DEFINITIONS. Unless
defined elsewhere in the customer Order Form, capitalized terms have the
following meaning: Customer means the
customer identified in the customer Order Form (the term “you” also means
Customer). Mutualink means the company (the terms “we”, “us” or “our” also mean
Mutualink).
OBLIGATIONS. Provided you pay all
amounts when due, we agree to provide you with the Interoperability Product.
The Interoperability Product will include a license key in order for you to
access and operate the Interoperability Product on an authorized basis. You agree not to: (i) assign this Order or
your rights under it (without our prior written consent which may be withheld
in our sole discretion), (ii) sublicense, rent, or lease all or any portion of
the Interoperability Product or use the Interoperability Product at or for any
location that is not listed in this Order Form.
We will attempt to provide the Interoperability Product in a timely
manner. You understand, however, that you will be required to submit various
items and/or information to us and by certain stipulated time-frames in order
for us to meet applicable deadlines. Should
you fail to provide us with the requested items or otherwise fail to meet
applicable timeframes, you acknowledge and agree that: (i) we may have to delay
a particular date and (ii) we will not be responsible for any resulting delays. Neither party shall be in default if failure
to perform any obligation hereunder, other than the payment of monies, is
caused solely by conditions beyond such party’s control, including acts of God,
civil commotion, strikes, terrorism or threatened terrorism, labor disputes, or
governmental demands or restrictions.
FEES. The amount of fees due and
payable to Mutualink hereunder are set forth in this Order Form. Such fees do not include any additional amounts
that may be charged by an authorized service agent of Mutualink (if applicable). Unless stated otherwise in writing, you agree
to pay all fees upon receipt of an invoice. All fees are exclusive of
applicable sales and use taxes and you will be responsible for any such
taxes. All fees are listed in United
States Dollars. If we install the
Interoperability Product, billing will commence thirty (30) days from
activation of the Interoperability Product. If we do not install the
Interoperability Product, billing will commence thirty (30) days from the date
the last item of the Interoperability Product is shipped to you. The first invoice may be pro-rated and shall
include the first month of fees payable in advance. Thereafter, monthly fees
shall be payable in advance. Should we be required to travel to your or a third
party’s facilities, we reserve the right to be reimbursed (and you agree to
reimburse us) for all travel and other reasonable out-of-pocket expenses that
we incur to provide the Interoperability Product, provided you authorize such
travel.
OWNERSHIP. Unless you purchase the Authorized
Hardware (which you will own), we own the Interoperability Product, including
the processes or methods used to create the Interoperability Product, certain
information prepared by us or used by us in providing the Interoperability Product,
and all other intellectual property rights therein. However, we do not, and shall not, own any
materials, or information contained therein, that you provide to us.
CONFIDENTIALITY. The
parties agree that the terms and conditions of this Order, including, but not
limited to, the Interoperability
Product and any related information and pricing, shall
be deemed confidential information and shall not be disclosed by you to any
third party.
TERM. Commences on the date this Order is
signed by a duly authorized representative of us and continues until terminated
as set forth herein.
TERMINATION. Without
prejudice to any other rights, either party may terminate this Order
immediately if the other party (i) fails to materially comply with all of the
terms and conditions of this Order (and has failed to cure the same within
three (3) days of written notice thereof), (ii) fails to pay when due any and
all fees (or, alternatively, suspend
the provision of the Interoperability Product (in whole or part)), (iii) ceases to do business in the normal course, and/or (iv)
becomes or is declared insolvent or bankrupt, being the subject of any
proceeding relating to liquidation or insolvency or making an assignment for
the benefit of its creditors. In addition, we may terminate this Order
without cause and without penalty upon five (5) days written notice provided
that we provide you with a pro-rata refund of the applicable, if any, recurring
subscription fees (after deducting any fees that remain outstanding).
Conversely, you may terminate this Order without cause and without penalty
upon ten (10) days written notice, except that you
shall not be entitled to receive any refund of the applicable recurring subscription fees that
have been paid prior to the effective date of termination. Upon termination of this Order,
the Interoperability Product shall be immediately deactivated and you shall promptly return to
us or our service agent (if applicable) as determined by us, the Application
(including any copies) and/or any and all Authorized Hardware in your
possession that you did not purchase and, thus, do not own. Any
terms of, or obligations under, this Order that survive termination, either by
their nature or express language, remain in effect until fulfilled and apply to
each of our respective successors and assignees.
SCOPE OF DELIVERABLES. Unless agreed to
otherwise, you agree to provide us with all necessary
access to your premises, internal wiring, CPE, and other facilities and
equipment in order to install and support the Interoperability Product. In the event we provide additional goods and/or services or it becomes necessary for
us to provide repair services or replacement parts, additional modification or related
investigating, consulting or system integration, we reserve the right to
invoice you for the same at our then current rates and costs. Further, we may suspend your
use of the Interoperability
Product, should
you (in our reasonable belief) improperly use the Interoperability Product. You
acknowledge that we provide the Interoperability Product to third parties and that nothing in this Order
or in your engagement or use of the Interoperability Product shall restrict or prevent us from using or
providing the same or similar Interoperability Products to third parties.
DELEGATION, RE-CONFIGURATION. We may use agents, sub-agents, contractors
and/or sub-contractors for such periods and upon such terms as we reasonably
deem proper. In addition, we may assign
this Order in whole or in part so long as the assignee agrees in writing to
assume and perform the terms and covenants of this Order. Notice of the
assignment shall be delivered to you.
GENERAL WARRANTIES. You represent and warrant to us that
(i) all information and materials you submit to us for our use or
incorporation when providing the Interoperability Product to you do not
infringe upon or violate the rights of any third party, and (ii) you are in
compliance with all applicable laws, rules, and regulations.
DISCLAIMERS. The Application is based upon, and may incorporate,
information (including third party information) which may not be correct. Thus, the Application/Interoperability Product
entails the possibility of some human and machine errors, which might not be
correct or, if applicable, might fail to materialize or produce the results you
anticipated. AS SUCH, WE PROVIDE THE APPLICATION/INTEROPERABILITY
PRODUCT AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE INTEROPERABILITY PRODUCT,
INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND ANY WARRANTIES
ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING. FURTHER, WE DO NOT WARRANT THAT THE OPERATION
OF THE INTEROPERABILITY PRODUCT COMPRISING THE APPLICATION WILL BE
UNINTERRUPTED OR ERROR OR VIRUS FREE, AND THERE IS NO
WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT OR QUIET POSSESSION.
EXCLUSIONS. To the extent that you use the Application/Interoperability
Product in connection with any public safety, emergency response or other
critical response environment, including but not limited to uses by fire,
police, emergency medical personnel or systems, entities or agencies
responsible for roads and/or transportation, entities or agencies responsible
for utilities monitoring or emergency response systems, we, our sub-agents,
agents, contractors, subcontractors, representatives and/or advisors (“Mutualink
Parties”) shall not be responsible for any injuries, damages, settlements,
attorneys’ fees and expenses that may be attributable, in whole or in part, to
delays in response time or errors that may arise out of or relate to any
communications failures, interruptions or delays.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ANY OF THE MUTUALINK
PARTIES BE LIABLE TO YOU FOR ECONOMIC OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS OR SAVINGS, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, EVEN IF ANY OF
THE MUTUALINK PARTIES WAS INFORMED OR MADE AWARE OF THEIR POSSIBILITY.
NOTWITHSTANDING THE FOREGOING, IF ANY OF THE MUTUALINK PARTIES BECOMES LIABLE
UNDER THIS ORDER, THEN REGARDLESS OF THE BASIS OF THE CLAIM, INCLUDING, BUT NOT
LIMITED TO, USE OF OR INABILITY TO USE THE
INTEROPERABILITY PRODUCT, except for any refund elected to be provided by us,
YOU ARE NOT ENTITLED TO ANY DAMAGES. In any such case, the Mutualink Parties’
entire liability and your exclusive remedy for any matter or for any other
liability relating to the Interoperability Product shall be, at our option, as
follows from time to time exercised subject to applicable law: (a) return
of the amount paid (if any) for the Interoperability Product during the last 12
months for which subscription fees were paid, or (b) repair or replace the
Interoperability Product. You will receive the remedy elected by us without
charge, except that you are solely responsible for any expenses you may incur
(e.g., cost of shipping to us). No
remedy will apply if failure of the Interoperability Product has resulted from
accident, abuse, misapplication, abnormal use or a virus. YOU AND WE ACKNOWLEDGE THAT THE FOREGOING
LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE AND REFLECTS AN ALLOCATION OF
RISK BETWEEN YOU AND US IN VIEW OF THE FEES THAT WE CHARGE TO YOU.
INDEMNIFICATION. You will defend, indemnify,
and hold the Mutualink Parties harmless
against and from any and all Losses that may be imposed on, incurred by, or
asserted against the Mutualink Parties when such liability or the like arises as a result of our use of any
materials you provide to us as well as our providing and your use of the
Interoperability Product (including your conduct of any business, advertising,
marketing, sales, or any negligent, illegal, or libelous act in connection
therewith). “Losses” means all liabilities, obligations, losses, damages,
injuries, taxes, claims, actions, suits, costs, expenses and disbursements of
any kind and nature whatsoever.
PARTIAL INVALIDITY; RIGHTS; REMEDIES. If any part, term, or provision of this Order
is held illegal, unenforceable, or in conflict with any applicable and
enforceable law, the validity of the remaining portions or provisions of this Order
shall not be affected. All rights not
expressly granted to you in this Order are reserved to us. The remedies stated
in this Order are in addition to all other remedies available at law or in
equity.
STATUS OF PARTIES. We are acting as an independent contractor,
and the parties are not partners or joint venturers of one another in any
respect under this Order.
GOVERNING LAW.
This Order shall be construed under and be governed in all respects by the laws
of the State of Connecticut, without regard to the principles of conflict of law of any
jurisdiction. The parties hereto irrevocably submit to the exclusive jurisdiction
of any federal or state court sitting in Connecticut, in any action or
proceeding arising out of or relating to this Order and the parties hereto
irrevocably agree that all claims in respect of such action or proceeding may
be heard and determined in any such court, and the parties waive any objection
to the convenience of the forum.
COSTS.
The party prevailing in the enforcement of the provisions of this Order,
including collection of any amounts due hereunder, shall be entitled to recover
from the other party, in addition to all sums to which it is entitled or any
other relief, at law or in equity, reasonable and necessary attorneys' fees and
any court costs. As to overdue amounts,
we may charge you interest at the lesser of one percent (1%) per month or the
maximum rate permitted by law for each month or portion thereof that the
outstanding balance of any amount due remains unpaid.
COMPLETE ORDER. This Customer Order Form, the EULA, the Certificate of Warranty (if
applicable) shall be collectively referred to as this “Order”. This Order is the entire Order between
you and us concerning the Interoperability Product, and supersedes all previous
communications, representations, proposals, understandings, and Orders, either
oral or written. Failure of any party to
insist on strict compliance with the provisions of this Order shall not
constitute waiver of that party's right to demand later compliance with the
same or other provisions of this Order.
Any changes to this Order must be in writing and signed by you and us.