REVIEW DISPLAY SYSTEMS, INC. MASTER CUSTOMER AGREEMENT
THIS MASTER CUSTOMER AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR PRODUCTS AND SERVICES. YOUR EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective between You and RDS as of the Effective Date of the Order Form.
1. DEFINITIONS. The terms defined below and throughout the Agreement shall have the following meanings:
“Affiliate” means any entity related to You, which directly or indirectly controls, is controlled by or is under common control with You. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a subject entity.
“Agreement” means this document and its corresponding Order Form(s), any exhibits and/or addenda.
“Confidential Information” means all nonpublic proprietary information other than Trade Secrets (defined below), of value to its owner, as well as any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction to not be a trade secret under applicable law. Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms.
“Delivery” or “Delivered” has the meaning ascribed to it in Section 5.1 below.
“Fees” are the fees for the Goods as described in an Order Form and are payable as stated in the Order Form and in this Agreement.
“Goods” means the products and their corresponding Specifications described in an Order Form.
“Intellectual Property Rights” means any and all: (i) patents and patent applications, together with all reissues, continuations, continuations-in-part, divisions, extensions and re-examinations in connection therewith; (ii) copyrights and moral rights in works of authorship in any media, and any collection, changed version or derivative work thereof, including, without limitation, designs, product know-how, concepts, drawings, sketches, architectural drawings and artistic works in any media; (iii) trade names, trademarks and service marks, trade secrets, and any applications or right to apply for registration therefore, know-how, tangible or intangible proprietary information; and (iv) any other intellectual property right or proprietary information recognized under the laws of any applicable governmental authority, all whether registered or unregistered and whether first made or created before or after the Effective Date of the Agreement.
“Location” means Your delivery location(s) for the Goods described on the Order Form.
“Order” or “Order Form” means the document for placing orders hereunder which are entered between You and RDS from time to time, including, addenda and supplements thereto, all of which shall be incorporated by reference. The Order Form will state the estimated delivery date(s) of the Goods and Services, including without limitation the Term, all exclusions from the Goods and Services, the Fees and such other information agreed upon by Us. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were you, the original party hereto. Order Forms shall be deemed incorporated herein by reference. The terms and conditions stated herein shall apply to all Order Forms.
“Person” means a natural person, corporate or unincorporated body (in each case whether or not having separate legal status) and that person’s personal representatives, successors and permitted assigns
“Proprietary Information” means, collectively, Confidential Information and Trade Secrets.
“RDS” means Review Display Systems, Inc., a Wisconsin, USA corporation.
“Services” means professional services, maintenance services, customization and other services described and ordered by You in an Order Form.
“Specification” means the specifications and Your requirements stated in the Order Form. Upon acceptance of the Order Form, You accept the Specification.
“Term” means the date the first Order Form is executed and continues thereafter so long as an active Order Form remains outstanding between RDS and You.
“Timetable” refers to the time period after acceptance of the Agreement by You and payment of applicable Fees that RDS will deliver the Goods.
“Trade Secrets” means information such as business processes, product plans and designs and technology and technical information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
“Us” means RDS and You and/or Your Affiliates.
2. ORDER FORM; GOODS & SERVICES
2.1. Goods & Services. RDS will deliver or make available for collection the Goods with Specifications and all Services described in the Order Form (or multiple Order Forms) to You pursuant to this Agreement and the relevant Order Form at the times stated on the Order Form and during the Term, subject to the payment of the Fees.
2.2. Changes to an Order or Specification; Withdrawal or Cancellation. Any changes made to the Goods, Services and/or Specifications on an Order Form may result in an increase in the Price, or delay in Delivery, as determined by RDS and shall require express acceptance by RDS. An Order may be withdrawn or amended by You at any time before Your acceptance. If an Order is accepted by You that RDS can no longer deliver, RDS shall notify the Customer as soon as reasonably practicable. Each Order Form accepted by You may be cancelled or withdrawn by RDS in writing within ten (10) business days after the date You execute the Order Form and submit it to RDS. If you are not advised of a cancellation or withdrawal by RDS, the Order shall be deemed accepted by RDS.
2.3. Additional or New Goods or Services/Additional Order Forms.
Upon Your written request from time to time and for additional fees paid by You to RDS, you may purchase additional Goods and Services from RDS (the “Additional Goods and Services”). All Goods and Services shall be pursuant to new executed Order Form and will be controlled by the provisions of this Agreement, as amended from time to time, and any special terms listed in the applicable Order Form.
3. YOUR RESPONSIBILITIES
3.1. Your Responsibilities. You represent and warrant to RDS (a) You have the full power, authority and legal right necessary to enter into, execute and deliver the Order Form and the Agreement, (b) You possess all rights necessary to authorize RDS to perform the Services; (c) the Agreement has been duly and validly entered into, executed and delivered by You (d) the Agreement constitutes the legal, valid and binding obligation of You, enforceable within its terms; (e) the description of the Goods and their Specifications and the Services in the Order Form are correct and are accepted by You upon Your execution of the Order; and (f) You have provided RDS with all relevant business information necessary to develop the Order, the Goods and Specifications.
3.2. Project Manager & Assistance. Only those goods and Services specified in the Order Form will be provided by RDS. You will assist RDS in meeting all stated deadlines through the assignment of personnel who will be responsible for Goods and their respective Specifications and the Services and for providing RDS with information and access to resources and facilities necessary to deliver the Goods and Services. You will appoint a representative who will be available to RDS on a priority basis and shall have the authority necessary for the effective performance of this Agreement.
4. PRICES, FEES AND PAYMENT FOR GOODS & SERVICES
4.1. Prices. RDS may increase the prices for Goods and Services, including those stated in an Order or as stated in any price list provided by RDS, at any time by giving you at least fifteen (15) business days’ prior notice in writing provided that the increase does not exceed five per cent (5%) of the Price in effect immediately prior to the increase. Notwithstanding the above, RDS may increase prices under any Order with immediate effect by written notice to You where there is an increase in the direct cost to RDS of supplying the relevant Goods or Services which exceeds ten percent (10%) of the prior pricing and which is due to any factor beyond the control of RDS, including without limitation if such increases arise as a result of currency conversions as may be further described in an Order Form.
4.2. Fees. You shall pay all fees specified in all Order Forms executed amongst Us. Except as otherwise specified herein or in an Order Form, (i) Fees are based on Goods and Services purchased, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable.
4.3. Invoicing and Payment. All charges for Goods and Services shall be paid as stated in the Order Form. RDS will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to RDS and notifying RDS of any changes to such information. RDS may set and vary credit limits from time to time and withhold all further Goods and Orders if the Customer exceeds such credit limit. Time of payment is of the essence.
4.4. Overdue Charges. If any charges are not received from You by the due date, then at RDS’ discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.5. Suspension of Delivery and Acceleration. If any amount owing by You for Goods or Services is thirty (30) or more days overdue, RDS may, without limiting RDS’s other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend delivery of Goods and Services to You until such amounts are paid in full. RDS will give You at least seven (7) days’ prior notice that Your account is overdue, in accordance with Section 11.3 (Manner of Giving Notice), before suspending Goods and Services to You.
4.6. Payment Disputes. RDS will not exercise RDS rights under Section 4.4 (Overdue Charges) or 4.5 (Suspension of Delivery and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.7. Expenses. You shall reimburse RDS for all third party and out-of-pocket (including travel and living) expenses incurred by RDS in performing RDS’ obligations to You in providing support functions added to the Goods and/or Services under an Order Form. All payment obligations for such series and expenses shall be as stated in this Section 4.
4.8. Taxes and Other Charges. Unless otherwise stated, RDS fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder (but not any taxes associated with RDS’s Services). If RDS has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide RDS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, RDS is solely responsible for taxes assessable against it based on RDS income, property and employees.
5. Delivery, Risk and Title of Goods.
5.1. Delivery of Goods. The Order Form will provide whether the Goods are (i) delivered by RDS; (ii) by a carrier appointed by RDS, to the Location on the date(s) specified in the Order; or (iii) made available for collection by You at RDS’ or carrier's premises set out in the Order (as the case may be). You shall collect the Goods within the period specified in the Order. The Goods shall be deemed “Delivered” (and “Delivery” means) (x) if delivered under Section 5.1 (i) above, on arrival of the Goods at the location, or (y) if delivered under Section 5.1 (ii) above, on delivery of the Goods by RDS to the carrier, provided, however, if the Order has stated that delivery is F.C.A. or C.I.F., then upon delivery of the Goods by RDS onto the ship or aircraft; or (z) if delivered under Section 5.1 (iii), when RDS makes the Goods available for collection at RDS’ or carrier's premises (as the case may be).
5.2. Conditions and Exclusions. You shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied. The Goods may be delivered by instalments unless otherwise specified in the Order. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment. Time of delivery is not of the essence. RDS shall use its reasonable commercial efforts to meet delivery dates but such dates are approximate only and RDS accepts no liability for any loss or damage resulting from any such delay, howsoever caused. RDS shall not be liable for any delays or failure in delivery caused by Your failure to (i) make the Location available for the Goods; (ii) prepare the Location as required for delivery; or (iii) provide RDS with adequate instructions for delivery and/or installation; (iii) Your failure to collect the Goods from RDS’ premises; or Force Majeure (as described in Section 12.8 below).
5.3. Your Failure to Accept Delivery. If You fail to accept delivery of the Goods, RDS will arrange to store and insure the Goods pending delivery to You, and You shall be responsible for all such expenses incurred in doing so. If you have not taken delivery within twenty-eight (28) days after the due date for delivery or Your date for collection of the Goods, RDS may mitigate its damages (but has no obligation to do so) and resell or otherwise dispose of the Goods. In this event, You shall continue to be responsible for all Fees for the Goods as well as all costs of storage and resale which shall be added to the Fees for the Goods and You shall be responsible for all Fees and Costs after deduction of any resale prices received by RDS. If at any time before title to the Goods has passed to You, You inform RDS or RDS reasonably believes, that You will breach this Agreement as provided under Section 10 (Term & Termination) or under Section 12.8 (Force Majeure) below, RDS may stop the delivery of any of the Goods and suspend any further deliveries of the Goods to You without limitation of any of RDS’ rights and remedies.
5.4. Risk of Loss. Risk of loss of the Goods passes to you on delivery.
5.5.1. Payment Transfers Title. Title to the Goods shall pass to you upon receipt by RDS of all Fees and any costs payable for the Order to which the Goods apply, but only after confirmation of cleared funds therefor.
5.5.2. Preservation of Goods. Until title to the Goods has passed to You, You shall (i) hold the Goods as bailee for RDS; (ii) store, to the extent possible, the Goods separately from all other material in Your possession, or clearly marked as separate to other material within Your possession listing RDS as their owner; (iii) take all reasonable care of the Goods and keep them in the condition in which they were delivered; (iv) insure the Goods from the date of Delivery with a reputable insurer against all risks for an amount at least equal to their Fees and listing RDS as an “Additional Insured” on such policy; (v) not remove or alter any mark on or packaging of the Goods; (vi) inform RDS immediately if You are subject to any of the events under Section 10 (Term & Termination) or under Section 12.8 (Force Majeure); and (vii) upon reasonable prior notice permit RDS to inspect the Goods during Your normal business hours and provide RDS with such information concerning the Goods as RDS may request from time to time. RDS shall have a secured collateral interest in the Goods and You shall promptly execute all Uniform Commercial Code financing statements to perfect RDS’ interest therein. Your failure to execute any such financing statement shall be a breach of this Agreement.
5.5.3. Anticipatory Repudiation. If at any time before title to the Goods has passed to You, You inform RDS, or RDS reasonably believes, that You are likely to breach the Agreement or are subject to the provisions of Section 12.8 (Force Majeure) RDS may (i) require You at Your expense to re-deliver the Goods to RDS or other RDS location; and (ii) if You fail to promptly do so, RDS may enter Your premises to repossess the Goods.
6. WARRANTIES AND DISCLAIMERS
6.1. RDS Warranties. RDS represents and warrants that it (i) has validly entered into this Agreement and has the legal power to do so, and (ii) has complied, and shall comply, with all federal, state, and local laws (including privacy laws), codes, rules and regulations (including, without limitation, those regarding business permits, licenses, reporting requirements, tax withholding requirements), and other legal requirements of any kind in connection with delivery of the Goods.
6.2. Limited Warranty on Goods. RDS represents and warrants for a period of [one (1) year after Delivery or longer if 3rd Party Manufacturer warranty, if applicable, is for a longer period, the Goods will (i) substantially meet with the Specifications in the Order Form; and (ii) will be free of material defects in design, material and workmanship. RDS shall, at its option, repair or replace any goods that do not comply with this limited warranty, provided You provide RDS with written notice prior to expiration of this limited warranty and (i) immediately in the case of defects discoverable by a physical inspection; or (ii) in the case of latent defects, within one month from the date upon which You become aware (or should reasonably have become aware) of the defect. You must provide RDS with sufficient information as to the nature and extent of the defects and the uses of the Goods prior to identification of the defect, an opportunity to examine the defective Goods; and return the Goods to RDS at Your expense in accordance with RDS’ Return Merchandise Authorization procedures (“RMA”) as stated on our website at www.review-display.com/RMA. RDS shall not be liable for any failure of the Goods where such failure arises by reason of wear and tear, wilful damage, misuse, negligence, lack of regular inspection or maintenance, any reverse engineering (or attempt thereof) or could be expected to arise in the normal course of use of the Goods; to the extent caused by Your failure to comply with RDS’ instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance; to the extent caused by RDS following Your stated Specifications or requirements in relation to the Goods; where You modify any Goods without RDS prior written consent or, having received such consent, not in accordance with RDS’ instructions; or where Your use of any of the Goods after notifying RDS they do not comply with this Section 6.2(i). You will be responsible for all shipping costs for any replacement parts and any labor costs incurred as well as any sales tax which may be payable to a government agency in connection in connection with this limited warranty, as well as any travel and related out of pocket expenses for our personnel to provide services at your location. This limited warranty is not transferable. Any replacement components shall be new or reconditioned and are warranted for the lesser of one (1) year after delivery to You or its installation or the remainder of this limited warranty.
6.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, RDS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPTS AS STATED EXPRESSLY, THE GOODS ARE PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ON INFRINGEMENT.
7. PROPRIETARY RIGHTS & CONFIDENTIALITY
7.1. Intellectual Property Rights. RDS reserves all rights, title and interest in and to the Intellectual Property Rights underlying the Goods, including any amendments, new versions, upgrades or custom features created for You under the Agreement. No Intellectual Property Rights are granted to You under this Agreement other than as expressly stated herein.
7.2. Proprietary Information. Proprietary Information, which is disclosed by a party hereunder to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, shall be protected under this Agreement. Proprietary Information shall exclude any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of the Proprietary Information. A “Disclosing Party” is one who provides Proprietary Information to the other party hereunder (the “Receiving Party”).
7.3. Protection of Proprietary Information. Each party agrees with the other (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any Person other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement and shall exercise due care to monitor and ensure compliance with this Agreement. The nondisclosure and confidentiality obligations set forth in this Section 6 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.
7.4. Compelled Disclosure. A Receiving Party of Proprietary Information may disclose Proprietary Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.
8.1. Indemnification by RDS. RDS shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that Your use of the Goods as delivered hereunder infringes or misappropriates the Intellectual Property Rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give RDS written notice of the Claim Against You; (b) give RDS sole control of the defense and settlement of the Claim Against You (provided that RDS may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to RDS all reasonable assistance, at RDS’s expense. In the event of a Claim Against You, or if RDS reasonably believes the Goods may infringe or misappropriate, RDS may in RDS’ discretion and at no cost to you (i) modify the Goods so that they no longer infringe or misappropriate, without breaching RDS warranties under “RDS Warranties” above, or (ii) obtain a license for Your continued use of the Goods in accordance with this Agreement and the corresponding Order Form. Notwithstanding the foregoing, RDS shall not be responsible for any Claims Against You which arise directly out of Your negligence or willful misconduct.
8.2. Indemnification by You. You shall defend RDS against any claim, demand, suit or proceeding made or brought against RDS by a third party alleging (i) that Your use or modification of the Goods or Services infringe or misappropriate the Intellectual Property Rights of a third party or violates applicable law (collectively, a “Claim Against RDS”), and shall indemnify RDS for any damages, attorney fees and costs as a result of, or for any amounts paid by RDS under a court-approved settlement of, a Claim Against RDS; provided that RDS (a) promptly give You written notice of the Claim Against RDS; (b) give you sole control of the defense and settlement of the Claim Against RDS (provided that You may not settle any Claim Against RDS unless the settlement unconditionally releases RDS of all liability); and (c) provides to You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT WITH REGARD TO INDEMNIFICATION UNDER SECTION 8 OR CONFIDENTIALITY UNDER SECTION 7, RDS' LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO A SPECIFIC ORDER FORM AND/OR THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU UNDER THE SPECIFIC ORDER FORM RELATED TO WHICH THE CAUSE OF ACTION ARISES AND IN NO EVENT SHALL RDS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SPECIFIC ORDER FORM AND THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU UNDER THE SPECIFIC ORDER FORM RELATED TO THE ACTION. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR GOODS & SERVICES). IN NO EVENT SHALL RDS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL RDS HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (EXCLUDING CONSEQUENTIAL DAMAGES OCCURRING ON YOUR REAL PROPERTY AS A RESULT OF RDS PHYSICAL ACTS OR OMISSIONS ON THAT REAL PROPERTY), COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT RDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term. This Agreement commences on the date You execute the Order Form and continues thereafter until no Order Form remains in effect and outstanding amongst RDS and You or the last limited warranty for Goods expires as stated herein.
10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding continues for more than sixty (60) days.
10.3. Surviving Provisions. Section 4 (Fees and Payment for Goods & Services), 6.4 (Disclaimer), 7 (Proprietary Rights & Confidentiality), 8 (Mutual Indemnification), 9 (Limitation of Liability), 11 (Governing Law, Venue, Equitable Relief and Notice), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. Governing Law, Venue and Notice.
11.1 Governing Law & Venue. The laws of the State of Wisconsin shall govern this Agreement, without regard to conflicts of law. Any action related to or arising out of this Agreement shall be venued solely in the Federal District Courts located in and around Milwaukee, Wisconsin and the parties irrevocably commit to the jurisdiction of said courts.
11.2. Equitable Relief. You recognize that any breach or threatened breach of the Agreement or any provisions hereof may cause RDS irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to RDS, You acknowledge and agree that RDS is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages or the posting of a bond.
11.3 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second (2nd) business day after placements with a reputable overnight courier, with delivery receipt, or (iii) the first (1st) business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). All such notices shall also be sent in the same manner to Trusted Counsel c/o Review Display Systems, Inc., 1349 West Peachtree Street, NE, Suite 1525, Atlanta, Georgia 30309.
12. GENERAL PROVISIONS
12.1. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of RDS employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, You will use reasonable efforts to promptly notify RDS Management (firstname.lastname@example.org)
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6. Attorney Fees. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.
12.7. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of RDS. Notwithstanding the foregoing, You may assign this Agreement in its entirety, without consent of RDS, but with prior notice, to your Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets not involving a direct competitor of RDS.
12.8. Force Majeure. RDS shall not be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that RDS or its third party suppliers are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of RDS including, without limitation, acts of God, fire, flood, storms, earthquake, strike, lockout or other labor dispute, war, riot or civil unrest, excluding Your inability to pay or circumstances resulting in Your inability to pay the Fees. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay, provided, however, a continuing Force Majeure after ten (10) business days provides RDS with the right to cancel all outstanding and effected Orders with notice to you.
12.9. Entire Agreement. This Agreement, including all exhibits, addenda and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by RDS. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any terms or conditions stated in Your purchase order or other order documentation (excluding RDS Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.