IMS Master Sales Agreement


1. SCOPE AND STRUCTURE OF AGREEMENT
This Master Sales Agreement is a framework agreement that governs the initial and all ongoing transactions between the customer identified on an Approval and Agreement form executed by such customer (the “Customer”) and International Micro Systems, Inc. (“Supplier”). Customer Supplier may sell, and Customer may purchase Hardware, Software, Databases, Networks, Professional Services (including but not limited to technology, business, marketing, and systems integration services), and Consumable Products and/or Supplier may license Software to Customer, as specified in a Statement of Work, one or more, signed by Supplier and Customer, referencing this Master Sales Agreement. Collectively, this Master Sales Agreement and any applicable Statement(s) of Work and Approval and Agreement forms shall hereinafter be referred to as the “Agreement”. Customer and Supplier may be referred to herein individually as a “Party” and collectively, the “Parties.”


2. DEFINITIONS
The following terms used in this Agreement shall have the meanings stated in this Section 2:

2.1 “Affiliate” of a Party means any entity that, directly or indirectly, controls, is controlled by or is under common control with, such Party.
2.2 “Completion Criteria” means Customer’s acceptance of the Product or Service as demonstrated by Customer’s signature of the IMS Project Signoff Certificate (“PSC”) which acknowledges the fulfillment by Supplier of the obligations described in the applicable Statement of Work, such as the delivery of a System.
2.3 “Hardware” means equipment or machines, such as computers, point-of-sale equipment, scanners and other business equipment sold and/or maintained by Supplier under this agreement. Hardware may be manufactured by third parties.
2.4 “Installation” means (a) setting up supplied equipment with all the proper wiring connections, (b) checking that the equipment operates and the network, if any, functions (refer to Network Cabling, Section 17.1.5, below), and (c) verifying that the software, if applicable, meets stated Program Specifications in the applicable License Agreements provided proper configuration information has been supplied by the Customer in advance. Installation does not include actual operational use of the system, which requires training, configuration, and other factors which are under Customer’s control.
2.5 “License Agreement” (a.k.a. Software License Agreement, or End-User License Agreement) is a type of license required by most software manufacturers or authors and details how the software can be used along with rights of usage and any restrictions that the manufacturers or licensors impose, including but not limited to prohibitions against Customer copying or reverse engineering the Software, liabilities and warranties, redistribution, ownership, etc.).
2.6 “Products” mean Hardware, Software, Services, or Systems sold or licensed by Supplier.
2.7 “Service” means performance of a task or project, provision of advice, assistance, or use of a resource (such as access to an information data base) that Supplier makes available. Services include provision of maintenance and support for Products. “Professional Services” mean engineering, design or consulting services performed from time to time on a task or project basis by Supplier for Customer.
2.8 “Software” means computer programs and data, in machine readable form, and related materials, including user, technical, and system administrator materials, listings, and documentation related to such computer programs and data. Unless otherwise specified in a Statement of Work or other document signed by Supplier and Customer, all Software is only licensed to the Customer and provided only in object code form. Software may be licensed by Supplier or by a third party.
2.9 “Specifications” mean the technical and operational specifications that describe the proper functioning of any Product or Service. For Hardware the Specifications are provided by the manufacturer. For Services and Systems the Specifications are provided in the applicable Statement of Work. For Supplier Software, the Specifications are as provided in the License Agreement and any applicable Statement of Work. For third party Software, the Specifications are as provided in the License Agreement.
2.10 “Statement of Work” or “SOW” means a document signed by the Parties specifying the respective responsibilities of Supplier and Customer with respect to a particular project or assignment, the Products and/or Services to be provided, the schedule of delivery, the Specifications, the Completion Criteria, the applicable fees and charges for such Products and/or Services, and any other relevant terms.
2.11 “Supplier Software” means software developed, created or written by IMS, as updated, upgraded or otherwise modified from time to time, which IMS makes available to Customer on a Software-as-a-Service (SAAS) model.

2.12 “System” means a combination of Hardware and Software integrated to perform specified functions.


3. PRODUCTS AND SERVICES PROVIDED

3.1 Supplier shall provide the Products and Services described in each Statement of Work for the prices and on the schedules specified therein and in accordance with this Agreement.

3.2 Supplier and Customer shall each perform their respective obligations and carry out the responsibilities as described and according to schedules specified in this Agreement. To the extent either Party is delayed in performing any of its obligations under this Agreement due to the other Party’s failure to perform any of its responsibilities in accordance with the applicable schedules, the first Party shall be permitted to delay the performance of its obligations and shall be entitled to compensation from the other Party for any additional actual and reasonable out-of-pocket costs incurred as a result. In the event of delay by Customer, Supplier will prepare a change order of the costs associated with the delay. Supplier will not continue performance of its obligations until Customer has approved the change order and amended the applicable Statement of Work to include such costs. In the event of a delay by Supplier, Supplier will compensate Customer for such delay as set forth in the applicable Statement of Work.

3.3 Project Management Service. For an additional fee, unless already included an applicable Statement of Work, Supplier may provide Project Management Services to ensure a project timeline is documented, followed and communicated to all interested parties and stakeholders. If the Customer declines Project Management Services, then the Customer is solely responsible for all said duties. The Customer may request assistance but any time will be taken out of any prepaid time or may purchase additional time for said duties.

3.4 Business Consulting Service. For an additional fee, unless already included an applicable Statement of Work, Supplier may provide Business Consulting Services to assist in the integration of the technology to the Customer’s business processes and culture. These services include but are not limited to Sales and Marketing Strategy, Customer Segmentation, Sales and Marketing Execution and Management, Ongoing Sales and Return on Investment (ROI) Reporting, etc. If the Customer declines Business Consulting Services, then the Customer is solely responsible for all said duties including business performance. The Customer may request assistance but any time will be taken out of any prepaid time or may purchase additional time for said duties.


4. ACCEPTANCE

Products and Services delivered by Supplier shall be considered accepted by the Customer upon completion of the Completion Criteria, as defined in Article 2.2. If Customer has not signed the PSC within 30 business days of receipt, Products and/or Services will be deemed accepted unless Customer has provided Supplier written notice of rejection detailing the reasons why they do not meet the specifications in applicable Statement of Work. Supplier shall promptly correct any such deficiencies or obtain Customer’s written agreement to a plan to correct such deficiencies. The System shall thereafter be considered accepted upon completion of the Completion Criteria.


5. INVOICES AND PAYMENT

5.1 Customer shall pay the amounts indicated in the applicable Statement of Work for the Products and Services delivered by Supplier. Supplier may invoice Customer for the amounts specified in the applicable Statement of Work for Products and Services only upon their acceptance. Customer shall pay Supplier the full amount of such invoices (other than amounts subject to a good faith dispute) in U.S. Dollars as detailed in the appropriate Statement of Work or invoice (“Due Date”). Except for any amounts reasonably disputed by Customer in writing, Supplier may assess and Customer shall be liable to pay a late charge at a rate of one-half percent (0.5%) per month or the highest rate permitted by law, whichever is less, on all unpaid amounts (other than disputed amounts) from the Due Date until paid in full.

5.2 Failure to pay any fees or other charges or amounts (including taxes) due to Supplier on or before the Due Date shall be a breach of this Agreement (“Failure to Pay”). Notwithstanding anything else contained in the Agreement, in the event of a Failure to Pay that is not cured within fifteen (15) business days after notice thereof, Supplier may suspend delivery of Products and/or Services to Customer under any and all Statements of Work then in existence between the Parties and/or upon five (5) business days written notice terminate this Agreement for default, unless said Failure to Pay is based on Customer’s good faith dispute of the amounts invoiced as presented in writing to Supplier on or before the Due Date or the expiration of the fifteen (15) day notice period referenced above. Any suspension may be continued until the Failure to Pay has been cured . Customer shall pay for, or reimburse, Supplier for all reasonable fees and costs incurred in collecting any debts due hereunder and otherwise enforcing its rights hereunder, including any court costs, collection agency fees and attorneys’ fees and costs.

5.3 If Customer disputes any part of an invoice, then in order to withhold such amount from its payment, Customer must notify Supplier in writing as to the specific amounts contested and the reasons for such dispute on or before the Due Date of the invoice, provided that this provision does not waive Customer’s right to subsequently place in dispute and seek a refund of amounts already paid.

5.4 All prices and charges for Products and Services provided hereunder are exclusive of any taxes applicable to the transaction, such as value added taxes, sales or use taxes, duties, or other taxes or levies imposed by any government, public authority, or government agency on Customer’s purchase of Products or Services hereunder, all of which are the responsibility of Customer to pay, provided, for avoidance of doubt, that Customer shall not be responsible for payment of any taxes based on the income, property or employment of Supplier.

5.5 Supplier reserves the right to modify its price for annual maintenance and support of any Products for any maintenance renewal period subsequent to the period or periods specified a Statement of Work for the reasons set forth below by providing Customer notice of any price modification at least sixty (60) days prior to the commencement of the next applicable renewal period for maintenance services. Price modifications may be based on a change in the number of unique records being managed and any additional features being used by the Customer (unique records managed include all records active for any period of time during each month, regardless of service change or termination) or on Customer-initiated changes to the configuration of the Customer’s Software.


6. TERM AND TERMINATION OF AGREEMENT

6.1 This Agreement shall be effective upon the last party to sign the Approval and Agreement form which references this Agreement. Subject to Sections 6.2 and 6.3, this Agreement shall continue in effect until each party’s respective obligations under the all Statements of Work signed by the parties, as the same may be revised from time to time, are completed.

6.2 Either Party may terminate this Agreement or any Statement of Work signed by the parties upon written notice to the other Party (the “Default Notice”) in the event that such Party (the “Defaulting Party”) fails to perform any of its material obligations contained herein or in any Statement of Work, unless the Defaulting Party cures such failure ,or the Parties agree upon a plan to cure such any failure and such plan is diligently performed by the Defaulting Party, within thirty (30) days of delivery of the Default Notice to the Defaulting Party. The Default Notice shall contain a brief description of the alleged default(s). If Customer is in material default of this Agreement or any Statement of Work and such default continues for a period of thirty (30) days after delivery of Supplier’s written notice to Customer, then Supplier shall have the right, but not the obligation, to suspend its performance hereunder and under any and all Statements of Work with the Customer. Any Statements of Work not expressly cited in a Default Notice shall continue in full force and effect regardless of whether the Defaulting Party cures the default(s) listed in the Default Notice (or the Parties fail to agree on a cure plan with respect to a particular default), and this Agreement shall continue to remain in full force and effect with respect to such Surviving Statements of Work. If a Party breaches its obligations hereunder (and not under a Statement of Work), and the non-defaulting Party desires to terminate all Statements of Work then in existence between the Parties, the Default Notice must expressly state this intention.

6.3 The Parties agree that in the event that material unforeseen changes in applicable legal or regulatory requirements make the provision of Services under this Agreement commercially impracticable or materially impact the cost of acquiring or delivering such services for either Party, then the Parties will negotiate in good faith to adopt changes to or revisions of the Services contemplated by this Agreement so that such legal or regulatory changes are not unreasonably burdensome on either Party. If after good faith negotiations the Parties cannot agree on the revisions necessary to accommodate such legal or regulatory changes, then either Party may terminate this Agreement upon ninety (90) days written notice to the other Party.

6.4 Any License Agreement for any Software shall become effective upon acceptance by Customer of the Software or a System that includes the Software. If this Agreement expires or terminates (other than for reason of Customer default), the License Agreement shall continue in accordance with the terms of the applicable License Agreement. If any License Agreement is terminated by Supplier pursuant to Section 5.2 for a Failure to Pay or Section 6.2 for a material default by Customer, Customer’s use shall solely be determined by terms stated in the applicable License Agreement.

6.5 This Agreement may also be terminated by either Party, if the other Party has become insolvent, has filed for bankruptcy, or has been declared insolvent or bankrupt.

6.6 Any termination pursuant to Section 6.2, 6.3 or 6.5 shall be without liability on the terminating Party, provided that such termination will not relieve the terminating Party for amounts owed with regard to Services rendered prior to the effective date of such termination.

6.7 The following terms of this Agreement shall survive expiration or termination of this Agreement: Articles 8, 13,


7.WARRANTY, LIABILITY, DISCLAIMER, AND CUSTOMER’S SOLE REMEDY

7.1 UPON PROMPT AND FULL PAYMENT BY CUSTOMER TO SUPPLIER OF ALL AMOUNTS DUE HEREUNDER AND UNDER THE APPLICABLE STATEMENT OF WORK, SUPPLIER SHALL, TO THE EXTENT PERMISSIBLE, ASSIGN TO CUSTOMER ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO ALL WARRANTIES IN AND TO THE SOFTWARE, THE HARDWARE AND ANY SYSTEM COMPONENT THAT SUPPLIER RECEIVES FROM THE MANUFACTURERS OF SUCH HARDWARE, SOFTWARE OR SYSTEM COMPONENT (THE “WARRANTY ASSIGNMENT”).

CUSTOMER AGREES AND ACKNOWLEDGES THAT ANY SOFTWARE, SYSTEM COMPONENT OR HARDWARE SOLD, INSTALLED, IMPLEMENTED OR SHIPPING TO CUSTOMER BY SUPPLIER OR ITS AFFILIATES IS SOLD “AS-IS” “WHERE IS” AND THAT THE FEES CHARGED BY SUPPLIER HEREUNDER DO NOT INCLUDE ANY CONSIDERATION FOR SUPPLIER’S ASSUMPTION OF THE RISK (1) THAT ANY HARDWARE, SOFTWARE OR SYSTEM COMPONENT FAILS TO WORK, PERFORM OR FUNCTION AS CUSTOMER DESIRES, ACCORDING TO CUSTOMER’S SPECIFICATIONS OR
ACCORDING TO THE SPECIFICATIONS, LABELS, CLAIMS OR DOCUMENTATION OF THE MANUFACTURER OR SUCH HARDWARE, SOFTWARE OR SYSTEM COMPONENT (2) OF ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND THE LIKE WHICH MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF THE SYSTEM COMPONENT, SOFTWARE AND HARDWARE OR THE SYSTEM PURCHASED.
ACCORDINGLY, CUSTOMER AGREES THAT IN NO EVENT SHALL SUPPLIER OR ITS AGENTS OR EMPLOYEES BE RESPONSIBLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUE OR LOST OPPORTUNITIES ARISING OUT OF THE USE, OR INABILITY TO USE, ANY SYSTEM COMPONENT SOFTWARE, HARDWARE OR SYSTEM EVEN IF SUPPLIER OR ITS AGENTS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR THE POSSIBILITY OF SUCH CLAIM BY CUSTOMER OR ANY OTHER PARTY. ANY TIME EXPENDED BY SUPPLIER IN MAKING THE SYSTEM OPERATIONAL WILL BE CHARGED ACCORDING TO THE FEE STRUCTURE SET FORTH IN THE STATEMENT OF WORK OR OTHER DOCUMENT EXECUTED BY THE PARTIES.

7.2 CUSTOMER’S SOLE REMEDY IN RELATION TO ANY HARDWARE, SYSTEM COMPONENT OR SOFTWARE PROVIDED, USED, RECOMMENDED, INSTALLED OR IMPLEMENTED BY SUPPLIER ARE THOSE OFFERED, IF ANY, UNDER THE WARRANTIES ASSIGNED BY SUPPLIER TO CUSTOMER UNDER THE WARRANTY ASSIGNMENT, IF ANY.

7.3 DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTIES OFFERED BY THE MANUFACTURERS OF THE SOFTWARE AND HARDWARE REFERENCED IN THE PRECEDING PARAGRAPH ARE THE SOLE AND EXCLUSIVE WARRANTIES EXTENDED BY SUPPLIER. TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WHATSOEVER, INCLUDING ANY WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR SUITABILITY, OF ANY HARDWARE, SOFTWARE OR SYSTEM COMPONENT FOR ANY PURPOSE AND EXPRESSLY DISCLAIMS ALL OF THE FOREGOING.

THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SYSTEM, ANY HARDWARE, ANY SOFTWARE OR ANY SYSTEM COMPONENT IS WITH THE CUSTOMER, AND NOT WITH SUPPLIER, ITS AGENTS, OR EMPLOYEES. SUPPLIER DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS, THAT OPERATION OF THE SYSTEMS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE FUNCTIONALITY AND CAPABILITY OF THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS.


8. INTELLECTUAL PROPERTY NON-INFRINGEMENT

If a third party claims that any of Supplier Software , or portion thereof, infringes its intellectual property rights enforceable in the United States, Supplier will indemnify and defend Customer against such claim provided that Customer promptly notifies Supplier in writing of the claim, allows Supplier to control the defense of such claim, and cooperates with Supplier the defense of such claim at Supplier’s reasonable expense. If such a claim is made, Customer agrees to permit Supplier at Supplier’s own expense to either: 1) procure necessary rights to enable Customer to continue to use the Supplier Software; 2) modify or replace such infringing Supplier Software so it is no longer infringing or 3) refund Customer all fees paid to Supplier for that portion of the Supplier Software that is infringing and Supplier shall have no further obligation to provide that portion of the Supplier Software (or such portion’s functionality or capability) to Customer going forward. . However, Supplier has no obligation of indemnification under this Section to the extent that any indemnification or defense claim is related to or arises out of Customer’s (or its contractors’, representatives’, employees’ or agents’) modification of the Supplier Software or their combination, operation, or use of the Supplier Software with any product, data, or apparatus not specified or provided by Supplier. THIS SECTION 8 STATES SUPPLIER’S ENTIRE OBLIGATION, AND CUSTOMER’S SOLE REMEMDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.


9. INDEMNIFICATION

9.1 Customer shall defend, indemnify and hold harmless Supplier, its affiliates and its third party vendors and licensors, and their respective directors, officers employees, representatives, agents and contractors (each an “Indemnified Party,” collectively, the “Indemnified Parties”) from and against any and all claims, suits, demands, actions, losses, awards, judgments, liabilities, damages, costs and expenses (including, without limitation, reasonable attorney’s fees) (a “Claim”) asserted by third parties arising out of or in connection with (a) any actual or alleged negligence, willful misconduct or fraud of Customer or its contractors, and their respective employees, agents, representatives, officers and directors (the “Customer Group”), (b) any act or omission of the Customer Group, (c) any actual or alleged breach of this Agreement by the Customer Group, (d) any act or omission of an Indemnified Party taken at the instruction or direction of the Customer Group or (e) any violation of applicable law by the Customer Group. To the fullest extent permitted by applicable law, the foregoing indemnity will apply regardless of any strict liability or product liability of Supplier not amounting to willful misconduct or fraud of an Indemnified Party or Supplier’s breach of this Agreement (including without limitation any warranties of Supplier set forth herein).

9.2 In the event that the Indemnified Parties possess actual knowledge of a Claim, such Indemnified Party within a reasonable time after possessing actual knowledge of such Claim will notify the Customer, provided that any failure or delay in making such notification shall not excuse, terminate, reduce or effect, in any way, Customer’s defense and indemnity obligations hereunder unless, and then solely to the extent that, Customer is actually prejudiced thereby. Provided that the Customer promptly and reasonably investigates and defends any such Claim, Customer will have control over the defense and settlement thereof. If, in an Indemnified Party’s sole and absolute discretion, Customer fails to promptly and reasonably investigate and defend such Claim, then such Indemnified Party shall have the right, but not the obligation, to defend and investigate such Claim and Customer shall be liable and pay for, or reimburse, such Indemnified Party for all costs incurred in defending and investigating the Claim upon such Indemnified Party’s demand. The Indemnified Parties will furnish, at the Customer’s reasonable request and expense, information and assistance necessary for such defense provided that such information is not subject to any confidentiality obligations of a third party or does not constitute a trade secret of any of the Indemnified Parties.


10. LIMITATION OF DAMAGES; LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREION AND TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY MEMBER OF THE CUSTOMER GROUP OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR ITS PERFORMANCE OF, OR FAILURE TO PERFORM, ITS OBLIGATIONS HEREUNDER EVEN IF SUPPLIER OR ANY INDEMNIFIED PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THAT SUCH DAMAGES WERE REASONABLY FORESEEABLE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL SUPPLIER’S AGGREGATE LIABILITY (WHETHER IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SUPPLIER) HEREUNDER EXCEED THE TOTAL MONEY ACTUALLY PAID BY CUSTOMER TO SUPPLIER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE OCCURRENCE OF THE FIRST FACTS, ACTS OR CIRCUMSTANCES GIVING RISE TO THE CLAIM.


11. ASSIGNMENT

This Agreement and/or any rights under this Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, except that upon notice to the other Party: (1) Supplier may assign its rights to payments under this Agreement to a financial institution; (2) Customer may assign its rights to any Software and/or any Software license under this Agreement to a successor in interest; and (3) to the purchaser of all or substantially all of such Party’s assets or fifty-one percent (51%) of such party’s voting equity (in one transaction or a serious of related transactions).


12. FORCE MAJEURE

Neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or software, or any consequence thereof, caused by fire, earthquake, flood, water, the elements, unavailability of transportation, acts of terrorism or acts or omissions of third parties other than subcontractors of a Party, or any other cause beyond the reasonable control of a Party and not caused by its negligence (“Force Majeure”). The Party whose performance is affected by such Force Majeure shall notify the other Party of the existence of such Force Majeure and shall use its best efforts to resume performance as soon as practicable. Customer shall not be obligated to pay for any Service which Supplier is unable to perform because of Force Majeure.


13. PUBLICITY AND CONFIDENTIALITY

13.1 Without the written consent of the other or unless required by law or regulatory authority, neither Party shall disclose the terms of this Agreement or any Statement of Work or proposal issued or received by a Party to any third party except such Party’s lawyers, accountants or auditors which are obligated to keep such information in confidence. No press releases or other public announcements of or relating to this Agreement shall be made by either Party without the prior consent of the other Party. The Parties agree to work in good faith to issue a mutually agreeable joint press release concerning this Agreement and the work to be performed. Each Party may use the name and logo of the other Party (without other information) in its marketing materials (print and/or digital), supplier, or customer lists, as applicable.

13.2 The terms and conditions of the Mutual Non-Disclosure Agreement (NDA) between the parties, whether signed before or after this Agreement, shall be in addition to and not in lieu of any obligations of the Parties under this Agreement.


14. NOTICES

All notices concerning this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent by registered or certified mail, by overnight courier service, facsimile transmission with electronic confirmation of delivery, or by other means agreed upon by both parties. Either Party may change the names or address to which notices must be sent by sending a written notice to the other Party.

Notices to Supplier should be sent to:

International Micro Systems, Inc.
200 Racoosin Drive, Suite 110
Aston, PA 19014

Attention: James P. Shrader

Tel: (484)482-1600
Fax: (484)574-8874

Notice to Customer shall be to the address, attention and contact information set forth in the Approval and Agreement.

 


15. DISPUTES / ARBITRATION

The Parties agree to submit to binding arbitration any and all matters in dispute or controversy between them concerning this Agreement that cannot be resolved through discussion by senior executives of both Parties. In the event that discussions by senior executives cannot resolve any such dispute or controversy within sixty (60) days (or such other longer period as the Parties may agree) either Party may submit such matter in dispute to arbitration, and such matter shall be resolved by a binding arbitration by a single arbitrator. Any such arbitration proceeding shall be held in the English language in Media, Pennsylvania. The arbitrator will be selected and the arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, or successor organization. The parties will share equally in the fees and expenses of the arbitrator and the cost of the facilities used for the arbitration hearing, but will otherwise bear their respective costs incurred in connection with the arbitration. The parties agree to use all reasonable commercial efforts to ensure that the arbitrator is selected promptly and that the arbitration hearing is conducted no later than three (3) months after the arbitrator is selected. The arbitrator may not award any amount or type of damages against Supplier in excess of the limitations set forth in, or as prohibited by, this Agreement. The arbitrator’s award and decision shall adhere to the plain meaning of this Agreement and to applicable law, and may be supported by written findings of fact and conclusions of law if both parties agree that the arbitrator shall draft and issue the same. The judgment and award of the arbitrator will be final and binding on each party. Judgment upon the award may be entered in any United States federal or state court having jurisdiction.


16. SYSTEMS PREREQUISITES

16.1 Customer is required to initial and sign all appropriate License Agreements for Supplier supplied software and forward that properly signed original License Agreement to the Supplier prior to the processing of the Customer’s software order.

16.1.1 Staffing – System Administrator: It is a requirement of the Customer to designate a “System Administrator” for the installation of each System. The System Administrator has, or will be, trained in the technical administration of each System. The System Administrator will be the first level of contact for technical planning, customization, and installation decisions with the Supplier if the decision-maker is not available. The System Administrator will also act as a first level support for all other technical personnel with regard to day-to-day technical operation of the System.

16.1.2 Staffing – Business Administrator: It is a requirement of the Customer to designate a “Business Administrator” for the installation of each System. The Business Administrator has, or will be, trained in the business administration of each System. The Business Administrator will be the first level of contact for business planning, customization, and installation decisions with the Supplier if the decision-maker is not available. The Business Administrator will also act as a first level support for all other business personnel with regard to day-to-day business operation of the System.

16.1.3 Power Protection: The Supplier strongly recommends that Customer use Uninterruptible Power Supplies (UPS) or Surge Suppressers to protect Customer’s computer equipment from electrical problems (brown outs, spikes, Surges, etc.). The Supplier can provide assistance in installing the equipment at the then current Professional Service Rate (see Professional Services Section below).

16.1.4 System Initialization: The Supplier will provide the necessary database planning; training and support services to enable the Business Administrator and System Administrator to enter all required data base information. The generation and input of all data base information is the responsibility of the Customer. If the Customer (or Customer’s vendors) currently has a computer system with the data in an accessible format, the Supplier may be able to provide assistance in data conversion. This involves exporting the appropriate data, possibly re-formatting the data into the necessary format that Supplier-Supplied systems require, and importing the data into the Supplier-Supplied Software Systems. Additional data editing will probably be required by Customer after import. An adequate current backup of all such existing data must be made prior to any attempted conversion and transfer of data. This consulting service for data conversion is an additional fee, unless already specifically included in the applicable Statement of Work.

16.1.5 Network Components: Components for networked systems are generally not included in the configuration unless otherwise specified in the applicable Statement of Work. The Supplier, upon request, may perform minor cabling jobs (i.e. no drilling through walls or fishing wires through conduit, etc.). The Supplier can assist in locating a vendor for Customer. If the Customer would like to use their own contractor, then Customer will ensure that the installation and testing is done by a qualified, certified professional network contractor. Customer will also ensure that the cabling is new, IEEE Category 6/7 shielded cables, with proper jacks, RJ45 (B) terminators, patch panels, and patch cables, at a minimum, and Smart (can be managed through various network management tools) hubs, switches, firewalls, etc. are used. Before the Customer’s contractor performs any work, the Customer will have the contractor contact the Supplier to ensure that the proper specifications are adhered to. All time spent by Supplier to resolve network problems because of improper network installation will result in such time being billed to Customer, regardless of Supplier supplied hardware and/or software being involved.

16.1.6 Remote Access. Customer shall provide suitable remote access capabilities to Supplier to ensure efficient and proactive problem resolution, systems diagnostics, and billing.

16.1.7 Telecommunication Lines: In the event that telecommunication lines (telephone, DSL, Cable, T1, Satellite etc.) are required for this installation, it is the responsibility of the Customer to provide suitable telephone lines, which are defined to be clean, dedicated lines that are not configured for alternate line hunting, call waiting, call forwarding, fax or credit card machines, Internet access, or any other custom features. Failure to follow these recommended guidelines creates the strong probability of polling problems, the resolution time of which is chargeable to Customer.

16.1.8 Supplies: Unless otherwise specified in the applicable Statement of Work, supplies required to operate the System will not be included. This includes, but is not limited to, bar code labels, bar code tags, magnetic stripe cards (gift cards, VIP cards, loyalty cards, etc.), Radio Frequency Identification (RFID products (wrist bands, smart cards, etc.), report paper, receipt printer paper and printer ribbons. Customer is responsible for purchasing these supplies. Arrangements to purchase these supplies may be made with Supplier.

16.2 In the event that the Customer decides to supply their own new and / or existing System components: Customer understands that Supplier provides the implementation of entire System. The System is specifically designed to be, and is usually purchased as a package that includes hardware, Operating System Software, Application Software, Database Software, Networking, and Professional Services time for planning, installation, training, and on-going support. When purchased as a System, all components have been tested to work together. Operating System Software, other software applications, networking, and training are designed to enable the Customer to properly operate the Systems. Part of buying the System includes the Professional Services time to install and test hardware components. When the Customer purchases new components from a supplier other than the Supplier, and/or uses existing components, the Supplier offers no warranty or assistance in obtaining warranty service through the manufacturer, and cannot guarantee that those components will operate as expected or will integrate with the Supplier supplied System. The Supplier can, upon request, provide problem determination, recommend problem resolution, and implement Supplier recommended problem resolution for products and/or services at the prevailing Supplier rates.

The Customer understands that there will be Professional Services time billed for installing the non-Supplier supplied hardware or other System components. Professional Services time may be equal to the time for installing similar hardware normally provided by the Supplier, and may include additional charges if needed to attempt to resolve any operational or integration problems. The Supplier also reserves the right to refuse to work on non-Supplier supplied hardware or System components at any time. Any non-Supplier provided hardware or System components must meet, or exceed, minimum hardware design specifications provided by either the Supplier or the POS software manufacturer. The Customer understands that any and all risks associated with their supplied System components not working together with all other hardware, software, and network components are now the Customer’s.


17. MISCELLANEOUS

17.1 Neither Party shall perform or use the Supplier Products or Services in any manner nor for any purpose which violates the laws or regulations of the jurisdiction in which the Supplier’s Products or Services are being provided.

17.2 Customer shall not perform any service bureau work, grant multiple-user licenses, or enter into any time-sharing arrangements using Software licensed under this Agreement, except as expressly authorized in writing by Supplier, provided that Customer’s use of the software in providing service to its customers shall not be deemed to violate this Agreement.

17.3 Any provision or provisions of this Agreement which in any way contravenes the law of any jurisdiction in which this Agreement is effective shall, in such jurisdiction, to the extent of such contravention of law, be deemed severable and ineffective. Such severance shall not affect any other provision hereof or the validity of this Agreement, unless one or more essential purposes of this Agreement is rendered ineffective, in which case either Party may terminate this Agreement without cause in that jurisdiction by notice to the other Party within a reasonable period.

17.4 No waiver by either Party to any provisions of this Agreement shall be binding unless made expressly and confirmed in writing. Any such waiver shall relate only to such matter, non-compliance or breach as it relates to and shall not apply to any subsequent or other matter, non-compliance or breach.

17.5 The relationship between and among the Parties hereto shall be that of independent contractors only, and without limiting the foregoing shall not be that of partners. Nothing herein contained shall be deemed to constitute a partnership between and amongst them, merge their assets, or their fiscal or other liabilities or undertakings. Nothing herein contained shall allow a Party to act as an agent of any other party, except that Supplier may be considered a limited agent of Customer when Supplier is acting on the behalf of and at the direction of the Customer. Supplier shall be solely responsible for its own employees, including without limitation with regard to their employment, compensation, benefits and taxes relating to their employment. No Supplier employee shall be deemed to be an employee of Customer for any purpose.

17.6 This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and merges, supersedes, terminates and otherwise renders null and void any and all prior discussions, negotiations and agreements between them. Neither of the Parties shall be bound by any conditions, definitions, representations or warranties with respect to the subject matter of this Agreement other than as expressly provided herein.

17.7 This Agreement, and all the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the laws of the State of Pennsylvania (excluding any conflict of laws provisions of the State of Pennsylvania that would refer to and apply the substantive laws of another jurisdiction). To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 15, the Parties agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Pennsylvania and waive any objection as to venue or inconvenient forum.

17.8 During the term of this Agreement and any Statement of Work between the Parties, and for a period of one year from the later of either the termination of this Agreement or Supplier’s completion of the work under the last Statement of Work between the Parties, Customer and Supplier shall not to recruit, solicit, hire as an employee or otherwise engage any employee or consultant of the other Party (the “Targeted Individual”) who has been directly involved in the transactions, projects and assignments described in any Statement of Work between the parties provided that the foregoing shall not prohibit a Party from employing or otherwise engaging an employee or consultant of the other Party who replies to a general advertisement or employment listing not specifically targeted to employees of the other Party. In the event that either party breaches their respective obligations under this Section, the breaching party shall immediately pay the non-breaching party an amount equal to the Targeted Individual’s then existing or most recent gross annual base salary plus gross commissions and gross bonuses paid in the previous 12 month period, if any (or, if the Targeted Individual is not an employee, the Targeted Individual’s hourly billing rate multiplied by 2,080 (or weekly billing rate multiplied by 52 or other calculation to achieve an expected annual compensation rate of the Targeted Individual)). The parties agree that the aforementioned financial payment is not a penalty but is a reasonable estimate of the damages the parties’ expect to incur in the event of the other parties’ breach of this Section. The parties also agree that the parties’ obligations under this paragraph are ancillary to the underlying business relationship between the parties and the implicit trust necessary for the successful delivery and receipt of the Services hereunder.

17.9 Professional Services time (including but not limited to time used for planning, installation, training, ongoing support, business consulting, systems operations, etc.). The amount of any and all Professional Services Time included in all subsequent Statement of Work (SOW) is a “good faith” estimate based on discovery information provided by Customer and Supplier’s past experience with similar types of customers and installation. If the discovery data changes, the SOW (prices, tasks, etc.) may change.

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