Customer agrees to be bound by the following terms and conditions for CAM Commerce (“CAM”).
1. Software License.
a) SCOPE OF LICENSE. All software provided to Customer, including any subsequent updates or enhancements, may be used only on the equipment configurations specified in this Agreement. Customer shall be prohibited from copying any portion of the software, except as may be necessary for and incidental to data back-up operations as recommended by CAM. No title to or ownership of any of the software is transferred to Customer. Under no circumstances shall Customer cause or permit the software or any portion thereof, to be copied by, or transferred to, any third party, including any parent or subsidiary or Customer. Customer agrees that only CAM shall have the right to alter, maintain, enhance or otherwise modify the software. Customer shall not disassemble, decompile or reverse engineer any portion of the software. CAM reserves the right to terminate the software license granted hereunder and to require return of the software and all back-up copies thereof if Customer fails to comply with these license terms and conditions.
b) THIRD PARTY SOFTWARE. Portions of the software provided by CAM may be the proprietary and confidential property of third parties from whom CAM has obtained a license for the use of such software, including the right to sublicense such software to Customer. Customer acknowledges that the sublicense for the use of such third party software is subject to the terms and conditions of the third party license agreement, which will be supplied to Customer upon written request. Customer's obligation with respect to software licensed from a third party shall extend to any future modifications or updates, which incorporate or in any way relate to such third party software.
2. Services Plan Terms and Conditions.
a) EXCLUDED WORK. Work which, in CAM's exclusive and reasonable discretion, is excluded from the Services Plan Option will be billed at the then-current standard services rate billed in minimum 15 minute increments. CAM shall have no service or support obligation hereunder with respect to (i) damage to the[software and equipment supplied by CAM hereunder (“System”)] arising from misuse, negligence, alteration, excessive current, improper grounding or defective I/O cabling; (ii) damage resulting from accident, system transportation, or the attachment of accessories and/or equipment not furnished by CAM; (iii) damage resulting from the failure to provide the proper installation environment as advised by qualified CAM service personnel; (iv) damage caused in whole or in part by a Force Majeure, improper use of the System, or by any other external causes; (v) hardware that is not repairable due to normal wear and tear and is beyond its useful life; (vi) non-availability of replacement parts; (vii) hardware and software that was not purchased from and installed by CAM; (viii) network administration or maintenance outside the scope of CAM's system needs.
b) REVERSE CHARGES. CAM reserves the right to charge Customer, at CAM's usual and customary rates, for work performed that is subsequently determined to be excluded work as described in subparagraph a), above.
c) SERVICE AND SUPPORT AVAILABILITY. Customer service hours shall be determined from time to time in CAM's sole discretion.
d) REPLACED PARTS. All used or defective components, which have been replaced by CAM, shall become and remain the sole property of CAM.
e) TERMINATION OF SERVICE AND SUPPORT. Once the initial term has been completed, Customer or CAM may give written notice of intention not to renew the service and support plan selected by Customer at least thirty (30) days prior to the expiration of the then-current term. Customer must pay all charges for service through the date of termination. Should Customer wish to resume service after any suspension or termination, a restoration of service fee and the total monthly Services fees not collected during the time elapsed between termination date and restoration of service date and all outstanding fees and account balances must be paid prior to reinstatement. CAM reserves the right to terminate service and support, without prior notice, for any reason, which may include, but not be limited to, any physical or verbal abuse of any CAM employee.
CONTRACT TERMS AND CONDITIONS
3. Cancellation, Delivery and Installation.
System cancellation prior to shipment will be subject to a minimum cancellation fee of 50% of the contract value at CAM's sole discretion. To the extent possible, delivery shall be made in accordance with the delivery schedule mutually agreed upon between Customer and CAM. Delivery dates and times shall be approximate, however, and CAM shall not be liable for any delay in delivery or installation caused by conditions beyond the control of CAM, including any such delay occasioned by Customer's failure to fulfill its pre-installation obligations which shall be determined by the parties prior to such installation. Purchaser shall be solely responsible to make available a safe and suitable place for installation in accordance with CAM's installation and site preparation procedures. Customer shall be solely responsible for providing adequate electrical service and cabling in strict compliance with the specification, which shall be provided by CAM at customer request prior to installation. In no event shall CAM be responsible for system damage, malfunction, failure to operate or delay occasioned by Customer's failure to comply with its obligations hereunder.
4. Risk of Loss or Damage.
Delivery of the System shall be FOB from CAM's facilities. Customer shall bear all risk of loss or damage to the System and its various components as of the placement of such goods with a carrier for delivery to Customer.
5. Security Agreement.
CAM reserves a security interest under the Uniform Commercial Code (New York UCC. LAW § 1-101 et. seq.) in the System, each of its components, and all parts, accessories and supplies sold to Customer hereunder, which security interest shall continue until payment in full of the total System cost set forth in this Agreement has been made. Such security interest shall continue as to any additional components, parts, accessories or supplies purchased by Customer from CAM until payment in full therefor has been made, and in the proceeds of any insurance policy covering said goods until payment in full therefor has been made. Customer shall be in breach of this Security Agreement upon (i) the failure to pay when due any portion of the System purchase price or any sum which may hereafter become due by invoice submitted to Customer, and (ii) Customer's failure to pay such amount within thirty (30) days after receipt of written notice thereof from CAM [or McKesson] or upon Customer becoming insolvent or filing any proceeding under the United States Bankruptcy Code, or upon the sale or other transfer of all or any portion of the collateral without the express written consent of CAM, or upon Customer's failure to perform any other term or condition of this Agreement. CAM reserves all remedies provided by law, including those set forth in the Uniform Commercial Code (New York UCC. LAW §1-101 et. seq.). CAM is authorized to execute and file with the appropriate Filing Office a Uniform Commercial Code Financing Statement for the perfection of any security interest created hereunder.
6. Warranties.
a) LIMITED HARDWARE WARRANTY. CAM warrants all CAM-built computers and their internal components to be free from defects in materials and workmanship under normal use and service for a period of one (1) year from delivery to Customer. This warranty may be provided after a diagnosis is performed remotely, is for parts and labor, and may be performed at Customer's premises or CAM's premises, at CAM's sole discretion. All other hardware, equipment and peripherals are warranted to be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from delivery to Customer. This component and peripheral warranty may be provided after a diagnosis is performed remotely and if covered product is defective, remote replacement assistance will be rendered. CAM's sole responsibility under this warranty is limited to the repair or replacement of any defective part of such hardware or peripherals, which repair may, in CAM's sole discretion, be performed at CAM's premises or Customer's premises or at the premises of the manufacturer of the hardware or peripherals.
b) LIMITED SOFTWARE WARRANTY. CAM warrants that, for a period of sixty (60) days from delivery to Customer, CAM SOFTWARE will substantially conform to the software performance specifications as published by CAM. CAM's sole responsibility under this warranty shall be to remedy any non-conformance of the software. This warranty applies to initial purchase only. Any subsequent purchases of license(s), including remote store locations, do not apply to specified warranty.
c) LIMITATIONS OF WARRANTY. ALL SALES ARE FINAL AFTER DELIVERY, WITHOUT RETURN RIGHTS. THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. ANY IMPLIED WARRANTIES IMPOSED BY OPERATION OF LAW SHALL BE DEEMED TO BE CO-EXTENSIVE WITH THE EXPRESS WARRANTIES CONTAINED HEREIN.
7. Limitations of Liability.
ALL SALES ARE FINAL AFTER DELIVERY, WITHOUT RETURN RIGHTS. CUSTOMER AGREES THAT CAM'S SOLE OBLIGATION, AND THE CUSTOMER'S SOLE REMEDY, FOR ANY FAILURE OF SYSTEM PERFORMANCE IS LIMITED TO PERFORMANCE OF THE EXPRESS WARRANTY TERMS SET FORTH ABOVE. CUSTOMER FURTHER AGREES THAT IN NO EVENT SHALL CAM BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON, FOR ANY DAMAGES (INCLUDING AND INCIDENTAL OR CONSEQUENTIAL DAMAGES), EXPENSES, LOST PROFITS, LOSS OF BUSINESS GOODWILL, OR OTHER DAMAGE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF THE USE OF, OR THE INABILITY TO USE, THE SYSTEM OR ANY COMPONENT THEREOF, OR OUT OF THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, EVEN IF CAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. General Terms and Conditions.
a) WAIVER. The waiver by CAM of any breach of this agreement by Customer shall not operate or be construed as a waiver of any subsequent breach hereof.
b) ASSIGNMENT OR TRANSFER. Customer shall not assign or transfer this Agreement or any rights hereunder without the prior written consent of CAM.
c) NO OTHER PROMISES OR REPRESENTATIONS. No promise, representation or statement which is not expressly contained in this Agreement, or expressly incorporated herein by this reference, shall be binding upon CAM, nor shall such promise, statement, or representation be the basis for any action at law or in equity.