Services. Real Network Solutions, Inc., an Illinois corporation d/b/a Realnets (“Provider”) hereby offers to provide the services (“Services”) described in any purchase order, quotation, acknowledgment or oral agreement (“Order”) to the client listed on such Order (“Client”). Any agreement by Provider to provide Services is expressly contingent upon Client’s consent to the terms and conditions described herein. By accepting any Services, Client agrees to these terms and conditions. Any different or additional terms proposed by Client in any Order or otherwise are hereby rejected by Provider notwithstanding Provider’s provision of Services unless Provider has agreed to such additional or different terms in a writing executed by Provider.1. Services. Real Network Solutions, Inc., an Illinois corporation d/b/a Realnets (“Provider”) hereby offers to provide the services (“Services”) described in any purchase order, quotation, acknowledgment or oral agreement (“Order”) to the client listed on such Order (“Client”). Any agreement by Provider to provide Services is expressly contingent upon Client’s consent to the terms and conditions described herein. By accepting any Services, Client agrees to these terms and conditions. Any different or additional terms proposed by Client in any Order or otherwise are hereby rejected by Provider notwithstanding Provider’s provision of Services unless Provider has agreed to such additional or different terms in a writing executed by Provider.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, source code, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client or prepared by or on behalf of the Provider in the course of performing the Services, including any items identified as such in the Order (collectively, the “Deliverables”) are owned by Provider. Unless otherwise provided in writing by Provider at any time, Provider hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
Fees and Expenses. In consideration of the provision of the Services by the Provider, Client must pay the fees set forth in the Order. Client agrees to reimburse Provider for all reasonable travel and out-of-pocket expenses incurred by Provider in connection with the performance of the Services. Unless otherwise expressly specified, all fees are exclusive of taxes, customs, duties, transportation and insurance. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client.
Payment Terms. Provider must issue invoices for Services provided to Client. Unless otherwise agreed in writing, Client must pay the amount of each invoice within 30 days from the date of such invoice. All payments must be in U.S. Dollars. Any payment not made within 30 days from the date of the applicable invoice is subject to a 5% late payment fee. In the event payments are not received by Provider within 30 days after becoming due, Provider may (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full. Client may not deduct, counterclaim, or set-off against any amount Client owes to Provider. Client must reimburse Provider for any and all fees and expenses, including, without limitation, attorneys’ fees and expenses and court costs, incurred by Provider in collecting any sums due to Provider.
Client Remedies; Disclaimer of Warranties. Provider represents and warrants to Client that it has performed the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and has devoted adequate resources to meet its obligations. Client’s exclusive remedy as to any Services, and Provider’s only liability, is re-performance of the defective portion of the Services or repayment to Client of the fees for such defective portion of the Services, whichever such remedy Provider elects. OTHER THAN THE FOREGOING, PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND/OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERRTY. PROVIDER HAS NOT BEEN PROVIDED AND HAS MADE NO ADVICE, RECOMMENDATION OR REPRESENTATION THAT ANY SERVICES WILL BE ADEQUATE FOR CLIENT’S INTENDED PURPOSES.
Limitation of Liability. Provider is not liable for a breach of the warranty set forth in Section 5 unless (i) Client brings a claim for a breach of such warranty within six (6) months of the completion of the Services or the delivery of the Deliverables (whichever comes first); and (ii) Client gives written notice of the defect, reasonably described, to Provider within 7 days of the time when Client discovers or ought to have discovered the defect. In no event is Provider liable for (i) Client’s negligence or the negligence of any of Client’s directors, managers, officers, employees, agents, subcontractors, consultants, or other representatives; or (ii) the failure by Client or any of Client’s directors, managers, officers, employees, agents, subcontractors, consultants, or other representatives to follow Provider’s written or verbal instructions regarding the Services or the Deliverables. IN NO EVENT MAY PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THE APPLICABLE ORDER IN THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT IS PROVIDER LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL OR BUSINESS INTERRUPTION, FOR ANY MATTER ARISING OUT OF OR RELATED TO PRODUCTS PROVIDED TO CLIENT WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY CLIENT.
Force Majeure. Provider will be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from fire, flood, earthquake, elements of nature or acts of God; labor disruptions or strikes; acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, wide spread disease or sickness, embargoes and other similar governmental or third party action; or any other cause beyond the reasonable control of Provider. If performance has been delayed or prevented, Provider will act diligently to resume performance as soon as reasonably possible. If Provider’s performance of its obligations is prevented or delayed by any act or omission of Client or Client’s directors, managers, officers, employees, agents, subcontractors, consultants, or other representatives, Provider shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
General. Any and all matters concerning Provider and Client, including, without limitation, the enforcement of these terms and conditions, are governed by and construed in accordance with the laws of the State of Illinois, without regard to conflicts of law principles. Any disputes between Provider and Client must be resolved in the circuit courts located in county of Provider’s then-current principal place of business. Client may not assign its rights and duties under these terms and conditions and/or under any agreement with Provider with respect to Services without Provider’s prior written consent. Any failure on the part of Provider or Client to comply with any of its obligations hereunder may be waived in writing by the other party. No waiver of any provision of these terms and conditions is a waiver of any other provision, nor does any waiver constitute a continuing waiver. These terms and conditions are binding upon and inure to the benefit of Provider and Client and their respective successors and assigns. These terms and conditions may not be modified, changed, or amended except in a writing executed by Provider. These terms and conditions and the Order constitute the entire and exclusive agreement between Provider and Client with respect to Services provided by Provider.