Hardware Agreement
1. Hardware; Restrictions. A&I Solutions shall provide to End User during the Hardware Lease Term (as defined below) the hardware specified in the Transaction Document (the “A&I Solutions Hardware”) for End User’s internal use of the Licensed Offerings for which End User has obtained a license pursuant to the terms of the Transaction Doucment between A&I Solutions and End User (the “License Agreement”). The fee for evaluating the A&I Solutions Hardware during the Hardware Lease Term shall be as set forth in the Transaction Document. Any Hardware will be delivered FOB at A&I Solutions’ facility. End User will bear all costs of shipment.
2. End User shall not, and shall not allow others to: (a) make the A&I Solutions Hardware available to any third party in a service bureau arrangement or otherwise lend, rent, sell, lease or transfer the A&I Solutions Hardware; (b) modify the A&I Solutions Hardware; (c) directly or indirectly export or re-export the A&I Solutions Hardware; (d) use the A&I Solutions Hardware in a way which is not expressly authorized hereunder or which may be illegal; or (e) change or remove any insignia, lettering or identification on the A&I Solutions Hardware. End User shall comply with all applicable laws and regulations in connection with this Agreement. As between the parties, A&I Solutions retains all right, title, and interest in and to the A&I Solutions Hardware. Except as expressly stated herein, End User shall have no rights to the A&I Solutions Hardware. End User shall keep the A&I Solutions Hardware free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of End User. End User shall remove, or cause the removal of, any such lien by bond or otherwise within 15 days after End User becomes aware of the existence of such lien and if End User shall fail to do so, A&I Solutions may pay the amount necessary to remove the lien, without being responsible for investigating the validity thereof.
3. Term; Termination.
a. Term. This Agreement shall commence on the Effective Date and shall continue for the Initial Term set forth on the Transaction Document. At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month terms (each, a “Renewal Term”) unless either party provides notice to the other at least sixty (60) days before the end of the Initial Term or then-current Renewal Term. Except as provided in Transaction Document, the fees for any Renewal Term will be at A&I Solutions’ then-current rate. The Initial Term and any Renewal Terms are collectively the “Term”.
b. Termination. This Agreement may be terminated by either party: (a) upon thirty (30) days written notice if the other party materially breaches any provision of this Agreement and the breach remains uncured within that thirty (30) day period; or (b) effective immediately, if the other party ceases to do business, otherwise terminates its business operations, becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, or comparable proceeding, or if any proceeding is filed against it (and not dismissed within ninety (90) days); or (c) effective immediately, upon any breach of Section2 of this Agreement.
c. Effect of Termination. Upon any expiration or termination of this Agreement: (a) End User shall within five (5) days return the A&I Solutions Hardware to A&I Solutions, and (b) End User shall pay to A&I Solutions within thirty (30) days of the date of termination any fees accrued prior to the date of termination and, if this Agreement is terminated for any reason other than A&I Solutions’ uncured breach, any fees that would have been payable for the remainder of the Initial Term or then-current Renewal Term.
d. Survival. The provisions of Sections 2, 3.c, 5 and 6 shall survive and remain effective after the effective date of termination or expiration of this Agreement.
4. Hardware Warranty. A&I Solutions warrants that during the Hardware Lease Term the A&I Solutions Hardware will be free from defects in material and workmanship under normal use. End User’s sole and exclusive remedy and the entire liability of A&I Solutions and its suppliers under this warranty will be, at A&I Solutions’ option, to repair or replace the A&I Solutions Hardware. Parts used in A&I Solutions Hardware repair or replacement may be new or refurbished. A&I Solutions’ obligations under this Section 4 are conditioned upon the return of affected A&I Solutions Hardware in accordance with A&I Solutions’ then-current RMA Procedures. A&I Solutions will have no responsibility for any defects in A&I Solutions Hardware caused by any acts or omissions of End User, its employees or third-party contractors.
5. Disclaimers of Warranty; liability limitation. END USER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE A&I SOLUTIONS HARDWARE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO CASE SHALL A&I SOLUTIONS, OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL A&I SOLUTIONS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS.
6. General Provisions. Any notice provided to a party hereunder shall be in writing. The failure to enforce any term of this Agreement on one occasion shall not prevent enforcement on any other occasion or the enforcement of any other term. If any provision of this Agreement shall be adjudged by any court to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Georgia, excluding rules governing conflict of law and choice of law. The federal and state courts within Atlanta, Georgia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, those courts. The prevailing party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees. Any waivers or amendments shall be effective only if made by writing signed by representatives authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties regarding the A&I Solutions Hardware. Nothing herein shall be deemed to modify the parties’ rights and obligations pursuant to the Transaction Document.