1. GENERAL – By signing the Agreement, Customer acknowledges that it has read and agrees to be bound by these Terms and Conditions (“Terms and Conditions”) with respect to the purchase of the services identified in the Proposal and/or Order (“Services”). These Terms and Conditions, together with the Proposal and/or Purchase Order (hereinafter collectively referred to as the “Agreement”), will constitute the entire agreement, taking precedence over and superseding all other communications, whether written or oral, with respect to the Agreement, between Customer and Talon Aerolytics (Holding), LLC (“Talon”). Except as otherwise provided herein, the Agreement may be modified only by a written amendment signed by both Customer and Talon.
2. SAAS SERVICES AND SUPPORT – Subject to the terms of this Agreement, Talon will use commercially reasonable efforts to provide Customer the Services – and reasonable technical support – as described in the Agreement and in accordance with Talon’s standard practices, and Customer shall pay Talon the Fees in accordance with the terms herein.
3. RESTRICTIONS – Notwithstanding anything to the contrary in this Agreement, Customer shall not, directly or indirectly, and Talon shall not permit any user to: (i) offer or use, permit the offering or use of, or indicate, represent, or otherwise suggest that it has the right to offer or use (or to permit the offering or use of) any Talon materials, except pursuant to the limited rights expressly granted in this Agreement; (ii) copy, modify, reproduce, republish, adapt, translate, distribute, transmit, or create derivative works based upon any of the Talon materials, including, without limitation, any aspect of the Software and/or the Talon Data (defined below) or attempt to do any of the foregoing; (iii) reverse engineer, decompile, disassemble, decrypt, extract, hack into, compromise, or otherwise attempt to discover the source code or object code of the Software; (iv) use the Software to provide processing services to third parties, or otherwise use the Software on a “service bureau” basis or shared services environment or for the benefit of any other person or entity; (v) export or re-export the Software in violation of any United States export law, restriction, or regulation, or any foreign agency or authority. To the extent incorporated into the Talon materials, Customer and users will be bound by any third party or public access end user terms and hereby acknowledges and agrees to be bound by such terms. Customer shall not remove or alter any copyright, trademark, or other proprietary notices affixed to or embedded in the Talon materials. Customer acknowledges and agrees that certain windows or views generated by the Software may display trademarks, service marks, logos, or other corporate indicia of or proprietary to Talon (“Talon Marks”) (e.g., “Talonview,” “Talon Aerolytics,” and “Aerolytics”). Any such display of the Talon Marks hereunder, or any use of the Talon Marks by Customer or users, shall inure exclusively to the benefit of Talon. Although Talon has no obligation to monitor Customer’s use of the Services and materials, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services – to include security – needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, accounts, files, and the like (“Equipment”).
4. CONFIDENTIALITY – Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) maintain absolute confidentiality and secrecy and shall not reveal, disclose, or disseminate, directly or indirectly except in performance of the Services or as otherwise permitted herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Talon shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth herein.
5. WARRANTY AND DISCLAIMER – Talon shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Talon or by third-party providers, or because of other causes beyond Talon’s reasonable control, but Talon shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. EXCEPT FOR THOSE WARRANTIES EXPRESSELY SET FORTH HEREIN, THE SERVICES AND EQUIPMENT AND MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, “WITH ALL FAULTS,” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED, OR BASED ITS DECISION TO ACCEPT THE AGREEMENT, ON ANY WARRANTIES OF TALON NOT EXPRESSLY SET FORTH HEREIN.
6. PAYMENT TERMS – Customer will pay Talon the then applicable and fees described in the final Purchase Order for the Services in accordance with the terms therein (the “Fees”).
7. INDEMNIFICATION AND LIMITATION OF LIABILITY – Except as provided in the section titled “Dispute Resolution”, with respect to arbitration proceedings between Customer and Talon, Customer agrees to indemnify, hold harmless, release, and fully discharge Talon, its officers, directors, managers, members, managing members, employees, agents, assigns, and shareholders, from and against all costs, losses, claims, actions, proceedings, demands, liabilities, and suits of any kind or nature, including reasonable attorney’s fees and costs which arise out of, or relate to, or are attributable to, all act or omission by Customer, including any negligent or intentional acts, and any act not authorized under the terms of the Agreement. In addition, Customer agrees that it will not assert any claim against Talon, its officers, directors, managers, members, managing members, employees, agents, assigns, or shareholders in any court of law based upon or related to the Services and/or Agreement. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL TALON BE LIABLE TO CUSTOMER FOR ANY PURELY ECONOMIC LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, USE, INCOME, BUSINESS OPPORTUNITIES, OR CUSTOMER GOODWILL, FOR: (A) 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)ANY ANTICIPATORY, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES; (C) ANY MATTER BEYOND TALON’S REASONABLE CONTROL; OR (D) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO TALON FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT TALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION OF CUSTOMER – Talon will indemnify and defend the Customer from and against all damages arising out of any claims that the Software and any resulting use or sale of any Software constitutes an infringement or misappropriation of any intellectual property right. Additionally, if the right for Customer to sell or use the Software is enjoined or is likely to be enjoined, Talon will at Talon’s expense procure for Customer the right to use the Software; or with the reasonable consent of Customer, replaced or modify the Software with equivalent non-infringing Software; or, if enjoined, remove the Software and refund the price paid by Customer for Software, including incidental charges such as transportation, installation, and removal.
9. NO IMPLIED WAIVERS – The waiver, modification, or failure to insist on strict performance of the terms, conditions, and provisions contained in the Agreement by Talon will not void, waive or modify any of the other terms, conditions, and provisions of the Agreement, nor will it be construed as a waiver or relinquishment of Talon’s right to enforce and demand subsequent performance of the same.
10. NOTICES – Any notices required to be given hereunder will be in writing and will be deemed effectively delivered: (i) when delivered personally; (ii) one (1) business day after being deposited with a nationally recognized overnight courier service, or; (iv) four (4) business days after being deposited in the U.S. Mail (First Class) with postage prepaid. Notices for Customer will be delivered to the address listed for Customer on the Sales Agreement. Notices for Talon will be delivered to Point Broadband, LLC, Attention: Eric Hare, 1791 O.G. Skinner Drive, Suite C, West Point, Georgia, 31833.
11. BINDING ARBITRATION – ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS), BETWEEN TALON AND CUSTOMER ARISING FROM OR RELATING TO THE AGREEMENT, ITS INTERPRETATION, OR A BREACH, OR THE VALIDITY THEREOF, OR THE RELATIONSHIP THAT RESULTS FROM THE AGREEMENT (INCLUDING, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THE AGREEMENT) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT. THE ARBITRATION PROCEEDINGS WILL BE HELD IN TROUP COUNTY IN THE STATE OF GEORGIA, AND SHALL BE GOVERNED BY THE LAWS OF THE U.S. AND THE STATE OF GEORGIA. IN THE EVENT OF ANY INCONSISTENCY OR CONFLICT BETWEEN THE AAA COMMERCIAL ARBITRATION RULES AND THE AGREEMENT, THE AGREEMENT WILL CONTROL. THE ARBITRATION WILL BE LIMITED SOLELY TO THE DISPUTE OR CONTROVERSY BETWEEN CUSTOMER AND Talon, AND ANY AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
12. GOVERNING LAW – The Agreement will be governed by and interpreted under the laws of the U.S. and the State of Georgia. However, notwithstanding this Section, the prior arbitration agreement set forth herein shall be governed by the Federal Arbitration Act. Except for arbitration, the mandatory, exclusive jurisdiction and venue for any suit, action, or proceeding between Customer and Talon – including those brought for the purpose of enforcing any arbitration award, will lie solely and exclusively in the U.S. Federal courts in the Northern District of Georgia, Newnan Division, or, when appropriate, in the State Circuit Court in, and for, Troup County, Georgia.
13. WAIVER OF JURY TRIAL – CUSTOMER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY CONTROLLING LAW, ALL RIGHT TO TRIAL BY JURY OF ANY DISPUTE, CLAIM, OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, RELATING TO, OR CONCERNING THE AGREEMENT, THE TRANSACTION(S) CONTEMPLATED HEREIN, OR ANY RELATIONSHIP BETWEEN THE PARTIES, IN ANY ACTION, PROCEEDING OR LITIGATION OF ANY TYPE BROUGHT AGAINST TALON, WHETHER WITH RESPECT TO CONTRACT, TORT, STATUTORY, REGULATORY OR OTHER TYPES OF RIGHTS OR CLAIMS. CUSTOMER HERETO AGREES, THEREFORE, THAT SHOULD IT BRING AGAINST Talon ANY CLAIM OR CAUSE OF ACTION NOT SUBJECT TO SECTION TITLED DISPUTE RESOLUTION, HEREIN, SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A JUDGE WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, CUSTOMER FURTHER AGREES THAT TO THE FULLEST EXTENT PERMITTED BY CONTROLLING LAW, ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS HEREBY WAIVED AS TO ANY ACTION, CLAIM, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE AGREEMENT.
14. BINDING EFFECT AND TRANSFER OF RIGHTS, INTERESTS AND OBLIGATIONS – The Agreement is binding on Customer and Customer’s respective heirs, successors, and assigns. Customer may not transfer, assign, delegate or otherwise dispose of the Agreement, or any of its rights, interests or obligations arising under, or as a result of, the Agreement without Talon’s prior written consent. Talon may, at any time, transfer, assign, delegate, and subcontract or otherwise dispose of the Agreement, or any of its rights, interest or obligations arising under, or as a result of, the Agreement without Customer’s prior written consent.
15. RELATIONSHIP – NEITHER THIS AGREEMENT NOR THE RELATIONSHIP OF THE PARTIES PROVIDED FOR HEREUNDER SHALL BE DEEMED OR CONSTRUED TO CREATE ANY PARTNERSHIP, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN THE PARTIES. NEITHER PARTY HAS THE RIGHT OR AUTHORITY TO ASSUME OR CREATE ANY OBLIGATION OR RESPONSIBILITY ON BEHALF OF THE OTHER PARTY. NOTHING IN THIS AGREEMENT LIMITS THE ABILITY OF TALON TO ENTER INTO OTHER AGREEMENTS WITH THIRD PARTIES WITH RESPECT TO ARRANGEMENTS SIMILAR IN NATURE TO OR THE SAME AS THOSE COVERED UNDER THIS AGREEMENT.
16. ATTORNEYS’ FEES – If any action at law or in equity is brought to enforce or interpret the provisions of the Agreement, the prevailing Party in such action shall be awarded its reasonable attorneys' fees and costs incurred, including costs and attorneys’ fees incurred on any appeal from the non-prevailing Party in addition to all other relief awarded. This Section, however, does not apply to any action, motion or claim regarding the enforceability or interpretation of the Section titled “Dispute Resolution”.
15. SEVERABILITY – If any term, condition, or provision of the Agreement is determined by a court of competent jurisdiction to be invalid, unlawful or unenforceable, such term, condition or provision will, to the extent required, be severed from the remaining terms, conditions and provisions which will, to the fullest extent permitted by law, continue to be valid and in full force and effect.
16. HEADINGS – The headings contained in these Terms and Conditions are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms and Conditions. When a reference is made in these Terms and Conditions to a Section, such reference will be to a Section of these Terms and Conditions, unless otherwise indicated.
17. COUNTERPARTS – The Agreement may be executed in one (1) or more counterparts, each of which shall be an original. Any such counterpart, to the extent delivered by facsimile, or by .pdf, .tif, .gif, .jpeg, or similar attachment to an electronic mail message, shall be treated in all manner and respects as an original executed counterpart, and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
18. STATUTE OF LIMITATIONS WAIVER – EXCEPT AS SPECIFICALLY PROHIBITED BY LAW, CUSTOMER AGREES THAT ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF, RELATING TO, OR CONCERNING THE AGREEMENT OR THE PARTIES’ RELATIONSHIP MUST BE COMMENCED UNDER THE SECTION TITLED “DISPUTE RESOLUTION” NO MORE THAN SIX (6) MONTHS AFTER THE DATE OF THE ALLEGED DISPUTE, CLAIM, OR CONTROVERSY. CUSTOMER HEREBY WAIVES ANY STATUTE OF LIMITATION TO THE CONTRARY.