THIS PROPOSAL IS AN EXPRESSION OF INTEREST EXCEPT AS TO THE AMOUNT AND PRICE OF THE ITEMS PURCHASED. ALL WARRANTIES AND LICENSES SHALL BE SUBJECT TO AVPM®’S STANDARD FORM OF LICENSE AND WARRANTY COPIES OF WHICH ARE ATTACHED UNLESS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT EXECUTED BY THE PARTIES HERETO ON A DATE AFTER THE DATE OF THIS AGREEMENT.

AVPM®

Parking Systems Agreement

 

 

TERMS AND CONDITIONS

 

SECTION 1 –  LICENSE

 

1.1    License Generally. AVPM® grants to Customer a limited nonexclusive and nontransferable license (the “License”) to use the AVPM® Software (the “Software”) at the address specified in Schedule B in object code form: (i) installed on the number and type of computers and other devices owned or leased by Customer and set forth on Schedule B (“Permitted Number of Devices"); or (ii) provided the Software is configured for network use, installed on a single file server for use on a single local area network for either (but not both) of the following purposes: (a) permanent installation onto a hard disk or other storage device of up to the Permitted Number of Devices; or (b) use of the Software over such network, provided the number of computers and devices connected to the server does not exceed the Permitted Number of Devices. Customer may only use the programs/modules/features contained in the Software for which Customer has paid a license fee. Customer has no right to (and will not) use the Software or any part thereof, in whole or in part, except as specifically authorized in the License Agreement.

 

  • No Ownership by Customer. Customer may only use the Software for Customer’s internal business purposes. No other licenses are granted by implication, estoppel or otherwise. This is a license, not a transfer of title to the Software or the documentation and AVPM® retains ownership of all copies of the Software and documentation and other AVPM® owned intellectual property. Customer acknowledges and agrees that the licensed materials, including, but not limited to, the specific design and structure of individual programs/modules/features and associated interface information, contain trade secrets or copyrighted material of AVPM®.

 

  • Third-Party Software. The Software may require, incorporate, include or be bundled with third-party software, the use of which is governed by separate end-user license agreements provided by third-party software vendors to which Customer shall acquire any necessary license for use in connection with the terms of this Agreement.

 

1.4       License Restrictions. Customer has no license or right to make or use any additional copies of the Software or documentation except as specifically authorized by AVPM® and use of updates and upgrades (if any) is limited to the same use as the Software. Customer shall only use the Software in connection with AVPM’s approved hardware, equipment and software and Customer shall have no right and specifically agrees not to:

 

  1. transfer, assign or sublicense its license rights to any other person or entity, or use the Software on or with any unapproved software or equipment, and Customer acknowledges that any attempted transfer, assignment, or sublicense except as otherwise provided in the Purchase Agreement shall be void and of no force or effect;
  2. make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
  • reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, or permit third parties to do the same, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;
  1. publish any results of benchmark tests run on the Software except as required for internal purposes or as required by applicable law or regulation;
  2. use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express prior written authorization of AVPM®; or
  3. disclose, provide, or otherwise make available trade secrets or copyrighted materials of AVPM® in any form to any third party without the express prior written consent of AVPM®. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted materials.
  • rent, lease, distribute, sell, or create derivative works of the software.

 

  • Supervision. Customer shall supervise and control and assumes responsibility for all use of the Software by its employees, agents and/or permitted third parties and agrees to establish and maintain reasonable procedures to ensure that all use of the Software takes place in accordance with the terms of this Agreement. Customer shall keep AVPM® informed as to (a) any problems encountered with the Software of which it is aware, and/or (b) any use of the Software or documentation other than as authorized in this Agreement.

 

  • Limited Software Warranty. AVPM® warrants that for a period of one year from the date of purchase, the Software shall perform in all material aspects according to AVPM’s specifications, therefore, when used with AVPM® approved software and hardware. Where AVPM® Software includes, incorporates or interfaces with third party products, it makes reasonable attempts to comply with any applicable requirements to ensure that such products perform as expected but AVPM® does not make any warranty with respect to third party products. Except for the foregoing, the Software is provided as is. The above limited warranty does not apply if the Software authorized to be used (a) has been altered, except by AVPM®, (b) has not been installed, operated, repaired, or maintained in accordance with instructions of AVPM®, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident. The above limited warranty also does not apply to (d) any temporary modules unless provided by AVPM® and (e) any applicable software for which AVPM® has sent Customer notice of nonpayment of any license or maintenance fee and the period for which Customer to pay has expired, (f) any software that was not supplied by AVPM® and purchased from AVPM® or an AVPM® approved source, or (g) any third party products irrespective of whether or not such products were included, incorporated, or bundled with AVPM® software (to the extent applicable, the third party’s warranty may apply to such products). This limited warranty extends only to customer as the original licensee.

 

  • AVPM® Reliance. Customer acknowledges and agrees that AVPM® has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth in this Agreement, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

 

  • The term of Customer’s license is for 5 years from the date of installation of the System, with annual payments as shown on Schedule B. Upon termination, Customer must destroy all copies of the Software and documentation unless otherwise instructed in writing by AVPM®.

 

  • AVPM® Review. Customer grants to AVPM® and its representatives the right to observe Customer’s parking operation(s) and review the records pertaining to its parking operation(s). In the event the Permitted Number of Devices is being exceeded, Customer shall promptly pay to AVPM® the appropriate additional amounts for the additional computers and/or devices. In addition, Customer shall reimburse AVPM® for the cost of an outside audit when the audit is performed by a certified public accountant or firm whose fees are not based on incentive or success fees, and if the audit determines Customer utilized the AVPM® Software in a manner exceeding its License or materially breached the terms of this Agreement.

 

SECTION 2 –  COMMERCIAL TERMS

 

2.1    Purchased Items. Customer is purchasing from AVPM® and AVPM® agrees to provide to Customer, the following (a) the Hardware, (b) a License for the Software for the Term of License shown on the Summary Page, (c) maintenance and support for the Software for one year (which may be extended as provided below), and (d) the Services, in each case, as set forth in the Purchased Items. The purchase price for each of the following items is set forth on the Purchase Schedule: (i) the cost of the Hardware is referred to in this Agreement as the “Hardware Price”; (ii) the cost of use of the Software is referred to in this Agreement as the “License Fee”; (iii) the cost for maintenance and support for one year is referred to in this Agreement as the “Initial Maintenance Fee”; and (iv) the cost for Services is referred to in this Agreement as the “Services Fee”.

 

2.2    Out of Pocket Expenses; Travel. AVPM® shall not be required to incur any out-of-pocket expenses or third-party expenses in connection with providing any services under this Agreement (such expenses, “Other Expenses”). To the extent that Other Expenses are incurred, Customer shall pay such amounts within thirty (30) days of receipt of an invoice for any such expense. Customer shall supply its travel and expense policy to AVPM® and AVPM® shall use all reasonable efforts to adhere to the policy whenever possible.

 

2.3    Other Charges. All fees and amounts due under this Agreement are exclusive of shipping and handling charges, customs duties, and value-added, withholding, sales, use, excise and property taxes and other similar taxes (except for taxes based on AVPM’s income). Customer will pay such charges, duties and taxes upon request.

 

2.4    Certain Additional Charges. Customer agrees to pay all additional charges and amounts not expressly provided for under this Agreement and fees whether or not incurred directly by AVPM® or billed by a third-party provider to Customer in connection with use of the Software, including, without limitation, credit card gateway set-up fees (payable to AVPM® at rates available from the applicable third party provider(s)), server charges, data transmission fees, equipment, and hardware and other items. The gateway set up fees shall be paid to AVPM® as and when they are incurred. AVPM® has provided Customer a list of all necessary third party software and equipment.

 

2.5.   Professional Services. AVPM® agrees to provide the Services set forth on Schedule A. Any additional services that may be provided shall be provided at AVPM’s then current billing rates. Customer agrees to pay all amounts relating to additional services within thirty (30) days of receiving an invoice in respect of such services.

 

2.6    Overdue Amounts. Any and all amounts not timely paid shall accrue interest at the lesser of 1% per month or the maximum rate permitted by law from the date when due until paid in full.

 

2.7    Postponing/Rescheduling Installation, Training; Services. If, at any time, Customer desires to reschedule the date and time of any scheduled item including without limitation, any installation, training, travel or service to be provided under this Agreement, in each such instance, Customer shall pay to AVPM® any and all reasonable third party fees incurred by AVPM® resulting therefrom or in connection therewith within ten (10) days of receipt of an invoice for any such expense.

 

2.8    No Offset. Customer shall have no right to, and waives any right to, setoff or offset any amount due and owing under this Agreement against any amounts owed by AVPM® except as expressly provided in this Agreement.

 

SECTION 3 – HARDWARE

 

3.1       Delivery. The delivery schedule is an estimate only, and is based upon prompt receipt from Customer of all necessary information. Failure to deliver within the agreed schedule, for whatever reason, shall not entitle Customer to claim damages of any nature; however, if AVPM® fails to deliver within thirty (30) days of the estimated delivery date (unless delays are caused directly or indirectly by the Customer or by circumstances beyond the control of AVPM® such as force majeure) Customer shall have the right to terminate this Agreement without any liability to AVPM® and AVPM® shall immediately return any deposit Customer has paid and make arrangements at AVPM’s full cost and expense for the delivery and return of any Hardware already delivered to Customer.

 

3.2       Inspection. Customer shall inspect the Hardware within five (5) business days after delivery. Customer must give notice to AVPM® of any claim for damages on account of the condition, quality, or grade of the Hardware, and Customer must specify in detail the basis of such claim. The failure of Customer to comply with these conditions shall constitute irrevocable acceptance of the Hardware by Customer. This inspection is limited to missing items or patent defects. Acceptance of the Hardware by Customer does not waive any warranty rights of Customer.

3.3    Rejection. If Customer notifies AVPM® that it refuses to accept Hardware due to their condition or quality, within seven (7) days AVPM® may have an agent inspect such Hardware for nonconformity; otherwise, such inspection will be made on return to AVPM® or its agent at such address as AVPM® may notify Customer of at the time of delivery of such Hardware. If such Hardware is confirmed as nonconforming, AVPM® will arrange for their return and for shipment of conforming Hardware (to the extent conforming Hardware are available) unless Customer earlier notifies AVPM® to forego such shipment.

 

 

 

SECTION 4 – INSTALLATION; TRAINING

 

4.1    Software Installation Ready. Other than the remote AVPM® software set-up by AVPM®, Customer assumes full responsibility for all installation costs incurred to set up the required Internet communication and hardware features and for providing a suitable environment including, without limitation, setting up a Wi-Fi or cabled network with reliable network connections for each device, adequate electrical service and outlets; low voltage communication cable for equipment, empty control wire conduit system with pull string per AVPM® drawings, analog phone lines and remote support and intercoms (if applicable), communication link and modems for hosting (if applicable), reliable network connection between parking office, remote locations and location of AVPM® system, final terminations at all lane and other system components (if applicable), construction build out for pay station(s) (if applicable), power circuits with connections to lane equipment as required (if applicable), Internet service and a suitable Internet connection and subject to such per device requirements as AVPM® may require from time to time, and the following:

 

Desktop Device: Power: Dedicated circuit (110V 20A)

        Connectivity: LAN (128Kb per device)

        Electrical Outlets: Minimum of 2 per device

        Uninterrupted power supply: 500 Watts per device

       

Printer:     Power: Dedicated circuit (110V 20A)

        Connectivity: LAN (128Kb per device)

        Electrical Outlets: Minimum of 2 per device

In connection with installation, Internet Explorer is blocked. Customer shall not unblock or otherwise disable this security feature.

 

If Customer wishes to use credit cards as a payment method, in connection with the system, Customer shall ensure that its account is set up so that it is compatible with Authorize.Net. In addition, not less than ten (10) business days before any scheduled installation, Customer shall provide AVPM® with the set-up configuration (including, without limitation, any VAR sheet or set up sheets).

 

If third party software is required in connection with using the system, prior to installation by AVPM®, AVPM® will discuss with Customer any options regarding any fees that may apply to required third-party software. To the extent there are any such fees, Customer is responsible for paying the applicable amounts therefore.

 

4.2    Remote Software Installation. AVPM® shall perform certain services remotely, including, without limitation, the installation of the Software that will be licensed to Customer. In connection with the performance of these services, AVPM® may require that a representative of Customer (with technical knowledge and authority to open such ports as may be requested by AVPM® during the installation process) is available on site where Customer’s server is located and that such representative is available to confer with AVPM® personnel by telephone at the time services are provided.

 

4.3    Training. Unless otherwise agreed, AVPM® shall provide Customer with up to three (3) days, ten (10) hours per day, of online training following the installation of the system. In connection with any additional training, Customer shall pay AVPM® a fee in connection therewith equal to $300.00 per person per day. Subject to the preceding sentence, such training session shall be scheduled at a date and time that is mutually convenient for Customer and AVPM®

 

4.4    Other Items. Customer agrees to use only hardware, software, equipment and other items purchased from AVPM® in connection with using the Software provided that Customer may purchase certain tickets, validation stickers, badges, monthly parker decals and other similar items from an AVPM® approved vendor, if so advised by AVPM®.

 

SECTION 5 – INTELLECTUAL PROPERTY, INDEMNIFICATION, AND TRADEMARKS

 

5.1    Ownership Rights. The system (comprised of the Hardware and its Software) is the sole and exclusive intellectual property of AVPM® and its affiliates or third party licensors and use other than as permitted under this Agreement is prohibited by patent, copyright, trade secret, and similar laws protecting such property. This Agreement does not transfer ownership of any intellectual property; the License is a limited license to use certain intellectual property as and for the time period specified. All ownership rights in such system and the Software remain vested in AVPM® and no “work made for hire” is created. Customer shall have no right, title, or interest therein and Customer neither owns nor acquires any claim or right of ownership to the Software or to any intellectual property. Customer undertakes to preserve any and all copyright, confidentiality and other proprietary notices in copies of the Software as provided by AVPM®.

 

5.2    Infringement. AVPM® will defend Customer in any action brought against Customer alleging that the current unaltered release of the Software infringes a patent, copyright, or trade secret, and AVPM® will pay any damages, fees or expenses of Customer arising out of or relating to the claim, allegation or action provided that (a) Customer gives AVPM® prompt written notice of the action, (b) AVPM® has sole control of the defense, settlement, or compromise of the action, and (c) Customer provides AVPM® with information, cooperation and other assistance requested by AVPM® in connection with the action, or the defense, settlement or compromise of the action. Customer may elect to participate in the action with an attorney of its own choice, at its own expense. If any Software becomes, or in AVPM’s opinion, is likely to become, the subject of a claim of infringement, AVPM® may, at its option, (i) procure for Customer the right of continued use, (ii) replace or modify the Software to make it non-infringing (or reduce the likelihood of infringement), provided that the replacement or modification provides substantially the functionality replaced or modified, or (iii) terminate the License of the Software, in which event and upon the termination of the license and return to AVPM® of the Software, AVPM® will refund to Customer a prorated portion of the license fees paid by Customer for the affected Software, based upon a straight-line 36 month depreciation, plus a prorated refund of Support Services fees for the remainder of the then-current Support term, if any, and a prorated portion of the cost of the Hardware, based upon a straight-line 60 month depreciation. The obligations of AVPM® in this Section 5.2 will not apply to the extent that the infringement or claim thereof is based on (A) combination or use of the Software with hardware, software, data or other materials not provided by or through AVPM®, (B) use of the Software other than in accordance with the License or (C) modifications or additions to the Software by anyone other than AVPM®.

 

5.3    Third Party Software. Ownership and use rights for all third-party brand names, product and service names and titles and copyrights remain with their respective holders. Customer obtains no right to use the property and acknowledges that any such use may constitute an infringement of the holder’s rights.

 

SECTION 6 – WARRANTIES AND REMEDIES

 

6.1    Disclaimer of Warranty. Except as to the limited warranty set forth in Section 1, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by AVPM®. To the extent an implied warranty cannot be excluded, the warranty is limited in duration to the longer of one month or the shortest period allowed by law.

 

6.2    Limitation of Liability. Except for AVPM’s obligations to indemnify Customer in the case of infringement relating to the Software, notwithstanding anything to the contrary in this Agreement, all liability of AVPM®, its members, managers, affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to Customer, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the price paid by Customer to AVPM® for the System. This limitation of liability for covered items is cumulative and not per incident (i.e. the existence of two or more claims will not enlarge this limit).

 

6.3    Waiver of Consequential Damages and Other Losses. In no event will AVPM® be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or inability to use Software or otherwise and even if the party has been advised of the possibility of damages. Customer’s exclusive remedy and the entire liability of AVPM® will be, at AVPM’s option, repair, replacement, or refund of the covered item if properly reported to AVPM®. Except as set forth in this Agreement, in no event shall AVPM’s liability to Customer or Customer’s liability to AVPM®, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer for the covered item that gave rise to the claim.

 

SECTION 7 – MAINTENANCE AND SUPPORT SERVICES

 

7.1    Maintenance and Support Services. Subject to Customer’s material compliance with the terms and conditions set forth in this Agreement and payment of all fees and other amounts due to AVPM® by the Customer when due, AVPM® agrees to provide Customer with software maintenance as set forth in this section. Customer agrees to provide and maintain an appropriate environment for all equipment used in connection with the Software including, without limitation, setting up an maintaining a Wi-Fi or cabled network with reliable network connections for each device, adequate electrical service and outlets; low voltage communication cable for equipment, analog phone lines and remote support and intercoms (if applicable), communication link and modems for hosting, reliable network connection between parking office, remote locations and location of AVPM® system, internet service and a suitable internet connection and such per device requirements as AVPM® may require from time to time and to ensure that this network and other components are in place in order for AVPM® to provide maintenance and technical support remotely.

 

7.2    Maintenance Generally. AVPM® shall provide certain Software maintenance services and technical support services as set forth in this Agreement (“Support Services”). The only Software covered for maintenance and support by this Agreement is the Software.

 

7.3    Basic Maintenance Services. AVPM® shall provide Support Services to Customer remotely via the Internet. The Support Services shall include all Updates (as defined below). The term “Update” means, with respect to the Software, each subsequent release of the Software typically providing for bug fixes, patches, modifications, or enhancements that does not add substantial new features, so long as AVPM® generally makes available such release to its supported customers at no additional license fee or other charge. Updates do not include any release, option or future program that AVPM® licenses separately. AVPM® is under no obligation to develop any future programs or functionality. AVPM® is under no obligation to provide any maintenance services in the event that Software is not being used with AVPM® approved software, hardware, equipment and operating system configuration.

 

7.4    Basic Technical Support. AVPM® shall provide technical support to Customer remotely via telephone and/or the Internet without additional charge for issues that are demonstrable in the currently supported release of the Software. In connection with the performance of the services, AVPM® may require that a representative of Customer (with technical knowledge and authority to open such ports as may be requested by AVPM®) is available on site where Customer’s server is located and that such representative is available to confer with AVPM® personnel by telephone at the time services are provided. AVPM® shall undertake and use commercially reasonable efforts in providing any services required to be performed by it under this Agreement.

 

7.5    Support Hours. AVPM® provides support services on business days between the hours of 9:00 A.M. to 6:00 P.M. (EST), Monday through Friday. However, in the event that the support is sought in connection with a Mission Critical Issue (as defined below), AVPM® will provide support services 24 hours a day, 7 days a week. As used in this Agreement, “Mission Critical Issue” means a situation where Customer is unable to connect to, or run the Software on, Customer’s server where the Software is maintained. The AVPM® Support Group can be contacted by phone at 954-636-4831 ext. 2 or by email at support@avpmi.com. AVPM® responds promptly to all requests for support; typical response time is within four (4) hours of receipt of a request for minor issues, and one (1) hour or less for critical calls.

 

7.6.   Fee Based Services. To the extent that a requested service is not covered under Section 7.3 or 7.4, the requested service may be provided by AVPM® in its sole discretion. The amount charged for any such service shall be the amount quoted in writing and agreed to by Customer or an amount equal to the number of hours spent by AVPM® in connection with the service multiplied by the per person rate of $125.00 per half hour; billed in half-hour increments; with a minimum service fee of $250.00.

 

7.7.   Limitations. AVPM’s obligations under this Agreement are conditioned upon Customer not being in default of this Agreement and AVPM® shall not be obligated to provide maintenance and support for any Software in the event Customer is in default. In addition, AVPM® may refuse to provide support related to physical damage to the Hardware, including but not limited to, damage caused by or resulting from lightning, vandalism, settling of walls and/or foundations, malfunctions caused by work performed by others, faulty network connectivity, failure of foreign interconnection equipment, accidents, riots, civil disorders, acts of God, fire, flood, or other casualty not due to the negligence or misconduct of AVPM®. Further, AVPM® shall not be obligated to maintain or support any software of any third party that is not the most recent supported version of such software or that has been altered in a manner not authorized by AVPM®.

 

7.8.   Maintenance and Support to be provided during Support Period(s) Only. In addition to the provisions contained in the prior paragraph limiting AVPM’s obligations, AVPM® shall have no obligation to provide any maintenance, support or any other services unless the Customer has paid its Maintenance Fee or Support Period Extension Fee for that time period.

 

7.9    System Downtime. Customer understands that in connection with the performance of services under this Agreement, the System and the Software may not be available and AVPM® agrees to use reasonable efforts to minimize its interference with Customer’s system during the delivery of services provided by AVPM® under this Agreement.

 

7.10  Payments. Payment of any and all amounts due under this Agreement shall be made when due as and when indicated, and in the case of services provided, upon substantial performance of any fee based services or as otherwise agreed to in writing by AVPM® and in no event later than thirty (30) days following (i) the delivery of the services under this Agreement and (ii) the delivery of an invoice. AVPM® shall not be required to incur any out of pocket expenses or third party expenses in connection with providing any services under this Agreement (such expenses, “Other Expenses”).

 

7.11  Extension of Support. At the end of the Initial Support Period (and any subsequent support periods), Customer is required to pay an annual Support Period Extension Fee in the amount set forth on Schedule C to extend the then-current support period for an additional year. As used in this Agreement, the one (1) year period commencing upon the date the System is installed in good working order and condition is called the Initial Support Period and each annual extension of the Initial Support Period is called a Support Period Extension Period.

 

7.12  Reinstatement of AVPM® Support & Maintenance. If maintenance and support under this Agreement lapses due to the Customer’s failure to pay or Customer otherwise cancels or terminates, a reinstatement fee will be assessed if Customer wishes to receive maintenance and support under this Agreement. The reinstatement fee shall be equal to 110% of the amount of all annual Support Period Extension Fees that would have been paid to AVPM® if the Support Period had been extended from the date of termination to the then current date and there had been no lapse in the maintenance and support under this Agreement. The reinstatement fee described above shall apply to each and every case where the support and maintenance lapses.

 

 

 

SECTION 8 – Representations and Warranties OF THE PARTIES.

 

8.1    Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and permitted assigns. Each party acknowledges that this Agreement is a legal agreement and as such it is prudent to review same with its own legal counsel. Further, each party represents and warrants to the other that it has (a) either obtained legal advice from its own counsel in connection herewith; or (b) that it has declined to obtain the legal advice of counsel and it has independently determined to enter into this Agreement without the benefit of counsel.

8.2    Due Organization; Entity Authority. Each party to this Agreement represents and warrants to the other that it (a) is duly organized, validly existing and in good standing under the laws of the state of its formation; (b) has all requisite power and authority to carry on its business as now being conducted and as is otherwise contemplated by this Agreement; and (c) has all requisite power and authority to perform its obligations under this Agreement.

8.3    Construction. Each party represents and warrants to the other party that it has jointly participated in the negotiation and drafting of this Agreement and that this Agreement shall be construed fairly and equally as to the parties, without regard to any rules of construction relating to the party who drafted a particular version of this Agreement.

 

8.4       Execution. Each signatory to this Agreement represents and warrants that s/he is authorized to enter this Agreement and bind the entity on whose behalf s/he is executing this Agreement.

SECTION 9 – CONFIDENTIAL INFORMATION

 

9.1    Confidential Information. Unless disclosure is required by law or regulation, and then only after prompt prior written notice to the other party whose information is requested so that the disclosing party may take steps to either remove or limit the request or demand, in which event the receiving party shall be entitled to disclose to the extent of the order or compromise, no party shall disclose to any third-party, any Confidential Information (as defined below) of the other party without the prior consent of the other party which may be withheld for any reason except that each party may make the Confidential Information available to those of its employees, representatives, officers, agents, directors and/or advisors (collectively, “Representatives”) that need to know and to no one else; provided, that each such party will be responsible for the acts of their Representatives. As used in this Agreement the term “Confidential Information” means any information or data of a confidential nature disclosed by the other party or such third parties on such party’s behalf or is learned about the other party by virtue of this Agreement which may include technical and business information relating to proprietary processes, systems, strategies, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit, margin information, finances, financial projections, investment returns, purchased assets, customers, clients, marketing, and current or future business plans and models, and/or other confidential information, regardless of whether such information is designated as “confidential” at the time of its disclosure including the existence or substance of this Agreement and any other document attached to this Agreement or deemed necessary or desirable to consummate the transactions contemplated by this Agreement any and all discussions regarding the exclusive business relationship set forth in this Agreement, the terms and conditions contained in any reports, analyses, notes, compilations, studies or other documents prepared by or for such party which arise from, contain, reflect or deal with any of the foregoing information. The term Confidential Information specifically includes all details regarding the Software, its capacities, data it tracks, reports it can produce and any special enhancement which may have been utilized or designed for the Customer. The term “Confidential Information" shall not include information which (1) is or becomes (through no improper action or inaction by the receiving party or any receiving party’s agent) generally available to the public, (2) was in its possession or known by it prior to receipt from the other party, (3) was rightfully disclosed to it by a third party without restriction; or (4) is required to be disclosed by order of a court of competent jurisdiction, provided that the receiving party shall use its best efforts to limit disclosure and to obtain confidential treatment or a protective order and, further, has allowed the other party to participate in the applicable proceeding. If disclosure is required after the conclusion of any court proceedings, the receiving party shall disclose only such part of the Confidential Information as is specifically required by the terms of such law, order, regulation or requirement.

 

9.2    Remedies. In the event of a breach or threatened breach of this section, it is agreed and understood that the non-breaching party may have no adequate remedy at law and money or other damages may be inadequate and accordingly such party shall be entitled to injunctive relief. However, in the event of a breach or a threatened breach of any provision of this Agreement, each party expressly reserves the right to seek any and all damages that may be available to it at law or equity.

 

SECTION 10 – TERM, EXPIRATION, AND TERMINATION

 

10.1  Term. The term of this Agreement shall be for five (5) years plus the additional time between the date of execution of this Agreement and the date the System is installed and operating. In this way, this Agreement becomes operative upon execution but the License for the Software commences when the System is installed and operating.

 

10.2  Termination. This Agreement shall terminate upon mutual agreement of AVPM® and the Customer or either party may terminate this Agreement upon written notice, if the other party has materially breached this Agreement and the breach, other than a breach regarding the payment of money which must be corrected within ten (10) days, is not corrected within thirty (30) days from the date the non-breaching party provides written notice of the breach to the breaching party. Written notice shall occur upon delivery of a writing specifying the nature of the breach and indicating termination of the License or Service as the remedy (in the case of a breach by the Customer), and delivered as required under this Agreement.

 

10.3  Survival of Breaches. Any and all breaches and alleged breaches that remain uncured and all payment obligations shall survive termination of this Agreement.

 

10.4  Survival of Other Provisions. The provisions contained in Sections 1.2, 1.4, 5.1, 6, 9 and 11.3 shall survive the termination of this Agreement as well as such other terms the nature of the same would ordinarily survive the termination or expiration of this Agreement.

 

SECTION 11 – MISCELLANEOUS

 

11.1  Notices. Any notice or demand made under the terms of this Agreement shall be in writing and shall be hand delivered, sent by certified mail, return receipt requested, or recognized overnight carrier such as Federal Express or DHL at (a) if to AVPM® at the address set forth on the Summary Page, with a simultaneous copy to Breit Law, 8551 W Sunrise Blvd., Ste. 300, Plantation, FL 33322, rbreit@rhbpa.com, fax 954-452-3311; and (b) if to Customer, to the address set forth in the Summary Page to the attention of the Authorized Contact. If the Authorized Contact cannot be reached, the notice may be sent to the President or equivalent officer.

 

11.2  Assignment. This Agreement may not be assigned without the express prior written consent of AVPM®, which consent shall not be unreasonably withheld except that Customer shall have the right to assign or otherwise transfer this Agreement to an affiliate operating the same property as the location of the initial installation or to any company, entity or concern to which Customer might be merged or consolidated or to a company, entity or concern acquiring a majority of Customer’s ownership interests or assets operating the same property as the location of the initial installation. Any attempted assignment in violation hereof shall be void ab initio and of no force and effect. AVPM® is authorized to transfer all or part of this Agreement to another company (a) which directly or indirectly holds or acquires more than fifty percent (50%) of the capital or voting rights in AVPM®; (b) of which AVPM® holds directly or indirectly more than fifty percent (50%) of the capital or voting rights or (c) to any company, entity or concern to which AVPM® might be merged or consolidated or to a company, entity or concern acquiring a majority of AVPM’s ownership interests or assets. AVPM® or Customer, as the case may be, will provide the other notice of such an assignment with the name and address of the assignee.

 

11.3 Governing Law; Jurisdiction; Venue; Etc. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. Each party agrees that the State and Federal Courts in the Southern District of Florida and the County of Broward in the State of Florida shall be the proper venue for and shall have exclusive jurisdiction over any claim arising under, or in connection with, this Agreement and expressly waives any objection to venue or jurisdiction being proper in such courts and agrees not to plead or claim in any such court that such claim brought therein has been brought in an inconvenient forum or that jurisdiction is lacking. Each of AVPM® and Customer hereby knowingly, voluntarily and intentionally waive any right which it may have to trial by jury in respect of any proceeding, litigation or counterclaim based on, or arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party.

 

11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

 

11.5 Amendment/Modification. No amendment, addition, deletion or modification to this Agreement will be binding unless in writing and signed by AVPM® and Customer.

 

11.6 Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of the provisions contained in this Agreement.

 

11.7 Waivers. Waiver of any of the terms of this Agreement shall not be valid unless it is in writing signed by the party making the Waiver. Waiver of any breach of this Agreement shall not be held to be a waiver of any other or subsequent breach of this Agreement.

 

11.8 Entire Agreement. This Agreement constitutes the entire Agreement between AVPM® and Customer with respect to the purchase, delivery, installation, use of the Software and any product or System and supersedes any prior agreements, understandings, or representations with respect thereto. Each party acknowledges and agrees that in entering into this Agreement it is not relying on any representation or warranty made by or on behalf of the other party (or any representative thereof) other than as expressly set forth herein.

 

11.9 Savings Clause. If any portion or provision of this Agreement is found to be void or unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified or stricken to the extent required to permit enforcement of the remainder of this Agreement provided that the Agreement as modified meets the material aspects of the original agreement of the parties.

 

11.10 U.S. Export Controls. The Software and the Hardware, including technical data, may be subject to U.S. export control laws and regulations and/or export or import regulations in other countries. Customer and AVPM® agree to comply strictly with all such laws and regulations.

 

11.11 Counterparts. This Agreement may be signed in one or more counterparts. Facsimile and electronic scanned copies of any such document shall be treated as originals for purposes of enforcement.

 

11.12 Force Majeure. Neither party shall be liable for any non-performance or delay resulting from an event of force majeure, such as, but not limited to, extreme weather, strike, war, riot, insurrection, deficiency or delay in the means of transportation or communication, computer breakdown or rupture in electricity supply, internet unavailability, or the occurrence of any other event beyond AVPM’s control. The party who is claiming the benefits of this paragraph such promptly notify the other party in writing of the force majeure event to which such party is subject and the delay such party believes will occur as a result of such event.