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Factory Automation Solutions - Terms & Conditions

Terms and Conditions of Sale

PANASONIC SYSTEM SOLUTIONS COMPANY OF NORTH AMERICA - PROCESS AUTOMATION

Division of PANASONIC CORPORATION OF NORTH AMERICA

1701 Golf Road, Suite 3-1200 Rolling Meadows, IL 60008

EXHIBIT A

TERMS AND CONDITIONS OF SALE

ELECTRONICS ASSEMBLY EQUIPMENT

1.    Entire Agreement

The accompanying Quotation, if any, automatically expires thirty (30) calendar days from the date of its issue by Seller and is also subject to termination by written notice from Seller within that period. Buyer shall accept this Quotation by having its duly authorized representative sign in the appropriate space on the face hereof and returning said signed copy to Seller within the aforesaid period, provided, however, that, notwithstanding the foregoing, Buyer shall be deemed to have accepted this Quotation upon (i) Buyer's submission to Seller of any order for any Electronic Assembly products specified on the face hereof (which, together with all replacement parts and accessories therefore, are hereinafter referred to as the 'Products') or (ii) Buyer's acceptance of delivery of any Products at the F.O.B. point (in which event Buyer shall be deemed to have accepted this Quotation on the tenth day after the date of this Quotation). By accepting the quotation as aforesaid, Buyer expressly understands and agrees that all sales of the Products shall be governed by and subject to the following terms and conditions and those contained on the face hereof, which terms and conditions shall constitute the entire contract between Buyer and Seller and shall supersede Buyer's order form and other documents, if any, and that there are no representations, warranties, covenants, agreements, or collateral understandings, oral or otherwise, express or implied, affecting this instrument not expressly set forth herein. No delay on the part of either party in exercising any of their respective rights hereunder or the failure to exercise the same shall operate as a waiver of such rights except in the specific instance. None of the terms, conditions or provision hereof may be, nor shall they be held, deemed or construed to have been, changed, waived, varied, modified or altered by any act or knowledge of either party, their respective agents, servants or employees, and the terms of this instrument may not be changed, waived, varied, modified or altered except by a statement in writing signed by duly authorized representatives of both parties.

2.    Taxes

Prices quoted herein do not include any amount of Federal, state, or local excise, sales, use, service, occupation, income, property or similar taxes. If any taxes (excluding import duties or impositions) are determined to be applicable to this transaction, the prices to be paid by Buyer hereunder shall be increased by the amount of such taxes. Any request by Buyer for exemption from any tax must be accompanied by properly executed tax exemption certificates.

3.    Delivery, Installation, Acceptance

(a)    Seller will deliver the Products to the F.O.B. point within a reasonable time of the estimated delivery date(s) set forth on the face hereof, but Seller shall in no event be liable for any special, incidental, consequential or any other indirect damages or loss of profits suffered by Buyer due to a delay in such delivery. The delivery dates herein set forth are based upon the timely receipt by Seller from Buyer of any and all material or information reasonably requested by Seller hereunder.

(b)    Buyer shall be responsible, at its sole risk, cost and expense, for: (i) transporting the Products from the F.O.B. point to the site of installation thereof; (ii) preparing the installation site for installation of the Products (including the provision of satisfactory utilities and operating environment); and (iii) position of the Products at the installation site, all in accordance with Seller's written instructions therefore which are to be provided by Seller to Buyer.

(c)    As promptly as practicable after receiving written notice from Buyer that all of the steps provided for in Paragraph 3(b) above have been satisfactorily completed, and upon Seller's confirmation thereof, Seller will install the Products at the installation site and make such final adjustments to the Products as are reasonably necessary to place such Products into operating condition.

(d)    Upon completion of the installation of the Products, acceptance testing of the installed Products shall be jointly conducted by the representatives of both Seller and Buyer. Buyer shall be responsible, at its sole cost and expense, for delivering to Seller in a timely fashion sufficient quantities of printed circuit boards and electronic components necessary to conduct both the factory and the installation site portions of the acceptance testing of the Products. Upon the successful completion of such acceptance testing, Buyer shall deliver to Seller an executed acceptance report in form and substance satisfactory to Seller; provided, however, that, unless previously expressly rejected by Buyer in writing, the Products shall be deemed to have been accepted by Buyer on the date ninety (90) days following delivery of the Products at the F.O.B. point. Notwithstanding the foregoing, productive use of the Products by Buyer shall constitute acceptance of the Products by Buyer.

(e)    If Buyer shall, at any time, refuse to accept delivery of any of the Products at the F.O.B. point, then Buyer may, from time to time, be invoiced by Seller, and Buyer agrees to promptly accept and pay each such invoice, for any and all freight handling, warehouse, labor and other costs incurred by Seller which arise there from or which are in any way related thereto or associated therewith.

4.    Cancellation

For a period ending sixty (60) days prior to the scheduled ex-factory date thereof, Buyer may cancel, upon Seller’s receipt of a written notice of cancellation, all, or any part, of its order hereunder upon payment to Seller of a cancellation charge equal to the sum of:

(i) more than 120 days prior to such ex-factory date - 5% of the purchase price of the canceled Products (ii) between 120 days and 91 days prior to such ex-factory date - 10% of such purchase price (iii) between 90 and 60 days prior to such ex-factory date - 20% of such purchase price; and 100% of the cost therefore incurred by Seller and/or Seller's suppliers with respect to all special modifications to the canceled Products, if any, requested by Buyer and agreed to by Seller.

Buyer may not cancel its order hereunder after the 60th day prior to the scheduled ex-factory date; provided, however, that Buyer may cancel, upon Seller’s receipt of a written notice of cancellation, its order hereunder, upon payment of the cancellation charges provided for in clause (iii) of the preceding sentence, if delivery of the Products to the F.O.B. point is delayed more than 45 days beyond the estimated delivery date(s) set forth on the face hereof, unless said delivery is made by Seller within 5 business days after its receipt of any such notice.

Any parts returned with an authorization RMA # will have a 20% re-stocking fee assessed upon their return.

5.    Specifications

Seller may, from time to time, after the specifications or design of the Products, or components thereof; provided, however, that, unless such alteration is required by reason of compliance with the standards of any United States governmental body or regulatory or standard-setting agency, Seller will make no such alteration which affects the form, fit or functional interchangeability or operation of the Products without Buyer's prior written
consent.

6.    Warranties and Liability of Seller

(a) Seller warrants to Buyer only that the Products shall be free from defects in material or workmanship, and shall conform to the manufacturer's normal specification therefore, for a period (the 'Warranty Period') of: (i) twenty-four (24) months from the date of completed equipment installation, for mechanical components of SMT Products manufactured by Panasonic Corporation, or any subsidiary or affiliate thereof; (ii) twelve (12) months from the date of completed equipment installation, for mechanical components of Selective Soldering and Microelectronics Products manufactured by Panasonic Corporation, or any subsidiary or affiliate thereof; (iii) ninety (90) days from the date of shipment, for replacement parts sold by Seller; or (iv). ninety (90) days from the date of completed equipment installation, for all other components. The only warranty given by Seller with respect to perishable tooling and consumables sold to Buyer by Seller is that Seller will replace perishable tooling and consumables delivered to Buyer in a defective condition if so notified in writing within thirty (30) days of such delivery. The foregoing warranties shall remain in effect only for so long as the Products remain at the installation sites therefore referred to in Paragraph 3(b) above, and any movement of the Products from such sites shall immediately void this warranty.

(b) in the event that Buyer shall allege the existence of defects in material or workmanship in any of the Products, Buyer shall, as a condition to Seller's obligations hereunder, promptly, but in no event more than ten (10) days after discovery of the alleged defect, give Seller written notice thereof and permit Seller reasonable access to the affected Products for inspection and testing purposes. In the event that Seller shall confirm that defects in any of the Products covered by the foregoing warranty have occurred within the applicable Warranty Period. Seller shall remedy such defects in one of the following ways to be selected by Seller in its sole and absolute discretion: (1) repair of the defects, at Seller's sole cost and expense for both parts and labor during the first twelve (12) months of the Warranty Period, and at Seller's sole cost and expense for parts and Buyer's expense for labor during the remainder of the Warranty Period; (ii) replacement of the defective Products, components thereof or replacement parts therefore; or (iii) refund to Buyer of the purchase price for the defective Products, components thereof or replacement parts therefore.

(c) Anything in Paragraphs 6(a) and 6(b) to the contrary notwithstanding, Seller shall have no obligation for any defects in Products, components thereof or replacement parts thereof that have been caused by failure to perform recommended normal maintenance, use of components, parts, peripherals, attachments, accessories, and/or perishable tooling not provided to Buyer by Seller (or not approved by Seller), accident, misuse, neglect, abuse, mishandling, misapplication, modification, alteration, acts of God or improper installation, service or maintenance. 

(d) THE WARRANTIES SET FORTH HEREIN THIS PARAGRAPH 6 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES OTHER THAN WARRANTY OF TITLE, WHETHER ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, OR WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY WAIVED BY BUYER.

The employees and agents of Seller are not authorized to make modifications to such warranties or additional warranties binding on Seller; accordingly, additional statements, whether oral or written, do not constitute warranties and should not be relied upon by Buyer. Seller's liability Buyer’s exclusive remedy under this warranty shall be limited solely to the cost of any necessary repairs to, replacements of or refunds of Buyer's purchase price for, the Products, components thereof or replacement parts therefore.

(e) No suit shall be brought on an alleged breach of the warranties set forth in this Paragraph 6 more than fifteen (15) months after the date of Buyer's acceptance of the Products. The warranties set forth in this Paragraph 6 allocate the risks of Product failure between Seller and Buyer, as authorized by the Uniform Commercial Code and other applicable law.

(f) Seller does not represent or warrant that the Products comply with any local laws, ordinances or rules and Buyer hereby assumes sole and complete responsibility for compliance therewith, and Buyer hereby agrees to obtain any and all permits, licenses, authorizations or certificates required by any governmental or regulatory agency or other body-for the installation and use of the Products.

(g) IN NO EVENT SHALL SELLER HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, INCLUDING, WITHOUT LIMITATION, ANY WORK DELAYS, LOST GOODWILL, PROFIT, REVENUE OR SAVINGS, LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF ANY PARTY DEALING WITH BUYER FOR SUCH DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY FOR MONETARY DAMAGES UNDER THIS CONTRACT EXCEED THE TOTAL AMOUNTS PAID BY BUYER TO SELLER HEREUNDER.

7.    Maintenance

Spare Parts: If any of the Products proves to be defective and such defect is not covered by the warranty provided for in Paragraph 6 above, then Buyer shall be responsible, at its sole cost and expense, for providing or obtaining all necessary maintenance and repair service and spare and replacement parts for any such defective Product.
Seller may, from time to time, offer maintenance and repair service for the Products pursuant to such terms and conditions, including without limitation, Seller's charges therefore, as may then be in effect. Seller will supply Buyer with list of spare and replacement parts for the Products, the current prices thereof, and the quantity thereof that Seller recommends that Buyer keep in stock at all times, which list may be amended by Seller in writing at any time and from time to time, Seller shall use reasonable commercial efforts to make such spare and replacement parts available for purchase by Buyer for a period of not less than five (5) years after discontinuance of the manufacture of the Products.

8.    Termination

(a) Seller may terminate the contract created hereby effective immediately upon written notice to Buyer (i) in the event of a material breach by Buyer of any of the terms or conditions of this contract and Buyer has failed to cure such material breach within five (5) days after written notice from Seller describing the breach and requesting its cure, or (ii) bankruptcy or insolvency proceedings are instituted by or against Buyer, or Buyer is adjudicated a bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, or a receiver is appointed for all, or substantial part, of Buyer's assets or Buyer proposes or make any arrangement for the liquidation of its debts, and any such proceedings, assignment or appointment is not dismissed or vacated within thirty (30) days.

(b) Buyer agrees that it shall, not later than thirty (30) days following the effective date of termination of the contract created hereby, pay all moneys owed to Seller at the time of any such termination regardless of the terms of payment of such moneys that may have otherwise been granted to Buyer by Seller prior to the effective date of such termination, provided, however, that if any terms of payment previously granted to Buyer by Seller provide, at the time of such termination, for payment in less than thirty (30) days, such payment shall be made pursuant to the applicable terms of payment.

(c) Seller shall not, by reason of its termination of this Agreement in accordance with the terms hereof, be liable to Buyer for compensation, reimbursement or for any damages on account of the loss of profits or anticipated sales, or on commitments in connection with the business or good-will of Buyer or otherwise or for direct, special, indirect or consequential damages.

9.    Force Majeure

Seller shall not be liable for any direct, indirect, special, incidental or consequential damages arising out of a total or partial failure to perform hereunder or delay in such performance by reason of any event or occurrence beyond the control of Seller, including, without limitation, non-performance or delays of a supplier to Seller, acts of God, wars, acts of a public enemy, acts of the Governments of any state or political subdivision or any department or regulatory agency thereof or entity created thereby (whether or not valid), quotas, embargoes, acts of any person engaged in subversive activity or sabotage, fires, floods, explosions, or other catastrophes, epidemics, or quarantine restrictions, strikes, lockouts, or other labor stoppages, slowdowns or disputes. It is understood and agreed that this provision shall have the effect of excusing Seller's delay under the contract created hereby for such time as is occasioned by any of the aforesaid conditions, but such delay shall not in any event be deemed to lessen the full amount of Products purchased and sold hereunder, but only as deterring delivery in the event and to the extent herein provided for.

10.    Security

(a) In the event that Seller, in its sole and absolute discretion, deems Buyer's financial condition inadequate or unsatisfactory to Seller for any reason whatsoever, Seller shall have the right in addition to any other rights it may have, upon written notice to Buyer, to cancel the contract created hereby, to delay shipment of the Products to Buyer, or to require payment for the Products in cash prior to their shipment to Buyer, without incurring any liability for loss or damage of any kind occasioned by reason of any such cancellation or delay. Seller reserves the right, in its sole and absolute discretion and at any time, to decrease, eliminate or otherwise limit the amount or duration of credit extended to Buyer hereunder.

(b) Seller shall have, and is hereby granted, a security interest in all Products sold by Seller to Buyer pursuant hereto and in all proceeds and products there from, whether now held or hereafter acquired, to secure the full and prompt payment and/or performance of all obligations hereunder. Buyer hereby expressly agrees to execute such documents as are deemed necessary by Seller to effectuate and perfect the security interest granted herein and further authorizes and irrevocably appoints Seller as its attorney-in-fact to sign and file in Buyer's name Uniform Commercial Code (UCC) Financing Statement(s) and such other documents as Seller may request, including, without limitation, additional security agreements, to implement the foregoing, without Buyer's signature for the express purposes set forth herein. It is understood and intended by Buyer that said power of attorney is coupled with an interest.

11.    Assignment

Neither the contract created hereby, nor any of the rights or interests of Buyer hereunder, may be assigned, transferred or conveyed by Buyer, by operation of law or otherwise, except under the prior written consent of Seller.

12.    Notices

Any notice, request, consent, demand or other communication given or required to be given under the contract created hereby shall be effective only if in writing and shall be deemed to have been given when mailed by first class registered or certified mail, postage prepaid, return receipt requested, addressed to Buyer at the address set forth on the face hereof and to the Director of Sales, with a copy to the General Counsel of Seller at the address set forth on the face hereof and to the Director of Sales, with a copy to the General Counsel, of Seller at the address set forth on the face hereof.

13.    Indemnification

A. Seller agrees to indemnify and hold Buyer harmless against all claims that the Products directly infringe any patent, copyright, trade secret or other intellectual property rights of third parties. Seller shall assume the defense of any suit, action, proceeding or objection based on any such claim of infringement brought against Buyer specifically relating to the Products, by counsel retained at Seller's own expense, and shall pay any damages assessed against or otherwise payable by Buyer in any such suit as a result of the final disposition of any such claim, suit, action, proceeding or objection, provided Buyer, upon receiving notice thereof, promptly notifies Seller in writing of such claim or of the commencement of any such suit, action, proceeding or objection, or threats thereof, and Seller is afforded the opportunity, in its sole and absolute discretion, to determine the manner in which such claim, suit, action, proceeding or objection shall be handled or otherwise disposed of. Buyer shall give Seller the cooperation Seller requires, at Seller's sole cost and expense for all reasonable and direct costs and expenses incurred by Buyer, except for salaries of the employees of Buyer and fees and expenses of any counsel retained by Buyer in the defense of any such claim, suit, action, proceeding or objection. Notwithstanding the forgoing, Buyer may be represented in any such suit by its own counsel at its own cost and expense; provided however, that Buyer shall not consent to any judgment or decree in any such suit or pay or agree to pay any sum of money or agree to do any other act in compromise of any such claim of a third party without first obtaining Seller's written consent thereto.

B. In the event that, as a result of an infringement claim covered by Paragraph A above, a preliminary or permanent injunction is issued against Buyer's continued utilization of the Products, Seller shall, at Seller's sole cost and expense, take any one of the following actions, in Seller's sole and absolute discretion: (i) procure for Buyer the right to continue its use of said Products; or (ii) modify the infringing Products so they become non-infringing; or (iii) authorize Buyer to return said enjoined Products theretofore sold to and paid for by the Buyer and agree to refund the Buyer the full purchase price of the enjoined Products and any reasonable and necessary transportation cost associated with such return; and upon Seller's fulfillment of (i), (ii) or (iii), Seller shall thereafter be relieved of any further obligation or liability, other than liability pursuant to Paragraph A above, to Buyer as a result of any such infringement. In no event shall Seller be liable for any award of enhanced damages or attorneys fees not attributable to Seller, or for special, incidental, consequential or any other indirect damages or loss of profits suffered by Buyer due to any such claim of infringement.

C. Notwithstanding any other provision herein or in any Buyer document related to Buyer's acquisition of the Products from Seller, Seller’s obligations under Paragraphs A and B above shall not apply to any claims of infringement arising out of any designs, specifications, modifications originating with Buyer, the combination of the Products with other equipment not supplied by Seller or the process of production of manufactured goods using the Product; but, rather, in such cases, Buyer shall indemnify and hold Seller harmless and defend Seller against all claims of third parties in the United States in accordance with the terms and provisions hereof.

D. THIS PARAGRAPH 13 SETS FORTH THE ENTIRE OBLIGATION AND LIABILITY OF SELLER FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS RELATED TO THE PRODUCTS OR OTHERWISE RELATED TO THIS AGREEMENT.

14.    Governing Law

This contract and performance hereunder, shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof. The parties hereby agree that any and all causes of action arising under this contract shall be brought only in the United States Federal District Court for the Southern District of New York or, if the United States Federal District Court does not have jurisdiction, the Supreme Court of New York County, and the parties hereby submit to the jurisdiction of said Court, and agree not to object to the venue nor the convenience of the forum. The parties agree that the 1980 United Nations Convention on Contracts for the International Sales of Goods, as amended to date, shall not apply to this contract.

 

Exhibit B

TRAINING

1.    Training at PSSNA-PA Included with Purchase

A software training Credit is included with the purchase of each PANASONIC Insertion/Placement Machine, according to the following terms:

1.1. DGS/PanaPRO Training at PSSNA-PA 
DGS or PanaPRO determined by machine type, Training is conducted at the PSSNA-PA Global Training Center in Buffalo Grove, Illinois. Training will be for one (1) person per Insertion/Placement Machine purchased. Training credits are valid for one (1) year after machine installation date.

1.2. Start-up Training at PSSNA-PA 
"Start-up Training” will be provided at the time of installation free of charge for a maximum of three (3) persons for no longer than four (4) days. The length of the class may vary in length at Seller's discretion depending on the needs of the students, machine availability or the type of machine under study. There is NO CHARGE for this training. If there is a need for training for more than three (3) person, but no more than six (6), Buyer should consult with its local service manager for a quotations. Travel and living expenses for the students are the responsibility of Buyer.

2.    Additional Training Beyond Credits

Training for persons in addition to the above allowed numbers and outside the allowed time period will be billed according to the following charges:

2.1. Training at PSSNA-PA Locations

2.1.1. For Operator/Operations training conducted at the PSSNA-PA Global Training Center billing will be at the prevailing rate per student/per course.

2.1.2. Corrective Maintenance Training 
Is available at the prevailing rate per student for a two (2) to five (5) day class conducted at the PSSNA-PA Global Training Center ONLY. 2.1.3. For PanaPRO IPO/Host (5) Day Course-conducted at the PSSNA-PA Training Center, billing will be at the prevailing rate per student/per course for PanaPRO IPO/Host.

2.2. Training at Customer Location 
For Operator/Operations, and PanaPRO IPO/Host training conducted at Buyer’s facility billing at the prevailing rate per day plus expenses. Class size must be limited to a maximum of six (6) students.

3.    Equipment other than PANASONIC

Insertion/Placement machines (Ovens, Board Handling Units, etc.) are considered peripheral equipment. Training will be conducted on peripheral equipment during Insertion/Placement training depending on the needs of the students. Please contact Panasonic for confirmation of rates and to schedule classes.

_______________________________________________________________________________________________

For information on pricing and to schedule classes, please call (847) 637-9700. 

*Rates are subject to change without notice.

Beta Test Participation

PANASONIC FACTORY SOLUTIONS COMPANY OF AMERICA

Unit of Panasonic Corporation of North America
1701 Golf Road, Suite 3-1200, Rolling Meadows, IL 60008

TERMS AND CONDITIONS FOR BETA TEST PARTICIPATION

Panasonic System Solutions Company of North America - Process Automation (“PSSNA-PA”), a Division of Panasonic Corporation of North America, has developed and is the owner of a prototype product as set forth in Schedule A attached hereto (hereinafter referred to as the “Product”), which it desires to have tested by prospective users in what is commonly referred to as a “Beta Test” prior to general release.  By requesting PSSNA-PA to participate in the Beta Test for the Product, and acceptance of the related Quote, the prospective user (“Customer”) shall be deemed to have read and unconditionally accepted these terms and conditions (along with any and all related Exhibits and Schedules, this “Agreement”) pertaining to the provision of the Product during the Beta Test Period and the terms and conditions set forth in the relevant Quote, which is explicitly incorporated into and made part of this Agreement.  In the event of a conflict between the terms and conditions contained herein and those set forth in the Quote, the Quote shall control. 

1.    DEFINITIONS.

For purposes of this Agreement, the following terms have the meanings set forth below: 

Authorized Data” means the data and other information associated with Customer’s use of the Product, including but not limited to, equipment KPIs, manufacturing statistics and panel traceability data, but only to the extent such data and other information is actually collected pursuant to Customer’s use of the Product. 

Authorized User” means a Customer employee, contractor, or representative explicitly designated by Customer with a need to access the Product to perform its obligations under this Agreement. 

Beta Test Period” means the period of time set forth in the related Quote during which testing of, and any adjustments to, the Product contemplated hereunder will be undertaken.

Data Protection Laws” means (a) laws regarding data protection and privacy, including any amendments thereto and regulations promulgated thereunder by any Federal, State or other jurisdiction of the United States of America: (i) where Customer or PSSNA-PA, as applicable, is incorporated, formed, domiciled, or conducting business; (ii) where the proprietor of any of the Personal Information resides, or enters, submits, processes, or transmits Personal Information; (iii) where any of the Personal Information is received, collected, hosted, stored, handled, processed, or transmitted by any entity pursuant to the terms of this Agreement; or (iv) where Customer or PSSNA-PA, as applicable, is for any other reason legally responsible for the protection of the Personal Information, such laws including, without limitation, applicable Federal or State laws and regulations of the United States of America, including the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, the Children’s Online Privacy Protection Act of 1998, laws and regulations of the U.S. Federal Trade Commission; and (b) any applicable Federal, State or local principles, guidelines and codes issued by a competent data protection authority, or other competent U.S. governmental body or agency, in respect of such laws. 

Documentation” means such supporting written materials as PSSNA-PA may in its discretion provide to Customer in connection with its use of the Product, including without limitation, written materials of any associated hardware or Software.

Personal Information” means, but is not limited to: (a) personal data, personal information and personally identifiable information, as defined by the Data Protection Laws; (b) information that (i) permits the identification of, or physical or online contacting of, the individual to whom such information pertains, including first and last name or first initial and last name, information about an individual’s sex, race, ethnicity, date of birth, age, income, physical address, e-mail address or any other identifier that permits direct contact with an individual online, telephone number, Social Security number, financial or credit card account information, health or medical information, or credit information, or (ii) can be used to authenticate that individual, such as passwords or PINs, biometric data, unique identification numbers, answers to security questions, or other personal identifiers; and (c) any copies of such information or materials derived from or related to such information, in whatever form maintained.

Quote” means the related quote provided by PSSNA-PA from time to time to Customer in connection with the provision of the Product to Customer during the Beta Test Period.  In the event of a conflict between the provisions contained in two or more Quotes provided to Customer by PSSNA-PA in connection with the Product, then the most recent Quote shall control.

Software” means the computer programs provided by PSSNA-PA as part of the Product as specified in Schedule A attached hereto.

2.    OWNERSHIP AND LICENSE GRANT.

a. Ownership. Customer acknowledges that the Product is presented and loaned to Customer solely for the purpose of the Beta Test and that PSSNA-PA retains ownership of all right, title and interest in and to the Product, any Software and Documentation, the design of the Product, Software and Documentation, and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights), subject to the Software license granted in Section 2(b) below. Customer agrees not to (i) copy, modify, or reverse engineer any hardware or design associated with the Product or Software, make derivative works based upon the Product, Software or Documentation, or use the Product, Software or Documentation to develop any products, without PSSNA-PA's prior written approval, (ii) sell, license, rent, lend, assign, distribute, publish or transfer the Product, Software or Documentation to any third party, except as expressly permitted by this Agreement or (iii) use or authorize the use of the Product, Software or Documentation in any manner or for any purpose that is either unlawful under applicable law or permitted under the terms set forth herein. In the event that the Product requires the provision of any associated hardware, PSSNA-PA hereby reserves, and Customer hereby agrees, that PSSNA-PA shall have a security interest in such hardware delivered under this Agreement. If requested by PSSNA-PA, Customer agrees to execute and deliver financing statements or any other instruments, recordings or filings deemed necessary by PSSNA-PA to protect and preserve its right, title and interest in and to any such hardware associated with the Product under applicable law.

b. License Grant. PSSNA-PA hereby grants to Customer and Customer hereby accepts a limited, non-transferable, non-sublicenseable, non-exclusive license to access and use the Product, Software, and Documentation during the Beta Test Period solely for the purpose of testing and evaluating the Product subject to the following restrictions:  Customer shall not (i) exercise its rights granted hereunder at any location other than at the Customer’s site(s) listed on the related Quote (the “Beta Test Site”); (ii) exercise its rights granted hereunder in connection with any activities other than as contemplated under this Agreement relating to the testing of the Product listed on Schedule A; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make any Product, Software, or Documentation available to any third party, except as expressly permitted by this Agreement or in a prior written consent from PSSNA-PA; and (iv) make copies of the Software or Documentation except as may be reasonably necessary to access and use the Product; provided, however, that if any Software is based on or derived from “open source” code, such restriction from copying shall not apply but only to the extent of such open source code.

c. Modifications. Customer hereby assigns to PSSNA-PA, Customer’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications, updates, changes, adaptations, bug fixes, new releases, corrections or improvements (“Updates”) to the Product, Software or Documentation, which Customer may propose or make during the Beta Test Period or which Customer and PSSNA-PA may jointly make during the Beta Test Period.

3.    SCOPE.

This Agreement (which includes the relevant Quote) sets forth the terms and conditions for the beta installation, use, test and support of the Product, and related Software and Documentation, during the Beta Test Period at the Beta Test Site prior to formal release.

4.    OBLIGATIONS.

a.    Customer.

i.    Testing.  During the Beta Test Period, Customer agrees to test the Product, including to run such test suites and other test programs set forth in the related Quote.  Customer also agrees to use such special and non-standard operating procedures as may be reasonably required by PSSNA-PA to accomplish testing of the Product.

ii.    Contacts.  The Customer Contact designated on the Quote shall provide to PSSNA-PA's Beta Coordinator designated on the Quote, written reports on all test and performance results of the Product according to the time schedule set forth in the Quote and from time to time as reasonably requested by the Beta Coordinator in writing.

iii.    Error Notice.  The Customer Contact shall promptly notify PSSNA-PA of any failure, error or other malfunction of any part of the Product but no later than twenty-four (24) hours of such occurrence.

iv.   Modifications.  Customer agrees to promptly implement such Updates that PSSNA-PA may make to the Product, Software, and Documentation as PSSNA-PA may provide from time to time during the Beta Test Period. Customer understands that new Updates may be incompatible with previous versions or Updates and could include substantial changes to the Product system and its operating procedures. Except as otherwise specified in this Agreement or at the written direction of PSSNA-PA, Customer shall not alter or modify any aspect of the Product, Software, or Documentation during the Beta Test Period without PSSNA-PA's prior written approval.

v.   Access.  During the Beta Test Period, Customer will grant PSSNA-PA full and free access to any Authorized Data and any hardware, Software or Documentation in connection with the Product to allow PSSNA-PA to perform under this Agreement at such reasonable times as may be required by PSSNA-PA.

vi.   Insurance.  User shall keep all hardware related to the Product in good condition and working order

b.    PSSNA-PA.

i.   Delivery.  PSSNA-PA agrees that PSSNA-PA, or a third party designated by PSSNA-PA, will deliver the Product to Customer within a reasonable time after effectiveness of this Agreement, or at a time otherwise agreed to in writing 
by PSSNA-PA.

ii.   Technical Assistance.  PSSNA-PA will provide Customer such technical assistance as PSSNA-PA may deem necessary to properly install and operate the Product at the Beta Test Site during Customer’s normal business hours. PSSNA-PA will provide Customer with all test suites to be run by Customer.

iii.   Modifications.  During the Beta Test Period, PSSNA-PA will consult with the Customer Contact regarding the performance of the Product and will evaluate the test data and error reports provided by Customer. PSSNA-PA will undertake to make such Updates to the Product as deemed appropriate by PSSNA-PA and provide the same to Customer at no cost; provided, however, PSSNA-PA is not obligated to make any Updates.

5.    DATA.

a.    Customer acknowledges that it may be necessary from time to time during the Term and relating to provision of the Product for PSSNA-PA to access and use Authorized Data stored on PSSNA-PA's servers, and therefore grants to PSSNA-PA, including its contractors as necessary to provide and operate the Product, a limited non-exclusive, transferable, royalty-free, right throughout the universe to reproduce, access, and use Authorized Data as reasonably necessary:

i.    to provide the Product to Customer;

ii.    to monitor and administer the Product;

iii.    to resolve service requests;

iv.    to address deficiencies in the Product offerings;

v.    for publication of aggregated statistical data related to performance, security, operation and use of the Product;

vi.    to create statistical analyses; and,

vii.    for research and development purposes.

In no event shall any publication, statistical analyses, or research and development projects identify Customer or include identifiable Authorized Data or Personal Information. 

b.    PSSNA-PA shall not collect, handle, process, disclose, use or store any Authorized Data for any purpose other than as necessary to furnish the Product or to exercise any rights granted to it under this Agreement, or as required by the Data Protection Laws or other applicable laws.

c.    The parties agree to reasonably cooperate to enter into any additional agreements, instruments and other documents which PSSNA-PA determines, in its sole reasonable discretion, are necessary to ensure the appropriate collection, handling, processing, disclosure, use and storage of the Authorized Data in accordance with or as required by the Data Protection Laws.

d.    In the event that PSSNA-PA is in or comes into possession of Personal Information of Authorized Users other than the Authorized Data, PSSNA-PA shall identify, in writing, to Customer the locations at which the Personal Information is collected, handled, processed, disclosed, used or stored. PSSNA-PA may not relocate or transfer any such Personal Information to other locations, except as necessary to comply with Data Protection Laws.

e.    Data Security:

i.     PSSNA-PA hereby agrees to maintain commercially reasonable data security measures to ensure that Personal Information stored behind PSSNA-PA's firewalls is protected against loss, damage, destruction or any form of unauthorized or unlawful collection, handling, processing, disclosure, usage, access and/or storage in accordance with the standards and requirements set forth in this Agreement and the Data Protection Laws.

ii.    PSSNA-PA further agrees to maintain and comply with, a comprehensive written information security program with respect to the collection, handling, processing, disclosure, use, access and storage of Personal Information, that is consistent with Data Protection Laws, and that includes: administrative, technical and physical safeguards to protect the security, integrity, and confidentiality of Personal Information that are appropriate to: (1) the size, scope and type of business comprising the Product; (2) the amount of resources available to it; (3) the amount of stored Authorized Data; and (4) the need for security and confidentiality of Personal Information.

iii.    If PSSNA-PA becomes aware of any unauthorized or unlawful access to or use of the Personal Information of Authorized Users that requires notification by PSSNA-PA under the Data Protection Laws (“Security Incident”), PSSNA-PA shall promptly notify Customer of the Security Incident.  In the event of a Security Incident, the parties shall cooperate to resolve any data privacy or security issues involving Personal Information, and to make any required notifications to individuals affected by the Security Incident.  PSSNA-PA agrees to take commercially reasonable action to investigate the Security Incident and to take reasonable action to identify and mitigate the effects of any such Security Incident.  Except to the extent prohibited by the Data Protection Laws or as reasonably necessary to sustain attorney-client privilege, PSSNA-PA shall provide Customer with a detailed description of the Security Incident, the type of data that was the subject of the Security Incident, and any other information that Customer may reasonably request concerning the Security Incident, as soon as PSSNA-PA has concluded its investigation of such Security Incident and such information can be confirmed and collected or otherwise becomes available.  Subject to Section 11 hereof, PSSNA-PA shall be responsible for all costs related to its investigation of the Security Incident and providing any required notifications to individuals affected by the Security Incident in any case where the Security Incident is the result of PSSNA-PA's gross negligence, willful misconduct, or failure to comply with the requirements of this Section 5.

f.    PSSNA-PA and Customer each shall comply with any applicable obligations under any applicable laws, rules and regulations including, without limitation, the Data Protection Laws, with respect to its processing, use, storage and disclosure of Authorized Data.

6.    PAYMENTS.

Customer shall pay to PSSNA-PA the fees for the Product in the amounts and in accordance with the payment terms set forth on the Quote.  All fees shall be paid in U.S. dollars in immediately available funds and shall be made payable to PSSNA-PA reserves the right to impose a late fee on all amounts not paid when due in the amount of 1.0% per month, or the maximum amount allowable by law, whichever is less.

7.    CONFIDENTIALITY.

a.    Confidential Information Defined.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose Confidential Information in connection with this Agreement.  “Confidential Information” means all information in any form or medium (whether oral or written) that the Disclosing Party considers confidential or proprietary, including without limitation information consisting of or relating to the Disclosing Party’s technology, services, products, trade secrets, know-how, business operations, processes, programs, schematics, software and software related documents, customers, plans, and strategies:  (i) that is marked or designated “confidential” or “proprietary,” or (ii) that the other party knows or has reason to know is confidential or proprietary because of legends or other markings, the circumstances of disclosure or the nature of the information itself, provided, however, that orally disclosed confidential or proprietary information shall continue to be deemed “Confidential Information” only where such oral information is reduced to written form and furnished to the Receiving Party or Receiving Party’s Affiliates within ten (10) business days following such oral disclosure..  "Confidential Information" also includes, without limitation, any information described above which the Disclosing Party obtains from a third party under a contractual or other confidentiality obligation, and the terms and conditions of this Agreement.

b.    Protection of Confidential Information. The Receiving Party shall use Confidential Information solely in connection with the performance of this Agreement. The Receiving Party shall protect Confidential Information (whether disclosed before or after the Effective Date) from unauthorized use, dissemination or publication by using the same degree of care, but not less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential or proprietary information of a similar nature.  The Receiving Party will limit the use of and access to the Disclosing Party’s Confidential Information to the Receiving Party’s employees or independent contractors who have a demonstrable need to know, who have been notified that such information is Confidential Information and who are under binding obligations of confidentiality no less restrictive than those of this Agreement.  The Receiving Party agrees not to reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Disclosing Party’s Confidential Information.  Furthermore, the Receiving Party agrees not to copy any of the Disclosing Party’s Confidential Information unless and until the Disclosing Party approves in writing such copying, except as reasonably required to evaluate and/or conduct the parties’ transaction(s). The Receiving Party agrees to reproduce the Disclosing Party's proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original.

c.    Length of Confidentiality Obligation.  The Receiving Party’s obligation to protect an item of Confidential Information under this Agreement shall survive termination of this Agreement except when an exception set forth in Section 7.d applies to such item of Confidential Information.

d.    Exceptions to Non-Disclosure Obligations.  The restrictions of nondisclosure set forth in this Section 7 will not apply to any Confidential Information: (i) after it has become generally available to the public through no fault of the Receiving Party or its affiliates, consultants, agents or subcontractors; (ii) that is rightfully in the Receiving Party’s possession before disclosure to the Receiving Party by the Disclosing Party; (iii) is independently developed by the Receiving Party without the developing person(s) having access to the Disclosing Party’s Confidential Information, or (iv) is received by the Receiving Party in good faith from a third party not subject to an obligation of confidentiality.

e.    Required Disclosures.  In addition, the Receiving Party may disclose Confidential Information if required to do so by statute, administrative process or court order, provided (i) that the Receiving Party gives the Disclosing Party prompt notice of such disclosure requirement, (ii) the Receiving Party uses reasonable efforts to cooperate with the Disclosing Party in trying to seek a protective order in connection therewith, and (iii) the scope of such disclosure is limited to the extent possible.

8.    WARRANTIES.

Each party represents and warrants to the other party that:

a. it is a duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; 

b. it has, and throughout the Term and any additional periods during which it receives, does or is required to perform the Product, will retain, the full right, power and authority to enter into this Agreement and perform its obligations hereunder; 

c. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and 

d. when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

9.    DISCLAIMER OF WARRANTY.

THE PRODUCT (INCLUDING ANY SOFTWARE AND DOCUMENTATION) IS PROVIDED IN PRE-RELEASE MODE AND MAY NOT BE AT THE LEVEL OF PERFORMANCE, FUNCTIONALITY OR COMPATIBILITY OF A FINAL, GENERAL PRODUCT OFFERING.  THE PRODUCT (INCLUDING ANY SOFTWARE AND DOCUMENTATION) IS PROVIDED HEREUNDER “AS IS.”  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PSSNA-PA MAKES AND CUSTOMER RECEIVES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCT OR ANY MODIFICATIONS OR IMPROVEMENTS THERETO (INCLUDING ANY SOFTWARE, DOCUMENTATION, OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE). PSSNA-PA DOES NOT MAKE ANY WARRANTY THAT THE USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL PROVIDE ANY BACK-UP FUNCTIONALITY FOR AGGREGATE ACTIVITY DATA, NOR DOES PSSNA-PA MAKE ANY WARRANTY WITH RESPECT TO THE ACCURACY OR PERFORMANCE OF ANY ASSOCIATED APPLICATIONS OR THE ACCURACY OF ANY DATA OBTAINED FROM SUCH APPLICATIONS OR THAT AGGREGATE DATA CAN BE USED TO MAKE ANY CONCLUSIONS REGARDING THE CUSTOMER OR ANY END USER.  NO ORAL INFORMATION OR STATEMENT MADE BY ANY PARTY OR ITS REPRESENTATIVES WILL CREATE ANY SUCH WARRANTY.

10.    LIMITATION OF LIABILITY.

NEITHER PARTY NOR ANY AFFILIATE, AGENT OR SUPPLIER OF SUCH PARTY SHALL BE LIABLE FOR (A) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION/DATA AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DIRECT DAMAGES OR OTHER AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID PURSUANT TO THE APPLICABLE QUOTE.

11.    INDEMNIFICATION.

a.    PSSNA-PA shall indemnify and hold Customer, and each of Customer’s affiliates, directors, officers, agents and employees (each of the foregoing, an “Indemnitee”) harmless from and against any and all loss or damage to which such Indemnitee has become subject pursuant to a final, non-appealable judgment from a court of competent authority arising out of or relating to any claim, suit, action or proceeding (including any governmental claim) (each, an “Action”) by a third party to the extent such losses or damages do or are alleged to result from:

i.    PSSNA-PA's failure to comply with its obligations under Data Protection Laws;

ii.    PSSNA-PA's breach of any representation, warranty, covenant or obligation of PSSNA-PA Agreement; and under this 

iii.    any action or failure to take a required action or more culpable act or omission (including recklessness or willful misconduct) in connection with the performance or nonperformance of the Product or other activity actually or required to be performed by or on behalf of PSSNA-PA under this Agreement; 

except to the extent such claim arises out of or relates to (A) the use of the Product by Customer in a manner not authorized in this Agreement, (B) Customer’s negligence or intentional misconduct, or (B) the failure by Customer to comply with its obligations with respect to data under Section 5 of this Agreement.

b.    Customer shall indemnify, defend and hold PSSNA-PA, and each of PSSNA-PA's affiliates, directors, officers, agents and employees (each of the foregoing, a “PSSNA-PA Indemnitee”) harmless from and against any and all loss or damage to which such PSSNA-PA Indemnitee has become subject pursuant to a final, non-appealable judgment from a court of competent authority arising out of any Action by a third-party against PSSNA-PA resulting from

i.    the failure by Customer or any Authorized User to comply with its obligations under Data Protection Laws;

ii.    Customer’s breach of any representation, warranty, covenant or obligation of PSSNA-PA Agreement; and under this

iii.    any action or failure to take a required action or more culpable act or omission (including recklessness or willful misconduct) in connection with the use of the Product or other activity actually or required to be performed by or on behalf of Customer under this Agreement;

except to the extent such claim arises out of or relates to (A) the use of any Authorized Data by PSSNA-PA in a manner not authorized in this agreement, (B) PSSNA-PA's negligence or intentional misconduct, or (C) the failure by PSSNA-PA to comply with its obligations under Data Protection Laws.

c.    Each party’s obligation of indemnification is contingent upon the other party promptly notifying the indemnifying party of any such claim, and cooperating with the indemnifying party in such defense and/or settlement.  In the event that the Product becomes or is in PSSNA-PA's reasonable discretion likely to become the subject of any injunction preventing use in the manner contemplated in this Agreement, or that PSSNA-PA reasonably determines that the Product is likely to infringe or violate any third party intellectual property rights or that the use of the Product is likely to violate any Data Protection Law, PSSNA-PA may, at its option, (i) procure for Customer the right to continue to use the Product in the manner permitted hereunder, without the payment of any additional fees by Customer to any such third party; (ii) replace or modify the Product so that they are compliant with Data Protection Laws and/or non-infringing while continuing to perform all material functions or (iii) if in PSSNA-PA's reasonable opinion it is not commercially reasonable for PSSNA-PA to take the actions set forth in (i) or (ii), terminate this Agreement and release Customer from any further obligations.  This Section 11 states the parties’ sole liability and exclusive remedies for third party claims with respect to the Product or the Authorized Data.

12.    TERM AND TERMINATION.

a.    Term. This Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months or for such shorter or longer time as set forth in the Quote (the “Initial Term”) unless earlier terminated under the terms of this Agreement.  Commencing on the date following expiration of the Initial Term, this Agreement shall automatically renew for subsequent six (6) month periods (each a “Renewal Term”) unless either party provides the other party with written notice of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or any such Renewal Term. The Initial Term and any Renewal Terms shall cumulatively be referred to in this Agreement as the “Term”.

b.    Termination.  Either party may terminate this Agreement at any time (i) upon sixty (60) days’ prior written notice to the other party or (ii) upon written notice to the other party if the other party:  (A) breaches any material term hereof and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party; (B)    ceases to do business in the normal course, (C) becomes or is declared insolvent or bankrupt; (D) is the subject of any proceeding related to its bankruptcy, liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days; or (E) makes an assignment of the benefit of creditors. Notwithstanding the foregoing, this Agreement may be terminated immediately by PSSNA-PA in the event of Customer’s breach of Section 2 or Section 7.

c.    Effect of Termination or Expiration

i.    Upon termination or expiration of this Agreement, the rights and obligations hereunder shall terminate immediately, except that (A) any payment or other obligation that has accrued as of the date thereof shall survive and continue in full force and effect, and (B) the provisions of Section 2.a , Section 5 , Section 7, Section 9, Section 10, Section 11, this Section 12.c.i and Section 13 of this Agreement shall all survive and continue in full force and effect.

ii.    The Receiving Party of any Confidential Information shall, on termination of this Agreement, promptly destroy and erase from all systems it directly or indirectly uses or controls all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate or are based on Disclosing Party’s Confidential Information, in whole or in part, and, on the request of the Disclosing Party, provide a written statement to the Disclosing Party certifying that it has complied with these requirements.

13.    ADDITIONAL TERMS.

a.    Entire Agreement.  This Agreement (including the related Quote) represents the complete and exclusive statement of the agreement between the parties and supersedes any proposal or prior oral or written agreement, or any other communications relating to the subject matter of this Agreement.  This Agreement may be amended, modified or supplemented only by written agreement of both of the parties.

b.    Governing Law and Venue.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to the principles of conflicts of law.  The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to this Agreement. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

c.    Equitable Remedies. Each party to this Agreement acknowledges and agrees that (i) a breach or threatened breach by such party of any of its obligations under Sections 5.ee, 5.f and 7, would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (ii) if a breach or a threatened breach by such party of any such obligations occurs, the other party hereto will, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to (A) post a bond or other security, or (B) prove actual damages or that monetary damages will not afford an adequate remedy. Each party to this Agreement agrees that such party shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 13.c.

d.    Assignment.  Either party may assign this Agreement in connection with a merger or a sale or transfer of substantially all of its business or assets relating to this Agreement. Except as provided above, neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed.  This Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors and permitted assigns.  Any purported assignment in violation of the foregoing shall be void.

e.    Severability; Waiver.  If any term of this Agreement shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of this Agreement shall continue in full effect.  The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision of this Agreement.

f.    Notice.  Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other party at the addresses set forth on the Quote (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or e-mail (with confirmation of transmission) 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.

g.    No Rights in Third Parties.  This Agreement does not grant any rights or remedies to any person or entity that is not a party to this Agreement.  No person or entity is a third party beneficiary of this Agreement.

h.    Independent Contractors.  The parties are independent contractors and the relationship between the parties does not and shall not constitute a partnership, joint venture or agency.  No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior written consent of such other party.

i.    Force Majeure.  Each party will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of such party, for so long as such party acts diligently to attempt to remedy the cause of any such delay or failure. If any force majeure condition occurs, the party delayed or unable to perform shall give prompt written notice to the other party, stating the nature of the force majeure condition and any action being taken to avoid or minimize its effect.  If PSSNA-PA is affected by a force majeure condition, PSSNA-PA may elect to suspend this Agreement for the duration of the force majeure condition and once the force majeure condition ceases, require Customer to resume its obligations under this Agreement.

j.    Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.

k.    Publicity.  Neither party will, without the prior written consent of the other party, use in advertising, publicity or otherwise the names, trade names, service marks, trade dress or logo of the other party in any press releases, advertising, web sites or materials distributed or made available to prospective customers or other third parties.

 

SCHEDULE A 

PRODUCTS, SERVICES AND SOFTWARE

1.    Services:   Installation of software, configuration of customer assembly line and supporting hardware (Express 2.0 Box and scanner) with the enabled software modules

2.    Product:   Combination of hardware and software that comprise a solution.  The software tools used may be any listed below or a combination of products that comprise a comprehensive package.

  • PanaCIM Express 2.0
  • PanaCIM Enterprise Edition
  • PanaCIM Data Warehouse
  • PanaCIM Cloud solution
  • PanaCIM QSR
  • PanaCIM WIP
  • PanaCIM MMS-Maintenance

Out-of-Warranty Service/Maintenance

PANASONIC SYSTEM SOLUTIONS COMPANY OF NORTH AMERICA - PROCESS AUTOMATION

Division of Panasonic Corporation of North America

1701 Golf Road, Suite 3-1200 Rolling Meadows, IL 60008

PANASONIC ELECTRONIC ASSEMBLY SYSTEMS

TERMS AND CONDITIONS FOR OUT-OF-WARRANTY SERVICE/MAINTENANCE

________________________________________________________________________________________

Panasonic System Solutions Company of North America - Process Automation, Division of Panasonic Corporation of North America (“PSSNA-PA”), is presently offering fault diagnosis and repair services for its PANASONIC Electronic Assembly Systems (“Systems”) upon the following terms and conditions. PSSNA-PA reserves the right, in its sole and absolute discretion, at any time to discontinue the availability of any fault diagnosis and repair services offered hereunder or to modify the terms and conditions, including, without limitation, the charges therefor, under which any of such services are to be offered. By requesting any fault diagnosis and repair services from PSSNA-PA, a System owner (“Owner”) thereby unconditionally accepts PFSA’s terms and conditions pertaining to the provision of such services.

1) If Owner desires fault diagnosis and repair service, Owner must contact PSSNA-PA at the phone number or address provided to Owner at the time of Owner’s purchase of the System(s) or as thereafter changed by PSSNA-PA. Owner shall notify PSSNA-PA of the nature of the problem, and the locations of the System(s) to be serviced. Although PSSNA-PA will attempt to have its service personnel arrive at the work site within forty-eight (48) hours after receiving notification from Owner, actual response time will depend upon manpower availability, and may also be delayed due to factors outside of PFSA’s control, and PSSNA-PA makes no guarantees with respect to actual response or completion time.

2)

a)    With respect to each service call made by PSSNA-PA, Owner will be responsible for payment to PSSNA-PA of the following charges:
i)    Travel and living expenses of PSSNA-PA service personnel, to be billed at actual cost, and
ii)    Parts, to be billed at the then current published PSSNA-PA prices therefor, and
iii)    Labor Charges –

Regular business hours

Monday – Friday (8:00AM-5:00PM): Call for hourly charge

Overtime: Call for hourly charge

Saturday, Sunday: Call for hourly charge

and PSSNA-PA Holiday Travel time: Call for hourly charge

HOURLY RATES WILL BE PROVIDED BY CALLING THE PANASONIC SERVICE CENTER @ (847) 637-9700

b)    Owners requesting a service call will be charged the labor charge for a minimum time per service call of four (4) hours (at the rate set forth in Paragraph 2(a) above which is applicable to the time the service call was scheduled to commence) even if the time actually spent on the call by PFSA’s service personnel is less than such minimum time, or in the event that the Owner cancels the call after dispatch of PSSNA-PA service personnel.

c)    PSSNA-PA shall render its bill to Owner after completion of each service call. In addition to the charges calculated pursuant to Paragraph 2(a) above, each bill will reflect the amount of any applicable taxes, or similar charges or assessments (unless Owner has provided PSSNA-PA with an appropriate tax exemption certificate). Owner must pay each bill within thirty (30) days of receipt, and failure to do so may, in addition to PFSA’s resort to appropriate legal remedies, result in suspension of future service calls by PSSNA-PA.

d)    PSSNA-PA may offer, from time to time, pre-paid service plans to Owners of System(s); inquiries should be directed to PSSNA-PA.

3)

a)    PSSNA-PA shall provide all tools, equipment, parts and labor necessary to service and repair the System(s). Owner shall cooperate fully with PSSNA-PA in order to enable PSSNA-PA to perform such service and repair, including, without limitation, Owner’s provision of (i) access to the System(s), (ii) a safe working environment, and (iii) all necessary utilities.

b)    PSSNA-PA shall not be responsible for repairing cosmetic damages (e.g., paint scratches) to the System(s). PSSNA-PA may, in its sole and absolute discretion, refuse to provide any fault diagnosis and repair service if Owner has failed to perform preventative maintenance on the System(s) in accordance with the schedule therefor set forth in the applicable owner's manual, or if, in PFSA’s sole and final determination, Owner has abused, misused, neglected, mishandled, misapplied, modified or altered the System(s).

a)    Owner understand and agrees that PSSNA-PA is not an insurer and that insurance, if any, covering PFSA’s failure to render any fault diagnosis or repair service in a timely and/or proper manner shall be obtained by Owner at Owner’s sole cost and expense, and that the compensation payable by Owner to PSSNA-PA pursuant to Paragraph 2 above is based solely upon the value of the services to be provided to Owner by PSSNA-PA.

b)    PSSNA-PA MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FAULT DIAGNOSIS OR REPAIR SERVICE TO BE PROVIDED BY PSSNA-PA, AND OWNER HEREBY EXPRESSLY WAIVES ANY WARRANTIES, GUARANTEES OR REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. The employees and agents of PSSNA-PA are not authorized to make any warranties binding on PSSNA-PA; accordingly, additional statements, whether oral or written, do not constitute warranties and should not be relied upon by Owner. PSSNA-PA assumes no risks of, and shall not, except as otherwise provided in Paragraph 4(c) below, in any case be liable for, any direct, special, incidental or consequential damages, or any other indirect damages, arising from breach of contract, negligence or any other legal theory, including, without limitation, loss of goodwill, profits or revenue, loss of use of the System(s) or any associated equipment, cost of capital, cost of any substitute equipment, facilities or services or downtime costs, or claims of any party dealing with Owner for such damages, in connection with, or resulting from, any fault diagnosis or repair service performed by PSSNA-PA

c)    Anything in Paragraphs 4(a) and 4(b) to the contrary notwithstanding, if PSSNA-PA shall be found to be liable for any loss, damage or injury of whatsoever kind to Owner due to failure by PSSNA-PA to render any particular necessary fault diagnosis or repair service in a timely and/or proper manner, Owner agrees that it would be impractical and extremely difficult to ascertain the actual damages, if any, which proximately result to Owner from any such failure of PSSNA-PA and, therefore, Owner agrees that PFSA’s liability shall be limited to a sum equal to the compensation paid to PSSNA-PA for the particular fault diagnosis or repair service. The provisions of this paragraph shall constitute Owner’s exclusive remedy with respect to any particular fault diagnosis or repair service and shall apply to any loss, damage or injury of whatsoever kind to Owner irrespective of cause or origin, or, if it results in loss, damage, or injury directly or indirectly to a person or property, from the negligence, active or otherwise, of PSSNA-PA, its agents or employees.

d)    No suit or action arising out of PFSA’s performance of any fault diagnosis or repair service shall be brought against PSSNA-PA more than six (6) months after PSSNA-PA shall have rendered such service.

5)

a)    These terms and conditions set forth the entire understanding, and hereby supersede any and all prior agreements, oral or written, heretofore made, between the parties with respect to the subject matter hereof, and there are no representations, warranties, covenants agreements or collateral understandings, oral or otherwise express or implied, affecting these terms and conditions which are not expressly set forth herein.

b)    No delay on the part of either party in exercising any of its respective rights hereunder or the failure to exercise such rights, nor the acquiescence in, or waiver of, a breach of these terms and conditions shall constitute a waiver for such rights or acquiescence thereto except in the specific instance for which it was given.

c)    None of these terms and conditions shall be held to have been waived, varied, modified or altered by any act, course of conduct or knowledge of either party, their respective agents, servants or employees, and these terms and conditions may not be changed, waived, varied or modified except by a document in writing signed by a duly authorized representative of PSSNA-PA.

6) These terms and conditions and the performance hereunder shall be governed, construed and interpreted by and under the laws of the State of New York without regard to its conflict-of-laws rules.

03/2018