These Terms of Sale (“ToS” or “Agreement”) are made and entered into by and between Cabin Management Solutions, LLC (“Manufacturer” or “CMS”) and the business entity agreeing to these terms (“Dealer” or “you”). The CMS Terms of Sale are located at https://www.cmsaero.com/tos . CMS and Dealer may each be referred to as Party and collectively as Parties.
This Agreement is effective as of the date Dealer signs a Dealer Agreement, Purchase Order, or clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Dealer, you represent and warrant that: (i) you have full legal authority to bind Dealer or you personally to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Dealer, to this Agreement. If you do not have the legal authority to bind Dealer, please do not click to accept, or sign the Dealer Agreement or Purchase Order. This Agreement governs Dealer’s access to and use of the Manufacturer’s Products, and in the event there is any conflict between the ToS and any Dealer Agreement, or Purchase Order for Products, then the terms of the ToS prevail.
1. Dealer for Product.
1.1 Appointment. Manufacturer appoints Dealer as an authorized CMS Dealer for the period, and in accordance with the terms and conditions, set forth in this Agreement and CMS Dealer Agreement.
A. In order to qualify to purchase Products under this Agreement, Dealer shall provide CMS a current and valid Airworthiness Authority Repair Station or “Air Agency” certificate under 14 CFR Part 145 (Domestic or Foreign Repair Station) with the rating required to lawfully install the Product as contemplated under this Agreement (the “Certificate”). Dealer shall provide CMS with immediate notice, but no later than five (5) days thereafter, of any suspension, cancellation, termination or other action that may threaten the validity of, or the transfer of ownership (direct or indirect) of, the Certificate.
B. DEALER WILL REFRAIN FROM RENDERING ANY SERVICES ON PRODUCT OR REPRESENTING OR HOLDING ITSELF AS AN AUTHORIZED CMS DEALER FOR PRODUCT PRIOR TO RECEIPT OF CERTIFICATE OF “CMS AUTHORIZED DEALER.” FAILURE TO ADHERE TO THIS RESTRICTION WILL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
1.2 Products. Dealer agrees that the Products for which it is appointed an authorized dealer are limited to those Products set forth at https://www.cmsaero.com/products, and incorporated by this reference. For purposes of this Agreement, Products and equipment are referred to as the “Products.”
1.3 Duty to Follow Procedures, Laws, Policies and Regulations.
A. Dealer shall comply with all federal, state, county, municipal, or other statutes, laws, ordinances, regulations, rules or orders of any governmental or quasi-governmental entity, body, agency, commission, board, or official applicable to Dealer.
B. All installation and maintenance of Products will be performed in accordance with the applicable CMS Technical Information.
C. CMS Technical Information is based solely on the use of Product. The use of parts that are not Product, or the use of procedures that are not set forth in the CMS Technical Information in the performance of Installation and maintenance, will constitute a material breach of this Agreement.
D. Products have the ability to receive and decode video/audio signals protected by High Bandwidth Digital Content Protection (“HDCP”). These video/audio signals are only intended to be displayed on monitors or systems that are part of the aircraft. The aircraft is to be considered a closed system and therefore not allow any HDCP content to be removed, copied, or transferred outside of the aircraft. The Dealer shall not install CMS products in such a way that allows removal, recording, permanent storage, copying or transferring HDCP content outside of the closed system of the aircraft. Failure to comply with the physical security provisions for installation shall be a material breach of this Agreement. The Dealer or End-User may be subject to legal action under Digital Millennium Copyright Act (17 U.S.C. 1201 or “DMCA”) and similar laws in other jurisdictions.
(1) Any installation shall not provide the End User (aircraft owner, passenger, or the like) with an access point to unprotected CMS Audio/Video Outputs.
(2) Video and Audio connectors connected to the output of any CMS product must be reasonably inaccessible to the End User (behind panels, under floorboards, out of site and reach of an End User).
1.4 Product Support Parameters.
A. Additional product/system customization or functionality that will impact DO-160 certification, hardware and/or software design customization or functionality, will be evaluated and a separate quotation for those features or functions will be provided.
B. Mating connectors or jumper wire harnesses to the aircraft are the responsibility of the Dealer.
C. A review of the installing service center's wiring schematics will be provided as a courtesy by CMS prior to the commencement of the Product's installation.
D. Onsite support by CMS for Dealer will be at an additional cost of one thousand five hundred dollars ($1,500) per day, with a three (3) day minimum.
1.5 Purchase of Products. Dealer is authorized to purchase for resale Products manufactured and offered for sale by Manufacturer, as provided in this Agreement.
1.6 Material to be Furnished by Manufacturer. Manufacturer will furnish to Dealer technical and sales promotional material, brochures, bulletins, and specification data on the Products. This material will be furnished in reasonable quantities at no cost to Dealer.
1.7 Training. Dealer agrees to make available to Manufacturer appropriate personnel at reasonable times and places for training on and application of the Products. The training is to be provided by Manufacturer to help Dealer fulfill its obligations under this Agreement, and after successful completion of the training, CMS may issue Dealer a certificate that Dealer is a CMS Authorized Dealer. Until Dealer issues a certificate that Dealer is CMS Authorized Dealer, Dealer may not sell and install Products under this Agreement.
1.8 Manufacturer’s Warranty.
A. Dealer acknowledges and agrees that each Product sold to Dealer is subject to Manufacturer's warranty for that Product as set forth in the Products warranty applicable to the Products included in https://www.cmsaero.com/products, and incorporated by this reference. Dealer may extend the provisions of the Products warranty to Dealer's customer(s). Such a warranty shall survive termination of this Agreement.
B. Manufacturer reserves the right to change the terms of its Products warranties. Any defective Products or part approved by Manufacturer for repair or exchange under the provisions of the applicable Products warranty will be repaired or exchanged without charge to Dealer or Dealer's End-User.
C. Manufacturer's sole obligation under its Products warranty will be limited, at Manufacturer's option and expense, to either repairing or replacing the Products or parts returned to Manufacturer by Dealer or Dealer's customer F.O.B. Manufacturer's plant. Dealer's or its Dealer's exclusive remedy for breach of Manufacturer's Products warranty will be the enforcement of Manufacturer's obligations under the warranty against Manufacturer. Dealer is not authorized to assume on behalf of Manufacturer any other or additional warranty obligation or liability in connection with Products.
D. Dealer agrees to indemnify and hold Manufacturer harmless with respect to any additional warranty obligation or liability granted by Dealer. Manufacturer's Products warranty is exclusive and in lieu of all other warranties, whether express, implied, or statutory; including, but not limited to, any warranty of merchantability or fitness for any particular purpose.
E. CMS shall have no obligation or liability under this warranty:
(1) For special, indirect or consequential personal or property damage arising from the failure of the Product.
(2) If the Product is operated with any accessory, equipment or attachment not specifically approved by CMS.
(3) If the Product was not installed, operated or maintained in accordance with CMS installation maintenance/instructions.
(4) If the Product was not used or operated under normal industry applications unless CMS specifically approved the installation.
(5) If the Product was serviced, repaired, altered, or modified in any way by a company other than CMS.
(6) For damage resulting from interface with third party hardware or software except as agreed in writing between Dealer and CMS
(7) For damage, both cosmetic and/or through misuse, including scratches, dents, over-rotation, bending or breaking of parts.
(8) If serial number or Product label has been removed, tampered with or defaced.
1.9 Dealer to Promote Sales. Dealer agrees that it will actively promote the sale of the Products. To this end, Dealer will:
A. Promote the sale of the Products through a sales program including personal and mail solicitation of owners and users of aircraft and provide prompt and reliable service and Products demonstrations.
B. Maintain suitable displays of the Products on its premises and offer demonstrations of the Products to its potential customers.
C. Maintain a representative inventory of Products, as mutually agreed between Manufacturer and Dealer, and employ technically qualified personnel to assure prompt delivery and installation for its customers.
1.10 Terms and Conditions of Sale.
A. Dealer will accept and pay for Products ordered in accordance with the prices set forth in Manufacturer's published Dealer price lists in effect on the date Dealer's order is received by Manufacturer. It is understood, as provided in section 1.14 Price of this Agreement, that Manufacturer has the right to change its prices for Products on https://www.cmsaero.com/products.
B. CMS’s Purchase Orders under this Agreement shall be governed by this Agreement and the standard terms and conditions of sale or manufacture in effect at the time of sale. No provision in Dealer's Purchase Order shall be considered applicable to its purchase of Products under this Agreement, except those specifying the quantity and types of Products ordered, dates of shipment, invoice information, and shipping instructions.
1.11 Records. Dealer will keep records of its sales that shall include name of customer, date of sale, Products description and part number, Products serial number, and the aircraft in which installation is made. Records of sales shall be maintained in a manner that insures that the Products can meet applicable governmental requirements if modifications are required after installation. The obligation to maintain records shall survive termination of this Agreement.
1.12 Credits. Dealer shall not take any credit against payment due Manufacturer without a written credit memorandum authorizing such credit issued in advance by Manufacturer. Dealer shall not return any Products for credit except in accordance with Manufacturer's consent, which must be obtained in advance.
1.13 Claims. If Dealer has any reason to believe that it has a claim against Manufacturer arising out of any transaction pursuant to this Agreement, it shall notify Manufacturer of the claim in writing within ten (10) days from the date it knows, or has reason to know, of any such claim. Failure to give notification within the above time period shall relieve Manufacturer of any liability or obligation with respect to the claim. The obligation to provide notice shall survive termination of this Agreement.
1.14 Price. Manufacturer and Dealer agree that prices applicable to the Products may be changed during the term of this Agreement, and that such price changes may be made without prior notice. Manufacturer will update the prices for Products on https://www.cmsaero.com/products. Manufacturer reserves the right to reject or cancel any unfilled order or part of an order for Products for which prices have changed unless the order is amended to reflect the prices as changed.
1.15 Delay in Delivery. During the term of this Agreement, Manufacturer shall not be liable for any delay in delivering, or failure to deliver, Products where such delay or failure results from circumstances beyond the control of Manufacturer, and without the fault or negligence of Manufacturer. In no event shall Manufacturer be liable for any incidental, consequential, or special damages for any delay or failure to deliver Products.
1.16 Manufacturer’s Right to Sell. Manufacturer and Dealer agree that nothing contained in this Agreement shall be construed as a limitation on the right of Manufacturer to solicit the sale of Products for resale or end use to the general aviation market.
2. Payment Terms
2.1. Payment for Products.
A. All payments under this Agreement shall be made in United States currency by check or wire transfer to Manufacturer as follows:
For Domestic Wires:
Cabin Management Solutions, LLC
(Contact CMS Representative for Account information)
For International Wires:
Cabin Management Solutions, LLC
(Contact CMS Representative for Account information)
B. Unless otherwise confirmed in writing, payment terms for Products purchased by Dealer shall be net thirty (30) days of the invoice date. However, Manufacturer may, at its discretion, establish limitations and requirements for the extension of credit to Dealer, and may withhold shipments on credit if at any time, in the opinion of Manufacturer, the financial condition of Dealer does not warrant extension of credit.
C. If Dealer is delinquent in its payment obligations to CMS, CMS may at its option (i) be relieved of its obligations with respect to guarantees, including without limitation, turnaround times, spares support and delivery lead-times; (ii) refuse to process any credit to which Dealer may be entitled; (iii) set off any credit or sum owed by CMS to Dealer against any undisputed amount owed by Dealer to CMS; (iv) withhold future deliveries to Dealer; (v) declare Dealer’s performance in breach and terminate the Dealer Agreement and Purchase Order; (vi) repossess Parts for which payment has not been made; (vii) make future deliveries on a cash-with-order or cash-in-advance basis; (viii) charge storage or inventory carrying fees on Parts; (ix) recover all costs of collection including, without limitation, reasonable attorneys’ fees; (x) if Dealer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance then due and owing; or (xii) combine any of the above rights and remedies as may be permitted by applicable law. The above remedies are in addition to all other remedies available at law or in equity.
D. If Dealer disputes CMS’s invoice, or any portion thereof, Dealer will so notify CMS within ten (10) days of the date of CMS’s invoice. Dealer’s failure to provide notification within said period shall be deemed acceptance of CMS’s invoice by Dealer. The Parties will use all reasonable efforts to resolve invoice disputes expeditiously. Notwithstanding any invoice disputes, Dealer shall promptly remit payment for invoices, or portions thereof, not in dispute.
Manufacturer calculates and bill fees and charges monthly. Manufacturer may bill you more frequently for fees accrued if Manufacturer suspects that your account is fraudulent or at risk of non-payment. . All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Product will be effective when Manufacturer posts updated prices on the Manufacturer Site unless Manufacturer expressly states otherwise in a notice.
2.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information Manufacturer reasonably requests to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. Manufacturer will apply the tax exemption certificates to charges under your account occurring after the date Manufacturer receives the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that Manufacturer receives, after any deduction and withholding, equals the amount Manufacturer would have received if no deduction or withholding had been required. Additionally, you will provide Manufacturer with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
2.3 Invoice Disputes & Refunds. To the fullest extent permitted by law, Dealer waives all claims relating to charges unless claimed within thirty (30) days after charged. Refunds (if any) are at the discretion of Manufacturer and will only be in the form of credit for the Product. Nothing in this Agreement obligates Manufacturer to extend credit to any Party.
2.4 Delinquent Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Manufacturer reserves the right to suspend Dealer’s Account, for any late payments.
CMS will prepare and package Products in accordance with its normal commercial practices. Delivery of Products shall be FCA (Incoterms 2010) CMS’s facility, except as indicated below with respect to passage of title and risk of loss for Products shipped from within the United States to a destination outside the United States. CMS shall ship Products by the mode and carrier designated by Dealer in accordance with the shipping instructions provided in the applicable Purchase Order. Where Dealer provides no instructions for the method of shipment, the method of shipment will be at CMS’s discretion. CMS will schedule delivery in accordance with its standard lead time unless CMS agrees in writing to a separate delivery date. CMS reserves the right to make partial shipments against total Purchase Order requirements and deliver in advance of the scheduled delivery date whenever possible. Dealer’s acceptance of late deliveries shall constitute a bar to a claim of late delivery. All shipping expenses from the FCA point to Dealer, including transportation and insurance costs, shall be for the account of Dealer. If CMS prepays such transportation charges, Dealer will reimburse CMS upon receipt of an invoice for those charges. Title and risk of loss will pass to Dealer when CMS hands over Products to the shipper for carriage from CMS’s facility, except that, with respect to Products shipped from within the United States to a destination outside the United States, title and risk of loss will pass to Dealer immediately after Products leave the United States (which shall include the States, the District of Columbia, and the territorial waters and airspace of the United States). CMS is entitled to quote additional charges for any rush shipments, special routing, packing, labeling, handling or insurance requested by Dealer.
4. Acceptance. Dealer will inspect Products within a reasonable period, not to exceed ten (10) days, after Dealer receives Products. Products will be deemed accepted unless CMS receives written notice of rejection explaining the basis for rejection within such period. Once accepted, Dealer’s only recourse or remedy for non-conforming or defective Products shall be as provided in the warranty section of these conditions of sale. At CMS’s option, for rejected Products CMS will (i) replace or (ii) credit Dealer with the purchase price. Following initial delivery, the Party initiating shipment will bear the risk of loss or damage to Products in transit, except that CMS will reimburse Dealer for normal and reasonable surface shipping costs incurred to return properly rejected Products to CMS’s designated facility. If CMS reasonably determines that rejection was improper, Dealer will pay all expenses relating to the improper rejection. Dealer will comply with CMS’s return material authorization policies and will ship returned Products to CMS suitably packed for shipment to prevent damage in transit in accordance with reasonable shipping practices.
5. Termination/Order Cancellation/Changes.
A. Dealer may cancel a Purchase Order, in whole or in part, only in the event of a default by CMS that has not been corrected within ninety (90) days following CMS’s receipt of Dealer’s written notice stating the nature of CMS’s default and the corrective action requested.
B. Any other changes to a Purchase Order, including but not limited to, specification, price, delivery time, or interchangeability of any Product can only be made by a change order signed by the authorized representatives of Dealer and CMS. Such change order shall include (i) the reason for the change; (ii) a description of the change; (iii) the effect on the specification, price, delivery time and/or interchangeability of the Product; and (iv) the effective date of the change. CMS will review all Product specification changes requested by Dealer and will promptly advise Dealer whether such a change is technically feasible and, if so, the effect on unit price and delivery schedule.
6. Intellectual Property Rights; Use of Dealer Data; Feedback.
6.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the Parties, Dealer owns all Intellectual Property Rights in Dealer Data, and Manufacturer owns all Intellectual Property Rights in the Products.
6.2 Use of Dealer Data. Manufacturer may use Dealer Data only to provide the Products to Dealer and its End Users and to help secure and improve the Product. For instance, this may include identifying and fixing problems in the Product, enhancing the Product to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost.
6.3 Dealer Feedback. If Dealer provides Manufacturer feedback or suggestions about the Product, then Manufacturer may use that information without obligation to Dealer, and Dealer hereby irrevocably assigns to Manufacturer all right, title, and interest in that feedback or those suggestions.
7. Technical Product Support.
7.1 By Dealer. Dealer is responsible for technical support of its installed Products.
7.2 By Manufacturer. Subject to payment of applicable support Fees, Manufacturer may provide Technical Product Support (“TPS”) to Dealer during the Term as described below. Certain TPS levels include a minimum recurring Fee as described in the “Fees” definition below.
7.2.1 Support Request Submission.
18.104.22.168 Dealer Efforts to Fix Errors. Prior to making a request to Manufacturer, Dealer will use reasonable efforts to fix any error, bug, and malfunction without escalation to Manufacturer. Thereafter, a Dealer Contact may submit a written request for technical support to the Manufacturer.
8. Confidential Information. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable court proceeding or governmental investigation (“Legal Process”); provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other Party of such disclosure before disclosing; and (ii) comply with the other Party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the Parties, Dealer is responsible for responding to all Third Party requests concerning its use and its End Users’ use of the Product.
9. Term and Termination.
9.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date for the initial term (“Initial Term”) as specified in the Dealer Agreement, and unless otherwise specified in a Dealer Agreement this Agreement shall renew for terms of twelve (12) months thereafter (“Renewal Term”) unless a notice of termination is provided thirty (30) days before the end of the Initial Term or Renewal Term, or the Agreement is terminated as set forth in Section 8 of this Agreement.
9.2 Termination for Breach. Either Party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (iii) the other Party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
9.4 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one Party to the other will immediately cease; (ii) all Fees (including Taxes) owed by Dealer to Manufacturer are immediately due upon receipt of the final electronic bill; (iii) Dealer will delete the Product Confidential Information, and any Dealer Data; and (iv) upon request, each Party will use commercially reasonable efforts to return or destroy all Confidential Information of the other Party.
10. Publicity. With the prior written approval of Manufacturer, Dealer is permitted to state publicly that it is a Dealer of the Product. If Dealer wants to display Product features in connection with its sale of the Product, Dealer must obtain written permission from Manufacturer. Manufacturer may include Dealer’s name or Product features in a list of dealers, customers, online or in promotional materials. Manufacturer may also verbally reference Dealer as a Dealer of the Manufacturer products or services that are the subject of this Agreement. Neither Party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a Party’s Brand Features will inure to the benefit of the Party holding Intellectual Property Rights to those Brand Features. A Party may revoke the other Party’s right to use its Brand Features under this Section with written notice to the other Party and a reasonable period to stop the use.
11. Representations. Each Party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Product, as applicable.
12. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, ALL PRODUCTS ARE PROVIDED “AS IS”, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MANUFACTURER AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, DEALER BEARS THE ENTIRE RISK FOR USE OF PRODUCTS INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT.. NEITHER MANUFACTURER NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR-FREE
13. Limitation of Liability.
13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR MANUFACTURER’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR MANUFACTURER’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY DEALER TO MANUFACTURER DURING THE MONTH PRECEEDING THE EVENT GIVING RISE TO LIABILITY. MANUFACTURER
13.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a Party’s Intellectual Property Rights by the other Party, or indemnification obligations.
14.1 By Dealer. Unless prohibited by applicable law, Dealer will defend and indemnify Manufacturer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any breach of this Agreement; or (ii) Dealer’s, or its End Users’, use of the Products or resale of the Products.
14.2 By Manufacturer. Manufacturer will defend and indemnify Dealer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an allegation that use of (a) Manufacturer’s technology used to provide the Product (excluding any open source software) or (b) any Manufacturer Brand Feature infringes or misappropriates the Third Party’s patent, copyright, trade secret, or trademark.
14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:
(1) the Indemnified Party’s breach of this Agreement;
(2) modifications to the Indemnifying Party’s technology or Brand Features by anyone other than the Indemnifying Party;
(3) combination of the Indemnifying Party’s technology or Brand Features with materials not provided by the Indemnifying Party; or
(4) use of non-current or unsupported versions of a Product;
14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:
The Indemnified Party has promptly notified the Indemnifying Party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the Indemnifying Party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4 prejudices the defense of the Third-Party Legal Proceeding, the Indemnifying Party’s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.
The Indemnified Party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the Indemnifying Party, subject to the following: (i) the Indemnified Party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action, will require the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
14.5 Remedies. If Manufacturer reasonably believes the Product might infringe a Third Party’s Intellectual Property Rights, then Manufacturer may, at its sole option and expense: (a) procure the right for Dealer to continue using the Product; (b) modify the Product to make them non-infringing without materially reducing their functionality; or (c) replace the Product with a non-infringing, functionally equivalent alternative. If Manufacturer does not believe the remedies in Section 14.5 are commercially reasonable, then Manufacturer may suspend or terminate Dealer’s use of the impacted Product.
14.6 Sole Rights and Obligations. Without affecting either Party’s termination rights, this Section 14 states the Parties’ only rights and obligations under this Agreement for Intellectual Property Rights-related Allegations and Third-Party Legal Proceedings.
15.2 Assignment. Dealer may not assign any part of this Agreement without the written consent of Manufacturer, which will not be unreasonably withheld. If Manufacturer agrees to an assignment only when: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning Party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning Party has notified the other Party of the assignment. Any other attempt to assign is void.
15.3 Force Majeure. Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control. Manufacturer shall not be liable to Dealer for anything beyond Manufacturer’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or Third Party services, virus attacks or hackers, cyber intrusions which may cause malware, ransomware, or related problems, failure of Third Party software (including, without limitation, e-commerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this Agreement.
15.4 No Agency. This Agreement does not create any agency, partnership or joint venture between the Parties.
15.5 No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
15.6 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
15.7 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any Third Party unless it expressly states that it does.
15.9 Equitable Relief. Nothing in this Agreement will limit either Party’s ability to seek equitable relief.
15.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods. All disputes unresolved in the mediation shall be filed in the courts in Montgomery County, Texas.
15.11 Amendments. In its sole discretion, CMS may amend this Agreement.
15.12 Survival. The following Sections will survive expiration or termination of this Agreement: 1.11, 5, 6, 7, 8, 9, 13, 14, and 15.
15.13 Entire Agreement. This Agreement sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into this Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Manufacturer may provide an updated URL in place of any URL in this Agreement.
15.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.
15.15 Insurance – Dealer shall provide CMS a Certificate of Insurance as proof that Dealer maintains insurance coverage as follows:
15.15.1 Business Automobile – commercial automobile liability insurance with a limit of liability of $1 million per occurrence and in the aggregate.
15.15.2 Commercial General Liability – commercial general liability, including products and completed operations, personal and advertising liability and property damage to property of others, with a limit of $1 million per occurrence, $2 million in the aggregate. This insurance is endorsed to add Dealer as a Blanket Additional Insured, and to state that this policy is primary and non-contributory as to Dealer’s insurance, if any.
15.15.3 Commercial Property – business personal property, including personal property of others and electronic data processing and media, at replacement cost value, subject to applicable deductibles. This policy also covers personal property in transit with a limit of liability of $500,000.
15.15.4 Errors and Omissions, with a limit of liability of $1 million dollars. This insurance adds Dealer as a Blanket Additional Insured.
15.16 Blanket Additional Insured – Dealer requests that in both the Cyber Liability and Commercial General Liability policies, CMS add it as a Blanket Additional Insured, subject to the terms and conditions of that coverage as set forth in each respective policy.
16.1 “Confidential Information” means information that one Party (or an Affiliate) discloses to the other Party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a Third party without confidentiality obligations, or becomes public through no fault of the recipient. Confidential Information of Dealer is considered Dealer Data.
16.2 “Dealer” means the Party that is contracting with Manufacturer and may be a Managed Service Manufacturer.
16.3 “End Users” means the ultimate user of Products purchased by Dealer.
16.4 “Fees” means the applicable fees for each Service and any applicable Taxes.
16.5 “Indemnified Liabilities” means any (i) settlement amounts approved by the Indemnifying Party; and (ii) damages and costs finally awarded against the Indemnified Party and its Affiliates by a court of competent jurisdiction.
16.6 “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
16.7 “Purchase Order” means any written agreement between Dealer and Manufacturer for specific Products that may include volume, pricing, and specific requirements.
16.8 “Taxes” means any duties, customs fees, or taxes (other than Manufacturer’s income tax) associated with the purchase of the Product, including any related penalties or interest.
16.9 “Term” has the meaning set forth in the Dealer Agreement.
16.10 “Third Party” means a company or organization which may have a contractual relationship with the Manufacturer or Dealer.
16.11 “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated Third Party before a court or government tribunal (including any appellate proceeding).
These Terms were last modified on August 4, 2021.