Terms and Conditions
General Terms and Conditions
Law and Jurisdiction
This Agreement shall all be governed by and construed in accordance with the laws of the State of New Hampshire, U.S.A. (without reference to the conflicts of laws provisions thereof). The provisions of the United Nations Convention on Contracts for the International Sale of Goods are hereby excluded and shall not apply to this Agreement. This Agreement shall be deemed to be performed and delivered within the United States of America. Any action, suit or other legal proceeding arising under, or relating to, any provision of the Agreement may be commenced in any court of the State of New Hampshire (or, if appropriate, a federal court located within the State of New Hampshire), and END USER consents to the jurisdiction of such a court.
Certain Payment Terms
All amounts payable under this Agreement are payable in U.S. Dollars. Any amount which is not received by RSW on or prior to the date on which such amount is due shall accrue interest at the rate of 1.5% per month. If RSW institutes any legal action to collect any amount due under this Agreement, then END USER shall reimburse RSW for all costs and expenses, including reasonable attorneys’ fees, that RSW incurs in connection with such action.
Any United States (whether federal, state, or local) or foreign sales, use, or other taxes (excluding only any tax based on RSW’s net income), assessments, or other governmental fees or charges arising from any payments made, or to be made, by END USER to RSW related to, or arising out of, this Agreement are the responsibility of, and shall be paid by, END USER or, if RSW is required to pay the same, shall be reimbursed by END USER to RSW upon demand.
From time to time (but not more frequently than twice per calendar year), RSW may audit END USER’s use of the Software, the Documentation, and the Hardware at END USER’s premises during regular business hours to ensure compliance with the terms and conditions of this Agreement. RSW shall provide not less than five (5) business days advance notice of its intent to audit. If an audit reveals that END USER has underpaid fees to RSW as a result of unauthorized use or copying of the Software or the Documentation, then, in addition to any other remedy RSW may exercise at law or in equity, END USER shall pay to RSW the full amount of such unpaid fees plus interest thereon at the then prevailing Wall Street Journal prime rate from the initial date of such unauthorized use or copying. If the amount of the underpayment exceeds five percent (5%) of the fees payable pursuant to this Agreement, or if such audit reveals that END USER breached the material terms and conditions of this Agreement, then END USER shall also pay RSW’s reasonable costs of conducting the audit.
The relationship between END USER and RELIABLE is that of independent client and independent contractor respectively. Neither party is an agent, employee, or employer of, or partner or joint venturer with, the other party. At no time shall either party make, or be entitled to make, any commitments or representations, or incur any charges, expenses, or obligations, for or in the name of the other party.
No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.
Use as a Reference
RSW may reference END USER as a customer of RSW, and END USER may reference RSW as a supplier to END USER; however END USER shall be prohibited from disclosing the terms of this Agreement to any third party other than its employees and professional advisors who need to know such terms and conditions in order for them to provide services to END USER in the ordinary course of business. END USER agrees that RSW shall be entitled to issue a press release announcing that RSW is a supplier to END USER.
Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If there is any conflict between any term, condition, or provision of this Agreement and any statute, law, ordinance, order, rule, or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this Agreement shall not be affected thereby.
Binding Effect; Assignment
- This Agreement shall be binding upon and for the benefit of the parties and their respective successors and permitted assigns. RSW may assign this Agreement at its discretion. Except as set forth in subsection (b) below, without the prior written consent of RSW, END USER may not assign, sublicense or otherwise transfer any rights (including as the result of a merger, acquisition of assets, stock sale, or other transaction resulting in a change of control) under this Agreement, or any license granted under this Agreement, in whole or in part.
- END USER may assign or transfer this Agreement in its entirety to a purchaser of End USER’s business (including as the result of a merger, acquisition of assets, stock sale, or other transaction resulting in a change of control), but if and only if, (i) no later than thirty (30) days following such transaction, END USER and such purchaser provide RSW with written notice thereof, including the unconditional written agreement by such purchaser to be bound by all of the provisions of this Agreement, and (ii) RSW consents to such assignment, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, in no event shall END USER be entitled to assign, sublicense, delegate, or otherwise transfer any rights under this Agreement to a competitor of RSW.
Any notice required to be given to a party under this Agreement shall be in writing and shall be (a) given by personal delivery to such party, which shall be deemed received upon delivery, (b) mailed by registered or certified mail, return receipt requested, postage prepaid, which shall be deemed received three (3) business days after mailing, (c) shipped by a nationally-recognized overnight carrier, shipping prepaid, which shall be deemed received one (1) business day after mailing or (d) by email or facsimile transmission with confirmed receipt. Any such notice shall be sent to RSW at 399 East Industrial Park Drive, Suite 1, Manchester, NH 03109, or END USER at the address or other contact information in RSW’s records. Either party may at any time change the address and contact information to which written notices are to be sent to such party by notifying the other party of the new information in accordance with this Section.
The article and section headings that appear throughout this Agreement are provided for convenience only and are not intended to define or limit the scope of this Agreement or the intent or subject matter of its provisions. No rule of construction shall cause this Agreement, or any document related to this Agreement, to be construed against RSW as the party having originally drafted this Agreement or such related document.
No failure or delay by either party to exercise any right or remedy specified in this Agreement shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
Entire Agreement; Conflicting Terms.
- This Agreement is the complete and exclusive statement of RSW’s obligations and responsibilities to END USER with respect to the licensing of the Software, the sale of the Hardware and the providing of the Services and supersedes any and all prior proposals, quotes, discussions, purchase orders, representations, covenants, understandings, agreements, or other communications, whether written or oral, relating to the subject matter of this Agreement and thereof.
- Notwithstanding the foregoing, any separate confidentiality agreements entered into between the Parties shall remain in full force and effect, and to the extent that any of the provisions of any such agreement conflict with the provisions of this Agreement, the more restrictive provision shall prevail to the extent of such conflict.
- To the extent that any of the provisions of the Proposal conflict with the provisions of the Terms and Conditions, the provision more favorable to RELIABLE, as determined by RSW in its sole discretion, shall prevail to the extent of such conflict.
- END USER agrees that RSW and a Reseller, as the case may be, shall license the Software, sell Hardware, and provide the Services only in accordance with the terms and conditions of this Agreement. The terms and conditions set forth in any purchase order or other document submitted by END USER shall be null and void and of no effect.
RSW shall not be liable to END USER for any delay or non-performance of its obligations under this Agreement arising from any cause beyond RSW’s reasonable control.
During the Term and for a period of six (6) months thereafter, END USER shall not, directly or indirectly, solicit for employment nor employ (or solicit as an independent contractor or engage as an independent contractor) the employees, former employees, or independent contractors of RSW without RSW’s prior written consent.