ALL sales (Online, Purchase Order, Emailed Orders, Orders over the phone) are subject to these TERMS AND CONDITIONS (as may be amended, modified or supplemented from time to time, the “Terms and Conditions”), Ozspeed, Inc. d/b/a ATS Machine Safety Solutions (“ATS Machine Safety Solutions”) agrees to sell or provide such goods, products, parts, accessories and/or services, including any applicable documentation with respect thereto (collectively, “Goods”), as are identified and/or described in ATS Machine Safety Solutions’ sales quotations, sales order acknowledgements, service agreements, change orders and/or invoices (collectively, “Order Documentation”) issued by ATS Machine Safety Solutions to its customer identified in any such Order Documentation (the “Customer”).
- Agreement.
1.1. These Terms and Conditions shall become binding upon ATS Machine Safety Solutions and the Customer upon the earlier of (i) ATS Machine Safety Solutions’ issuance of a sales order acknowledgement to Customer or (ii) ATS Machine Safety Solutions’ shipment of Goods to Customer, whether in whole or in part.
1.2. The Terms and Conditions are expressly limited to the terms and conditions set forth herein unless expressly modified with reference hereto in any of the Order Documentation. All terms set forth on Customer’s purchase order or otherwise proposed by Customer are hereby objected to and shall be void unless expressly agreed to in a writing signed by ATS Machine Safety Solutions. These Terms and Conditions and the Order Documentation into which the Terms and Conditions have been incorporated contain the entire agreement of the parties (“Agreement”) and all proposals, negotiations, representations or agreements made or entered prior to or contemporaneously herewith, whether oral or in writing, are expressly superseded.
- Prices, Taxes and Clearances.
2.1. All prices for ATS Machine Safety Solutions’ Goods are set forth in the applicable Order Documentation. Prices for Goods are FOB ATS Machine Safety Solutions’ plant of manufacture unless otherwise specified in writing by the parties. Prices are stated in United States Dollars and payment shall be made in United States currency. Prices do not include sales, use, excise or any similar taxes. Any tax or other governmental charge upon the production, sale, shipment, or use of the Goods which ATS Machine Safety Solutions is required to pay or collect from Customer shall be paid by Customer to ATS Machine Safety Solutions unless Customer furnishes ATS Machine Safety Solutions with a tax exemption certificate acceptable to the applicable taxing authority. Customer shall be responsible for obtaining any necessary governmental clearances, including any import and/or foreign exchange license, which may be required by the federal, any state or any foreign government, or any subdivision or agency of any thereof. Prices specified are for standard packaging only. Any special packaging requested by the Customer, including special protection for export shipment, will be at the Customer’s expense.
- Payment.
3.1. Customers with established credit may purchase for immediate processing of orders. Customers not previously established with credit may apply for open-account status. Orders received without suitable credit information must be prepaid in full prior to shipment. MasterCard, Visa and American Express cards are accepted. Payment of the purchase price for the Goods (including any applicable sales or use tax) is, unless otherwise indicated, due and payable thirty (30) days from the date of invoice with respect thereto. Thereafter, the unpaid balance of the total purchase price shall bear interest at the rate of one and one-half percent (1.5%) per month until paid in full. Minimum order size is $25.00. Orders received for less than $25.00 will be subject to a service charge to bring total order to $25.00.
3.2. Invoices shall be dated as of the date of shipment of Goods. However, if, in the opinion of ATS Machine Safety Solutions, the financial condition of Customer becomes impaired or unsatisfactory prior to payment in full with respect to the amounts due ATS Machine Safety Solutions under the Agreement, Customer shall, if required by ATS Machine Safety Solutions to do so, make payment in 10 days, make cash payments or furnish satisfactory security before any further deliveries are made. Failure or refusal by Customer to comply with the requirements that ATS Machine Safety Solutions may impose upon Customer in accordance with the foregoing shall entitle ATS Machine Safety Solutions to suspend deliveries of Goods under the Agreement during such failure or refusal or, alternatively, to terminate the Agreement. Any such action by ATS Machine Safety Solutions shall not in any way prejudice ATS Machine Safety Solutions’ claim for damages or Customer’s obligations to pay for Goods already delivered.
- Risk of Loss, Title and Shipment.
4.1. Risk of damage, destruction or loss and title to the Goods passes to Customer upon delivery to the designated carrier, and upon such delivery no damage, destruction or loss of the Goods shall release Customer from its obligations and liabilities to ATS Machine Safety Solutions under the Agreement. ATS Machine Safety Solutions will ship in accordance with instructions supplied by Customer, but if Customer fails to furnish such instructions, ATS Machine Safety Solutions will select what is, in its opinion, the most satisfactory manner of shipping and will designate the carrier to be used for the shipment. Unless otherwise mutually agreed, shipping dates are approximate and based upon prompt receipt of all necessary information. Any prepayment by ATS Machine Safety Solutions of freight charges shall be for the account of Customer and shall be paid by Customer with the total purchase price for the Goods.
- Force Majeure.
5.1. ATS Machine Safety Solutions shall not be liable for any delay in delivery of Goods, or failure to deliver Goods, due, directly or indirectly, to any cause beyond ATS Machine Safety Solutions’ reasonable control, including, but not limited to, acts of God, fires, floods, strikes or other labor disputes, accidents, machinery or equipment breakdowns, acts of sabotage or terrorism, riots, wars, inability to obtain raw materials, components, fuel or supplies, delay in transportation or lack of transportation facilities, or any restrictions or delays imposed by or caused by policies of any federal, state, foreign or other governmental legislation, rules, regulations or orders. In the event of any such delay or failure, the Agreement shall not terminate but the required date of shipment of the Goods shall be extended for a period equal to the time lost because of any such failure or delay.
- Cancellation.
6.1. Customer may only cancel an order with respect to Goods under the Order Documentation upon ATS Machine Safety Solutions’ consent and upon the payment to ATS Machine Safety Solutions of (i) the full purchase price for all Goods ordered by Customer and ready for delivery, and (ii) with respect to all other Goods ordered by Customer proposed under such cancelled order, the lesser of (x) the purchase price for such Goods and (y) a reasonable profit with respect to such Goods together with all costs incurred by ATS Machine Safety Solutions in connection with producing such Goods, including, without limitation, reasonable overhead plus the costs incurred by ATS Machine Safety Solutions with respect to all special dies, tools, patterns and fixtures, labor and other expenses in connection with ATS Machine Safety Solutions’ performance under such order, all such costs to be determined in accordance with generally accepted accounting principles. Solely for the purposes of this Section and only with respect to those terminations caused by an increase in the purchase price of Goods to be purchased pursuant to the Order Documentation, the purchase price for such Goods to be used in calculating termination charges payable under the Agreement shall equal the purchase price in effect immediately prior to the proposed price change. Upon Customer’s request and after the payment by Customer of all termination charges to be paid hereunder, ATS Machine Safety Solutions shall make available for shipment to Customer (which shipment shall be subject to these Terms and Conditions) all completed and partially completed Goods produced pursuant to the Order Documentation; provided, however, ATS Machine Safety Solutions may, at its sole option, accept any cancellation on a no charge basis, retaining in its possession any materials acquired for the processing of the canceled order.
- Expiration.
7.1. This Agreement shall expire upon the completion of all orders under the Order Documentation. Notwithstanding the foregoing, in the event of expiration of this Agreement, Sections 3, 5, 8, 9, 10, 13, 14, 15, 16 and 18 of this Agreement shall survive.
- Inspection and Acceptance.
8.1. Upon delivery of the Goods to Customer’s designated shipping destination, Customer shall promptly inspect the Goods for conformance to the Agreement. Any claim for shortage must be made in writing and received by ATS Machine Safety Solutions within 10 days after Customer’s receipt of the Goods along with documentation supporting the claim. All other claims, including claims for alleged defective products, to the extent they are not disclaimed by ATS Machine Safety Solutions under this Agreement, must be made by Customer in writing and received by ATS Machine Safety Solutions within the applicable time specified in Section 8.1(ii) below. All claims not made in writing, whether received by ATS Machine Safety Solutions within the applicable time specified in Section 8.1(ii) below, shall be deemed waived. Returned merchandise must be authorized by ATS Machine Safety Solutions in advance, at which time a Return Materials Authorization (RMA) number will be issued. No returned merchandise will be accepted unless accompanied by an RMA number, with the RMA number clearly identified on the outside of the shipping container. Material returned without an RMA number will be refused by our shipping department. All return shipments must be prepaid. The minimum restocking charge will be 25% for any material not found to be defective. Such merchandise must be in original condition and unused to qualify for credit. Custom, special or built to order items may not qualify for credit; however, items may be returned for modification, which may incur an additional cost. No returns for credit will be considered more than 30 days from date of shipment.
- Limited Warranties.
9.1. (i) Subject to Section 8.1(ii) below, ATS Machine Safety Solutions makes to Customer the following sole and exclusive warranties with respect to Goods:
(a) with respect to Goods that are manufactured based on Customer specifications, at the time of shipment by ATS Machine Safety Solutions, the Goods sold under the Agreement that are manufactured by ATS Machine Safety Solutions pursuant to such specifications conform to such specifications set forth in the applicable Order Documentation; and
(b) at the time of shipment by ATS Machine Safety Solutions, the Goods sold under the Agreement that are manufactured by ATS Machine Safety Solutions are free from defects in material and workmanship.
(c) ATS Machine Safety Solutions’ warranty is for a period of 1 year, and begins from date of shipment from ATS Machine Safety Solutions to the original purchaser.
This warranty does not include accessories, parts or equipment sold hereunder that are manufactured by someone other than ATS Machine Safety Solutions.
(ii) Every claim by Customer against ATS Machine Safety Solutions for breach of warranty with respect to the Goods shall be deemed waived by Customer unless written notice thereof is received by ATS Machine Safety Solutions within fifteen (15) days after discovery.
9.2. If ATS Machine Safety Solutions breaches either of the warranties set forth in Section 8.1(i) above, and written notice thereof is received by ATS Machine Safety Solutions from Customer within the applicable time period specified in Section 8.1(ii) above, Customer’s sole and exclusive remedy and ATS Machine Safety Solutions’ only obligation shall be, as ATS Machine Safety Solutions in its sole and exclusive judgment shall determine, the replacement of the nonconforming Goods, or an adjustment to the purchase price for the nonconforming Goods or the repair of the nonconforming Goods. All transportation charges related to replacement or repair of Goods shipped to ATS Machine Safety Solutions’ plant or facility (or other place at ATS Machine Safety Solutions’ direction) shall be prepaid by Customer. ATS Machine Safety Solutions shall be responsible for reasonable transportation charges back to Customer for Goods that have been replaced or repaired by ATS Machine Safety Solutions. Any replacement Goods or repaired Goods shall be subject to these Terms and Conditions.
9.3. THE EXPRESS WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES APPLICABLE TO THE SALE OF GOODS BY ATS MACHINE SAFETY SOLUTIONS TO CUSTOMER PURSUANT TO THE AGREEMENT, AND THEY EXCLUDE ALL OTHER EXPRESS, ORAL OR WRITTEN WARRANTIES, AS WELL AS ANY WARRANTIES IMPLIED BY LAW WITH RESPECT TO THE GOODS, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE, NOTWITHSTANDING ANY DISCLOSURE TO ATS MACHINE SAFETY SOLUTIONS OF THE INTENDED USE OF THE GOODS.
9.4. ATS Machine Safety Solutions’ warranties under Section 8.1(i) are void if repairs or modifications of the Goods are made by anyone other than ATS Machine Safety Solutions. Without limitation of the foregoing, ATS Machine Safety Solutions assumes no responsibility for and shall have no obligations to Customer because defects in any materials furnished by, or any faulty workmanship provided by, any party other than ATS Machine Safety Solutions.
9.5. ATS Machine Safety Solutions reserves the right to improve its products through changes in design or material without being obligated to incorporate such changes into products of prior manufacture. Customer cannot rely on any such changes as proof of insufficiency or inadequacy of prior designs of the Goods or material contained in the Goods.
9.6. If Customer grants to an end user of the Goods (or any other customer of Customer) any warranty that is greater in scope or time than the warranty and claims period stated herein, ATS Machine Safety Solutions shall not be liable beyond the scope of the limited warranty, the claim period, the damages and the remedies provided for under this Section.
9.7. Solely to the extent transferable, ATS Machine Safety Solutions assigns and transfers to Customer the original manufacturer’s warranty on Goods sold hereunder that are not manufactured by ATS Machine Safety Solutions.
- LIMITATION OF LIABILITY.
10.1. ATS MACHINE SAFETY SOLUTIONS WILL NOT BE LIABLE FOR AND IS NOT (AND SHALL NOT BE) RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF LIFE, PERSONAL INJURY, LOSS OF INCOME (BUSINESS OR PERSONAL), DAMAGE OR LOSS (INCLUDING ANY INCREASED COSTS SUFFERED OR INCURRED BY CUSTOMER) RESULTING FROM CUSTOMER’S INABILITY TO USE THE GOODS OR CUSTOMER’S (OR ITS CUSTOMER’S) INABILITY TO USE ANY EQUIPMENT, OR ANY INCREASED OPERATING COSTS OR LOSS OF PRODUCTION OR OTHER COSTS INCURRED BY CUSTOMER (OR ANY CUSTOMER OF CUSTOMER) IN REMOVING, REINSTATING OR REPAIRING ALLEGEDLY DEFECTIVE OR NONCONFORMING GOODS, DELAY DAMAGES OR ANY OTHER SUCH DAMAGES, WHETHER ARISING FROM CAUSES SIMILAR TO OR DISSIMILAR TO THOSE ENUMERATED (COLLECTIVELY, “SPECIAL DAMAGES”).
10.2. ATS MACHINE SAFETY SOLUTIONS DISCLAIMS ANY LIABILITY FOR FAILURE OF PERFORMANCE OR MALFUNCTION OF THE GOODS SUPPLIED BY ATS MACHINE SAFETY SOLUTIONS PURSUANT TO THE AGREEMENT WHICH IN ATS MACHINE SAFETY SOLUTIONS’ OPINION IS THE DIRECT OR INDIRECT RESULT OF ANY ACTION OR INACTION BY CUSTOMER OR ANY PARTY OTHER THAN ATS MACHINE SAFETY SOLUTIONS (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMER OF CUSTOMER OR OTHER USER OF THE GOODS) INCLUDING, WITHOUT LIMITATION, ABUSE, NEGLECT, ACCIDENT, IMPROPER INSTALLATION, MODIFICATIONS OR REPAIRS NOT MADE BY ATS MACHINE SAFETY SOLUTIONS, INCORRECT OR INAPPROPRIATE USE OR APPLICATION, FAILURE TO MAINTAIN, UNSUITABILITY OR INCOMPATIBILITY WITH OTHER PRODUCTS OR EQUIPMENT NOT SUPPLIED BY ATS MACHINE SAFETY SOLUTIONS, OR THE PRESENCE OF NON-RECOMMENDED FLUIDS OR OTHER CONTAMINANTS.
10.3. NOTWITHSTANDING ANY PROVISION HEREOF WHICH MAY BE OR APPEAR TO BE TO THE CONTRARY, IN NO EVENT WHATSOEVER SHALL ATS MACHINE SAFETY SOLUTIONS’ LIABILITY IN RESPECT TO ANY CLAIM OR ACTION OF ANY KIND ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, USE OR REPAIR OF THE GOODS OR COMPONENT PARTS THEREOF OR THE SERVICES RENDERED BY ATS MACHINE SAFETY SOLUTIONS PURSUANT TO THE AGREEMENT, OR ANY BREACH BY ATS MACHINE SAFETY SOLUTIONS OF ANY TERM OF THE AGREEMENT, EXCEED THE PRICE FOR THE GOODS OR COMPONENT PART THEREOF OR SERVICE WHICH GIVES RISE TO SUCH CLAIM OR ACTION. CUSTOMER ASSUMES ALL OTHER LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE USE OF THE GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY “SPECIAL DAMAGES” OR ANY LOSS, DAMAGE OR INJURY TO CUSTOMER (OR TO CUSTOMER’S EMPLOYEES OR PROPERTY OR TO THE EMPLOYEES OR PROPERTY OF ANY CUSTOMER OF CUSTOMER OR OTHER USER OF THE GOODS) DUE TO THE ACTS OR OMISSIONS OF CUSTOMER, ITS AGENTS, EMPLOYEES OR CUSTOMERS, IN THE INSTALLATION, MAINTENANCE, USE OR OPERATION OF SUCH GOODS.
10.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, INCLUDING ANY INDEMNIFICATION OBLIGATION, ATS MACHINE SAFETY SOLUTIONS SHALL HAVE NO OBLIGATION TO CUSTOMER FOR ANY LIABILITY ARISING FROM (A) ANY PERSONNEL (INCLUDING ANY 3RD PARTY CONTRACTOR) OF CUSTOMER (I) PLACING ANY BODY PART IN MACHINERY, (II) OPERATING MACHINERY WITHOUT PROPER EYE, FACE OR BODY PROTECTION, (III) OPERATING OF MACHINERY WITHOUT APPROPRIATE TRAINING, (IV) OPERATING OF MACHINERY THAT HAS NOT BEEN MAINTAINED IN A MANNER CONSISTENT WITH INDUSTRY STANDARDS, (V) OPERATING MACHINERY THAT HAS BEEN TAMPERED, REWIRED OR BYPASSED BY CUSTOMER OR ANY THIRD PARTY OR (B) A MECHANICAL DEFECT, MALFUNCTION OR FAILURE IN MACHINERY OR COMPONENT THEREOF OR OTHERWISE RESULTING FROM CUSTOMER’S BREACH OF THE AGREEMENT.
10.5. THE PARTIES ACKNOWLEDGE THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT IS BASED ON, AND THE FEES PAID UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE. THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
- Compliance with Law.
11.1. ATS Machine Safety Solutions represents that Goods delivered by ATS Machine Safety Solutions pursuant to the Agreement will comply with the Fair Labor Standards Act of 1938, as amended.
- Federal Contract Requirements.
12.1. In the event the Agreement is subject to any of the following requirements related to federal contracts, ATS Machine Safety Solutions represents that its performance hereunder is in compliance with: (i) Executive Order 11246, including section 202; (ii) The Vietnam Era Veterans Readjustment Assistance Act of 1974; (iii) applicable worker’s compensation requirements; and (iv) The Rehabilitation Act of 1973.
- Indemnification; Intellectual Property.
13.1. Notwithstanding any provision contained herein to the contrary, Customer agrees to indemnify and hold ATS Machine Safety Solutions harmless from any and all damages, costs and expenses relating to any claim arising from the Goods on the Customer’s premises including but not limited to (a) any person whether employed by customer or otherwise, intentionally or unintentionally (i) placing any body part in machinery, (ii) operating machinery without proper eye, face or body protection, (iii) operating of machinery without appropriate training, (iv) operating of machinery that has not been maintained, or is not operated, in a manner consistent with, OSHA, ANSI and other applicable industry standards, (v) operating machinery that has been tampered, rewired or bypassed by Customer or any third party or (b) a mechanical defect, malfunction or failure in machinery or component thereof or otherwise resulting from Customer’s breach of the Agreement.
13.2. In the event any Goods to be furnished under the Agreement are to be made in accordance with drawings, samples or manufacturing specifications designated by Customer, Customer agrees to hold ATS Machine Safety Solutions harmless from any and all damages, costs and expenses relating to any claim arising from the design, manufacture or use of such Goods or arising from a claim that such Goods furnished to Customer by ATS Machine Safety Solutions, or the use thereof, infringes upon any intellectual property rights, including, without limitation, Letters Patent or trade secrets, foreign or domestic, and Customer agrees at its own expense to undertake the defense of any suit against ATS Machine Safety Solutions brought upon such claim or claims. In the event, any Goods to be furnished under the Agreement are solely the design of ATS Machine Safety Solutions, ATS Machine Safety Solutions agrees (subject to the last sentence of this Section) to hold harmless Customer and its customers against damage awarded by a court of final jurisdiction in any suit or suits for the infringement of any intellectual property rights or the violation of any trade secrets because of the sale or use of such Goods furnished by ATS Machine Safety Solutions under the Agreement. Customer agrees to notify ATS Machine Safety Solutions as soon as practicable of any charge or suit alleging any such infringement or violation, and agrees that the foregoing agreement by ATS Machine Safety Solutions to indemnify shall not apply unless ATS Machine Safety Solutions shall have been so notified and given the opportunity to take over the defense thereof, and further, such agreement to indemnify shall not apply if (i) the claimed infringement is settled without the consent of ATS Machine Safety Solutions unless required by a final unappealable decree of a court of competent jurisdiction, or (ii) the infringement or violation results from the use of any Goods delivered pursuant to the Agreement in combination with a product not delivered thereunder where such infringement or violation would not have occurred from the use of the Goods alone delivered pursuant to the Agreement. Notwithstanding the foregoing, any obligation on ATS Machine Safety Solutions’ part to indemnify Customer shall be limited solely in amount as provided for in Section 9 above.
13.3. The Parties agree that any work performed hereunder shall not be considered a “Work for Hire”, and that for purposes of 17 U.S. Code Section 201(b) ATS Machine Safety Solutions owns all rights comprised in any copyright obtained or obtainable by ATS Machine Safety Solutions; provided that this Section 12.2 shall not give ATS Machine Safety Solutions and rights with respect to pre-existing works owned and provided by Customer to ATS Machine Safety Solutions pursuant to this Agreement.
13.4. If the work product under this Agreement contains materials such as software, technology, know-how, algorithms, procedures, techniques, solutions, work-arounds or any other such materials which ATS Machine Safety Solutions or others previously developed, patented, or copyrighted prior to the date of this Agreement and which were not developed as a result of providing Goods pursuant to this Agreement, ATS Machine Safety Solutions hereby grants Customer an irrevocable, perpetual, worldwide royalty-free license to use, copy, modify, distribute, display, perform, import, manufacture, have made, and sublicense such materials for the purpose of exercising Customer’s rights, title and interest in the work product.
- Proprietary Rights Reservations.
14.1. All information of every kind and nature (except for such information as may be established to be in the public domain or which Customer may establish to be the property of Customer) related to the design, engineering, production, process, method, device, technique, formulas, plans, diagrams, drawings, compilations, patterns, tools, dies or fixtures in connection with or related to any component, device, material or other goods, products or services manufactured, provided or delivered pursuant to the Agreement are proprietary in favor of ATS Machine Safety Solutions. Such information has been developed at great expense to ATS Machine Safety Solutions and may contain trade secrets of ATS Machine Safety Solutions. Customer shall not reproduce, disclose, distribute or utilize same without ATS Machine Safety Solutions’ prior express written consent (which consent may be granted or denied in ATS Machine Safety Solutions’ sole discretion) or as required by judicial or governmental action and Customer shall exercise reasonable care to hold such information in confidence.
- Uniform Commercial Code; ATS Machine Safety Solutions Security Interest.
15.1. Until the entire purchase price for the Goods (as set forth in invoices from time to time issued to Customer by ATS Machine Safety Solutions) has been fully paid, ATS Machine Safety Solutions shall have, to secure payment thereof, a continuing senior purchase money security interest in the Goods and proceeds therefrom. Upon a default under these Terms and Conditions, ATS Machine Safety Solutions shall have all the rights and remedies of a secured party under the Uniform Commercial Code as from time to time in effect in the State of North Carolina
- Confidentiality; Non-Solicitation.
16.1. The Parties acknowledge that each may disclose (the “Disclosing Party”) certain valuable confidential and proprietary information to the other (the “Recipient Party”). “Confidential Information” means all written (in whatever form or media embodied) or verbal information provided by the Disclosing Party to the Recipient Party concerning the Disclosing Party or its business, products or services that is not generally known to the public including information relating to the Disclosing Party’s business affairs, customers, vendors, trade secrets, prices, products, services, accounting, marketing, finances, business systems and computer programs, and any other information designated as such by a Disclosing Party at the time of disclosure. All Confidential Information is the sole and exclusive property of the Disclosing Party. The restrictions set forth herein shall apply during the Term and after the termination of this Agreement.
16.2. Confidential Information shall not consist of information that:
(i) can be shown through written documentation to have been known by Recipient Party without restriction on disclosure or use prior to disclosure by Disclosing Party;
(ii) is or becomes information within the public domain (through no fault of Recipient Party);
(iii) is independently developed by Recipient Party without reference to or knowledge of Confidential Information of the Disclosing Party;
(iv) is rightfully received from third parties not subject to an obligation of confidence to the Disclosing Party; or
(v) the release of which is pre-approved by Disclosing Party in writing.
16.3. The Recipient Party shall not use, reproduce or disclose, directly or indirectly, to any third party at any time any Confidential Information of the Disclosing Party. Recipient Party shall hold all Confidential Information of the Disclosing Party in strict confidence. Recipient Party shall not use such Confidential Information in any manner, except in connection with performance under the Agreement or other written agreements between ATS Machine Safety Solutions and Customer relating to such Confidential Information.
16.4. Recipient Party agrees that Confidential Information of Disclosing Party will not be disclosed or made available to any person for any reason whatsoever, other than on a “need to know basis” and then only: (i) to Recipient Party’s employees and subcontractors and professional advisors who are subject to confidentiality restrictions with respect to Confidential Information; (ii) as required by applicable law; or (iii) as otherwise expressly permitted by the Agreement. Prior to any disclosure of Disclosing Party’s Confidential Information as required by applicable law, Recipient Party shall (1) notify Disclosing Party of any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated, and (2) cooperate with Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.
16.5. Recipient Party acknowledges that any remedy at law for the breach or threatened breach of this Section may be inadequate to fully and properly protect Disclosing Party, and therefore, the Parties agree that Disclosing Party shall be entitled to injunctive relief in addition to other available remedies, provided however, that nothing contained herein shall be construed as prohibiting Disclosing Party from pursing any other remedies available in law or in equity for such breach or threatened breach.
16.6. Upon the termination or expiration of the Agreement, or at any time upon Disclosing Party’s request, Recipient Party shall return immediately or destroy (at Disclosing Party’s sole discretion) all Confidential Information of Disclosing Party in the possession of Recipient Party or in the possession of any third party over which Recipient Party has or may exercise control.
- Default.
17.1. The occurrence of any of the following events shall constitute Customer’s default under the Agreement: (i) Customer’s failure to make timely payment of any sum owing to ATS Machine Safety Solutions under the Agreement; (ii) institution of any proceedings by or against Customer under any bankruptcy, insolvency or similar law; (iii) appointment or application for a receiver for Customer; (iv) an assignment by Customer for the benefit of creditors; (v) failure of Customer to furnish ATS Machine Safety Solutions, upon ATS Machine Safety Solutions request, with a written representation reaffirming Customer’s solvency (it being understood that the Agreement constitutes a representation by Customer that it is solvent); or (vi) ATS Machine Safety Solutions deems itself insecure with respect to performance by Customer under the Agreement.
17.2. Upon Customer’s default, hereunder, ATS Machine Safety Solutions may, upon written notice to Customer, cancel any remaining obligations of ATS Machine Safety Solutions under the Agreement, in which case, at ATS Machine Safety Solutions’ option:
(i) Customer shall pay for all Goods delivered and for all Goods completed or in process pursuant to the Agreement;
(ii) With respect to any Goods for which ATS Machine Safety Solutions has not received full payment, ATS Machine Safety Solutions may stop delivery, retake (or retain) possession of such Goods wherever located (all without notice, demand or legal process) and retain, lease or resell (at public or private auction or otherwise) such Goods without accounting to Customer and any payments received by ATS Machine Safety Solutions from Customer may be retained as liquidated damages;
(iii) ATS Machine Safety Solutions may declare any outstanding balance immediately due and owing and collect same from Customer without further notice or demand, together with interest at the maximum rate permitted by law; and/or
(iv) Refuse to deliver any Goods except on a cash basis.
- Miscellaneous.
18.1. No waiver by ATS Machine Safety Solutions of any default shall be deemed a waiver of any subsequent default unless the same shall be signed in writing by ATS Machine Safety Solutions.
18.2. If any provision of the Agreement is held to be invalid under applicable law, such invalidity shall not affect the remaining provisions of the Agreement.
18.3. The provisions of the Agreement shall be binding upon and inure to the benefit of the respective representatives, successors and assigns of the parties hereto, including, without limitation, a debtor-in-possession; provided, however, that no interest herein may be assigned by Customer without the prior written consent of ATS Machine Safety Solutions.
18.4. No waiver, alteration or modification of the terms and conditions hereof shall be valid or binding upon ATS Machine Safety Solutions unless made in writing and signed by ATS Machine Safety Solutions.
18.5. This Agreement shall, for all purposes, be governed by and construed under the laws of the State of North Carolina as applied to agreements between North Carolina residents entered into and to be performed entirely within the State of North Carolina. Without limitation of the foregoing, Customer irrevocably agrees that all actions or proceedings in any way, manner or respect arising out of or from, or relating to, the Agreement shall be litigated only in North Carolina state courts having situs in Jackson County, North Carolina or in the United States District Court for the District of North Carolina. Customer consents and submits to the jurisdiction of any local, state or federal court located within said county and state, and waives any and all objections to jurisdiction that Customer may have under the laws of the State of North Carolina or the United States, including any claim or objection that any such court is an inconvenient forum. Further, Customer hereby waives, to the fullest extent permitted by law, all rights to have any dispute or claim arising under the Agreement litigated before a jury.