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SYSTEM. The software and mechanical development, hardware, equipment, and associated services (design, installation, training), in any part or combination, to be provided by MSI Automate, if any, is herein referred to as (the “System”).

INSTALLATION and DELIVERY. MSI Automate will use reasonable efforts to deliver or install the System in accordance with the schedule agreed upon by the parties. The System is considered installed when it is substantially providing the service for which it is intended. MSI Automate is not responsible for delays caused by changes to Client’s business plans or alterations to any specifications or requests supplied by Client.

LICENSE. To the extent that the System includes software, license terms are described in this Agreement.

CONFIDENTIALITY. The Parties to this Agreement, recognize and acknowledge that each party may, from time to time, provide to the other party certain confidential, technical and/or proprietary information, including, but not limited to, business plans and client information and technical data and any associated documentation (collectively, “Confidential Information”). Confidential Information, shall not be disclosed to any persons other than: (i) the employees of recipient who have a need to know, or (ii) consultants or agents of the recipient (if any) who do not compete with MSI Automate, who have a need to know, and who have executed a nondisclosure agreement in a form reasonably acceptable to the disclosing party prior to such disclosure. A copy of such executed nondisclosure agreement shall be supplied to either party to this Agreement upon request. The restrictions of this paragraph do not apply to information that: (i) was in the public domain at the time of the disclosing party’s communication thereof to recipient; (ii) entered the public domain through no fault of recipient subsequent to the time of disclosing party’s communication; (iii) was in recipient's possession free of any obligation of confidence at the time of disclosing party's communication thereof to recipient; (iv) was independently developed by recipient as demonstrated by written records; or, (v) is required to be disclosed by court or government order. Nothing contained herein shall be construed as a grant or any expansion of any of the licenses, which are the subject of this Agreement. The parties agree that a breach of the confidentiality obligations in this paragraph shall cause immediate and irreparable harm and shall entitle the party seeking to protect its Confidential Information to seek immediate injunctive relief in addition to all other remedies.

OWNERSHIP OF SOFTWARE AND INTELLECTUAL PROPERTY. MSI Automate owns all rights, title, and interests, including all proprietary rights, patent, copyright, trademark and trade secrets, in and to the MSI Automate software and any corrections, fixes, enhancements, updates, or other modifications to all the software, including custom modifications thereto.

SYSTEMS ADMINISTRATOR. Client shall designate a systems administrator and an alternate systems administrator to be the sole contact persons responsible for questions regarding the System.

NON-SOLICITATION OF INVATA EMPLOYEES. Client shall not solicit, employ or otherwise engage MSI Automate employees, agents, or subcontractors without MSI Automate prior written consent for a period of twelve (12) months following that individual's last date of employment or engagement by MSI Automate. Should Client violate this provision, Client agrees to pay MSI Automate the greater of one-half of the former employee's annual salary or fifty thousand dollars ($50,000). The parties further agree that in the event of any actual or threatened breach of any of the provisions of this section, MSI Automate shall be entitled to injunctive relief to prevent such breach or contemplated breach in addition to all other rights and remedies available to MSI Automate at law or equity, and Client hereby waives any requirement of MSI Automate to post a bond or other security in connection with any such injunctive or other equitable relief. Nothing contained in this paragraph shall limit or restrict MSI Automate rights or remedies as they relate to such former employee.

PAYMENTS. All payments not otherwise referenced shall be payable upon presentation of invoices. MSI Automate may change its fees and hourly rates upon 30 days prior written notice to Client. MSI Automate personnel are not required to perform all billable work on Client’s premises. Client shall be billed for all work performed both on and off of Client’s premises.   Client shall be responsible to pay for all scheduled work that is cancelled by Client less than two weeks in advance and cannot be rescheduled by MSI Automate.   If Client is more than 30 days delinquent in any payment, MSI Automate may, in its sole discretion and without constituting a breach of this Agreement by MSI Automate, refuse to perform additional services until all delinquent payments have been made. If Client fails to pay any amount when due, the entire amount then due shall bear interest at the rate of 1.5% per month (18% per annum) or the highest rate then allowable by law. In the event that MSI Automate institutes any collection action hereunder, Client agrees to pay all costs of collection, filing fees and attorneys’ fees. Client shall be responsible for all taxes of any nature whatsoever (excluding income taxes and taxes in the nature of an income tax) and agrees to reimburse MSI Automate for any such taxes levied upon it by any federal, state or local authority. Client agrees to reimburse MSI Automate for the expenses of travel and living, and freight, invoiced to Client at cost (daily living expenses based on per diem rate). Unless indicated otherwise, all payments made under this Agreement are non-refundable.

WARRANTIES. MSI Automate warrants that the software of the System will function in substantial conformance with the specifications for a period of one year following Beneficial Use. Beneficial Use is the date on which the System is capable of substantially performing the functions for which it was primarily designed as reasonably determined by MSI Automate. MSI Automate will rectify mutually agreed upon shortfalls within 30 days of Notice. MSI Automate extends all applicable manufacturers’ warranties to its clients, but makes no additional warranties or representations regarding hardware or software supplied by third parties. Any refusal by Client to allow MSI Automate to make any repairs or any change, alteration, or modification to the System by Client or any other party shall render all warranties null and void. Client will be responsible for all costs and expenses such as hardware replacement, travel and living expenses, etc. EXCEPT AS PROVIDED IN THIS AGREEMENT, INVATA MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM OR ANY EQUIPMENT. INVATA EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL INVATA BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR COMMERCIAL LOSS FROM ANY CAUSES. INVATA SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY OR PROPERTY DAMAGES.

SERVICE SUPPORT. Service Support, if any, is to be provided by MSI Automate under a System Support Agreement. Service Support is provided under such an Agreement to provide Client with engineering support for resolution of problems impeding productive operation of the System regardless of the cause. Rapid response Service Support is available on a 24-hour per day, 365-day per year basis. MSI Automate advises Client to secure a System Support Agreement prior to Beneficial Use of the System.

EXCLUSIVE REMEDIES. For any breach of warranties or other breach under this Agreement, Client's sole and exclusive remedy shall be limited to the correction of any material nonconformance of the System for which MSI Automate receives written notification within the warranty period. IN NO EVENT SHALL INVATA BE LIABLE TO CLIENT FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT. The limitations set forth in this section shall apply even if any other remedies fail of their essential purpose.

GENERAL

1. Neither the failure delay nor partial exercise of any remedy, right or privilege under this Agreement shall operate as a waiver thereof or preclude any further exercise of same by MSI Automate.
2. All notices shall be in writing and personally delivered, sent by certified mail, postage prepaid, return receipt requested, or by any overnight delivery service, for which a receipt may be issued, to the address written above or such other address as notified to the other party.
3. PRECEDENCE OF DOCUMENTS. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by the parties. This Agreement supersedes all prior or concurrent proposals and understandings, both written and oral.
4. FORCE MAJEURE. Neither party shall be liable for any failure or delay in performing its obligations hereunder due to any external cause beyond its reasonable control, including without limitation, fire, accident, acts of the public enemy, war, rebellion, labor dispute or unrest, insurrection, sabotage, transportation delays, shortage of raw materials, energy or machinery, acts of God, government or the judiciary, or other matters beyond the reasonable control of a party.
5. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any action brought by Client, must be brought within one (1) year after the cause of action arose. The parties agree that this Agreement is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. Client consents to the exclusive jurisdiction of the Courts of Common Pleas of Montgomery County Pennsylvania and/or the United States District Court for the Eastern District of Pennsylvania.
6. FUTURE LICENSES. All future provision of other Services shall come under the terms and conditions set forth herein, subject to the then current prices and each party shall have the same rights, duties and privileges with respect to such subsequent transaction as is established by the terms of this Agreement unless specifically superseded by another pertinent Agreement
7. Neither this Agreement nor Client's rights, obligations or duties hereunder, may be assigned or sublicensed by Client (whether directly or indirectly by operation of law, merger, or otherwise) without the express prior written consent of MSI Automate, which consent may be withheld by MSI Automate in its sole discretion, and any attempted assignment which does not adhere to this provision shall be void.
8. INDEPENDENT ENTITIES. The parties hereto are independent contractors and neither party nor its employees, directors, agents, or consultants shall hold itself out to be or allow itself to be considered as an agent or employee of the other party.
9. BINDING EFFECT. This Agreement is binding upon and shall inure to the benefit of Client and its successors and permitted assigns. This Agreement is binding upon and shall inure to the benefit of MSI Automate and its successors and assigns
10. ENUMERATION AND HEADINGS. The enumeration and headings contained in this Agreement are for convenience of reference only and shall not be construed as a limitation on the scope of any of the terms or provisions of this Agreement.
11. SEVERABILITY. A determination that any provision or portion thereof of this Agreement is held to be invalid, illegal or unenforceable under any applicable statute or rule of law, such provision or portion thereof is to be deemed omitted, but such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions.
12. PURCHASE ORDERS. Any purchase order or other document created or generated by Client in connection with the subject matter of this Agreement is for Client's internal use only and shall not affect this Agreement.
13. TERMINATION. MSI Automate may, at its election and upon thirty (30) days prior written notice, terminate the Services to be provided hereunder. However, such termination shall not relieve Client of any of its obligations incurred prior to termination or affect any right or claim of MSI Automate incurred or accruing prior to the date of termination, including without limitation, any right or claim of MSI Automate, payment for services rendered or reimbursable expenses incurred prior to such termination date.
14. LICENSES. If MSI Automate has granted Client a License in this Agreement, then upon Client’s knowledge of any unauthorized possession or use of, or access to, any Licensed Product and Services, Client shall notify MSI Automate immediately. Client shall promptly furnish MSI Automate with full details of such knowledge and assist in preventing any recurrence thereof and cooperate, at MSI Automate expense, in any litigation or other proceedings reasonably necessary to protect the rights of MSI Automate.
15. Client is responsible for obtaining any and all permits and licenses required by any local, state or federal authority in order to install, build or operate the System.
16. All remedies of MSI Automate hereunder shall be cumulative and the selection by MSI Automate of one particular remedy shall not constitute the election of a remedy to the exclusion of any and all other available remedies.
17. Client shall indemnify and hold. MSI Automate, and its officers, directors, employees, contractors, agents and representatives harmless from and against any and all costs, damages, claims, losses and expenses, including court costs, expert witness fees, and reasonable attorneys’ fees arising out of or in connection with: (i) any breach or threatened breach by Client of this Agreement, and (ii) any hazardous, dangerous or negligent condition at Client’s location. This Section shall survive the termination of this Agreement.
18. MSI Automate reserves the right to use subcontractors for any work to be performed by MSI Automate. MSI Automate is responsible for the acts and omissions of any subcontractor so engaged.
19. PAYMENT OF EXPENSES. If MSI Automate is required to engage in any proceedings, legal or otherwise to enforce its rights under this Agreement, MSI Automate shall be entitled to recover from Client, in addition to any other sums due, reasonable attorneys’ fees, expert witness fees, and all other related costs.
20. BREACH OF AGREEMENT. No claim shall be brought or maintained by Client against MSI Automate for MSI Automate’s alleged breach of this Agreement and/or violation of any federal or state law now in effect or hereafter enacted with respect to any obligation or duty incurred hereunder by MSI Automate, unless
21. Client notifies MSI Automate in writing at the address specified in this Agreement within thirty (30) days from the date of such alleged breach or violation, and provided MSI Automate does not remedy or correct the breach or violation within sixty (60) days from the receipt of the notice; and
22. Client notifies MSI Automate in writing of such claim with reasonable specificity, together with reasonable detail and supporting documentation thereof, within one (1) year from date of acceptance, and, not later than forty-five (45) days thereafter, commences an action to enforce its rights pursuant to the terms hereof. Notwithstanding the foregoing, nothing contained in this paragraph shall be construed to abridge or limit the warranties contained hereof.
23. WAIVERS. CLIENT ACKNOWLEDGES AND AGREES THAT THE WAIVERS CONTAINED IN THIS AGREEMENT HAVE BEEN SPECIFICALLY REQUESTED BY INVATA AND HAVE BEEN GRANTED BY CLIENT AND THAT SUCH WAIVERS HAVE BEEN KNOWINGLY AND VOLUNTARILY GIVEN ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF SUCH WAIVERS WITH ITS ATTORNEY.
24. JURY TRIAL WAIVER. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

DELIVERY/RISK OF LOSS. All material or equipment furnished by MSI Automate in connection with this transaction shall be shipped F.O.B. point of shipment. Client shall pay all transportation and shipping costs, including insurance. Title to and risk of loss or damage to all materials or equipment shall pass to Client at point of shipment. Client shall pay all transportation and shipping costs, including insurance for all equipment sent to MSI Automate for service, repair or system development and for the return of any such repaired equipment and other equipment or materials.