Product And Services Agreement
General Terms
General Terms
These General Terms govern Buyer’s use of the Products and constitute a binding contract between Buyer and ibml. Buyer’s use of any Products is at all times subject to the terms and conditions outlined in these General Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.
1. Definitions. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings given to them below:
(a) “Acceptance Date” shall have the meaning given to that term in the Standard Terms.
(b) “Agreement” shall mean the Product and Services Agreement by and between the Parties, including any Modules selected in the Contract Terms.
(c) “Authorized User” shall mean any of Buyer’s employees permitted to access and use the Software and/or Documentation pursuant to Buyer’s License under the Software License Terms or a Third-Party Software License.
(d) “Confidential Information” shall have the meaning given to that term in the Confidentiality Terms.
(e) “Documentation” shall mean ibml’s user manuals, handbooks, and installation guides relating to the Software installed by ibml on Buyer’s Equipment.
(f) “Equipment” shall mean the items of equipment described in a Product Specification.
(g) “Equipment Support Services” shall mean those maintenance and support services described in the Equipment Support Terms.
(h) “EULA” shall mean a Licensor’s end-user software license agreement setting forth the terms and conditions of Buyer’s permitted use of Third-Party Software, whether on a standalone basis or incorporated in or integrated with an ibml Product.
(i) “Feedback” shall mean any communications or materials suggesting or recommending changes to the Software or the Documentation, including without limitation, new features or functionality relating thereto.
(j) “Installation Date” shall have the meaning given to that term in the Contract Terms.
(k) “License” shall mean the Perpetual Software License and any Third-Party Software License, individually or collectively, as appropriate.
(l) “License Agreement” shall mean a license agreement between ibml and Licensor pursuant to which Licensor grants ibml a license to use Third-Party Software.
(m) “Licensor” shall mean any licensor of Third-Party Software that, pursuant to a License Agreement, has granted ibml a license to use the Third-Party Software or to market and sell the Third-Party Software.
(n) “Module” or “Modules” shall mean these General Terms, the Contract Terms, the Standard Terms, the Software License Terms, the Software Support Terms, the Equipment Support Terms, and the Confidentiality Terms, individually or collectively as appropriate. For the avoidance of doubt, each reference in the Agreement to “Module” or “Modules” shall mean and include any Modules selected in the Contract Terms.
(o) “Party” or “Parties” shall mean Buyer and ibml, individually or collectively as appropriate.
(p) “Perpetual Software License” shall mean the perpetual software license granted under and subject to the Software License Terms.
(q) “Price” shall have the meaning given to that term in the Standard Terms.
(r) “Product” or “Products” shall mean Equipment, Software, and Services, individually or collectively, as appropriate.
(s) “Services” shall mean those services described in a Product Specification or a Statement of Work.
(t) “Software” shall mean the software product(s) or program(s) described in a Product Specification, including any Third-Party Software, licensed to Buyer pursuant to the Software License Terms or the applicable Third-Party Software License.
(u) “Software Support Services” shall mean those maintenance and support services described in the Software Support Terms.
(v) “Statement of Work” shall mean a written statement of work that is subject to this Agreement, mutually agreed upon, and executed by the Parties for Services to be provided to Buyer by ibml.
(w) “Support Services” shall mean the Equipment Support Services described in the Equipment Support Terms and the Software Support Services described in the Software Support Terms, individually or collectively as appropriate.
(x) “Third-Party Software” shall mean all software of or relating to the Products that is not proprietary to ibml.
(y) “Third-Party Software License” shall have the meaning given to that term in the Standard Terms.
(z) “Voluntary OS Upgrade” shall mean any election by Buyer to upgrade or replace the standard operating system software utilized by ibml with the Equipment.
(aa) “Warranty” shall have the meaning given to that term in these General Terms.
(bb) “Warranty Period” shall have the meaning given to that term in these General Terms.
2. Representations and Warranties; Product Warranty.
(a) Each Party represents and warrants that: (i) it is in compliance with and shall comply with all applicable laws, regulations, and ordinances; and (ii) it has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
(b) ibml warrants to Buyer that, as of the Acceptance Date and for a period of three (3) months thereafter (the “Warranty Period”), the Products will be free from material defects in material and workmanship and, if Buyer purchases a Software License, the Software will conform to the Documentation (the “Warranty”).
(c) ibml shall not be liable for a breach of the Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to ibml within the Warranty Period; (ii) ibml is given a reasonable opportunity after receiving the notice to examine such Product and Buyer (if requested to do so by ibml) returns such Product to ibml’s place of business at ibml’s cost for the examination to take place there; and (iii) ibml reasonably verifies Buyer’s claim that the Product is defective.
(d) The Warranty does not apply and shall become null and void if Buyer breaches any material provision of this Agreement. In addition, ibml shall not be liable for a breach of the Warranty if: (i) Buyer makes any further use of such Product after giving such notice; (ii) the defect arises because Buyer failed to follow ibml’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product; or (iii) Buyer alters or repairs such Product without the prior written consent of ibml. If Buyer elects to purchase a Software License, the Warranty does not apply to the Software and shall become null and void if Buyer, any Authorized User, or any other person provided access to the Software by Buyer or any Authorized User, whether or not in violation of this Agreement: (x) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation; (y) modifies or damages the Software; or (z) misuses the Software, including any use of the Software other than as specified in the Documentation.
(e) Subject to the warranty conditions and disclaimers set forth in this Section, with respect to any such Product during the Warranty Period, ibml shall, in its sole discretion, either repair or replace such Product (or the defective part) or, with respect to any Software only, ibml, in its sole discretion, may elect to refund the Price paid for such Software, subject to Buyer’s ceasing all use of and, if requested by ibml, returning to ibml all copies of the Software. If ibml repairs or replaces the Product, the Warranty will continue to run from the Acceptance Date and not from Buyer’s receipt of the repair or replacement.
(f) EXCEPT FOR THE WARRANTY, THE PRODUCTS ARE PROVIDED “AS IS” AND IBML MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. IBML MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR ANY RESULTS OF THE USE THEREOF, WILL MEET BUYER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PRODUCT, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THIRD-PARTY SOFTWARE MADE TO BUYER ARE MADE SOLELY UNDER THE TERMS AND CONDITIONS OF BUYER’S THIRD-PARTY SOFTWARE LICENSE. ALL THIRD-PARTY SOFTWARE IS PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SOFTWARE IS STRICTLY BETWEEN BUYER AND THE LICENSOR. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY IBML’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
3. Title and Risk of Loss.
(a) Title and risk of loss for the Equipment passes to Buyer upon delivery of the Equipment at the Delivery Point.
(b) As collateral security for the payment of the purchase price of the Equipment, Buyer hereby grants to ibml a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessories thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Alabama Uniform Commercial Code. If requested by ibml, Buyer shall execute and deliver to ibml a UCC-1 Financing Statement evidencing ibml’s purchase money security interest in the Equipment. Until such time as final payment for the Equipment has been received by ibml, Buyer shall not, without the prior written approval of ibml: (i) move, assign, encumber, mortgage or permit any lien upon the Equipment, give up possession of any of the Equipment, or permit others to use the Equipment, or (ii) make or permit any alterations, repairs or adjustments to the Equipment except by ibml (or its authorized agent).
4. No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to ibml or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by ibml or its affiliates, whether relating to ibml’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and ibml or any of its affiliates, or otherwise.
5. Indemnification.
(a) ibml Indemnification.
(i) ibml shall indemnify, defend, and hold harmless Buyer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers (“Losses”) incurred by Buyer resulting from any third-party claim, suit, action, or other proceeding (“Third-Party Claim”) that Buyer’s use of the Products (excluding Third-Party Software) in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (an “Infringement Claim”), provided that Buyer promptly notifies ibml in writing of the Infringement Claim, cooperates with ibml, and allows ibml sole authority to control the defense and settlement of such Infringement Claim.
(ii) Buyer will notify ibml promptly after it determines that a Third-Party Claim may reasonably result in the indemnification of the Buyer pursuant to an Infringement Claim. Upon receipt of written notification in which Buyer demands that ibml defend an Infringement Claim, ibml shall take control of the defense and investigation of such claim and engage counsel to handle and defend the Infringement Claim, at ibml’s sole cost and expense, except that ibml shall not be responsible for any compromise or expense made or incurred by Buyer without ibml’s prior written consent.
(iii) Should the Product become the subject of an Infringement Claim, ibml may, at its option, (A) procure for Buyer the right to continue to use the affected portion of the Product as contemplated hereunder, (B) replace or modify the affected portion of the Product to make its use non-infringing, or (C) remove such Product from Buyer’s site. In the event of the removal of the Product from Buyer’s site, ibml shall refund to Buyer an amount equal to the purchase price paid for the Product, less a use fee for each month the Product was at Buyer’s site. The monthly use fee shall be computed by dividing the purchase price paid for the Product by thirty-six (36).
(iv) ibml’s obligation to indemnify Buyer for an Infringement Claim will not apply to the extent that the alleged Infringement Claim arises from: (A) use of the Products in combination with any products, materials, software, technology, hardware, or equipment supplied to Buyer by a person other than ibml or not authorized by ibml in writing; (B) modifications to the Products by or on behalf of any person other than ibml (unless authorized in writing by ibml); (C) use of the Products in a manner that does not materially conform with any usage specifications provided by ibml or use of any version of the Software other than the most current, unaltered version of the Software; (D) Third-Party Software; or (E) Products manufactured or modified to Buyer’s design or specification.
(b) Buyer Indemnification. Buyer shall indemnify, defend, and hold harmless ibml and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “ibml Indemnitees”) from and against any and all Losses incurred by ibml arising out of or resulting from any Third-Party Claim arising out of or occurring in connection with Buyer’s: (i) negligence or willful misconduct; (ii) use of the Products in a manner not authorized or contemplated by this Agreement; (iii) modifications to the Products not made or approved in writing by ibml; (iv) use of the Products in combination with data, software, hardware, equipment or technology not provided by ibml or authorized by ibml in writing; (v) use of any version of the Software other than the most current version of the Software delivered to Buyer; or (vi) breach of this Agreement, provided that Buyer may not settle any claim against an ibml Indemnitee unless such settlement completely and forever releases ibml Indemnitees from all liability with respect to such claim or unless ibml consents to such settlement in writing, and further provided that ibml will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION SETS FORTH BUYER’S SOLE REMEDIES AND IBML’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT ANY PRODUCT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL IBML’S LIABILITY UNDER THIS SECTION EXCEED THE TOTAL OF THE AMOUNTS PAID TO IBML FOR THE PRODUCTS SOLD HEREUNDER.
6. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL IBML BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT IBML WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL IBML’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO IBML UNDER THIS AGREEMENT FOR THE PRODUCTS AND SUPPORT SERVICES SOLD HEREUNDER THAT ARE THE SUBJECT MATTER OF OR ARE DIRECTLY RELATED TO THE CAUSE OF ACTION.
7. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
8. Corrupt Practices. Neither Party shall perform any acts or make any payments in violation of graft and corruption laws of the United States of America (e.g., the US Foreign Corrupt Practices Act of 1977, as amended), Canada, the United Kingdom (e.g., the Bribery Act 2010), the European Union, or any other jurisdiction in which actions contemplated hereunder may be taken.
9. Miscellaneous.
(a) Entire Agreement. These General Terms, together with the other Modules and any other documents incorporated herein or therein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these General Terms, the other Modules, and any other documents incorporated herein or therein by reference, the following order of precedence governs: (i) first, these General Terms; (ii) second, the other Modules; and (iii) third, any other documents incorporated herein or therein by reference; provided, however, that the provisions contained in the Confidentiality Terms shall supersede any language to the contrary found in any other provision in the Agreement.
(b) Interpretation. Each reference in this Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein,” or words of similar meaning referring to the Agreement, and each reference in any selected Modules to “this Agreement,” “the Agreement,” or words of similar meaning referring to this Agreement mean and are a reference to the Agreement as a whole, including the selected Modules.
(c) Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth in the Contract Terms. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section.
(d) Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement (other than the payment of money due hereunder) will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, epidemics, pandemics, embargoes, export control laws and regulations, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities) (each, a “Force Majeure Event”). The delayed Party must notify the other Party promptly upon the occurrence of a Force Majeure Event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
(e) Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party; provided, however, ibml may, at any time, from time to time amend any of the terms contained in this Agreement by notice thereof to Buyer to the extent that there is any material amendment to the terms of any agreements or contracts related to Third-Party Software that affects Buyer’s rights hereunder of if a Licensor notifies ibml of any revisions to the delivery of any Third-Party Software (each, a “Third-Party Software Amendment”). Any amendments required hereunder pursuant to a Third-Party Software Amendment shall automatically become effective when notice is given as provide in this Agreement, or such later date as may be stated in ibml’s notice.
(f) Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(h) Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the internal laws of the State of Alabama, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama.
(i) Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, together with any other documents incorporated herein by reference, and all contemplated transactions, in any forum other than the United States District Court for the Northern District of Alabama or, if such court does not have subject matter jurisdiction, the courts of the State of Alabama sitting in Jefferson County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(j) Assignment. Buyer may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ibml. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. ibml may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior written consent.
(k) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
(l) Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that Buyer’s Acceptance and Warranty rights in this Agreement are the Buyer’s exclusive remedies if the Products are not free from material defects in material and workmanship or fail to conform to the Documentation.
(m) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under the Confidentiality Terms or, in the case of Buyer, the Use Restrictions of the Software License Terms, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(n) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(o) No Third-Party Beneficiaries. Other than the ibml Indemnitees, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(p) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
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