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Master Products And
Services Supply Agreement
THIS MASTER PRODUCTS AND SERVICES SUPPLY AGREEMENT (the "Agreement") is made and entered into this day of, ("Effective Date") by and between BluBØX Security, Inc. a Massachusetts Corporation ("BluBØX") and , a Delaware limited liability company ("Customer"). The parties, intending to be legally bound, hereby agree as follows:
In addition to any terms defined in the text of this Agreement, other capitalized terms used in this Agreement shall have the respective meanings set forth in Exhibit A attached hereto.
Subject to the terms and conditions of this Agreement, Customer will purchase from BluBØX the specified quantity of Products set forth in the quotation attached hereto as Exhibit B ("Quotation") and any additional Products ordered by Customer in accordance with the terms of this Agreement. To purchase Products hereunder, Customer shall submit to BluBØX an order for the Products. Such Order shall specify the Customer's order number, the applicable Product description, the quantity of Products to be purchased, the price for such Products, the Delivery dates and Delivery Sites in the Territory, and the specific carriers or transportation methods by which Delivery shall be made. BluBØX shall have five (5) business days to accept or reject an Order, and shall be deemed to have accepted an Order if it does not respond to Customer within such five (5) business day period. An Order accepted by BluBØX constitutes a firm commitment by BluBØX to supply the Products specified in the Order to Customer. If Customer submits an Order that is not in accordance with the terms and conditions of this Agreement, BluBØX shall notify Customer in writing specifying the respects in which such Order was not in accordance with the terms and conditions of this Agreement.
DELIVERY / TITLE
Section 3.01 Shipment. BluBØX shall arrange for shipment of the Products, at Customer's cost, from BluBØX's shipping warehouse located in the Territory, to the Delivery Sites in the Territory in accordance with the terms of this Agreement and the Order. For the avoidance of doubt, BluBØX shall bear all costs associated with delivery of the Products to BluBØX's shipping warehouse located in the Territory. Delivery shall occur upon receipt of the Products at the applicable Delivery Site ("Delivery" or "Deliver") on the date specified in the Order and in accordance with Customer's delivery instructions. If no specific carrier or transportation method is specified by Customer, Delivery shall be made by reasonably economical means and at a reasonable rate, in the sole discretion of BluBØX, with a national carrier; provided, however, that under no circumstance shall Delivery be made by air carrier without the prior written consent of Customer. If no location is specified by Customer for shipment of the applicable Products, the applicable Products shall be shipped to Customer's address noted in the Order.
Section 3.02 Inspection and Acceptance. Customer shall have the right to inspect all Products within five (5) Business Days after receipt thereof, and Products shall be conclusively deemed accepted by Customer unless a notice of rejection has been sent by Customer to BluBØX within such five (5) Business Day period. Rejected Products shall be placed by Customer in safe storage for inspection by BluBØX. Customer shall only have the right to reject a Product if it reasonably believes that the Product (i) does not conform to the applicable Specifications; (ii) would cause any safety concerns; or (iii) is defective in material or workmanship. BluBØX's sole liability, and Customer's sole and exclusive remedy, with respect to a properly rejected Product shall be, at BluBØX' election, to promptly replace or repair such rejected Product. Customer's acceptance or failure to reject a Product as contemplated by this Section 3.02 shall not waive, release or in any way affect BluBØX' warranty obligations or obligations with respect to failure rates, in each case as set forth in ARTICLE VI.
Section 3.03 Title. Unless otherwise agreed in writing by the parties, shipping terms shall be F.0.B. point of origin, meaning that Customer shall bear the risk of loss for all Products after they leave the point of origin. The Ship-To Address shall be specified on each Order. Title to all Products shipped pursuant to this Agreement shall pass from BluBØX to Customer upon shipment from the point of origin.
Section 4.01 Payment. Payment of invoices for the Products and any other amounts payable by Customer under this Agreement shall be paid in United States dollars and shall be due from Customer within thirty (30) calendar days of the receipt by Customer of the invoice.
Section 4.02 No Taxes. The price for each Product is exclusive of any local, state or federal tax, levy, tariff, sales tax, fees, customs or duties (foreign or domestic) required by law or any regulatory authority or which are assessable against such Product by any government agency, all of which shall be payable by Customer to the extent that Customer is required by law to pay the relevant tax authority for such tax. For the avoidance of doubt, Customer shall not be responsible for any customs fees or duties upon BluBØX for importation of the Products into the Territory. Additionally, Customer shall not be responsible for any tax which is not directly imposed on Customer, including without limitation, income, franchise, property and gross receipts taxes imposed on BluBØX's net income, net worth, property or revenue. Likewise, BluBØX shall not have any obligations to pay any tax which is not directly imposed on BluBØX, including without limitation, income, franchise, property and gross receipts taxes imposed on Customer's net income, net worth, property or revenue.
Section 4.03 Disputed Charges. If there is a good faith dispute with regard to a portion of an invoice, Customer will endeavor to provide BluBØX with written notice detailing the dispute ("Dispute Notice'') within thirty (30) days of receipt of the applicable invoice. Customer will withhold the disputed amount and will pay the undisputed portion as provided in this Agreement. BluBØX will continue to provide Equipment and perform Services under this Agreement pending final resolution of any dispute hereunder unless otherwise requested by Customer. The parties will negotiate in good faith any such disputed amount and provide each other such requested documentation as is reasonably necessary or useful to resolve the dispute.
Section 5.01 BluBØX Software License. BluSKY is BluBØX’s Cloud-based SaaS product. BluBØX grants to Customer a perpetual, limited, non-transferable, non-exclusive, royalty free license to use the BluSKY Software pursuant to BluSKY’s Sponsor-User License Agreement. Under this Agreement, Customer agree to pay monthly license fees for the use of the BluSKY features. Fees are automatically calculated based upon Customer’s usage of each feature of BluSKY. The monthly fee for each BluSKY feature is documented as an estimate in the Quotation attached to this Agreement as EXHIBIT B. Nothing in this Agreement grants Customer any right to BluSKY Software. Customer shall not translate, reverse engineer, decompile, or disassemble the BluSKY Software or any part thereof or otherwise attempt to derive source code or create derivative works there from, and shall not authorize any Third Party to do any of the foregoing.
Section 5.02 Local Software. BluBØX grants to Customer a perpetual, limited, non-transferable, nonexclusive, fully paid up, royalty free license to use any Software purchased by Customer under the terms and conditions of this Agreement for the purposes of operating the Security System. Except as provided to the contrary herein, nothing in this Agreement grants Customer any rights in such Software. Customer shall not translate, reverse engineer, decompile, or disassemble the Software or any part thereof or otherwise attempt to derive source code or create derivative works there from, and shall not authorize any Third Party to do any of the foregoing.
Section 5.03 Restrictions. Customer will not (a) copy, or permit a Third Party to copy any Local Software or documentation; provided that Customer may make one copy of the Local Software and documentation for back-up purposes, (b) alter, or permit a Third Party to alter, any part of any Software or documentation; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from any Software or permit a Third Party to do any of the foregoing; (d) use the Software for purposes of providing a service bureau, including, without limitation, providing third-party hosting, or third-party application integration or application service provider-type services; (e) sublicense, sell, transfer, lease, or disclose any Software or documentation; or include or transfer any computer instructions, routines, devices, viruses, or Software code whose purpose is to disrupt or damage or interfere with the use of computer and telecommunications facilities or to perform functions which are not an appropriate part of the functionality of the System or whose intended result is to disrupt processing.
Section 6.01 Mutual Warranties. Each party represents and warrants to the other party that (a) it is duly organized and validly existing under the laws of its jurisdiction of organization; (b) it has the legal power and authority to execute and deliver this Agreement and to fully perform its obligations hereunder; (c) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents or any other material agreements to which it is a party; and (d) this Agreement constitutes a legally valid and bindingobligation of it enforceable against it in accordance with its terms, except as such enforcement may be limited by Applicable Law.
Section 6.02 BluBØX Warranties. BluBØX represents, warrants and covenants to Customer that for a period of twelve (12) months from the Delivery date of the applicable Products (the "Warranty Period"), (i) the Products and all components included in each Product shall be free from material defects in materials and workmanship; and (ii) excluding normal wear and tear, each Product and all components and Software shall conform to the applicable Specifications in effect at the time the Product was shipped.
Section 6.03 Warranty Breach. Subject to the terms and conditions of this Agreement, in the event of any breach by BluBØX of the representations, warranties and covenants specified in Section 6.02, Customer's sole and exclusive remedy, and BluBØX's entire liability, will be for Customer, at its election, to (i) have BluBØX repair and/or replace the applicable Product returned to BluBØX by Customer; or (ii) receive a refund of the Replacement Value for the applicable Product. BluBØX represents and warrants that if a Product is returned by Customer to BluBØX for non-cosmetic repair three (3) times within any twelve (12) month period during the Term, BluBØX shall replace such Product free of charge.
Section 6.04 No Liability. BluBØX shall have no liability under this ARTICLE VI in respect of a defect or breach of warranty arising from (a) misuse, willful damage, failure to follow BluBØX's commercially reasonable written instructions relating to the use and operation of a Product, or negligence (other than BluBØX's negligence or the negligence of any of BluBØX's Affiliates or agents); (b) accidental damage or any other damage arising after Delivery of a Product not consistent with normal wear and tear; or (c) a Force Majeure Event.
Section 6.05 Procedure for Warranty Qualification. BluBØX shall not be liable for a breach of the warranties set out in Section 6.02 unless (a) Customer notifies BluBØX of the breach in writing within thirty (30) Business Days of the expiration of the Warranty Period (provided that the breach shall have occurred during the Warranty Period) and (b) BluBØX is given a reasonable opportunity after receiving the notice to examine the applicable Product.
Section 6.06 Support and Maintenance Services. In addition to BluBØX's warranty obligations with respect to the Products, BluBØX shall provide software support and maintenance for the Products during the Warranty Period and following the expiration of the Warranty Period in accordance with this Section 6.02 and the service terms set forth in the Quotation.
Section 6.07 No Implied Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 6.08 Insurance. BluBØX will obtain and keep in force during the term of this Agreement not less than the following insurance:
a ) Commercial General Liability insurance, including bodily injury, property damage, personal and advertising injury liability, and contractual liability covering operations, independent contractor and products/completed operations hazards, with limits of not less than $1,000,000 combined single limit per occurrence and $2,000,000 annual aggregate;
b ) Workers' Compensation as provided for in any jurisdiction where work is performed by BluBØX personnel who are engaged in the performance of services under this Agreement with an Employer's Liability limit of not less than $1,000,000 for bodily injury by accident or disease;
c ) Business Auto insurance covering owned, non-owned and hired autos with limit of not less than $1,000,000 combined single limit per accident for bodily injury and property damage liability, naming Customer, its officers, directors, and employees as additional insureds; and d) Umbrella/Excess Liability with limits of not less than $2,000,000 combined single limit in excess of the above-referenced Commercial General Liability, Employer's Liability and Business Auto Liability.
All required insurance policies must be taken out with financially reputable insurers reasonably acceptable to Customer and licensed to do business in all jurisdictions where services are provided under this Agreement. All policies required under this Section 6.08 shall name Customer and its affiliates and subsidiaries and its officers, directors, employees and agents as additional insured parties. BluBØX's insurance shall be primary and noncontributory. BluBØX will provide Customer, upon request, with a certificate of insurance, satisfactory in form and content to Customer, evidencing that all the required coverages are in force and have been endorsed to provide that no policy will be canceled or materially altered without first giving Customer at least thirty (30) days' prior notice.
Section 7.01 Intellectual Property Indemnification. At its expense, BluBØX shall defend (if requested by Customer), indemnify and hold Customer harmless from any action brought against Customer, its parents, affiliates, subsidiaries and their officers, directors, agents, and employees to the extent that it is based on a claim that any Products or other intellectual property provided to Customer by Consultant under this Agreement, alone or in combination with any other intellectual property ("IP Products") infringes any patent, copyright, trade secret, trademark or other intellectual property right of any Third Party ("Claims"). If any IP Product becomes, or in BluBØX's reasonable opinion is likely to become, the subject of a successful claim of infringement of any intellectual property rights, then, in addition to any other rights Customer may have under this Agreement, BluBØX shall: (i) procure for Customer the right to use the infringing IP Product (or part thereof); (ii) replace the infringing IP Product (or part thereof) with a non-infringing, functionally equivalent one; (iii) suitably modify the infringing IP Product (or part thereof) so that it is not infringing. In the event that neither (i), (ii) nor (iii) is reasonably feasible, then BluBØX shall accept return of the infringing IP Product (or part thereof) and refund all fees paid by Customer to BluBØX with respect to such IP Product. If the removal of an IP Product as contemplated by the foregoing sentence results in BluBØX being unable to materially perform the Services going forward or makes the Security System not function in a substantially similar manner, Customer shall have the right to terminate this Agreement or the relevant Quotation without payment of any additional fees other than fees for Services performed.
Section 7.02 General Indemnity.
(a) BluBØX will defend against and will indemnify and hold harmless Customer, at BluBØX's expense, from and against any claims, demands suits, proceedings, or causes of actions brought by a third party to the extent arising from (i) an assertion that any personal injury or property damage was caused by the Products or BluBØX, its employees or agents in connection with this Agreement (ii) a default by BluBØX of its obligations hereunder; (iii) BluBØX's (including its employees', agents', subcontractors', directors', officers' and/or Affiliates') negligent acts or omissions or intentional misconduct in connection with the performance of its obligations hereunder; (iv) BluBØX's breach of any representations and warranties set forth in this Agreement; (v) BluBØX's breach of Article XII of this Agreement; or (vi) any violation of any Applicable Law by BluBØX.
(b) Customer will defend against and will indemnify and hold harmless BluBØX, its Affiliates and each of their respective employees, directors, officers, and successors and assigns from and against at Customer's expense, from and against any claims, demands, suits, proceedings, or causes of actions brought by a third party to the extent arising from(i) a default by Customer of its obligations hereunder; (ii) Customer's negligent acts or omissions in connection with the performance of its obligations hereunder; (iii) Customer's intentional misconduct in connection with the performance of its obligations hereunder; (iv) any disputes or claims involving the subscribers for the Customer Services; (v) Customer's breach of any representations or warranties set forth in this Agreement and (v) the violation of any Applicable Law by Customer in its marketing and distribution of the Products. Customer's obligations under this Section 7.02 shall not apply to the extent arising from any Claims for which BluBØX has an obligation to indemnify Customer pursuant to this ARTICLE VII.
Section 7.03 Indemnification terms and conditions
(a) In the event that the indemnified party's or a third party's negligent or intentional acts or omissions contributed to cause the injury or damage for which a claim of indemnity is being asserted against the indemnifying party hereunder, the damages and expenses (including, without limitation, reasonable attorneys' fees) shall be allocated or reallocated, as the case may be, between the indemnified party, the indemnifying party and any other party bearing responsibility in such proportion as appropriately reflects the relative fault of such parties, or their subcontractors, or the officers, directors, employees, agents, successors and assigns of any of them, and the liability of the indemnifying party shall be proportionately reduced.
(b) Except as otherwise stated herein, all indemnitees seeking indemnification pursuant to this Article VII will give prompt written notice to the party from which it seeks indemnification (the "Indemnifying Party") and give the Indemnifying Party full authority, information and reasonable assistance (at the Indemnifying Party's expense) for the defense and settlement of any claims giving rise to indemnification obligations; provided, however, that: (i) the Indemnifying Party shall not enter into a settlement of any claim that imposes any liability or material obligation on any indemnitees seeking indemnification or materially prejudices such indemnitees' rights without such indemnitees' prior written consent, which consent shall not be unreasonably withheld; and (ii) Indemnifying Party shall not enter into a settlement of any claim without the indemnitees' written consent unless such settlement is solely for monetary payment by the Indemnifying Party or a third party and contains an explicit and complete unconditional release of the indemnitees in connection with the applicable claim. Notwithstanding the foregoing, any indemnitees' failure to provide such notice shall not relieve the Indemnifying Party of its indemnification and defense obligations unless such failure prejudiced the Indemnifying Party's ability to provide a defense to or indemnity for such claim.
(c) The rights and obligations in this Article VII shall survive expiration or earlier termination of this Agreement.
Section 7.03 Limitation of Liability. It is agreed that if BLUBØX should be found liable for any losses or damages attributable to negligence on the part of BLUBØX, or to failure of the system or Equipment or services in any respect occasioned by the negligence on the part of BLUBØX, its liability shall be limited to the lesser of the actual compensatory damages or $5,000, not as a penalty, but as the exclusive remedy. No suit or action shall be brought against BLUBØX more than one (1) year after the accrual of the cause of action thereof.
Section 7.04 Consequential Damages. EXCEPT FOR EACH PARTY'S OBLIGATIONS UNDER THIS ARTICLE VII, CLAIMS ARISING FROM BLUBØX'S INTENTIONAL BREACH OF THIS AGREEMENT, AND BREACH OF CONFIDENTIALITY OBLIGATIONS ARISING PURSUANT TO THIS AGREEMENT, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF ANY PROVISION OF THIS AGREEMENT OR THE PRIOR AGREEMENT REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Section 8.01 Customer Property. Each party to this Agreement shall (a) continue to own all intellectual property that was owned by such party prior to the Effective Date and (b) separately own any intellectual property subsequently developed or acquired by such party independent of its performance pursuant to this Agreement. Customer's technical and other personnel may provide to BluBØX requirements, expectations, ideas, suggestions, information and materials relating to Customer's network in connection with the provision of BluBØX Services ("Customer Networking Information"). For the avoidance of doubt, such Customer Networking Information shall be deemed owned by Customer pursuant to clauses (a) and (b) above. Customer hereby grants to BluBØX, a limited license to use the Customer Networking Information, for internal use only, in connection with BluBØX's performance of its obligations under this Agreement or Statement of Work. Except as otherwise expressly agreed in a separate written Statement of Work signed by authorized representatives of both parties, all deliverables, newly developed ideas, concepts, inventions, expressions, information, material and works of authorship, prepared and delivered pursuant to a separate written Statement of Work (collectively, "Deliverables") under which Customer has an obligation to pay fees to BluBØX for such Deliverables shall be owned exclusively by Customer ("Customer Property"). Subject to BluBØX providing preferential pricing to Customer for the Products in accordance with the terms of this Agreement and as agreed by the parties from time to time under a Statement of Work, Customer and BluBØX will negotiate in good faith the terms under which Customer will grant BluBØX certain rights to use the Customer Property in BluBØX products for sale to other multiple system operators.
Section 8.02 BluBØX Intellectual Property. Subject to Section 8.01 and except as otherwise expressly agreed in a separate written Statement of Work, all deliverables, ideas, concepts, inventions, expressions, information, material and works of authorship prepared and delivered pursuant to a separate written Statement of Work under which Customer does not have an obligation to pay fees to BluBØX (including, without limitation, any work performed hereunder) shall be owned by BluBØX.
Section 8.03 Jointly Developed Property. Subject to Section 8.01, if the parties wish to jointly fund the development of any new products or intellectual property, such new products and intellectual property shall be jointly owned pursuant to the terms of a separate joint development agreement to be negotiated in good faith by the parties. Neither party shall have the right to grant exclusive licenses or otherwise alienate or impair the other party's right in and to such jointly owned intellectual property. Notwithstanding the foregoing, each party shall own all right, title and interest to all ideas, concepts, inventions, expressions, material and works of authorship and all intellectual property thereto that are independently developed by such party.
Section 9.01 Confidential Information Defined. The term "Confidential Information" shall include, without limitation, information provided by Party that Party has designated as confidential; this Agreement (and all exhibits thereto) and all of its terms and conditions; all manuals and training materials provided by Party; the names, addresses, e-mail addresses and telephone numbers of all Customer subscribers and prospective subscribers to any product or service offered by Customer, as well as any other personally identifiable information relating to such subscribers ("PII"); any other information relating to any Customer's subscribers, including all lists or other records containing any such information, even if such information is aggregated; and all financial, technical, business, product and credit information relating to either Party, including without limitation, all market analyses and market expansion plans, all revenue and profit analyses and projections and all commission structures and statements; all technical information relating to either Party, including, without limitation, all implemented or planned product and service improvements or changes, and all information about Customer's network configuration, plant or any equipment attached thereto; and all other information relating to the operations of Party which was disclosed or provided to the other Party or became known to the other Party through this evaluation relationship; and all other information not generally known to the public relating to either Party. Notwithstanding the foregoing, "Confidential Information" does not include information or material:
(a) which is publicly available when it is received by, or becomes known to, the receiving party or which subsequently becomes publicly available through no fault of the receiving party (but only after it becomes publicly available);
(b) which is already known to the receiving party at the time of its disclosure to the receiving party and is not the subject of an obligation of confidence to the disclosing party of any kind;
(c) which is independently developed by the receiving party without any use of or access or reference to the Confidential Information of the disclosing party; orwhich is received by the receiving party in good faith without an obligation of confidence of any kind from a person who the receiving party had no reason to believe was not lawfully in possession of such information free of any obligation of confidence of any kind, but only until the receiving party subsequently comes to have reason to believe that such information was subject to an obligation of confidence of any kind when originally received.
Section 9.02 No Disclosure. Except as expressly permitted by this Agreement, neither party nor any person, firm, corporation or other entity affiliated with, owned in whole or in part by, employed by or otherwise connected with such Party, shall directly or indirectly, without the express written consent of the other Party, divulge, use, sell, exchange, furnish, give away, or transfer any way any Confidential Information of the other Party. Each party agrees and acknowledges that the obligations imposed in this ARTICLE IX shall be in effect for three (3) years from the date of the last disclosure of Confidential Information under this Agreement; provided, however, that (i) the parties shall discuss at the end of any such three (3) year period whether an extension is appropriate based on the continued commercial value of the information remaining confidential; and (ii) BluBØX's obligations under this ARTICLE IX with respect to any Customer subscriber information provided by Customer shall remain in effect in perpetuity.
Section 9.03 Purpose of Access. Each Party acknowledges that any Confidential Information that has been disclosed to it by the other Party has been disclosed solely for the purpose of enabling the Party to perform its duties hereunder. Each Party agrees that all Confidential Information, whether provided by the other Party prior to or after the commencement date hereof, is the exclusive property of the disclosing Party and further agrees that all of Customer's subscribers are and shall remain customers of Customer.
Section 9.04 Compelled Disclosure. If either Party is served with any form of process purporting to require that Party to disclose any Confidential Information to any third Party, that Party shall immediately notify the disclosing Party who shall, in addition to the served Party's efforts, if any, have the right to seek to quash such process. Each Party shall cooperate with the other in all efforts to quash such process or otherwise to limit the scope of any required disclosure. In the event that the disclosure of any Confidential Information is compelled, the served Party shall seek an appropriate protective order from the court to limit access to such information.
Section 9.05 Subscriber Information. BluBØX hereby acknowledges that Customer has a special responsibility under the law to keep Pil private and confidential. Unless otherwise agreed in writing by BluBØX and Customer, Customer shall use commercially reasonable efforts not to provide PIT to BluBØX. To the extent BluBØX obtains PII, then BluBØX acknowledges that the PII to which it will have access pursuant to this Agreement constitutes Customer Confidential Information and that BluBØX in no way possesses or shall gain possession of any ownership or other proprietary rights with respect to such PII. BluBØX acknowledges and understands that PII is subject to the subscriber privacy protections set forth in Section 631 of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. Sec. 551), as well as other applicable federal and state laws. BluBØX agrees that it shall use such information in strict compliance with Section 631 and all other applicable laws governing the use, collection, disclosure and storage of such information. BluBØX further agrees to restrict disclosure of such PII to those BluBØX employees or sub-contractors with a need to know and who are bound by the confidentiality provisions herein and shall not further disclose such information to any Third Party without the prior written consent of Customer.
Section 9.06 Usage Data. Confidential Information shall include any and all usage data, activity data or other information collected from or about or otherwise regarding Customer's subscribers whether in individual or aggregate form. Such Usage Data (''Usage Data") is and shall remain the property of Customer. To the extent that BluBØX has access to or collects such Usage Data, it does so solely on behalf of Customer pursuant to BluBØX' s obligations hereunder and shall maintain the confidentiality of such data and shall treat in accordance with Customer's then applicable privacy policies, privacy statements and applicable law. BluBØX shall not use Usage Data for any purpose not in compliance with its obligations under this Agreement and shall not disclose such data, whether in aggregate or individual form, to any third party. BluBØX shall not collect or maintain such Usage Data except to the extent necessary to perform its obligations under this Agreement.
Section 9.07 Security. All PII and Usage Data that is collected, stored or otherwise maintained by BluBØX pursuant to this Agreement shall be maintained in a secure environment that meets industry standards. Any PII or Usage Data that is collected or obtained by BluBØX must be stored and transmitted in encrypted or otherwise secure form. In the event of a breach of security of any system, website, database, equipment or storage medium or facility that results in unauthorized access to PII or Usage Data by any Third Party (including any employee or subcontractor of BluBØX that is not authorized to access such information), BluBØX shall notify Customer immediately and make best efforts to re-secure its systems immediately.
Section 9.08 Remote Access. To the extent that BluBØX is authorized to gain remote access to Customer' s networks or equipment for purposes of performing its obligations hereunder, BluBØX shall ensure that (a) such access is restricted to authorized employees; (b) it provides Customer with a list of all such authorized employees; (c) such remote access is used solely for purposes of fulfilling BluBØX's obligations under this Agreement; (d) such remote access is obtained through a secure connection; (e) BluBØX uses such remote access capability only to access equipment or items that are directly involved in BluBØX's performance of its obligations hereunder and does not access any other Customer or third party systems, databases, equipment or software and (f) BluBØX will comply with such of Customer's security procedures and all other applicable Customer policies that are provided to BluBØX in writing in advance. Upon Customer's request, BluBØX will provide periodic security audits of its access system and methods and will change authentication elements periodically to maintain the integrity and security of BluBØX's access.
Section 9.09 No Publicity. Neither Party shall issue a press release or any other publicity (including listing Customer in a customer list or listing BluBØX in a supplier list) relating to this Agreement without the other Party's prior written approval, except for a Party's required disclosure of this relationship and/or letter in order to comply with U.S. federal financial reporting obligations or other statutory regulations. In the event such disclosure is required, the disclosing party will notify the other party hereto in writing.
Section 9.10 Destruction/Return of Information. Upon the expiration or termination of this Agreement or upon either party's request, each party shall return all Confidential Information to the other or at such disclosing party's option, destroy all Confidential Information and provide wi1hin ten (10) days of written request, a written certification signed by an officer of such party, certifying that all Confidential Information in all formats, including without limitation, paper, electronic and disk form, have been returned or destroyed, as the case may be.
Section 9.11 Injunctive Relief. Each party acknowledges that its failure to comply with the provisions of this ARTICLE IX may cause irreparable harm to the other party which cannot be adequately compensated for in damages, and accordingly acknowledges that the other party shall be entitled to claim, in addition to any other remedies available to them, interlocutory and permanent injunctive relief to restrain any anticipated, present or continuing breach of this ARTICLE IX.
TERM AND TERMINATION
Section 10.01 Term. This Agreement shall come into force on the Effective Date and shall continue in effect for 2 years from such date, unless earlier terminated in accordance with the provisions of this ARTICLE X or Section 11.05 ("Initial Term"). Thereafter, this Agreement shall automatically renew on each anniversary of the Effective Date for a period of one (1) year, unless either party gives written notice to the other of its intent not to renew at least ninety (90) days prior to the anniversary of the Effective Date ("Renewal Term"). The Initial Term and each Renewal Term, if any, are referred to herein, collectively, as the "Term".
Section 10.02 Termination.
(a) Subject to Section 10.03, Customer shall be entitled by written notice to BluBØX to terminate this Agreement in its entirety at any time after a Change of Control.
(b) Subject to Section 10.03, either party shall be entitled by written notice to the other party at any time to terminate this Agreement in its entirety if the other party commits a material breach of this Agreement and if and to the extent such breach is capable of being cured such breach continues uncured for a period of sixty (60) days after written notice detailing the breach is provided to the other party.
Section 10.03 Effect of Termination. Upon expiration or termination of this Agreement, all Products ordered prior to the effective date of such expiration or termination shall be Delivered and paid for in accordance with this Agreement.
Section 11.01 Dispute. Subject to the other terms and conditions of this Agreement, any dispute or disagreement arising between BluBØX and Customer relating to or arising out of the interpretation or performance of this Agreement (a "Dispute") shall be resolved in the following manner. A party may provide the other with notice of a Dispute that has arisen in connection with this Agreement. A representative designated by BluBØX and Customer involved with this Agreement shall first review and attempt to settle such Dispute. If such Dispute has not been settled to the satisfaction of the parties within five (5) Business Days (or such longer period as may be agreed upon) from the date that a party provided notice of the Dispute, the matter shall be escalated to a team from each party consisting of the designated representative for such party and an officer of such party who has the authority to settle the Dispute to review and attempt to settle such Dispute. If such Dispute has not been settled to the satisfaction of the parties within ten (10) Business Days (or such longer period as may be agreed upon) from the date that a party provided notice of the Dispute, any party shall have the right to exercise its rights pursuant to the terms of this Agreement or as provided in law or in equity.
Section 11.02 Waiver. Except as expressly provided in this Agreement, no waiver of this Agreement shall be binding unless executed in writing by the party to be bound by it. No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.
Section 11.03 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of laws principles. Each party irrevocably submits to the exclusive jurisdiction of the courts of Philadelphia, Pennsylvania for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof. Each party hereby waives the right to trial by jury of any such suit, action or proceeding.
Section 11.04 No Assignment. Except as provided below, neither party shall have the right to assign, delegate or otherwise transfer any of its rights or duties granted to it under this Agreement without obtaining the other party's prior written consent. Notwithstanding the foregoing sentence, (a) Customer may assign this Agreement to (i) any Affiliate of Customer; (ii) a successor in interest of Customer or as part of a corporate reorganization, consolidation or merger; or (iii) a purchaser of all or substantially all of Customer's assets. In addition, Customer may assign the right to purchase Products under this Agreement and any related rights and obligations with respect to such right to (a) any Affiliate of Customer and (b) any entity in which Customer or any of its Affiliates has an equity interest.
Section 11.05 Force Majeure. No party (a "Frustrated Party") shall be liable to any other party (a "NonFrustrated Party") for any failure to perform or delay in performance of its obligations under this Agreement caused by (a) act of God; (b) outbreak of hostilities, riot, civil disobedience, act of terrorism or plague; (c) the act of any governmental authority including revocation of any license or consent; (d) fire, explosion, lightning strike, storm (including but not limited to hurricanes and tornadoes) or flood; (e) theft, malicious damage, strike, lockout or industrial action of any kind (provided that the strike, lockout or industrial action was outside the reasonable control of the Frustrated Party); or (t) any causes or circumstances beyond the Frustrated Party's reasonable control (collectively, a "Force Majeure Event".) The Frustrated Party shall promptly notify the Non-Frustrated Party of the nature and extent of the circumstances of the Force Majeure Event once known. In the event of a Force Majeure Event, the Frustrated Party shall forthwith establish and implement a plan that minimizes the disruption to the Non-Frustrated Party and shall use its commercially reasonable efforts to remedy the situation and remove the cause of its inability to perform as soon as possible. The Frustrated Party shall give the NonFrustrated Party prompt notice of the cessation of the Force Majeure Event. The Frustrated Party and the Non-Frustrated Party shall negotiate in good faith adjustments to the terms and conditions of this Agreement that are equitable taking into account the nature and extent of the circumstances of the Force Majeure Event as they develop and become known, including equitable reductions in the obligations of the Non-Frustrated Party. Notwithstanding the foregoing, if the Force Majeure Event results in an inability of BluBØX to supply Products to Customer for a period that lasts more than one hundred eighty (180) calendar days, Customer shall have the option to terminate this Agreement in its entirety.
Section 11.06 Severability. Any term of this Agreement which is judged to be void or unenforceable shall to the extent of such invalidity be severable and the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
Section 11.07 Entire Agreement. This Agreement, including all Exhibits, Attachments and Statements of Work, constitutes the entire agreement between the parties and their respective Affiliates with respect to the subject matter hereof and supersedes all prior agreements and understandings, both oral and written, between the parties and their respective Affiliates with respect to t.lie subject matter hereof.
Section 11.08 Amendment. This Agreement may not be amended, varied or modified in any manner except by an instrument in writing signed by duly authorized officers or representatives of each of the parties.
Section 11.09 No Partnership. Nothing in this Agreement shall create or be deemed to create a partnership or joint venture or the relationship of principal and agent between the parties.
Section 11.10 Survival of Obligations. Subject to the terms and conditions of this Agreement, the obligations under this Agreement and/or any Orders placed hereunder that by their nature or as specified under this Agreement are intended to continue beyond the termination, cancellation or expiration of this Agreement, including, without limitation and for the avoidance of doubt, the parties' obligations under ARTICLE VI and ARTICLE VII, shall survive the termination, cancellation or expiration of this Agreement.
Section 11.11 Notices. Any notice required or authorized by this Agreement to be given by either party to the other shall be sent either by FedEx (or other reputable overnight courier), personal delivery or by facsimile transmission to the other party at the address or (as appropriate) facsimile number and marked for the attention of such Person as specified in this Section 11.11. Any notice sent by FedEx or other overnight courier under this Section 11.11 which is not returned to the sender as being undelivered shall be deemed to have been duly served on the next Business Day following mailing. Any notice sent by facsimile transmission under this Section 11.11 shall be deemed to have been duly served on the date of transmission; provided that the sender has received written confirmation of successful transmission. Any notice sent by personal delivery shall be deemed to have been given on the date of personal service. The respective addresses and facsimile numbers of the parties for the service of any notice under this Section 11.11 shall be:
For BluBØX Security, Inc.:
BluBØX Security, Inc.
9 Bartlet Street, Suite 334
Andover, MA. 01810
Attn: Michael Araujo, CFO
with a copy to:
Patrick deCavaignac, COO
205 W76th Street – Apt 6J
New York, NY 10023
The address for service of the parties and/or the e-mail address to which notices must be sent may be changed at any time upon notice being given by either party to the other, in accordance with the terms of this Section.
Section 11.12 Non-exclusivity. None of the activities to be performed by BluBØX and Customer under this Agreement are exclusive. This Agreement does not grant to BluBØX any exclusive right or privilege to provide to Customer any products or services of the type contemplated herein, and this Agreement does not grant to Customer an exclusive right or privilege to receive from BluBØX any products or services of the type contemplated herein. BluBØX and Customer reserve the right to contract with other Persons for the sale and procurement of comparable products and services of the type contemplated herein.
Section 11.13 Remedies Cumulative. Notwithstanding any other provision of this Agreement and unless otherwise expressly stated herein, all rights and remedies of a party under this Agreement are in addition to such party's other rights and remedies and are cumulative, not alternative.
Section 11.14 Other Definitional and Interpretative Matters. Unless specified otherwise in this Agreement the obligations of any party consisting of more than one person are joint and several. The words "hereof', "herein" and "hereunder" and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections and Exhibits are to Articles, Sections and Exhibits of this Agreement unless otherwise specified. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation", whether or not they are in fact followed by those words or words of like import. "Writing", "written" and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
Section 11.15 No Third Party Beneficiary. Nothing in this Agreement is intended to confer any benefit on any Third Party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term set forth in these conditions.
Section 11.16 Counterparts. This Agreement, and any documents to be executed by the parties in connection herewith, may be executed in multiple counterparts (facsimile or otherwise), each of which shall constitute an original, but all of which together shall constitute one and the same instrument.
( Signature Page Excluded )
As used in this Agreement, the following terms shall have the respective meanings set forth:
"$" shall mean United States dollars.
"Affiliate" shall mean any Person who either directly or indirectly controls, is controlled by, or is under common control with a party. For the purposes of this definition, the term "control" (including its correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Applicable Law" shall mean any law, rule, statute, regulation, order, judgment, decree, treaty, directive or other requirement in force at any time during the term of this Agreement which applies to or is otherwise intended to govern or regulate either party in the performance of its obligations or exercise of it rights under this Agreement.
"Business Day" shall mean any day (other than a Saturday or a Sunday) when banks in New York are open for the transaction of normal banking business.
"Change of Control" shall mean any transaction regardless of form which results in (i) any party, other than the party as of the Effective Date, directly or indirectly holding a majority of the equity and voting power of the securities of BluBØX or an entity that controls BluBØX or (ii) a direct or indirect sale of all or substantially all the assets of BluBØX.
"Customer Services" shall mean any services offered by Customer and its Affiliates.
"Delivery Site" shalt mean the location or locations identified as the destination for the shipment of Products in an Order or otherwise specified by Customer in accordance with this Agreement; provided that no Delivery Site shall be located outside of the Territory. "Equipment" shall mean equipment, hardware, cards, badges, devices, components and other materials listed on the Quotation or purchased under future orders.
"Intellectual Property Rights" shall mean any and all proprietary rights (registered and unregistered) provided under (i) patent law; (ii) copyright law (including moral rights); (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; or (vi) any other related statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a proprietary right in either hardware, software, documentation, Confidential Information, ideas, formulae, algorithms, concepts, database, inventions, processes or know- how generally, or the expression or use of such hardware, software, documentation, Confidential Information, ideas, formulae, algorithms, concepts, inventions, processes or know-how.
"Order" shall mean a purchase order for the applicable Products which shall be in writing (including, but not limited to, electronic purchase orders sent in accordance with BluBØX's electronic ordering system) and shall include the following information (a) product description; (b) quantity to be purchased; (c) Delivery site; (d) Delivery date; (e) Customer's order number; and (f) price.
"Person" shall mean any individual, partnership, limited partnership, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constitut d.
"Products" shall mean any products or services purchased under this Agreement.
"Replacement Value" shall mean the purchase price of a Product paid by Customer to BluBØX under this Agreement.
"Security System" or "System" shall mean collectively the Equipment, Software and Services purchased by Customer under the Quotation.
"Services" shall mean the support, maintenance and installation services purchased by Customer as described in the Quotation or future orders.
"Software" shall mean all firmware, applications and software operating systems, compilers, utilities and other programs, application programming interfaces, documentation and other instructions and sets of instructions for hardware, any updates, upgrades and Enhancements, the BluBØX Software, the BluBØX Open Source, and all Third Party software incorporated within the Products and/or otherwise required by the Products to meet the Specifications and the Acceptance Performance Standard.
"Specifications" shall mean the hardware and software specifications agreed upon by the parties for the applicable Products.
"Term" shall mean the duration of this Agreement as specified in Section 10.01.
"Territory" shall mean United States of America, and any other territories the parties may mutually agree in writing. "Third Party" shall mean a Person other than a party to this Agreement or any of its Affiliates.
"Third Party Products" shall mean any Third Party hardware, software or technology incorporated into the Products.
"BluBØX Software” shall mean any software provided by BluBØX (including all updates, upgrades, and fixed thereto) other than other Third Party software under direction from Customer a..'1.d other than the BluBØX Open Source that is governed by open source licenses. For the avoidance of doubt, BluBØX Software shall include any derivatives of and modifications to any Third Party software that are owned by BluBØX.