PURCHASE AND SALE. Customer hereby agrees to buy, and QCTV hereby agrees to sell to Customer the Equipment set forth and described on the executed proposal the price also set forth on said proposal (“Equipment Purchase Price”), together with the materials and services described therein (“System”).
PAYMENT. Payments of the Equipment Purchase Price will be made to QCTV at its current mailing address, or at any other place designated by QCTV. Upon acceptance and execution of the proposal, Customer agrees to make payments in accordance with the terms specified. QCTV agrees to provide customer with an invoice for each payment as it becomes due and payable.
Any invoice not paid within 30 days or the due date per the Invoice, whichever is first, shall accrue interest at the rate of 18% per annum or 1.5% per month. In addition, in the event it becomes necessary to engage legal counsel to collect any amounts due but not timely paid, including interest, costs of collection (attorneys’ fees) will be added to the balance owed.
PROVISIONS APPLICABLE TO EQUIPMENT SALE
APPROVED LOCATION. The Approved Location(s) are as specified in system design drawings, or the proposal. The parties may add, delete, or change the Approved Location(s) at any time subject to costing adjustments made necessary by such additions, deletions or changes, signed by QCTV.
SELECTION OF APPROVED LOCATION(S). QCTV and Customer hereby acknowledge that the Approved Location(s) have been and will be selected and proposed by Customer and mutually agreed to by Customer and QCTV based upon Customer’s own independent judgment of its needs and objectives. Neither party provides any assurance with respect to the suitability or profitability of the use of the System in Customer’s business or the selection of the Approved Location.
ANCILLARY SERVICES. Customer shall be solely responsible for arranging for the provision of telecommunication services provided by the local telephone company, interchange carriers, and any other telecommunications company, which may be necessary for the Customer to utilize the System at the Approved Location(s). In addition, Customer shall be solely responsible for insuring the provision of adequate 110 volt power circuits for the System, including backup (uninterruptible power supply, if desired) power.
INSTALLATION. QCTV is responsible for staging, configuration, installation, and testing of the System.
ACCEPTANCE. QCTV’s technician is responsible for the initial acceptance of the System at the time of installation. QCTV’s technician will demonstrate to Customer the successful operation of all material functions of the installed System prior to certifying in writing to Customer that the installation has been completed. In the event the Customer contests that all material functions of the installed System are operating successfully, or the certification of the installation, Customer shall provide written notice of such claimed defects to QCTV within thirty (30) days following QCTV’s certification that the System operates successfully. The parties shall thereafter diligently resolve any such disputes. The System will be considered to have received final acceptance by the Customer thirty (30) days following the completed installation unless Customer provides written notice to QCTV specifying in reasonable detail the claimed defects.
REPAIR OF DEFECTS. QCTV is responsible for repairing any operational deficiencies believed to be caused by the System at its sole cost, or explaining to the Customer’s satisfaction that perceived deficiencies or operational problems are not caused by the System, for any defect brought to QCTV’s attention within 30 days of installation. Customer may be eligible to enter into a Service Agreement for extended warranty coverage on part, equipment of labor, past manufacturer’s flow through warranties, if any.
SERVICE. Customer shall reimburse QCTV at $125.00/hour plus materials for all work of QCTV spent investigating an error or malfunction that QCTV reasonably determines to have been caused by a modification to the System that was neither made nor authorized by QCTV, unless the error or malfunction was not caused by customer’s negligence, recklessness or willful misconduct.
CUSTOMER SUPPORT. QCTV shall, during the hours of 8:00 A.M. to 5:00 P.M., CENTRAL TIME ZONE on weekdays (exclusive of holidays), make reasonable telephone support available to Customer’s Project Leader and other personnel of Customer who have been trained by QCTV in the use of the System. QCTV reserves the right to charge for Customer Support at its standard rates.
INSTALLATION, DELIVERY AND TITLE
Title to the Equipment and risk of loss shall pass to Customer on Acceptance and delivery, and only in the event of full payment for the system or upon signed receipt for delivery of equipment that cannot be placed in secure storage location.
DELIVERY OF EQUIPMENT. Unless otherwise determined by QCTV, QCTV will deliver all Equipment to Customer’s facility or principal place of business. QCTV reserves the right to make partial deliveries and to ship the Equipment as it becomes available. Delivery dates are approximate. Customer shall provide a mutually agreeable installation and operations environment suitable for the equipment.
CUSTOMER RESPONSIBILITIES. Customer shall promptly perform all its responsibilities as agreed in project correspondence. Customer shall also furnish to QCTV, free of charge for the period of time required for installation of the System, (1) access to the location in which the Equipment is to be placed during normal business hours, and (2) the time and attention of a management-level employee (hereinafter the Project Leader) knowledgeable in aspects of Customer’s business and operations.
CONFIDENTIALITY
CONFIDENTIAL INFORMATION. For purposes of this Agreement, “Confidential Information” shall mean all confidential and proprietary information disclosed by one party to the other party, including (i) information disclosed in writing and marked “confidential”, (ii) information disclosed orally and identified as confidential at the time of disclosure, and (iii) information which the receiving party knows or has reason to know is confidential, trade secret, or proprietary information of the disclosing party, and (iv) the terms and conditions of this Agreement. Customer and QCTV will maintain each other’s Confidential Information in confidence, will not use such Confidential Information other than in connection with this Agreement, and will not disclose such Confidential Information to any persons other than their employees with a need to know except: (i) to the extent necessary to comply with law of the valid order of a court or governmental agency or authority in which case the disclosing party will so notify the other in writing as promptly as practicable (and, if possible, prior to making any disclosure) and will seek confidential treatment of such terms and conditions; (ii) as part of normal reporting or review procedure to parent companies, auditors and attorneys; provided, that such parent company, auditors and attorneys are bound by substantially similar obligations; and (iii) in order to enforce their respective rights pursuant to this Agreement in a legal proceeding. The provisions of this Section shall in no event apply to information that (i) is in or enters the public domain without breach of this Agreement; (ii) is lawfully received from a third party without restriction on disclosure and without breach of nondisclosure obligation; or (iii) is developed independently.
WARRANTIES AND LIMITATION OF LIABILITY
SERVICE WARRANTY. QCTV warrants that it will warrant the equipment supplied and its services provided for herein in a good and workmanlike manner. As QCTV’s sole responsibility and Customer’s exclusive remedy in the event of any equipment failure within the 12 months of acceptance, QCTV shall make its best efforts to remedy any resulting discrepancies or defects which are required to be remedied by QCTV as provided for herein. Any claim based on the foregoing warranty must be submitted in writing in accordance with QCTV’s standard procedures within ninety (90) days after delivery. Except as expressly set forth in this Agreement, QCTV makes no warranty or representation, express or implied, as to any matter whatsoever, including, without limitation, its services, the System, the design or condition of the equipment or any programming, or any output based on use of the System. QCTV specifically disclaims, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
SYSTEM WARRANTY. QCTV warrants, for Customer’s sole benefit, that the System, when delivered, properly installed, and used in accordance with QCTV’s instructions, will conform to QCTV’s most current version of the specifications for the System in all material respects. Any claim based on the foregoing warranty must be submitted in writing in accordance with QCTV’s standard procedures within ninety (90) days after delivery and acceptance of the System. Such warranty shall not apply if the System has been modified by Customer.
PARTY TO WARRANTIES AND REPRESENTATIONS. Neither party shall have the authority to and shall not make any representations or warranties to others on behalf of the other party.
LIMITATION OF WARRANTY. Except as set forth herein or another written agreement signed by a duly appointed officer of such party, neither party makes any warranty or representation, express or implied, with respect to any matter whatsoever, including, without limitation, the application programs, the system, or any output based on use of the system, and both Customer and QCTV specifically disclaim, without limitation, any implied warranty of merchantability, fitness for a particular purpose
