1. SERVICES. Pursuant to the terms and conditions set forth herein, Meyer Hill Lynch Corporation, an Ohio corporation, (the “Company”) shall provide to the customer (the “Customer”) listed on the face of the Company’s Quote, written proposal, Service Plan or Scope of Work, as applicable (each a “Quote”), the products (the “Products”) and services (the “Services” and together with the Products the “Products and Services”, as applicable) described on the Quote and on the documentation attached thereto. Customer accepts the terms and conditions contained herein by (a) indicating or returning its written approval of the Company’s Quote; or (b) indicating its acceptance of the Quote online; or (c) accepting delivery of the Products and Services; or (d) making part or full payment for the Products and Services. Customer’s acceptance of the terms and conditions will form the contract between the Company and Customer (the “Agreement”). The Company objects to and will not be bound by any terms and conditions in Customer’s purchase order which are in conflict with or in addition to the terms and conditions hereof. Shipment by Company of Products or dispatch of service to Customer is not an acceptance of the terms and conditions of Customer’s contract or purchase order or any other document.
2. DATE. This Agreement shall become effective when accepted by Customer, pursuant to Section 1 above, or as otherwise specified on the Quote.
3. STANDARD OF SERVICE. Company shall perform the Services in accordance with all applicable laws, the commercially reasonable standards of the industry and in compliance with the terms and conditions of this Agreement and the Quote.
4. LOCATION FOR SERVICES. All Services shall be performed at the location(s) as mutually agreed to between the parties.
5. DELIVERY OF PRODUCTS AND SERVICES. Services will be dispatched from the Company’s facilities in Maumee, Ohio. Except as agreed to in writing by the Company, each dispatched technician/engineer’s portal-to-portal travel time will be charged at the same rate as the rate for Services performed. Products shall be shipped F.O.B. Company’s facility in Maumee, Ohio unless otherwise agreed to by the Company. Subject to other agreements with Customer in writing to the contrary, the Company shall endeavor to meet the schedules requested by Customer provided that Customer shall give Company reasonable written notice of such schedule. Notwithstanding the foregoing, however, the reasonableness of the notice shall be determined by the Company’s Product availability and delivery capability and other commitments. The Company does not guarantee specific dates of delivery of Service or Products and shall not be liable to Customer for delays in delivery of Products or dispatch of Service for any reason.
6. CANCELLATION OF PRODUCTS AND SERVICES.
a. Hardware and Software Product Sale Cancellation: In the event Customer refuses delivery of Products, is unable to accept delivery of the Products, or cancels the Products ordered in the Quote, then Customer agrees that the Company shall have the right to: terminate this Agreement upon written notice to the Customer, without liability. Company may take immediate possession of the Products and charge the Customer ten percent (10%) of the Extended Price of the Products cancelled, plus shipping and handling charges incurred. In the event the Products are returned to Meyer Hill Lynch damaged, then Meyer Hill Lynch Corporation may recover its actual losses.
i) Hardware Product Cancellation: In the event the Customer returns Hardware Products within thirty (30) days of the date of receipt, then Customer agrees that the Company shall have the right to terminate this Agreement upon written notice to the Customer, without liability. Company may take immediate possession of the Hardware Products and may charge the Customer twenty-five percent (25%) of the Extended Price of the Hardware Products returned, plus shipping and handling charges incurred. In the event returned Products are damaged or incomplete (without all original packaging, accessories and complete documentation), the Company may recover its actual losses. Hardware Products, held in the Customer’s possession for more than thirty (30) days, may not be returned.
ii) Software Product Cancellation: Software products may not be returned if manufacturer’s original packaging has been opened. If software was distributed electronically, product return will not be allowed if software or licenses were downloaded.
b. Services Cancelled: In the event the Customer refuses delivery of Services, is unable to accept delivery of the Services, or cancels the Services ordered in the Quote, then Customer agrees that the Company shall have the right to terminate this Agreement upon written notice to the Customer, without liability, and charge the Customer the Cancellation Fee stated in the Quote for those Services cancelled. Credit will not be granted for Services performed by the Company prior to notification of cancellation by Customer.
7. PAYMENT/SECURITY INTEREST.
a. The Customer shall pay the total price indicated on the Quote, as applicable, for the Products, Services, transportation and travel costs within the payment terms specified therein.
b. Unless otherwise indicated in writing by Company, the total price does not include applicable taxes, customs fees or other duties and charges. Any taxes, duties or charges shall be paid by the Customer.
c. If payment is not made when due, the Customer agrees to pay all costs and expenses of collection and/or repossession (if applicable), including attorney’s fees, up to the maximum amount permitted by law. All amounts not paid when due shall bear interest at a rate of 1 ½% per month or the highest rate permitted by applicable law, if lower, from the date of the Company’s invoice until paid in full.
d. Customer hereby grants Company a purchase money security interest in the Products sold hereunder to secure the payment of any amounts due Company for Products hereunder. Customer hereby authorizes Company to file whatever forms necessary or desired to perfect its purchase money security interest granted hereunder.
8. LINE OF CREDIT. Subject to the terms and conditions of this Agreement, if the Quote contemplates extending a line of credit to Customer, then Company agrees to provide Products and Services to Customer as needed utilizing a revolving credit facility (the “Line of Credit”). The Line of Credit shall have the term set forth in the Quote. The term may be extended on one or more occasions at Company’s discretion upon written notice from Company. Customer agrees to execute any documents requested by Company in connection with any such renewal.
a. Purpose. Proceeds of the Line of Credit shall be used for the purchase of goods and services from the Company.
b. Conditions to Use of Credit Line. Company shall not be obligated to extend credit hereunder if Customer is in default of any of the terms and conditions contained herein.
9. REPRESENTATIONS AND WARRANTIES OF COMPANY.
a. Services. Company represents and warrants to Customer that: (a) the Services to be performed under this Agreement and the Quote will conform to the specifications set forth in this Agreement and the Quote; (b) the Services to be performed and the work to be created under this Agreement and the Quote will not infringe any copyrights, patents, trade secrets or other intellectual property or other rights of any third party; and (c) Company’s performance of the Services will not conflict with or constitute a breach of any other agreement to which Company is a party. COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE SERVICES. Protection of Customer’s data shall be the sole responsibility of the Customer regardless of the Services provided by Company. Company shall be held harmless in the event of any loss to Customer resultant from improper data protection by Customer. Customer agrees that Company is not liable for any loss to Customer resultant from delays regardless of nature or source, in completion of Services except for those losses arising out of Company’s gross negligence or willful misconduct.
b. Products. Except as warranted by the manufacturers of the Products, there are no warranties which extend beyond the manufacturer’s warranties and the company expressly disclaims all other warranties, whether express or implied, or arising by operation of law, including but not limited to, any warranty of merchantability or fitness for any particular purpose.
c. Warranty Remedies. In the event any Product fails to comply with this warranty, Customer may return the Product to the manufacturer within the warranty period provided by the applicable manufacturer in accordance with the terms of the manufacturer’s warranty. In the event that a Service fails to comply with the Service Warranty, Customer must contact Company immediately (but in no event later than thirty (30) days from the date of Service) and describe the nature of the nonconformity. Company will investigate the complaint and if the Company determines that the Service was nonconforming, then Customer’s sole and exclusive remedy for the non-conformance of any Service shall be, at the Company’s election: (i) the Company’s correction of the non-conforming Service ; or (ii) the Company’s reimbursement of Customer for the prorated purchase price of the non-conforming Service. The Company shall not be liable for defects caused by abuse or misuse of the Products or the misuse of its Services. Except for the Company’s direct costs in repairing, correcting or replacing any non-conforming Service, the Company shall not be liable for any other expense connected with the repair, correction or replacement of any Product or Service or for any special, exemplary, incidental or consequential damages. Failure to submit a claim within the warranty period provided by a Manufacturer, in the case of a Product or thirty (30) days in the case of a Service, shall be conclusive proof that the Products and Services are as warranted and shall release the Company from any further liability with respect thereto.
10. LIMITATIONS OF LIABILITY. THE COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER FOR LOST PROFITS OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOST PROFITS OR DAMAGES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO CUSTOMER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE ACTUAL PRICE PAID TO THE COMPANY FOR THE NON-CONFORMING OR DEFECTIVE PRODUCT OR SERVICE. This limitation of liability may not be altered except by an agreement in writing signed by a duly authorized officer of the Company.
11. REPRESENTATIONS AND WARRANTIES OF CUSTOMER. Customer warrants and represents to Company that (a) Customer will provide Company with full and unfettered access to its data, systems and facilities in order to enable Company to perform the Services hereunder; (b) Customer is solely responsible for the content of its data systems and information, including, but not limited to, any unlawful or lawful or malicious data or information, viruses, worms or any other harmful software codes or programs; (d) Customer’s data and systems do not and will not infringe on any third party copyrights, patents, trade secrets or other intellectual property rights; (e) Customer conducts its business in compliance with all applicable laws and regulations and Customer will not use the Services to violate any applicable law, regulations, governmental rules, rules and regulations and policies of Company; (f) Company’s performance of the Services will not conflict with a constitute or breach of any other agreement to which Customer is a party; (g) Customer has reviewed the description of the Services to be performed and the work to be created under the Agreement and the Attachment thereto and notwithstanding any representation made by Company, Customer is solely responsible for determining whether the Services are appropriate for use by Customer.
12. OWNERSHIP OF WORK PRODUCT. Unless otherwise specified in the Quote, all deliverables or materials resulting from the performance of Services, including, without limitation, computer codes, software, processes, graphics, documents, contents and designs, prepared by Company for Customer pursuant to this Agreement (collectively, “Work Product”) shall be owned exclusively by Company. Any copyright, trademark, trade secret or patent rights of the Work Product shall be owned exclusively by Company. Customer shall not use, copy, incorporate into other works, or otherwise sell or distribute any Work Product, including any derivative works, to any other individual or entity without the prior written consent of Company. All Work Product shall be considered the Confidential Information of Company and subject to the terms of Section 15 of this Agreement.
13. TERM AND TERMINATION. This Agreement shall commence as of the Effective Date and shall continue until completion of the Services or the expiration date set forth on the Quote.
a. Termination. Company may terminate this Agreement in whole or in part upon thirty (30) day advance written notice to the Customer. Notwithstanding anything contained herein, Company may terminate this Agreement immediately if Customer (i) defaults in the payment of any sum of money hereunder, (ii) defaults in the performance of any of its other obligations hereunder, (iii) commits an act of bankruptcy or becomes the subject of any Bankruptcy Act proceeding or becomes insolvent, or if any substantial part of Customer’s property becomes subject to any levy/seizure, assignment, application for sale for or by any creditor or governmental agency, or (iv) has any material adverse change (in Company’s sole opinion) in its financial condition, then, in any such event, Company may, upon written notice thereof (a) terminate this Agreement and/or any of the Services, and/or (b) declare all amounts due and to become due immediately due and payable. Customer may terminate this Agreement in whole or in part upon a thirty (30) day advance notice to the Company (“Termination by Customer for Convenience”). In the event of Termination by Customer for Convenience, Customer agrees to pay Company any amounts due and payable for Services rendered, Products delivered and any Cancellation Fees due. Subject to the Company’s right to set off any amounts due the Company, the refund of any remaining balance due Customer shall be provided to the Customer within sixty (60) days of said notice.
b. Post-Termination. If any of the Services are or may be terminated by Company pursuant to Section 13(a), Company shall be entitled to allocate any funds remitted or otherwise made available by Customer to Company in such priorities as Company (in its sole discretion) may determine appropriate (including reimbursing Company for payments made by Company hereunder on Customer’s behalf to a third party) and if any such Services are terminated, Customer will immediately: (i) become solely responsible for all of its third-party payment obligations covered by such Services then or thereafter due (including, for tax filing services, all related penalties and interest); (ii) reimburse Company for all payments made by Company hereunder on Customer’s behalf to any third party; and (iii) pay any and all fees and charges invoiced by Company to Customer relating to the Services. If Company elects not to terminate any or all of the Services as permitted hereunder, Company may require Customer to pay its outstanding and all future third-party payment amounts covered by the Services and/or Company’s fees and charges for the Services to Company by bank or certified check or by wire transfer as a condition to receiving further Services.
c. Remedies Cumulative. The remedies contained in this Section 13 are cumulative and in addition to all other rights and remedies available to Company hereunder, by operation of law or otherwise.
14. COMPANY'S EMPLOYEES. During the period of time that Company provides Services to Customer and for a period of one year thereafter, Customer shall not directly or indirectly solicit, retain, hire, or employ any Company employee that provided services, whether or not for compensation, to Customer. Company’s employees providing services under this Agreement have non-competition agreements with Company that prohibit them from being employed by or providing employment services to Customer.
15. NON-DISCLOSURE. All confidential information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the confidential information of the disclosing party and will use at least that same degree of care, discretion and diligence at protecting the confidential information of the disclosing party as it uses with respect to its own confidential information. The receiving party will limit access to confidential information to its employees with a need to know and will instruct such employees to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose confidential information to the extent necessary to comply with any law, rule, regulation or ruling applicable to it and to the extent necessary to enforce its rights under this agreement. Upon the request of the disclosing party, the receiving party will return or destroy all confidential information of the disclosing party that it in its possession. For purposes of this section, “confidential information” shall mean: all information of a confidential or proprietary nature provided by the disclosing party to the receiving party for use in connection with the Services, but does not include (i) information that is already known by the receiving party; or (ii) information that becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this agreement; and (iii) information that becomes known to the receiving party from a source other than the disclosing party or on a non-confidential basis. Confidential information of Company also includes all of Company’s trade secrets, processes, proprietary data, information or documentation related thereto, or any pricing or product information furnished to Customer by Company.
16. SET-OFF. Company shall have the right to credit toward payment of any monies that may become due Company hereunder any sum which may now or hereafter be owed to Customer by Company.
17. INDEPENDENT CONTRACTOR. Company is an independent contractor of Customer, and nothing in this Agreement or otherwise shall be deemed or construed to create any other relationship, including one of employment, joint venture or agency. Customer shall be solely responsible for all taxes of any type, including social security taxes, workers' compensation taxes or costs, unemployment compensation taxes or costs, or any other taxes or charges related to Customer.
18. SURVIVAL. The following provisions shall survive the termination or expiration of this Agreement: Sections 8, 9, 10, 11, 12, 13, 14, and 15.
19. ASSIGNMENT. Customer may not transfer this Agreement or any rights granted hereunder without the prior written consent of Company.
20. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and may be amended only by a writing signed by the parties. This Agreement shall supersede any prior agreements between the parties with regard to the same subject matter.
21. GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Ohio applicable to contracts made and performed in Ohio.
22. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but together shall constitute one and the same instrument.
23. NOTICE. All notices, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, via facsimile or electronic transmission, or by United States mail, certified or registered, postage prepaid, return receipt requested, or otherwise actually delivered to the appropriate party at the address of each party listed on the face hereof or in the Attachment.