This Master Purchase and Services Agreement (collectively with an executed Order Form, this “Agreement”) applies between EVOTEK, Inc., a California corporation having its principal place of business at 462 Stevens Avenue, Suite 308, Solana Beach, CA 92075, including its subsidiaries and affiliates (“Company”) and the person, company or other entity entering into this Agreement (“Customer”) by written statement of its authorized representative or by entering into an Order Form hereunder.  Company and Customer may be collectively referred to herein as the “Parties” or each as a “Party.”

Recitals

WHEREAS, Company is engaged in the business of reselling products, services, SaaS software, and software manufactured by third parties.

WHEREAS, Company is also engaged in the business of providing consulting services.

WHEREAS, Customer desires to purchase such Company performed services and/or third party manufactured products, services, SaaS software, or software through Company as specified in Attachments 1 and 2 to this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Agreement

1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below.

1.1 “Affiliate” means, with respect to a Party, any other person or Entity during any time that it is Controlling, Controlled by, or under common Control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the ownership, beneficially or of record, of more than fifty percent (50%) of the voting securities of an entity. Customer Affiliates are not allowed to order off of this Agreement unless approved by Company in writing.

1.2 “Claim(s)” means any third-party claims, counterclaims, demands, actions, proceedings or suits and any related liabilities, losses, damages, settlements, judgments, expenses and costs (including awards, fines, penalties and the reasonable costs of investigation, defense, attorneys’ fees and any remedial actions).

1.3 “Entity” means any person, corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.

1.4 “Fee(s)” means the price to be charged by Company to Customer for the Services or Third-Party Products provided under this Agreement as specifically set forth in each applicable Order Form.

1.5 “Intellectual Property” means any and all inventions, innovations, modifications, discoveries, designs, methods, analyses, drawings, developments, improvements, processes, software programs, works of authorship, documentation, formulas, data, databases, techniques, know-how, trade secrets, and ideas, in each case whether or not patentable or registrable under any applicable Law, including any copyright, trademark or patent Law.

1.6 “Intellectual Property Rights” means any and all rights with respect to Intellectual Property, including all patents, copyrights, trademarks, trade dress, trade secrets, industrial designs, mask works, moral rights, and database rights, whether registered or unregistered, and any other similar rights and protections, whether statutory, common law, or otherwise, existing anywhere in the world, including all applications, registrations, provisionals, continuations, continuations-in-part, renewals, reissues, reexaminations and extensions of or for any of the foregoing.

1.7 “Law(s)” means the common law of any state or any provision of any international, federal, state, local, county, or municipal law, treaty, statute, rule, regulation, order, ordinance, standard, code, permit, directive, judgment, injunction, decree, or other decision of any arbitrator(s) or of any governmental authority legally binding on the relevant Party or its properties.

1.8 “Order Form” means any document used as a mechanism for Customer to purchase Third-Party Products from Company and/or Services such as a statement of work, purchase order, or service order.

1.9 “Personnel” means all individuals who perform Company’s obligations under this Agreement, including Company employees and, to the extent permitted hereunder, Company contractors and subcontractors and employees of such contractors and subcontractors.

1.10 “Services” means those certain services to be performed by Company for Customer as specifically set forth in the applicable Order Form, and includes, without limitation, providing Work Product.

1.11 “Third-Party” means any Entity other than the Parties or any Affiliates of the Parties, and, for the avoidance of doubt, includes a non-Party original Third-Party Product manufacturer (“OEM”) providing and/or manufacturing Third-Party Product.

1.12 “Third-Party Product(s)” means certain third-party products, third-party software-as-a-service, cloud services, support and maintenance, and other professional services performed by a Third-Party.

1.13 “Third-Party Materials” means any Intellectual Property or data, information, or materials owned or controlled by a Third-Party.

1.14 “Term” means the period of time through which this Agreement shall remain in full force and effect, commencing on the Order Form acceptance or signature date.

1.15 “Work Product” means all tangible and intangible items produced, created, developed or invented by Company for Customer as part of the Services, including any data, information, deliverables, know how, or other Intellectual Property, created, made, developed, conceived, generated, reduced to practice, recorded, or otherwise produced by or on behalf of Company or Personnel in performing Services, or based on or incorporating any Confidential Information of Customer. Work Product includes without limitation all modifications or derivatives of or improvements to Customer materials by Company in performing the Services under this Agreement.

2. TERM; TERMINATION.

2.1 Term. Unless earlier terminated as provided in this Agreement, this Agreement shall remain in full force and effect through the Term.  The Order Form term shall be set forth in each Order Form and run concurrently with this Agreement unless the applicable Order Form specifies a shorter period. The terms hereof shall apply to every Order Form.  Order Forms agreed prior to termination of this Agreement shall continue to be governed by the terms hereof, notwithstanding such termination.

2.2 For Cause. In the event either Party fails to perform any of its material obligations under an Order Form, such Party shall be deemed in default and, if such Party fails to substantially cure its default within thirty (30) days after receiving written notice from the non-defaulting Party specifying the nature of the default, then the non-defaulting Party may, by giving written notice to the other Party, terminate the applicable Order Form as of the date specified in such notice of termination. If Customer is the defaulting Party, Company may, upon written notice to Customer, terminate this Agreement and all outstanding Order Forms as of the date specified in such notice of termination.

2.3 For Insolvency. Subject to applicable law, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement and all outstanding Order Forms as of the date specified in such notice of termination.

2.4 Obligations upon Termination. Notwithstanding the foregoing, Customer agrees to compensate Company for all costs, fees, and expenses incurred on behalf of Customer up to the effective date of termination. This includes, but is not limited to, all amounts owed to any Third-Party for Third-Party Products and/or Services that have been performed and delivered prior to termination, as well as any pre-paid costs for Third-Party Products that have not yet been performed or delivered. Customer shall be responsible for any outstanding fees associated with Third-Party Products that are prepaid by Company and any other costs incurred by Company directly related to the services provided for Customer up to the termination date.

3. PAYMENT TERMS.

3.1 Taxes. Customer shall pay all sales, use, excise, and other similar taxes assessed relating to any Order Form. Customer shall not be responsible for paying any taxes upon the real, personal, or intangible property of Company or its employees or upon the net income or profits of Company.

3.2 Expenses. Except to the extent otherwise set forth in this Agreement or in an applicable Order Form, each Party shall bear its own internal expenses related to the performance of this Agreement.

3.3 Invoicing. Company shall invoice all Fees in accordance with the applicable Order Form. Each Order Form may establish credit, pre-payment or other terms as reasonably determined by Company. Customer shall pay all Fees in accordance with each applicable Order Form. All Order Forms are non-cancelable, and all Fees are non-refundable.

3.4 Late Payments. Customer’s payments hereunder shall be deemed late when Customer fails to remit payment within the payment terms of the applicable invoice, except as to amounts that are being disputed in good faith by written notice. Invoiced amounts not disputed in writing within seven (7) days of Customer’s receipt thereof shall be deemed undisputed. Late payments shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed under law from the due date until paid in full.  If a disputed amount is resolved in favor of Company, such amount shall bear interest from the due date until paid. Notwithstanding any other provision under this Agreement, Company may at its sole discretion, suspend without penalty to Company, or terminate for default of Customer, any Third-Party Products and/or Services due to nonpayment for thirty (30) days or more of any undisputed portion of any invoice; provided, however, that such suspension or termination shall not relieve Customer from its obligation to pay such undisputed amounts or otherwise perform its obligations under any Order Form.  Company reserves the right to assert appropriate liens to ensure payment.  Customer agrees to reimburse Company its reasonable expenses, including attorney and other fees, incurred in collecting any amounts due to Company.

3.5 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, OR DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE DAMAGES OR SIMILAR DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT WITH RESPECT TO AMOUNTS CUSTOMER IS OBLIGATED TO PAY UNDER AN ORDER FORM, IN NO EVENT WILL EITHER PARTY’S, ITS AFFILIATES, OR ITS REPRESENTATIVES, LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID DURING THE PRECEDING TWELVE MONTHS BY CUSTOMER TO COMPANY UNDER THE ORDER FORM PURSUANT TO WHICH SUCH CLAIM AROSE.

4. INDEMNITY.

4.1 Indemnity. The Indemnitor (as defined below) shall defend, at its own expense, and indemnify and hold the Indemnitee (as defined below) and its Affiliates, and its and their respective directors, officers, employees, and agents harmless from and against any Claim by a third party in connection with the performance of this Agreement or any Order Form to the extent based on: (a) work-related injury or death caused by the Indemnitor’s negligence; (b) tangible personal or real property damage caused by the Indemnitor’s or its Affiliates’ negligence or (c) breach of any end user agreement or other terms, including payment terms, applicable to Third-Party Product. Customer shall be responsible for any costs and expenses incurred by Company in connection with the enforcement of this section, including without limitation reasonable attorneys’ fees.

4.2 Indemnity Procedures. The indemnification obligations set forth herein are subject to the following conditions: (a) the Party seeking indemnification pursuant to the provisions of this Agreement (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of the Claim of which it has notice, provided that the failure or delay to so notify the Indemnitor shall not relieve the Indemnitor from any liability that it may have to Indemnitee hereunder so long as the failure or delay shall not have prejudiced the defense of such Claim and then only to the extent that the Indemnitor actually is prejudiced;  (b) Indemnitee allows the Indemnitor to have sole control of the defense of the Claim and any settlement negotiations arising out of that Claim provided, however, the Indemnitor may not, without Indemnitee’s prior written consent, settle or compromise any Claim in a manner that: (i) does not unconditionally release Indemnitee and its directors, officers, employees or agents from all liability and obligation; (ii) requires Indemnitee or any of its directors, officers, employees or agents to contribute to any settlement of the Claim; (iii) requires Indemnitee or any of its directors, officers, employees or agents to take or omit any action; or (iv) makes any public statement naming Indemnitee or from which the identity of Indemnitee could reasonably be ascertained; and (c) Indemnitee shall, at the Indemnitor’s reasonable request and expense, cooperate with the Indemnitor. Without limiting Indemnitor’s right to control defense and settlement, Indemnitee may, at its own expense, retain counsel of its own choice to participate in such defense and settlement.

4.3 Limitation of Indemnification. Notwithstanding any other provision in this Agreement, Company’s total liability to the Indemnified Party under this section for any and all Claims shall not exceed the greater of: (a) two (2) times the actual value of this Agreement as defined by the payments made by Customer to Company under this Agreement or; (b) any available insurance proceeds under an applicable policy of insurance. This limitation shall apply regardless of the form of action, whether based on contract, tort (including negligence), strict liability, or otherwise, and whether or not such damages were foreseen.

5. GOVERNING LAW; DISPUTE RESOLUTION.

5.1 Choice of Law Venue; Jurisdiction. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of California. Except as specifically set forth herein, the Parties hereby irrevocably consent to venue and the personal jurisdiction of the state and federal courts located in San Diego, California. The terms of the United Nations Convention on Contracts for the Sale of Goods are specifically excluded and shall not apply to this Agreement regardless of when or where adopted.

5.2 Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, that senior management is not able to resolve within ten (10) days of their first meeting, shall be determined by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

5.2.1 Confidentiality. The Parties shall treat the arbitration as confidential, including any documents or testimony exchanged during the course of the arbitration (“Arbitration Materials”), as well as the fact of the arbitration itself. If either Party believes it is required by law to disclose Arbitration Materials or the existence of the arbitration, they shall provide the other Party with at least seven (7) days’ prior written notice, so that the other Party may attempt to protect the disclosure of that information.  The Parties agree that the wrongful disclosure of Arbitration Materials without proper notice shall constitute irreparable harm; however, nothing shall prevent either Party from disclosing its own documents or information, even though that material may be used in the arbitration.

5.3 Equitable Relief. Notwithstanding anything herein, either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by one Party of its obligations relating to the treatment of Confidential Information hereunder would cause irreparable harm to the other Party not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief, without posting of a bond, is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms. 

6. CONFIDENTIALITY.

6.1 Scope of Confidential Information. Either Party (as “Disclosing Party“), may disclose or make available to the other Party (as “Receiving Party“), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential “Confidential Information“; provided, however, Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by Receiving Party or any of its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns (“Representatives”); (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party; or (d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information.

6.2 Protection of Confidential Information. Receiving Party shall, for one (1) year from disclosure of such Confidential Information: (a) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority, or any other entity (“Person”), except: (i) to Receiving Party’s Representatives who need to know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Receiving Party shall first provide Disclosing Party with: (A) prompt Notice of such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Receiving Party shall be responsible for any breach of this section caused by any of its Representatives. The provisions of this section shall survive termination or expiration of this Agreement for any reason for a period of one year after such termination or expiration. In the event of any conflict between the terms and provisions of this Section and those of any other provision in this Agreement, the terms and provisions of this section will prevail. Except for the Third-Party Product resold to Customer pursuant to an applicable Order Form, Customer acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by Company. As between the Parties, but subject to any terms and conditions applicable to Third-Party Product set forth in the applicable Order Form, each Party shall remain the sole and exclusive owner of its own data and other Confidential Information.

7. INSURANCE. At all times during the term of this Agreement, Company shall maintain a (a) commercial general liability insurance policy with limits no less than $1,000,000 each occurrence and $2,000,000 in the aggregate, including bodily injury and property damage; (b) technology errors and omissions liability/professional liability with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate; and (c) cyber or network privacy with limits no less than $5,000,000.

8. MISCELLANEOUS.

8.1 Entire Agreement. This Agreement, together with the Order Forms entered into hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter.

8.2 Modification. We reserve the right to update or modify the terms of this Agreement at any time, without prior notice to you. The most current version of the Agreement will be made available at evotek.com/legal. Any updated version of this Agreement will become effective upon posting or as otherwise specified, and your continued purchase from us after such updates constitutes your acceptance of the revised terms. It is your responsibility to review this Agreement periodically to stay informed of any changes.

8.3 Order of Precedence. In the event of a conflict between the terms of this Agreement, any Order Form or amendment, the terms shall be controlling in this order: (a) amendment(s), (b) this Agreement; and (c) each Order Form, provided, however, that an Order Form shall control any conflict with the payment terms set forth in this Agreement and, if the Parties explicitly reference this section in such Order Form, such Order Form shall also control any conflict with any other terms of this Agreement.

8.4 Assignment; Change in Control; Third Parties. Except as otherwise set forth by the applicable OEM terms or end user agreements pertaining to Third-Party Product only, neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided that (a) a change in ownership or effective control of Company whether by merger, acquisition, asset purchase or otherwise (“Change in Control”) is not, and will be deemed not to be, an assignment or delegation, of this Agreement or a breach of this section, and (b) Company may assign this Agreement in whole and without Customer’s consent to any person or company that acquires all or substantially all of the assets and business operations of Company. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns.

8.5 Beneficiaries. Except as specifically set forth herein or in any Order Form, no third party shall be considered a beneficiary of, or entitled to any rights under, this Agreement or any Order Form.

8.6 Independent Contractors; No Solicitation. The Parties are independent contractors. Nothing contained in this Agreement shall be construed to make either Customer or Company joint venturers, principals, partners, agents, or employees of the other. Neither Party shall have any right, power or authority, express or implied, to bind the other. No officer, director, employee, agent, affiliate, or contractor retained by Company to perform work on Customer’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Customer. During the term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement for any reason, Customer agrees that it shall not induce or attempt to induce any person employed by Company during the term of this Agreement to leave the employ of Company and shall not hire any such person in any business or capacity.

8.7 Notices. All notices, requests, consents, and other communications required under this Agreement shall be in writing and shall be personally delivered or sent by one of the following methods by the Party providing such notice, request, consent, and other communication: (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; (b) electronic mail; or (c) U.S. express mail, or other overnight courier service. Notices shall be deemed given on the day received or confirmed delivered, whichever is earlier. Notices to Company shall be sent to EVOTEK, Inc., 462 Stevens Avenue, Suite 308, Solana Beach, CA 92075, Attn: Legal; with a copy to legal@evotek.com. Notices to Customer shall be sent to the address provided on the relevant Order Form.

8.8 Section Headings. Section headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.

8.9 Public Announcements. Company may (orally or in writing) publicly disclose, issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement, the transactions contemplated, or the subject matter hereof, without the prior written approval of Customer.

8.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

8.11 Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power unless made in writing and any such written waiver shall not be construed to be a waiver of any succeeding right or power.

8.12 Non-Exclusivity. The Parties acknowledge and agree that this Agreement is not exclusive, and that Customer may contract with other individuals and entities to provide the same or similar services and that Company may provide the same or similar services to other customers.

8.13 Severability. If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect and the provision found to be contrary to law shall be deemed modified to the most limited extent required in order to cause such provision to be in accordance with applicable law while most fully carrying out the intent of the applicable provision as set forth herein.

8.14 Survival. Any provision of this Agreement shall survive the termination of this Agreement to the extent required to enforce the obligations of the Parties under any Order Form.

8.15 Construction. The Parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party because each Party had the opportunity to review and negotiate the terms hereof. For the avoidance of doubt, Customer agrees that the terms set forth in this Agreement constitute reasonable terms applicable to each Order Form.

ATTACHMENT 1

Third-Party Product Resale Additional Terms

1. Scope. Pursuant to the terms and conditions of this Attachment 1, Company agrees to resell to Customer certain Third-Party Products as set forth in the applicable Order Forms and as Company may order from a Third-Party from time to time.
2. Prices; Taxes. The Fee shall be as set forth in the Order Form provided by Company, as applicable. If applicable and unless expressly noted otherwise on the Order Form, prices do not include, and Company is responsible for, any and all taxes, handling, shipping, transportation, duties or other charges or fees relating to the sale and delivery of Third-Party Products.
3. Governing Agreement. The Parties acknowledge that the Company may, from time to time, act as a reseller of Third-Party Products. Company hereby represents and warrants that it is an authorized reseller for any and all Third-Party Products it sells to Customer, and all Order Forms between Company and Customer related to the Third-Party Products shall be subject to and governed by this Agreement.
4. NATURE OF AVAILABLE DAMAGES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER OR ANY END USER CONCERNING THE THIRD-PARTY PRODUCT, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.  IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY DAMAGES OR LIABILITY OF ANY KIND RELATING TO THE THIRD-PARTY PRODUCT, WHETHER IN TORT, CONTRACT OR OTHERWISE AND WHETHER FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES, AND ALL SUCH DAMAGES ARE DISCLAIMED.  CUSTOMER’S SOLE RECOURSE FOR REMEDIES FOR CLAIMS (IF ANY) ARISING FROM USE OR POSSESSION OF THIRD-PARTY PRODUCT, INCLUDING WITHOUT LIMITATION CLAIMS RELATED TO INFRINGEMENT, DATA LOSS, DAMAGE TO SYSTEMS AND OTHERWISE, IS TO THE OEM OF SUCH THIRD-PARTY PRODUCT (PURSUANT TO THE TERMS AND LIMITATIONS OF THE APPLICABLE END USER AGREEMENT OR THE LIKE) AND NOT COMPANY.
5. DISCLAIMER OF WARRANTIES. COMPANY RESELLS AND PASSES THROUGH THE THIRD-PARTY PRODUCT ON AN “AS IS, WHEN AVAILABLE” BASIS. THE THIRD-PARTY PRODUCT MAY BE SUBJECT TO APPLICABLE WARRANTY, END-USER LICENSE, INTELLECTUAL PROPERTY INDEMNITY OR OTHER TERMS AVAILABLE FROM THE OEM OF THE THIRD-PARTY PRODUCT.  COMPANY WILL PASS ALL APPLICABLE WARRANTIES, LICENSES, INDEMNITIES AND SUCH OTHER TERMS, IF APPLICABLE, FROM THE OEM THROUGH TO CUSTOMER. NOTWITHSTANDING THE FOREGOING, IF COMPANY DOES NOT PROVIDE ANY THIRD-PARTY TERMS TO THE CUSTOMER, CUSTOMER ACKNOWLEDGES THAT IT SHALL STILL BE SUBJECT TO SUCH THIRD-PARTY TERMS, AND COMPANY SHALL NOT BE RESPONSIBLE FOR ANY APPLICABLE TERMS NOT PROVIDED TO COMPANY BY THIRD-PARTY. COMPANY AND CUSTOMER HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY THIRD-PARTY PRODUCTS WILL BE FREE FROM ERRORS, DEFECTS OR INFRINGEMENT. COMPANY SHALL NOT BE LIABLE FOR ANY ISSUES CUSTOMER MAY HAVE WITH THE THIRD-PARTY OR THIRD-PARTY PRODUCTS OUTSIDE OF COMPANY OBLIGATIONS IN THIS AGREEMENT.
6. CUSTOMER REPRESENTATIONS AND OBLIGATIONS.

6.1 Customer covenants, represents and warrants to Company that: (a) it will comply with applicable Laws with respect to the performance of its duties and obligations under this Agreement; (b) it has and will maintain in full force during the Term all federal and state licenses or approvals required by Customer to fulfill its obligations under this Agreement; (c) it has the power and authority to enter into this Agreement; and (d) entering into and fully performing its obligations under this Agreement does not and will not violate any existing agreements or obligations.

6.2 Customer shall (a) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform its obligations and deliver Third-Party Product in accordance with the requirements of this Agreement; (b) provide such information as Company may request, in order to provide Third-Party Products, in a timely manner, and ensure that it is complete and accurate in all material respects; (c) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to the Third-Party Products, the installation of the Third-Party Product, the use of materials, and the use of the Customer equipment in relation to the Third-Party Product, in all cases before the date on which the Third-Party Product is to be delivered; and (c) not dispose of or use Third-Party Product other than in accordance with Company’s written instructions or authorization. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

ATTACHMENT 2

Provision of Company Services Additional Terms

1. Performance of Services. Subject to the terms and conditions of this Agreement, Company will exercise commercially reasonable efforts to provide to Customer the Services specified in the relevant Order Form and to do so according to any delivery schedule set forth therein. Company may engage subcontractors in the performance of its obligations under this Agreement.  Company shall remain solely responsible and fully liable for all acts and omissions of such subcontractors.
2. Customer Assistance. Customer will provide, in a timely manner and at no cost to Company, reasonable assistance and cooperation to enable Company to perform the Services. 
3. Company Representations and Warranties. Company covenants, represents and warrants that: (a) at all times during the Term, it will comply with applicable Laws with respect to the performance of Services and its duties and obligations under this Agreement; (b) entering into and fully performing its duties and obligations under this Agreement does not and will not violate any of its existing agreements or obligations, and it will not enter into any agreements, understandings, regulatory orders or court decrees that conflict with this Agreement or would otherwise prohibit or restrict Company’s performance of its duties or obligations; (c) it has the power and authority to enter into this Agreement; (d) it has the right, power and authority and has obtained all necessary releases, consents, rights, licenses, representations, warranties and assignments necessary to perform the Services; (e) the Services and Work Product will be provided free and clear of any and all third party liens, assignments, security interests or encumbrances of any kind; and (f) it is duly organized and in good standing in the jurisdiction where it is organized.