|
DFS Proprietary and Confidential
<br />Rev. February 13, 2020
<br />Page | 10
<br />Seller shall apply its normal quality-control procedures in manufacturing Products. Seller shall attempt to
<br />accommodate requests by Buyer to witness Seller’s factory tests of Products, subject to appropriate access
<br />restrictions, if such witnessing can be arranged without delaying the work.
<br />17.Terms of Software and Services
<br />17.1 If Seller provides any Software to Buyer, the End User License Addendum will apply. To the extent
<br />the Seller provides any Ongoing Services to Buyer, those Ongoing Services are provided subject to
<br />the terms and conditions set forth in the Services Addendum and/or any applicable Terms of Use. Any
<br />training services provided from Seller to Buyer’s personnel shall be governed by the terms and
<br />conditions of a training agreement or the Terms of Use for the applicable learning management system.
<br />If there is any conflict between these Terms and Conditions of Sale and the terms of any addendum
<br />incorporated pursuant to this Article 17, the addenda will take precedence with respect to the applicable
<br />scope.
<br />17.2 The Software provided by Seller may contain or be delivered with certain third party software (“Third
<br />Party Software”). Seller shall have only such rights and/or licenses, if any, to use the Third Party
<br />Software as are set forth by the provider of the Third Party Software. Buyer will have no obligation
<br />whatsoever under this Agreement or any of the addenda to support or maintain any such Third Party
<br />Software. Buyer will not have any liability under this Agreement or any of the addenda, regardless of
<br />the nature of the claim or the alleged damages, for any claim arising from or related to Licensee’s use
<br />or distribution of the Third Party Software. Seller disclaims any and all representations and warranties,
<br />express, implied or statutory, with respect to any and all such Third Party Software, including without
<br />limitation, any warranties of merchantability, fitness for a particular purpose, system integration, data
<br />accuracy, title, non-infringement, quiet enjoyment, and/or non-interference. Each of the parties
<br />acknowledges and agrees that the foregoing disclaimers, limitations and exclusions of liability form an
<br />essential basis of the bargain between the parties, and that, absent such disclaimers, limitations and
<br />exclusions, the terms of this Agreement, including, without limitation, any economic terms, would be
<br />substantially different.
<br />18. General Clauses
<br />18.1 Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of
<br />its affiliates or may assign any of its accounts receivable under this Contract to any party without
<br />Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Seller’s
<br />assignment or novation. Seller may subcontract portions of the work, so long as Seller remains
<br />responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under
<br />the Contract without Seller’s prior written consent (which consent shall not be unreasonably withheld)
<br />will be void.
<br />18.2 Buyer shall notify Seller immediately upon any change in ownership of more than 50% of Buyer's voting
<br />rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change,
<br />Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance
<br />(including but not limited to payment), and/or (c) put in place special controls regarding Seller’s
<br />Confidential Information.
<br />18.3 If any Contract provision is found to be void or unenforceable, the remainder of the Contract will not
<br />be affected. The parties will endeavor to replace any such void or unenforceable provision with a new
<br />provision that achieves substantially the same practical and economic effect and is valid and
<br />enforceable.
<br />18.4 The following Articles will survive termination or cancellation of the Contract: 2, 3, 4, 5, 6, 7, 8, 10,
<br />11, 12, 13, 14, 15, 17, 18, and 19.
<br />18.5 The Contract represents the entire agreement between the parties. No oral or written representation
<br />or warranty not contained in this Contract will be binding on either party. Buyer’s and Seller’s rights,
<br />remedies and obligations arising from or related to Products and Services sold under this Contract are
<br />limited to the rights, remedies and obligations stated in this Contract. No modification, amendment,
<br />rescission or waiver will be binding on either party unless agreed in writing.
<br />Terms and Conditions of Sale – Products & Services
|