Terms and Conditions of Service Projects

PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE PROJECTS VERY CAREFULLY.

THE TERMS AND CONDITIONS OF SERVICE PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY YOU (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.

BY ENGAGING ERNIE GREY, LLC TO PERFORM OR PROCURE THE SERVICES DESCRIBED IN ERNIE GREY, LLC'S INVOICE OR OTHER ERNIE GREY, LLC DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF SERVICE PROJECTS UNLESS CUSTOMER AND ERNIE GREY, LLC HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE AGREEMENT WILL GOVERN. TO THE EXTENT SUCH SERVICES ARE IDENTIFIED ON ERNIE GREY, LLC'S WEBSITE BY A PRODUCT NUMBER, THE MAIN FEATURES, SCOPE AND SPECS INCLUDED THEREIN SHALL FORM PART OF THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND ERNIE GREY, LLC HAVE OTHERWISE AGREED IN WRITING. ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICES AND RESULTS THEREOF POSTED ON THE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN ERNIE GREY, LLC AND CUSTOMER.

Important Information About These Terms and Conditions of Service Projects
These Terms and Conditions of Service Projects constitute a binding contract between Customer and the ERNIE GREY, LLC Entity identified on Customer's invoice ("ERNIE GREY, LLC") and are referred to herein as either "Terms and Conditions of Service Projects" or this "Agreement". Customer accepts these Terms and Conditions of Service Projects by placing an order or otherwise shopping on ERNIE GREY, LLC's Website (the "Site") for Services (as hereinafter defined). These Terms and Conditions of Service Projects are subject to change without prior notice, except that the Terms and Conditions of Service Projects posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by ERNIE GREY, LLC and Customer.

Customer consents to receiving electronic records, which my be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting ERNIE GREY, LLC at the address provided below. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details.

IN CASE OF A PURCHASE OF PRODUCTS, INDEPENDENTLY OR IN CONJUNCTION WITH SERVICES, SUCH PRODUCT PURCHASES SHALL BE ON AND SUBJECT TO THE TERMS AND CONDITIONS OF PRODUCT SALES ON THE SITE.

Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the Terms and Conditions of Service Projects contained herein and in ERNIE GREY, LLC's invoice or other ERNIE GREY, LLC documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Service Projects or any purchase order or invoice related thereto.

GOVERNING LAW
THESE TERMS AND CONDITIONS OF SERVICE PROJECTS AND ANY SERVICES HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN KINGS COUNTY, NEW YORK AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions of Service Projects more than one (1) year after the cause of action has arisen.

SERVICES
Customers may order services (collectively, "Services") from or through ERNIE GREY, LLC from time to time. Orders are not binding on ERNIE GREY, LLC until accepted by ERNIE GREY, LLC. Such Services may include services which are described on the Site or services which are described in separate Statements of Work or other separate agreements entered into between ERNIE GREY, LLC and Customer. Services may be performed by ERNIE GREY, LLC or its affiliates or may be performed by third parties, as subcontractors to ERNIE GREY, LLC. Services does not include third party services ("Third Party Services") that may be purchased from a third party by Customer or sold by ERNIE GREY, LLC as a distributor or sales agent (e.g., extended warranties of services by manufacturers or long distance services).

In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer hereby releases ERNIE GREY, LLC and its affiliates from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including taxes, associated with Third Party Services which may be collected by ERNIE GREY, LLC will be collected solely in the capacity as an independent sales agent.

Where Services require that Customer and ERNIE GREY, LLC execute a Statement of Work, such Statement of Work will incorporate these Terms and Conditions of Service Projects. Each Statement of Work will constitute a separate agreement with respect to the Services performed. In the event of a conflict between any term of the Statement of Work and these Term and Conditions of Service Projects, the terms of the Statement of Work will control unless the conflict relates to warranties, indemnification, ownership of work product, limitation of liability, governing law or assignment. If the conflict relates to any of the foregoing, these Terms and Conditions of Service Projects will control except as expressly amended in the applicable Statement of Work. Changes to the scope of Services will be made only in a writing executed by authorized representatives of both parties. ERNIE GREY, LLC will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions of Service Projects and any applicable Statement of Work.

COOPERATION
In addition to any specific Customer duties applicable to the Services, if any, Customer agrees to cooperate with ERNIE GREY, LLC in connection with performance of the Services by providing (i) timely responses to ERNIE GREY, LLC's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by ERNIE GREY, LLC which are necessary or useful as determined by ERNIE GREY, LLC in connection with providing the Services, including, without limitation, physical and/or computer access to the Customer's computer systems and (iii) all Required Consents necessary for ERNIE GREY, LLC to provide the Services. "Required Consents" means any consents or approvals required to give ERNIE GREY, LLC, its affiliates or subcontractors the right or license to access, use or modify any data or third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the personnel selected by Customer to work with ERNIE GREY, LLC.

ERNIE GREY, LLC will follow all reasonable Customer security rules and procedures for use of Customer's electronic resources, as communicated in writing by Customer to ERNIE GREY, LLC from time to time.

ACCESS
ERNIE GREY, LLC may perform the Services at Customer's place of business, at ERNIE GREY, LLC's own facilities or such other locations as ERNIE GREY, LLC and the Customer deem appropriate. When the Services are performed at Customer's premises, ERNIE GREY, LLC will attempt to perform such Services within Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide ERNIE GREY, LLC access to Customer's staff and any other Customer resources that ERNIE GREY, LLC determines are useful or necessary for ERNIE GREY, LLC to provide the Services. When the Services are provided on the Customer's premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect ERNIE GREY, LLC and the Customer's premises, and to indemnify and hold ERNIE GREY, LLC and its affiliates, agents and employees harmless from any loss, cost, damage or expense (including attorneys fees and expenses) arising out of any product liability, death, personal injury or property damage occurring on the Customer's premises in connection with the performance of the Services, other than solely as a result of ERNIE GREY, LLC's gross negligence or willful misconduct.

PAYMENT
In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with the payment schedule set forth in the applicable Statement of Work. Where no payment schedule is set forth in a Statement of Work or other documentation, terms of payment are within ERNIE GREY, LLC's sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by ERNIE GREY, LLC. ERNIE GREY, LLC may invoice parts of an order separately. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1 1/2%) per month or at the highest rate allowed by law. Customer is responsible for, and will indemnify and hold ERNIE GREY, LLC harmless from, any applicable sales, use or other taxes associated with the Services. Customer must claim any exemption from tax at the time of purchase and provide ERNIE GREY, LLC with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of ERNIE GREY, LLC's costs of collection, including court costs, filing fees and attorneys fees. In addition, if payments are not received in a timely manner, ERNIE GREY, LLC reserves the right to suspend Services until payment is received.

Customer will reimburse ERNIE GREY, LLC for all reasonable out-of-pocket expenses incurred by ERNIE GREY, LLC in connection with the performance of the Services, including travel and living expenses.

WARRANTIES AND LIMITATION OF LIABILITY
ERNIE GREY, LLC warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and ERNIE GREY, LLC's entire liability with respect to this warranty will be, at the sole option of ERNIE GREY, LLC, to either (a) reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided Customer notifies ERNIE GREY, LLC in writing within five (5) business days after performance of the applicable Services. UNDER NO CIRCUMSTANCES WILL ERNIE GREY, LLC, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH INCLUDES BUT IS NOT LIMITED TO, LOSS OF PROFITS, REVENUES OR SAVINGS, EVEN IF ERNIE GREY, LLC HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SERVICES; OR (D) LOSS OF OR DAMAGE TO CUSTOMER DATA. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY LIABILITY INCURRED BY ERNIE GREY, LLC, ERNIE GREY, LLC'S ENTIRE LIABILITY FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SPECIFIC SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

EXCEPT AS SET FORTH ABOVE OR IN ANY STATEMENT OF WORK, THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK, AND SUBJECT TO APPLICABLE LAW, ERNIE GREY, LLC MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION MADE BY ERNIE GREY, LLC. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

Customer shall be solely responsible for daily back-up and other protection of its data against loss, damage or destruction. Customer shall be solely responsible for reconstructing data such as disk files, memories or otherwise lost during installation. ERNIE GREY, LLC, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY AND CUSTOMER ASSUMES ALL RISK OF LOSS OF ITS DATA IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.

PROVISIONS RELATED TO CUSTOM IMAGING
In connection with installations of custom software images, Customer agrees to enter into a separate "Installation Indemnification Agreement". In addition thereto, Customer expressly warrants to ERNIE GREY, LLC that (a) Customer has full authority, right and power to cause the software images to be installed on the equipment it is being installed on (including, if applicable, to cause it to be transferred from existing hardware) and to use the software on the equipment, either as owner, through valid and existing license agreements or otherwise; and (b) the installation and the use of the software images in the equipment will not violate any copyright, license agreement or other intellectual property or right affecting the software. If, at any time, in the sole discretion of ERNIE GREY, LLC, ERNIE GREY, LLC determines that any of the foregoing warranties are inaccurate, in whole or in part, ERNIE GREY, LLC may, at its option, terminate the installation or request such further assurances and security as ERNIE GREY, LLC may determine. Termination by ERNIE GREY, LLC will not release Customer of its obligation to pay for Services rendered and to be rendered under its agreements with ERNIE GREY, LLC.

ERNIE GREY, LLC EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. IN NO CASE SHALL ERNIE GREY, LLC, OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING FROM THE SOFTWARE OR RELATED TO CUSTOMER’S USE OF THE SOFTWARE.

LIMITED LICENSE
Customer's sole rights to the work product, and other deliverable items provided or created (individually or jointly) in connection with the Services, including but not limited to all ideas, concepts, know-how, techniques, proprietary tools and methods of analysis will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such work products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such work product for any other purpose whatsoever.

PROPRIETARY INFORMATION
In connection with the Services, it may be necessary to provide access to information of a confidential or proprietary nature of such party, including its affiliates or of a third party, (hereinafter referred to as "Proprietary Information") to the other party in the performance of this Agreement. "Proprietary Information" means any information or data in oral and/or in written form which the receiving party knows or has reason to know is proprietary information and which is disclosed by a party in connection with the Services or which the receiving party may have access to in connection with the Services. Proprietary Information will not include information which: (a) becomes known to the public from a source other than the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by personnel of the receiving party who have not had access to such information. To the extent practicable, Proprietary Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Proprietary Information will not be evidence that such information is not proprietary or protectable.

ERNIE GREY, LLC and Customer each agree to hold such Proprietary Information confidential in the same manner as it holds its own Proprietary Information of like kind. Disclosures of Proprietary Information will be restricted to those individuals who are participating in the performance of the Servic