipt of the invoice.
2) Products in the amount greater than $50,000 and available for shipment less than six (6) months from the order acknowledgement: (1) 25% due [with purchase order]; (2) 25% due within one (1) month after the order acknowledgement or the date of shipment, whichever occurs first; (3) 40% due at the time of shipment; and (4) 10% due within thirty (30) days from the date of shipment.
3) Products in the amount greater than or equal to $50,000 and available for shipment more than six (6) months from the order acknowledgement: (1) 20% due [with a purchase order]; (2) 20% due within two (2) months after the order acknowledgement; (3) 20% due four (4) months after the order acknowledgment; (4) 20% due within six (6) months after the order acknowledgement; (5) 10% due at the time of shipment; and (6) 10% due within thirty (30) calendar days from the date of shipment.
ii. In the event additional equipment, items or services are to be installed during the Term, or if there are any design changes to the Products, PROVIDER, in its sole discretion, shall provide CLIENT an addendum of the Order setting forth any additional fees. Any prices quoted on the Order exclude shipping and handling. Freight charges will be invoiced to CLIENT by PROVIDER separately. All amounts not paid within thirty (30) days of CLIENT’s receipt of an invoice shall bear interest, before and after judgment, from the due date until paid at the rate of twelve percent (12%) per month or the maximum amount allowed by law, whichever is less. All prices quoted, all Orders accepted, and all billings rendered are exclusive of all present and future federal, state and local excise, sales, use, import, personal, property, gross receipts, VAT, goods and services tax, and similar taxes. Such taxes, if paid by PROVIDER, will be charged to CLIENT. With respect to Order for shipment outside the U.S., or Canada or Europe, all payments (cash or letter of credit (“LC”)) shall be in U.S. dollars. If payments are made by an LC, CLIENT shall ensure that the LC is a Confirmed Irrevocable Letter of Credit established with a banking institution approved PROVIDER in the U.S. The LC must cover the full amount, which is required to accompany the CLIENT’s Order in the form of a certified check. The LC must accompany the Order placement and carry an expiration date at least ninety (90) calendar days beyond the scheduled shipping date. The LC shall provide that PROVIDER may draw on such credit upon an invoice on specific interim dates, which coincide with required payments as well as upon presentation inland bills of lading, commercial invoices and packing lists at the time of shipment. If, however, PROVIDER is unable to ship ordered Equipment when ready for any cause beyond PROVIDER’s control, PROVIDER shall have the right to draw upon such credit upon furnishing a certificate of manufacture of such merchandise, and storage shall be at CLIENT’s expense.
b. Reimbursable Expenses. CLIENT shall pay reasonable expenses approved in advance which are directly related to PROVIDER’s performance of this Agreement including, without limitation, travel time, transportation, mileage, air fares, car rental, shipping, meals, lodging and incidentals. In addition, CLIENTs shall pay PROVIDER for any equipment, third-party software, third-party software licenses, and other goods or services provided by PROVIDER which are not separately, specifically and expressly priced in the Order. CLIENT shall reimburse PROVIDER for reimbursable expenses within 15 days of PROVIDER’s invoice for such charges.
c. Credit Evaluation. During the Term, the PROVIDER shall have the option, in its sole discretion, to evaluate CLIENT’s creditworthiness. PROVIDER’s obligations to manufacture any Equipment or perform any services hereunder are conditioned upon PROVIDER’s receipt of a credit evaluation satisfactory to PROVIDER.
11. PRODUCTION ESTIMATES AND PERFORMANCE:
a. All working drawings or other materials provided by PROVIDER are for general information purposes only, and may or may not relate to CLIENT’s Order or other machine or equipment. Any specifications contained therein shall not be binding on PROVIDER except as expressly stated in this Agreement or other written form. PROVIDER reserves the right to make, at any time, such changes in the detail of design or construction as shall be determined in the sole discretion of PROVIDER.
b. Production or performance data, where given, is based on PROVIDER’s careful analysis and understanding of the limits of accuracy, machinability of materials, amount of material to be removed, finishes shown on CLIENT’s drawings, handling facilities provided, and locating points, but is nonetheless an estimate only and is not guaranteed or warranted, and in no event shall PROVIDER be responsible for performance figures supplied by PROVIDER’s suppliers or other third parties.
12. ownership and PROPRIETARY INFORMATION:
a. System Operation Control Programs (programs) and other software, developed and supplied by PROVIDER, is PROVIDER’s copyrighted property. CLIENT is granted a non-exclusive license to use the Programs only with the products with which they were furnished. In the event CLIENT orders any such other software, CLIENT agrees to the Terms and Conditions of PROVIDER’s standard Software License AGREEMENT in effect on the date hereof, and understands that PROVIDER shall be under no obligation to deliver any such software products to CLIENT before receiving a copy of such Software License AGREEMENT duly executed by CLIENT. PROVIDER retains all rights and title in and to all information regarding PROVIDER’s business, PROVIDER’s products, the Programs and any such other software disclosed to CLIENT verbally or in drawings, written or printed matter, electronic storage media, Program or software documentation or other material. CLIENT shall not disclose, reproduce, excerpt or distribute any portion thereof.
13. CLIENT’S USE AND OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA):
a. CLIENT shall provide all proper dies, devices, tools and means that may be necessary to adequately protect its personnel from serious bodily injury which otherwise may result from the method of particular use, operation, set-up, or Service of the products. CLIENT shall comply with any and all operator’s manuals or machine manuals, ANSI Safety Standards, OSHA regulations, and other applicable laws and regulations in connection with the foregoing.
b. PROVIDER shall be in substantial compliance with the general requirements of OSHA directly associated with Operator Safety and Noise Level Control. Because of changes, which occur in OSHA, state codes, local codes and PROVIDER safety programs, PROVIDER must be advised by CLIENT or User if they feel modifications in the machine are required for compliance. A quotation will be submitted for changes.
c. CLIENT MUST INSTALL AND USE THE PRODUCTS IN A SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH AND SAFETY REGULATIONS AND LAWS.
a. CLIENT shall defend, indemnify and hold PROVIDER harmless from any and all claims by any party and all damages and expenses, including reasonable attorneys’ fees and costs of litigation arising by, a breach of these Terms and Conditions, the provision of Services or the use of the Products. CLIENT shall deliver written notice to PROVIDER of any proceeding or claim promptly after CLIENT becomes aware thereof and shall promptly inform PROVIDER of all material developments with respect to the claim. PROVIDER shall have the right, but not the obligation, to participate, at its own expense, in the defense of the claim through legal counsel selected by it. If the CLIENT fails to perform its obligations under this Section 15, then PROVIDER shall have the right, but not the obligation, to defend the claim and, the CLIENT shall, in addition to indemnifying PROVIDER for the claim, indemnify PROVIDER for all of the costs incurred in connection therewith, including reasonable attorneys’ fees. No settlement shall be made that affects PROVIDER or the Products without PROVIDER’S prior written consent.
15. LIMITATION OF LIABILITY:
a. IN NO EVENT WILL PROVIDER OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM THE LOSS OF USE, LOST DATA, OR LOST PROFITS. UNDER NO CIRCUMSTANCES WHATSOEVER WILL PROVIDER BE LIABLE FOR ANY MATTER OR MATTERS THAT WILL EXCEED THE AGGREGATE AMOUNT CLIENT HAS PAID TO PROVIDER UNDER THESE TERMS AND CONDITIONS. THE FOREGOING SHALL NOT APPLY TO BREACHES OF CONFIDENTIALITY PROVISIONS OR INDEMNIFICATION OBLIGATIONS.
b. PROVIDER shall be solely liable for the proper function of the Equipment only insofar as it is properly utilized by CLIENT or any others acting on its behalf hereunder in accordance with the associated instructions for use provided by PROVIDER.
a. All accepted Orders are accepted subject to the issuance of any required export license or other necessary government authorization. Notwithstanding any other provision hereof, if PROVIDER shall be unable to sell, export or deliver ITEMS of any order because of failure to obtain an export license, or because of war or military action, export controls or restrictions, or any other restraints of governments or peoples, including without limitation changes in policy with respect to exports or otherwise by any government having jurisdiction, PROVIDER shall have the right to cancel any Order or this Agreement, and such cancellation shall not affect the right of PROVIDER to recover the contract price for any unpaid goods already delivered.
17. general provisions:
a. Assignment. CLIENT shall not assign, lease, sublease, license, sublicense, franchise, sell, resell, offer to sell or transfer its rights under this Agreement or delegate any duties under this Agreement, including a transfer at law, without the express prior written consent of PROVIDER, which consent shall not be unreasonably delayed, withheld or denied.
a. Governing Law; Venue. This Agreement shall be governed and interpreted in accordance with the substantive law of the State of North Carolina, excepting its conflict of laws principles. Any dispute regarding this Agreement will be heard in the state or federal courts having jurisdiction in Charlotte, North Carolina, and CLIENT shall be subject to the personal jurisdiction of such courts. No action, regardless of form arising out of, or in any way connected with, products may be brought by CLIENT more than one (1) calendar year after the cause of action has accrued.
b. Binding Agreement. Subject to the restrictions on transferability set forth in this Agreement, this Agreement shall inure to the benefit of and be binding upon the parties, their respective legal representatives, successors and assigns.Integration.
c. Force Majeure. This Agreement (including the documents referred to herein) constitutes the entire agreement among the parties and supersedes any prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they have related in any way to the subject matter hereof. No modifications or amendments to this Agreement will be valid unless signed in writing by both parties.
d. Attorneys’ Fees. If either party employs any legal process hereunder, the successful party in such legal party shall be entitled to recover all and reasonable attorneys’ fees.
e. Assistance from CLIENT. As part of PROVIDER’s marketing efforts or to assist PROVIDER in enhancing its marketing efforts, CLIENT agrees to provide PROVIDER with or participate in the following as mutually agreed by both parties: (i) issue a press release on the use of the Services , (ii) allow PROVIDER to use CLIENT’s name and approved logo in PROVIDER’s marketing materials (including print materials and/or web-site), (iii) participate with PROVIDER in a case study in use of Service, and (iv) act a reference site.