Terms and Conditions
Products and Services
1. Scope
These Terms govern the Products and Services offered by Seimitsu to the Customer as may be further described in a relevant Order Form. All terms capitalized herein have the meaning set forth in Section 12. These Terms may be amended by Seimitsu from time to time and shall apply to all orders for Products and Services made by the Customer after the Effective Date.
2. Quote and acceptance
Upon Customer’s request for Products or Services, Seimitsu shall provide a quote to Customer. If such Quote is acceptable to the Customer, the Customer shall sign said Quote. No work shall be performed until an quote is executed by both Parties. Quote may be in electronic or physical format and delivered to Customer by Seimitsu in a manner chosen by Seimitsu.
3. Fees
3.1 Generally. Customer shall pay Seimitsu the Fees for Products and Services as determined by Seimitsu and as indicated in any of the applicable provisions below: (i) on invoices provided by Seimitsu to the Customer with respect to Products and Services supplied; or (ii) as stated in the requisite Order Form. If more than one provision in this Section 3.1 applies, the latter of the applicable documents shall govern regarding Fees.
3.2 Changes in fees. The Fees shall take into consideration “one-off” costs such as installation, design and setup. Seimitsu reserves the right to implement a surcharge for alterations to specifications of Products or Services after execution of an quote. Seimitsu reserves the right to change the Fees because of industry changes, third party fee changes, changes in applicable law, or for any other reason, in its sole discretion. In addition, Seimitsu charges additional Fees for work performed outside of normal business hours.
3.3 Taxes. All Fees are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Seimitsu’ income, revenues, gross receipts, personnel or real or personal property or other assets.
3.4 Payment Method. Customer shall pay all amounts due to Seimitsu by any method agreed to by the Parties in the relevant signed quote. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND THE APPLICABLE CREDIT CARD COMPANY, SEIMITSU SHALL PASS THROUGH ANY CREDIT CARD PROCESSING FEES INCURRED BY SEIMITSU AND DIRECTLY ATTRIBUTABLE TO CUSTOMER, AND CUSTOMER AGREES TO PAY SUCH FEES IN ADDITION TO ANY FEES CHARGED FOR THE SERVICES.
3.5 Payment Date. The Payment Date will be stated on an invoice or quote. If no time is stated, then the Payment Date shall be the day of delivery of any Products or at the time Services commence, unless credit terms have been previously agreed to, in writing, by Seimitsu. TIME IS OF THE ESSENCE FOR PAYMENT OF THE PRODUCTS AND SERVICES BY THE PAYMENT DATE.
3.6 Interest. Any amounts payable hereunder that are not paid by the Customer by the Payment Date shall incur interest at the rate of 15% per annum calculated daily, or, if lower, the highest amount allowed by applicable law. Interest shall be payable on any monies outstanding under the Agreement beginning on the Payment Date and continuing until the date payment is received by Seimitsu, but without prejudice to Seimitsu’ other rights or remedies. Seimitsu reserves the right to suspend the Customer’s access to and use of the Products and Services at any time until all Fees then past-due are paid in full. Except as expressly otherwise provided herein, all Fees are non-refundable and shall be paid without right of setoff, and payment obligations may not be canceled, regardless of actual usage of the Products or Services.
3.7 Travel Expenses. In addition to all Fees for Products and Services, Customer will reimburse Seimitsu for any reasonable Expenses incurred by Seimitsu in connection with providing the Products and Services. Seimitsu will provide reasonable documentation for all Expenses as requested by Customer. Customer shall reimburse Seimitsu for Expenses within thirty (30) days after submission of the Expenses to Customer by Seimitsu. Seimitsu splits travel costs into zones. Zone 1 is any distance no more than forty (40) miles from Seimitsu’ office, and considered no charge during normal business hours. Zone 2 is any distance no more than eighty (80) miles from Seimitsu’ office. Zone 3 is any distance greater than one hundred (100) miles from Seimitsu’ office. Pricing for travel zones may be further described in a quote.
4. Access, Use, and Ownership
4.1 Access and Use. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Seimitsu hereby grants Customer a non-exclusive, non-transferable right to access and use the Products and Services during the CONTRACT Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to the Customer’s internal use only. Seimitsu shall provide the Customer with the necessary passwords and network links or connections to allow Customer to access the Products and Services, as applicable. The total number of Authorized Users will not exceed the number set forth in the quote or subsequent additions acknowledged in writing by Seimitsu, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
4.2 Documentation. Subject to the provisions of this Agreement, Seimitsu hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the CONTRACT Term solely for Customer’s internal business purposes in connection with its use of the Products and Services.
4.3 Prohibited Activities. Customer shall not use the Products or Services for any purposes beyond the scope of the access and use granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Products, Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products, Services, or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Products, Services, in whole or in part; (iv) remove any proprietary notices from the Products, Services or Documentation; (v) use the Products, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) interfere with, disrupt, interrupt, restrict, prevent or disable, access to or use of the Products or Services, or any components thereof, or make the Products or Services available in a timesharing or service-bureau environment, or for the benefit of a third party.
4.4 Acceptable Use. Customer shall only use the Products and Services in a lawful manner, consistent with all applicable laws and regulations, and only for lawful and legitimate purposes. Customer may not, on or through the Products or Services: (i) offer, promote, engage in, or provide instruction in illegal activities; or (ii) use, display, or make available any information or material that is false or misleading, that violates any rights of others, or that presents or portrays Seimitsu other than in a professional, non-disparaging manner. Customer shall comply with any restrictions or limitations specified in this Agreement regarding the use of the Products or Services.
4.5 Use by Authorized Users. Customer is responsible and liable for all uses of the Products, Services, and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by, or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Products and Services, and shall cause Authorized Users to comply with such provisions.
4.6 Ownership Rights and Reservation of Title. Customer acknowledges that, as between Customer and Seimitsu, Seimitsu owns all right, title, and interest, including all intellectual property rights, in and to the Products (unless otherwise stated in a quote), Services, Documentation, and all intellectual property, components, materials, works, ideas, and know-how provided to Customer or any Authorized User in connection with the foregoing. With respect to Third-Party Products, the applicable third-party providers own all rights, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Seimitsu acknowledges that, as between Seimitsu and Customer, Customer owns all rights, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Seimitsu a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Seimitsu to provide the Products and Services to Customer. If Customer or any of its employees or contractors sends or transmits Feedback to Seimitsu, Seimitsu is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The Order Form may further set forth additional ownership rights to the Products and Services provided hereunder. For the avoidance of doubt, ownership and title of all Products remains with Seimitsu until all Fees owed by the Customer under the Agreement, or otherwise owed to Seimitsu, have been paid in full. Seimitsu reserves all rights not expressly granted to Customer in this Agreement.
4.7 Service Levels and Support. Subject to the terms and conditions of this Agreement, Seimitsu shall use commercially reasonable efforts to make the Services available in accordance with applicable service levels set out in an Order Form. Any support or maintenance services to be provided by Seimitsu shall be set out in an applicable Order Form. If the Order Form sets forth no support or maintenance services, then Seimitsu will not provide any such services.
4.8 Additional Services. The Parties may, from time to time, execute additional quotes or written addenda that reference this Agreement and describe additional Products or Services to be provided by Seimitsu to Customer hereunder. To be effective, any such Order Form or addendum must be signed by duly authorized representatives of each of the Parties. Unless otherwise provided in such a quote or addendum: (i) the terms of this Agreement shall apply to and govern such document and any Products or Services provided thereunder; and (ii) the term for which any such additional Products and Services shall be provided shall be co-terminus with the CONTRACT Term of this Agreement and the other Products and Services being provided hereunder.
4.9 Subcontractors. Seimitsu reserves the right to subcontract any of its obligations under this Agreement, including any quotes, as it deems reasonably necessary to provides the Products and Services hereunder.
5. Warranty
5.1 Mutual. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its applicable state, commonwealth, or province; (ii) it has all necessary rights, powers, and authority to enter into and perform under this Agreement; and (iii) the execution and performance of this Agreement by it shall not violate any applicable laws or regulations and shall not breach any agreement, covenant, court order, judgment, or decree to which it is a party or by which it is bound.
5.2 Limited Products and Warranty. As Customer’s sole and exclusive remedy for any claim arising out of or related to the Products, Seimitsu warrants that it will make reasonable repairs to any material defects in Products, if written notice of the claim is received by Seimitsu no later than seven (7) days from the date the physical Products were delivered. No claim for repair shall be accepted under Section 5.2. if: (i) any attempt to alter or repair the Products is made by any person not authorized by Seimitsu, or (ii) if Customer makes any further use of such Products after giving such notice, or (iii) if the defective Products have been modified or incorrectly installed, stored, maintained, or used by Customer. If Seimitsu elects to repair or replace any defective physical Products, such work shall be undertaken at such place as Seimitsu may reasonably specify and the Customer shall be responsible at Customer’s cost and Customer’s risk for shipment of the defective physical Products, to ship Products to the place specified by Seimitsu.
5.3 Services. Seimitsu warrants that the Services will be performed in a competent and workmanlike manner, in material accordance with standards common and prevalent in the industry and any applicable Documentation furnished by Seimitsu. As Customer’s sole and exclusive remedy for a failure of the Services to conform to this limited warranty, Seimitsu will, if Customer notifies Seimitsu in writing and in reasonable detail, of the nature and extent of such failure within seven (7) days after such failure: (i) re-perform the applicable Services or otherwise cure such failure; or (ii) if Seimitsu determines, in its sole discretion, that it is unable to re-perform the applicable Services or cure such failure through the exercise of commercially reasonable efforts, Seimitsu may terminate this Agreement with respect to the non-conforming Services and refund to Customer the fees actually paid by Customer for the non-conforming Services.
5.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5: (I) SEIMITSU MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT; (II) THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND; AND (III) SEIMITSU DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES ARE OR WILL NECESSARILY BE CONTINUOUSLY AVAILABLE, ERROR-FREE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CUSTOMER OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM. SEIMITSU EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, OTHER THAN THOSE SET FORTH IN THIS SECTION 5, INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND (b) ANY IMPLIED WARRANTIES THAT MIGHT ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING, AND COURSE OF PERFORMANCE, AND (c) WARRANTIES OF TITLE; AND (d) WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.2, SEIMITSU MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS, SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE.
5.5 Third Party Products. Third Party Products may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products or Services. Third Party Products are not covered by the warranty in Section 5.2. Such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, SEIMITSU IS NOT RESPONSIBLE OR LIABLE FOR PERFORMANCE (OR FAILURES IN PERFORMANCE) OF THIRD-PARTY PRODUCTS.
6. Limitation of Liability
6.1 Certain Types of Damages. In no event shall Seimitsu or its affiliates, contractors, licensors, or suppliers be liable to client or any third party for any loss of use, revenue or profit or loss of data or diminution in value, costs of cover or delay, or for any consequential, indirect, incidental, exemplary, special, or punitive damages, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Seimitsu has been advised of the possibility of such damages.
6.2 Limitation of Liability Cap. In no event shall Seimitsu or its affiliates, contractors, licensors, or suppliers’ aggregate liability, arising out of or related to the agreement, exceed the total of the amounts paid to Seimitsu for the applicable products and services giving rise to the claim in the six (6) months prior to the date of such action. The limitations of liability and exclusions of certain types of damages and claims set forth herein are intended to apply without regard to whether any provisions of this agreement have been breached, have proven ineffective, or have failed of their essential purpose.
6.3 Basis of the Bargain. The provisions of sections 5, 6, and 7 of this agreement are all fundamental and specific requirements of the basis of the bargain between customer and Seimitsu, and Seimitsu would not be able to provide the products and services at the price and terms set forth herein without each such provision.
7. Indemnity
7.1 By Customer. Customer shall indemnify, hold harmless, and defend Indemnified Parties against any and all Losses, arising out of any third party claim caused by: (i) Customer’s use of the Products or Services; (ii) violation of the Agreement by Customer; (iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Customer or its personnel (including any reckless or willful misconduct); (iv) any failure by Customer to comply with any applicable federal, state or local laws, regulations or codes; (v) any direction by Customer to Indemnified Parties that causes the violation of any applicable federal, state or local laws, regulations or codes; and (vi) any claim of infringement of intellectual property rights brought by a third party against Indemnified Parties for Customer’s violation of third party intellectual property rights other than for properly licensed use of the Products and Services in accordance with this Agreement.
7.2 By Seimitsu. Seimitsu shall indemnify, hold harmless, and defend indemnified parties against any and all losses arising out of any third-party claim that the services provided by Seimitsu infringes a patent, copyright, trade secret or other intellectual property or proprietary right. If the products or services become or, in Seimitsu’ sole opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Seimitsu shall use commercially reasonable efforts to: (i) obtain for customer the right to continue using such products or services; or (ii) replace or modify such product or service so that it becomes non-infringing without substantially compromising its principal functions, and if (i) or (ii) are not commercially practical, then terminate this agreement, or the applicable order form, and refund customer the pro rata portion of any fees paid for the terminated product or service corresponding to the period terminated. Seimitsu will have no liability and shall not be required to indemnify, hold harmless, or defend indemnified parties under this section 7.2 to the extent such losses arise from any of the following: (i) customer’s use of the products or services in a manner inconsistent with its intended use under the provided documentation; (ii) customer’s breach of this agreement; (iii) customer data; (iv) non-Seimitsu material, including the combination of any non-Seimitsu material with the products or services; (v) Seimitsu’ compliance with customer’s specifications or instructions; or (vi) customer’s use of the products or services after Seimitsu notifies customer to discontinue use due to a third party infringement claim. The foregoing states Seimitsu’ entire liability and customer’s exclusive remedies for any claim of intellectual property rights infringement or misappropriation hereunder.
7.3 Procedures. The Party seeking indemnification under this Section 7 shall give the indemnifying Party (a) prompt written notice of any such claim or allegation, (b) control of the defense and settlement thereof (provided that any settlement of such claim that does not contain an unconditional release of the Indemnified Party will require the prior written consent of such Indemnified Party) and (c) reasonable assistance in such defense or settlement.
8. Security and Backup
8.1 Security. Customer Data may be required by Seimitsu to provide and support the Products and Services, for example, to authenticate Authorized Users and to respond to requests for support. Customer shall ensure that all Customer Data is accurate and always correct during the CONTRACT Term. Seimitsu shall only use Customer Data in accordance with this Agreement and applicable law. Unless otherwise agreed to by the Parties in an Order Form, Customer shall maintain throughout the CONTRACT Term an industry-standard information security program, including physical and technical security policies and procedures. The program shall include measures: (a) to protect Customer Data and the Products and Services from accidental loss and from unauthorized access, use, alteration, or disclosure; and (b) which provide a level of security appropriate to the nature of the data and the risk represented by its transfer, processing, use and storage. Unless otherwise agreed to by the Parties in an Order Form, Customer is solely responsible for ensuring the security and confidentiality of all Customer Data. Without limiting the foregoing, Customer shall use commercially reasonable efforts to prevent unauthorized access or use of the Products and Services, and shall contact Seimitsu immediately (but in no event later than one (1) business day if: (a) Customer Data related to the Products or Services, or any associated password, is lost, stolen or disclosed to an unauthorized person; or (b) Customer reasonably believes the Products or Services have otherwise been compromised.
8.2 Technical Requirements; Disaster Recovery Policy. Unless Seimitsu is hosting the Products and Services for Customer, Customer shall, throughout the CONTRACT Term, ensure it maintains hardware, software, equipment, infrastructure, and other resources and technology at its applicable data center, and such appropriate and redundant network bandwidth connecting such data center to the Internet, as is reasonably required to access the Products and Services in accordance with the terms of this Agreement. In addition, throughout the CONTRACT Term, Customer shall maintain, and update to remain current, a reasonable and appropriate disaster recovery plan.
8.3 Backup. Seimitsu requires Customer to have a Backup for any data that Seimitsu touches, or that touches any component Seimitsu has any responsibility for. The Backup must have an offsite component that is accessible in the event the site becomes inaccessible or is fully destroyed. If Customer does not maintain a Backup throughout the CONTRACT Term, Seimitsu shall not be liable for any loss of data caused from sources related to failure to have a Backup. If Customer does not maintain a Backup, Customer maintains the risk for data loss.
9. Insurance
During the CONTRACT Term, each party shall, at its own expense, maintain and carry insurance in full force and effect, which covers the indemnity provision in Section 7 of these Terms with financially sound and reputable insurers.
10. Term and Termination
10.1 Term. The Agreement shall be in effect for the CONTRACT Term. The applicable quote shall set forth the term for applicable Products and Services.
10.2 Suspension by Seimitsu. Without prejudice to any other remedies Seimitsu may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Seimitsu may (in its sole discretion) immediately suspend or terminate the supply of Products or Services, or both, to the Customer and any of its other obligations under the Agreement.
10.3 Termination by Seimitsu.
a. Seimitsu may terminate this Agreement, or any quote hereunder, in whole or in part, for any reason upon sixty (60) days prior written notice to Customer.
b. Without prejudice to Seimitsu’ other remedies at law, Seimitsu shall be entitled to cancel all or any part of this Agreement immediately if any of the following occur: (i) any money payable to Seimitsu becomes overdue, or in Seimitsu’ opinion Customer will be unable to meet its payments as they fall due; or (ii) Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of Customer or any asset of the Customer; or (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Customer’s or any Authorized User’s use of the Products or Services disrupts or poses a security risk to any other customer or vendor of Seimitsu; or (vi) Customer, or any Authorized User, is using the Products or Services for fraudulent or illegal activities; or (vii) Seimitsu’ provision of the Products or Services to Customer or the Authorized Users is prohibited by applicable law; or (viii) any vendor of Seimitsu has suspended or terminated Seimitsu’ access to or use of any third-party services or products required to enable Customer to access the Products or Services.
c. If Seimitsu terminates this Agreement in accordance with Sections 10.3b (i)-(vi), all amounts Customer owes to Seimitsu, whether or not due for payment, immediately shall become due and payable. In addition, Seimitsu will not be liable to the Customer for any loss or damage the Customer suffers because Seimitsu exercised its rights under Section 10.
10.4 Termination by Customer. Customer may terminate this Agreement, or any quote hereunder, in whole or in part, if Seimitsu materially breaches this Agreement, and fails to cure such breach within thirty (30) days after notice of such breach from Customer.
10.5 Early Termination Fee. If Seimitsu terminates Products or Services for nonpayment or other default before the end of the CONTRACT Term, or if Customer terminates any Products or Services for any reason other than (a) in accordance with Section 10.4; (b) in accordance with any cancellation policy provided in the applicable quote; or (c) pursuant to a mutually agreed upon change of terms, conditions or rates, Customer agrees to pay the Early Termination Fee. The Early Termination Fee is not a penalty, but rather a charge to compensate Seimitsu for Customer’s failure to satisfy the commitment on which Customer’s rate plan is based.
10.6 Effects of Termination. Upon any expiration or termination of this Agreement: (i) Seimitsu shall cease providing, and shall disable Customer’s access to, the Products and Services; (ii) Customer shall immediately cease access to and use of the Products and Services; and (iii) Customer shall promptly pay to Seimitsu any amounts payable pursuant to this Agreement through the effective date of termination.
11. Miscellaneous
11.1 Governing Laws and Dispute Resolution. This Agreement and all performance hereunder, and any claim, suit, action, or proceeding arising out of or relating to this Agreement, shall be governed by and construed in all respects in accordance with the substantive laws of the United States of America and State of Georgia, without regard to conflicts of law’s provisions. The exclusive forum and venue for any legal or equitable claim or action brought in connection with this Agreement shall be the state and federal courts located in Savannah, Georgia. The Parties hereby irrevocably submit and consent to the personal and subject matter jurisdiction of such courts and irrevocably waive any objection or claim that venue is improper for any reason in such courts.
11.2 Entire Agreement and Prevailing Terms. The Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, representations, warranties, and communications either written or oral between the Parties. If there is an inconsistency between these Terms, and an Order Form, these Terms shall prevail unless the provision in the Order Form specifically states otherwise. This Agreement shall prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted a purchase order with such terms.
11.3 Waiver. No waiver by Seimitsu of any provision of these Terms is effective unless explicitly set forth in writing and signed by Seimitsu.
11.4 Confidential Information and Equitable Relief. Confidential Information is confidential, provided to Customer solely for use in connection with the Products and Services in accordance with this Agreement, and may not be disclosed or copied unless authorized in advance by Seimitsu in writing. Any PHI transmitted or used while the Services being offered by Seimitsu shall be governed by an applicable Business Associate Agreement between the Parties. Upon Seimitsu’ request, or termination pursuant to Section 10 of these Terms, Customer shall promptly return or destroy all documents and other materials received from Seimitsu. Seimitsu shall be entitled to injunctive relief for any violation or threatened breach by Customer of this Section 11.4 or Section 4 because Customer acknowledges and agrees that such violation or threatened breach would cause Seimitsu irreparable harm for which monetary damages would not be an adequate remedy.
11.5 Force Majeure. Neither Party shall be deemed in default of any provision hereof (other than payment obligations) as a result of, or be liable for any delay, failure in performance, or interruption of Services resulting from, directly or indirectly, acts of God, civil or military authority, civil disturbance, war, strikes, fires, hurricanes, tropical storms, other catastrophes, power or other utility failure, Internet or telecommunications disruptions, or any other cause beyond its reasonable control.
11.6 Notices. All notices hereunder shall be in writing and shall be deemed to have been given when delivered by first class mail or nationally recognized express carrier to the respective address of the applicable Party, and as updated by such Party from time to time by notice delivered in accordance herewith. The address for notices to be sent to Seimitsu is: 1523 Bull St, Savannah Ga 31401. Customer’s address for notices is set forth on the applicable invoice or proposal.
11.7 Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.8 Assignment. Seimitsu may assign this Agreement at any time. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Seimitsu. Any purported assignment or delegation in violation of this Section 11.8 will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.9 Export Regulation. Products and Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly, or indirectly, export, re-export, or release the Products or Services or the underlying software or technology to or make the Products or Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products and Services or the underlying software or technology available outside the US.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
11.11 Non-Solicitation. Customer, during the CONTRACT Term and for a period of one (1) year after any termination or expiration of this Agreement, directly, or indirectly, whether through an affiliate or otherwise, offer employment to, solicit for employment, hire, employ, engage in any professional capacity, or retain the services of any personnel of Seimitsu engaged in performance under this Agreement, without the express prior written consent of the other party. The parties agree that the duration and scope of the restrictions contained in Section 11.11 are reasonable. If either party breaches the provisions of this Section 11.11 the breaching party shall be required to pay the nonbreaching party the value of such employee’s annual salary for the year preceding the date of such breach, in addition to any remedies available to such party in equity. The parties agree that it would be extremely difficult to quantify the actual damages which would result from a violation of this provision, and that the value of such employee’s annual salary for the year preceding the date of the breach is a reasonable estimate of the actual damages which would result from such a violation and is not a penalty. This Section 11.11 survives the termination or expiration of this Agreement.
12. Definitions
12.1 “Agreement” means together these Terms and all Order Form(s), including all Exhibits, Schedules, and Addendums thereto.
12.2 “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Products or Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Products or Services has been purchased hereunder. Authorized Users are subject to any scope of use requirements set forth in an Order Form.
12.3 “Backup” means an industry-standard backup system adequate to meet the needs of Customer’s information technology systems and Customer Data.
12.4 “Confidential Information” means all non-public, confidential or proprietary information of Seimitsu, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, intellectual property, software, or rebates, disclosed by Seimitsu to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement. Any information that is: (a) in the public domain, other than by Customer’s release; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party, shall not be considered Confidential Information under this Agreement.
12.5 “Customer” is the entity that enters one or more Order Forms for the purchase of Products, Services, or both from Seimitsu. Customer shall be listed on the applicable Order Form and the Cover Page to these Terms.
12.6 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
12.7 “Documentation” means Seimitsu’ user manuals, handbooks, and guides relating to the Products or Services provided by Seimitsu to Customer either electronically or in hard copy form relating to the Products or Services.
12.8 “Early Termination Fee” means a sum equal to: (i) the remaining payments due and payable under the Agreement; and (ii) any offboarding fees charged by third parties or otherwise resulting from termination of the Services in whole or part.
12.9 “Effective Date” means the date the first Cover Page between the Parties is executed by Seimitsu.
12.10 “Expenses” means expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations.
12.11 “Feedback” means any communications or materials Customer relays or sends to Seimitsu by mail, email, telephone, or otherwise, suggesting or recommending changes to the Products or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
12.12 “Fees” means the money to be paid by Customer to Seimitsu in exchange for Seimitsu provision of the Products and Services specified in an Order Form.
12.13 “Indemnified PARTY” or “Indemnified Parties” means collectively the Party being indemnified under this Agreement and its officers, directors, employees, agents, affiliates, successors and permitted assigns.
12.14 “Losses” means collectively losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by Indemnified Parties.
12.15 “CONTRACT Term” means the period beginning on the Effective Date and continuing in full force and effect until the last Order Form between the Parties has terminated or expired, whichever is later.
12.16 “Order Form” means a document from Seimitsu setting out the Fees, and specific Products or Services, or both, to be supplied to the Customer.
12.17 “Party” and collectively the “Parties”’ means Seimitsu and Customer together.
12.18 “Payment Date” is the date upon which Fees for Products, Services, or both are due and payable.
12.19 “PHI” means Personal Health Information as such term is defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations, as amended.
12.20 “Products” means the equipment or other products, more fully described in an Order Form, provided by Seimitsu under this Agreement in exchange for Customer paying the Fees hereunder.
12.21 “Services” means the services such as consulting, implementation, software-as-a-service offerings, support, or other services listed in an Order Form, provided by Seimitsu under this Agreement in exchange for Customer paying the Fees hereunder.
12.22 “Seimitsu” means Seimitsu, Inc., a Georgia Corporation, with a principal office located at 1523 Bull St, Savannah GA 31401.
12.23 These “Terms” means these master products and services terms and conditions that govern the relationship between the Parties.
12.24 “Third Party Products” means those products or services that are owned by a third party and incorporated into, or sold in connection with the Products or Services, or both.