Product And Services Agreement
Standard Terms
These Standard 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 Standard Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.
1. Products.
(a) Equipment. ibml shall, on a non-exclusive basis, sell to Buyer, and Buyer shall, on a non-exclusive basis, purchase from ibml the Equipment, in the quantities and at the Price described in the Product Specification.
(b) Software. If Buyer elects to purchase a Software License, ibml shall grant Buyer a License to the Software, in the quantities and at the Price described in the Product Specification, and upon the terms and conditions set forth in this Agreement including, without limitation, those terms and conditions set forth in the Software License Terms.
(i) Any portion of the Software that constitutes Third-Party Software, including Software provided under a public license or a EULA, is licensed to Buyer subject to the terms and conditions of the software license agreements accompanying such Third-Party Software, including any EULA (each, a “Third-Party Software License”). Except for the limited rights and licenses expressly granted under the applicable Third-Party Software License, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Buyer or any third party any intellectual property rights or other right, title, or interest in or to the Third-Party Software. ibml will require Buyer to sign or otherwise assent to any applicable Third-Party Software License in a manner acceptable to the Licensor.
(ii) Buyer shall not use the Software for any purposes beyond the scope of the license granted in this Agreement including, without limitation, those terms and conditions set forth in the Software License Terms, and, in the case of Third-Party Software, the applicable Third-Party Software License.
(c) Services. In addition to purchasing Equipment and/or the Software License, Buyer may purchase Services as described in a Product Specification or a Statement of Work. The fees and payment terms for such additional Professional Services will be set forth in the applicable Product Specification or Statement of Work. Services may include, but are not limited to, training in the use of the Products, consulting services analyzing and addressing Buyer’s needs, moving or disassembling of Equipment, and development of custom application programs and custom modifications to standard Products.
2. Delivery; Installation.
(a) Configuration. Following receipt of an order from Buyer to purchase any Products, ibml will configure the Products in accordance with Buyer’s document and business processing needs and the Product Specification.
(b) Pre-Delivery. Prior to the Delivery Date, the installation site will be prepared by Buyer at Buyer’s expense in accordance with ibml’s standard installation instructions and environmental requirements, which includes installation of a dedicated power outlet required for operation of the Equipment. If Buyer is ordering a local area network as set forth in a Statement of Work or the Equipment is being connected to a local area network to be supplied by Buyer, Buyer is responsible for installing the network and connecting the Equipment to the local area network.
(c) Delivery. ibml shall deliver the Products to Buyer’s designated site (the “Delivery Point”) on a mutually agreed upon date (the “Delivery Date”) using ibml’s standard methods for packaging and shipping of such Product.
(d) Assembly and Installation.
(i) Equipment. Following delivery of the Equipment to the Delivery Point, ibml (or its authorized agent) will uncrate and unpack the Equipment, assemble the Equipment and connect the Equipment to peripherals, the power source and communication and other utilities, ensure the Equipment is properly powering on, and perform ibml’s standard diagnostic tests on the Equipment (“Equipment Assembly and Installation”) pursuant to the Product Specification.
(ii) Software. If Buyer has purchased a Software License, ibml (or its authorized agent) will install the Software on the Equipment and perform ibml’s standard diagnostic tests on the Software (the “Software Installation,” and together with the Equipment Assembly and Installation, “Installation”) pursuant to the Product Specification.
(iii) Installation Acknowledgment Form. ibml (or its authorized agent) shall notify Buyer when Installation has been successfully completed and shall obtain an authorized customer signature and date on ibml’s Hardware and Software Installation Acknowledgement Form (the “Installation Acknowledgment Form”). If Installation by ibml is prohibited by local law, union agreement, or otherwise, ibml will supervise the Installation by the party designated by Buyer, and Buyer will bear any additional costs occasioned thereby.
(e) Integration. On or after the Installation Date, during ibml’s normal working hours, ibml (or its authorized agent) shall perform the necessary services to configure the Products to meet Buyer’s functional requirements and to integrate the Products with Buyer’s operating system (“Integration”) pursuant to the Product Specification.
3. Acceptance. Buyer, in its discretion, may elect to perform a factory acceptance test on any Products sold under this Agreement prior to shipment of such Products. If Buyer elects to perform factory acceptance testing on any Product, ibml and an authorized representative of Buyer will conduct the factory acceptance tests at ibml’s manufacturing facility located in Birmingham, Alabama to demonstrate the satisfactory performance of the Product. If any Product does not successfully pass the factory acceptance test, Buyer shall notify ibml in writing of such failure, specifying the way(s) in which the Product fails to pass the applicable factory acceptance test. ibml shall, at its option, either repair or replace the defective Product and notify Buyer that the Product is ready for additional factory acceptance testing. If Buyer elects to not perform factory acceptance testing, the Product shall be deemed to have passed the factory acceptance test. Following successful completion of factory acceptance testing, Buyer shall execute and deliver to ibml an executed Factory Approval Worksheet (“Factory Approval Worksheet”) in confirmation of such acceptance. Following execution by Buyer of the Factory Approval Worksheet or Buyer’s election to not perform factory acceptance testing, ibml will ship the Products to Buyer’s site and perform Installation and Integration of the Products. Acceptance shall occur on the earlier of (a) Buyer’s written notification of acceptance as evidenced by an executed Acceptance Certificate or (b) forty-five (45) days after the Installation Date (the “Acceptance Date”). Notwithstanding the foregoing, if the Product is operated by Buyer in a live production environment, all acceptance testing shall be deemed to be successfully completed and the Product shall be deemed to be accepted by Buyer, with the date of such first use by Buyer in a live production environment constituting the Acceptance Date.
4. Support Services. Buyer may purchase and, if purchased, ibml will provide Buyer with the Support Services described below:
(a) If Buyer purchases Equipment Support Services, ibml will provide Buyer with the Equipment Support Services described in the Equipment Support Terms.
(b) If Buyer purchases Software Support Services in connection with a Perpetual Software License, ibml will provide Buyer with the Software Support Services described in the Software Support Terms.
5. Product Fees.
(a) Price. Buyer shall purchase the Products and obtain maintenance and support services, if any, from ibml at the price (the “Price”) set forth in the Product Specification or the applicable Statement of Work. The Price shall be exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such taxes, charges, and costs; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, ibml’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer shall also be responsible for all shipping charges and insurance costs for the Products.
(b) Payment Terms. Buyer shall pay all invoiced amounts due to ibml for the Products and the Support Services, if any, in US dollars, GBP £ or Euro (as appropriate) on or before the due date set forth in the Product Specification or the applicable Statement of Work. If Buyer fails to make any payment when due, Buyer shall pay interest on all late payments at the highest lawful rate (up to a maximum of one and one half percent (1.5%) per month). Buyer shall reimburse ibml for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, court costs, and collection agency fees. Payment of any late charge does not excuse Buyer of any default under this Agreement.
6. Termination; Effect of Termination.
(a) Termination. In addition to any other express remedies that may be provided in this Agreement:
(i) ibml may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (A) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (B) breaches any of its obligations under the Use Restrictions of the Software License Terms; or (C) breaches any of its obligations under the Confidentiality Terms;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) Effect of Termination.
(i) Perpetual Software License. Upon termination of this Agreement by ibml for cause, the License granted under the Software License Terms, if any, will also terminate, and, without limiting Buyer’s obligations under the Confidentiality Terms, Buyer shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to ibml that the Software and Documentation has been deleted or destroyed. No termination will affect Buyer’s obligation to pay the Price for such Software that may have become due before such termination or entitle Buyer to any refund.
(ii) Third Party Software License. Upon termination of this Agreement by either Party for cause, all direct Third-Party Software Licenses granted to Buyer shall survive in accordance with their terms.
[END OF STANDARD TERMS]