SCHEDULE 5
CUSTOMER AGREEMENT MINIMUM TERMS
Grant of License. Reseller is a reseller of certain services and technology of Global Sourcing Group, Inc. (“GSG”). Customer is granted a limited, revocable, non-exclusive, non-transferable right to use the GSG Technology as is necessary for Customer to access the GSG Services. Customer will not, and will not allow third parties, to: (a) sublicense or distribute the GSG Technology in any manner; (b) create derivative works of the GSG Technology; (c) reproduce or copy the GSG Technology in any manner; (d) rent, lease, or sell the GSG Technology; (e) modify, decompile, disassemble, or otherwise reverse engineer the GSG Technology; (f) use the GSG Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, or (g) transfer the GSG Technology or the limited license granted herein to another party. All rights not expressly granted herein are reserved by and for GSG.
Customer Obligations. Customer agrees to (a) timely supply Reseller with all reasonably necessary Data (b) assist Reseller in building a customized hierarchical database of Customer’s End Users, (c) authorize release by Carriers to Reseller of the billing data (d) execute and/or provide any and all documents reasonably required by Carriers for release to Reseller of billing data, and (e) execute and/or provide any and all documents reasonably required by Carriers to allow Reseller, with the approval of persons Customer designates, to request changes to existing wireless and wireline accounts with Carriers.
Customer Equipment. Customer shall be responsible for ensuring that any equipment and ancillary services needed to connect to, access or otherwise use the Reseller Services, including, without limitation, high speed internet connection, an internet browser, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”) are compatible with the Reseller Services. Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account information, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account or the Equipment with or without Customer’s knowledge or consent.
Warranty. Reseller shall use reasonable commercial efforts consistent with prevailing industry standards to provide the Reseller Services in a good and workmanlike manner, which minimizes errors and interruptions. In the event of a breach of the foregoing warranty Reseller shall re-perform, at no additional charge to Customer, the non-conforming Reseller Services.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, RESELLER AND GSG DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND RESPECTING GSG’s TECHNOLOGY AND SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE RESELLER SERVICES OFFERED HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT WARRANTY AS TO PERFORMANCE. RESELLER AND GSG DO NOT WARRANT THAT USE OF THE GSG TECHNOLOGY OR GSG SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT MESSAGES OR REQUESTS WILL BE DELIVERED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE GSG TECHNOLOGY OR GSG SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability. Notwithstanding anything to the contrary, except for bodily injury of a person, (for which there is no limit) Reseller and GSG shall not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business, (b) for any indirect, exemplary, incidental, special or consequential damages, (c) for any matter beyond the reasonable control of Reseller or GSG, even if the Customer has been advised of the possibility of such loss or damage, or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Customer to Reseller under this Agreement in the 12 months prior to the act that gave rise to the liability.
Proprietary Information. The GSG Technology and Services are proprietary and are owned exclusively by GSG. Other than the limited license set forth above, Customer will have no property or other interest or right whatsoever in the GSG Technology or Services. Upon termination of this Agreement by either party, Reseller shall have no further obligation to provide Customer with access to any GSG Services or the applications and services associated therewith. Customer agrees to restrict access to GSG’s Services to Customer’s employees, or Customer’s contractors under non-disclosure, and will promptly notify GSG and take the timely and appropriate measures reasonably necessary to terminate access for persons who leave Customer’s employment.
Assignments. This Agreement is not assignable, transferable or sublicenseable by Customer except with Reseller’s prior written consent.