Terms and Conditions

Mainline Information Systems, Inc. Emergency Equipment Replacement Online Terms and Conditions

THESE EMERGENCY EQUIPMENT REPLACEMENT ONLINE TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) GOVERN THE SALE OF SERVICES BY MAINLINE TO BUYER. MAINLINE AGREES TO SUPPLY THE SERVICES SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN. MAINLINE’S ACCEPTANCE OF BUYER’S PURCHASE ORDER AND AGREEMENT TO PROVIDE THE SERVICES IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. IN THE EVENT BUYER’S PURCHASE ORDER INCLUDES TERMS AND CONDITIONS THAT DIFFER FROM OR ARE IN ADDITION TO THESE TERMS AND CONDITIONS, BUYER’S TERMS AND CONDITIONS ARE EXPRESSLY REJECTED BY MAINLINE AND ARE NULL AND VOID.

1. DEFINITIONS.

1.1. “BUYER” means the party who submits a Purchase Order, which is confirmed by and made subject to these Terms and Conditions.

1.2. “Confidential Information” means secret processes, trade secrets, customer lists, personnel statistics, pricing methods, techniques, inventions, product/service specifications, ideas, processes, prototypes, models, drawings, marketing plans, financial data, computer programs and computer software;

1.3. “Configuration Schedule” means BUYER’s accurate description of BUYER’s equipment configuration;

1.4. “MAINLINE” means Mainline Information Systems, Inc.

1.5. “Proposal” means the quote, proposal or agreement or any other document submitted by MAINLINE to BUYER for the Services.

1.6. “Purchase Order” means the purchase order, electronic order or any other order submitted by BUYER. Without limitation upon the generality of the foregoing language, Purchase Order shall also include any documentation submitted by BUYER to MAINLINE in response to a MAINLINE Proposal.

1.7. “Services” means the emergency equipment replacement subscription-based Sourcing services MAINLINE provides BUYER pursuant to these Terms and Conditions, as identified in the applicable Proposal.

1.8. “Sourcing” means the replacement of equipment through MAINLINE’s own inventory or through other sources such as an equipment reseller, distributor, or directly from the equipment manufacturer for the purpose of selling, leasing, or renting IBM equipment to BUYER in the event of a disaster.

1.9. “Substitute Equipment” means equipment which MAINLINE may deliver to BUYER which is not identical in model and/or features listed in BUYER’s Configuration Schedule.

2. FORMATION OF CONTRACT.

2.1. A Purchase Order submitted by BUYER constitutes an offer by BUYER to MAINLINE to purchase the Services subject to these Terms and Conditions and is conditioned upon MAINLINE’s subsequent acceptance. MAINLINE’s acceptance of BUYER’s Purchase Order takes effect at the point where such offer is expressly accepted by MAINLINE upon the earlier of (i) the commencement of Sourcing; or (ii) accepting BUYER’s payment.

2.2. The Services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by BUYER. BUYER acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. Neither MAINLINE’s acknowledgment of a Purchase Order nor MAINLINE’s failure to object to conflicting, different, or additional terms and conditions in a Purchase Order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.

3. BUYER’S OBLIGATIONS, RIGHTS AND LIMITATIONS

3.1. BUYER is a user of IBM computer equipment and desires to have sufficient back-up capability in the event of a disaster.

3.2. BUYER shall pay to MAINLINE an initial fee and a subscription rate, invoiced quarterly in advance, subject to the amount set forth in the applicable Proposal.

3.3. BUYER warrants to provide MAINLINE a Configuration Schedule within thirty (30) days of BUYER’s submission of a Purchase Order.

3.4. BUYER warrants to notify MAINLINE within sixty (60) days of any modification of the Configuration Schedule. MAINLINE agrees to add all non-IBM hardware, including, without limitation, servers, personal computers, and networks, to these Terms and Conditions for no additional monthly subscription cost. The parties agree that such equipment will not be subject to the penalty provisions as outlined in Section 5.1.

3.5. Prior to MAINLINE incurring any obligation under these Terms and Conditions to provide the Sourcing, BUYER must (i) notify MAINLINE in writing of a disaster; and (ii) execute a mutually acceptable MAINLINE sales, lease or rental agreement.

3.6. BUYER is responsible for arranging the installation and programming of the equipment. BUYER is responsible for the cost of transportation, handling, insurance, installation, and programming of any equipment Sourced pursuant to these Terms and Conditions and any applicable taxes, if any.

4. MAINLINE’S OBLIGATIONS, RIGHTS AND LIMITATIONS.

4.1. In the event of a disaster, MAINLINE will perform the Sourcing subsequent to BUYER fulfilling its obligations under Section 3.5.

4.2. For the avoidance of doubt, MAINLINE shall have no obligations under these Terms and Conditions until BUYER fulfills its obligations under Section 3.5. Upon the occurrence of BUYER fulfilling its foregoing obligations, MAINLINE warrants to provide BUYER the Sourcing within one (1) to five (5) business days of written notification.

4.3. MAINLINE shall maintain a telephone number accessible to BUYER twenty-four (24) hours per day, three hundred sixty-five (365) days per year. MAINLINE guarantees a response to BUYER within two (2) hours of receiving a call, provided BUYER is accessible to MAINLINE by telephone.

4.4. Upon BUYER’s request, MAINLINE will send BUYER the most current Configuration Schedule.

4.5. MAINLINE shall arrange for the transportation, handling, and insurance of all equipment Sourced pursuant to these Terms and Conditions.

4.6. MAINLINE warrants that any equipment delivered to BUYER pursuant to these Terms and Conditions will be certified for manufacturer’s maintenance.

5. LIMITATION OF LIABILITY.

5.1. Conditioned upon BUYER having met the Requirements, if MAINLINE fails to deliver replacement equipment within five (5) working days, liquidated damages will be assessed against MAINLINE in the amount of TEN THOUSAND DOLLARS AND 00/100 CENTS ($10,000) per day for each day the equipment is not delivered for a maximum of twenty-five (25) days, provided that MAINLINE’s total liability under these Terms and Conditions shall never exceed the total value of the equipment on BUYER’s most current quarterly Configuration Schedule. Each party understands that specific damages are difficult to prove under these circumstances. This section represents each party’s best effort to reasonably assess damages in the event of MAINLINE default and constitutes BUYER’s sole and exclusive remedy for MAINLINE’s breach of the Terms and Conditions.

5.2. NOTWITHSTANDING SECTION 5.1, SHOULD BUYER BREACH ANY WARRANTY UNDER THESE TERMS AND CONDITIONS, MAINLINE’S LIMITATION ON DAMAGES SHALL BE EQUAL TO THE LESSER OF (i) THE AGGREGATE AMOUNT OF DAMAGES UNDER SECTION 5.1; OR (ii) THE TOTAL SUMS PAID OVER THE LAST TWELVE (12) MONTHS BY BUYER TO MAINLINE FOR THE SERVICES PROVIDED HEREUNDER.

5.3. UNDER NO CIRCUMSTANCES SHALL MAINLINE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR FOR LOSS OF PROFITS, REVENUE, OR DATA WHETHER IN AN ACTION ARISING IN CONTRACT, TORT, STATUTE OR OTHERWISE, EVEN IF MAINLINE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.

6. EQUIPMENT MODIFICATION.

6.1. MAINLINE may Source Substitute Equipment, provided that MAINLINE may only Source Substitute Equipment when necessary and as a result or unavailability of the specific equipment listed on BUYER’s Configuration Schedule. This section in no way relieves MAINLINE’s duty to Source BUYER’s equipment with a compatible and sufficient configuration in the event of a disaster. BUYER retains the right to demand equipment identical in model and features when such equipment becomes reasonably available to MAINLINE.

7. PRICES AND PAYMENT.

7.1. Prices are as stated in the Proposal. BUYER agrees to make payment in full to MAINLINE for all amounts due according to MAINLINE’s invoice within thirty (30) days from date of invoice. BUYER also agrees to pay interest on all amounts that become past due. Interest will be charged at one and a half percent (1 ½%) per month or the highest rate allowed by law, whichever is less. Additionally, BUYER will be responsible for all collection costs and attorney fees incurred to collect any delinquent amount. BUYER shall pay all sales and other taxes, however designated, (except taxes based upon the income of MAINLINE) which are levied or imposed by reason of the transactions contemplated herein.

8. CONFIDENTIAL INFORMATION.

8.1. Both parties acknowledge that these Terms and Conditions create a relationship of confidence and trust between MAINLINE and BUYER with respect to the business of both parties, including, but not limited to, both parties’ Confidential Information. Confidential Information shall only be used by the receiving party in its performance under these Terms and Conditions and shall not be disclosed by the receiving party except to those employees and independent contractors who have a need to know and who have agreed in writing to maintain the confidentiality of the Confidential Information as required herein. BUYER shall use MAINLINE’s Confidential Information only to order, evaluate, use, and maintain the Services furnished hereunder. The receiving party shall (i) not reproduce or copy the Confidential Information in whole or in part, except as authorized in these Terms and Conditions or when requested by the disclosing party; (ii) at the disclosing party’s written instruction, return or destroy the Confidential Information upon the termination of these Terms and Conditions or when requested to do so; or (iii) disclose the Confidential Information pursuant to a requirement of a duly empowered governmental agency or court of competent jurisdiction after due notice and adequate opportunity to intervene is given to the disclosing party unless legally prohibited. The foregoing restrictions and obligations shall not apply to information that (i) is available to the public through no wrongful act of the receiving party; (ii) is already in the possession of the receiving party and not subject to any agreement of confidence between the parties; (iii) is received from a third party; or (iv) is independently developed by or for the receiving party without reference to the disclosing party’s Confidential Information. Both parties shall maintain and not alter or remove any trademark, notice of proprietary rights, copyright or other identification which indicates the other party’s ownership interests in any Confidential Information. Each party shall notify the other party promptly and in writing of any unauthorized knowledge, possession, distribution, or use of any Confidential Information. The obligations of this provision shall survive for two (2) years after any termination or expiration of these Terms and Conditions.

9. REPRESENTATIONS AND WARRANTIES.

9.1. MAINLINE warrants and represents that it shall comply with all applicable federal, state and local laws, regulations and rules and provide Services in a good and workmanlike manner, in accordance with generally accepted practices and procedures.

9.2. EXCEPT AS PROVIDED ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAINLINE DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THOSE SERVICES PROVIDED HEREUNDER.

10. LIMITATION OF ACTIONS.

10.1. Any action for any loss or damage with respect to the Services delivered by MAINLINE hereunder must be commenced by BUYER within one (1) year after BUYER’s cause of action has accrued.

11. TERM AND TERMINATION.

11.1. These Terms and Conditions will commence with MAINLINE’s acceptance of BUYER’s Purchase Order, subject to Section 2.1 and shall remain in full force, unless earlier terminated by either party in accordance with these Terms and Conditions.

11.2. Either party may terminate the Services, for convenience, by giving the other party ninety (90) days prior written notice.

11.3. Either party will have the right to terminate these Terms and Conditions, in whole if: (i) the other party breaches any material term or condition of these Terms and Conditions and fails to cure such breach within thirty (30) days after written notice of such breach, except payment obligations, for which there is no cure period; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within thirty (30) days of filing; or (iv) the other party ceases to do business, or otherwise terminates its business operations.

11.4. In the event BUYER fails to pay any amount due then MAINLINE may, at its option, terminate the Services and all MAINLINE’s obligations hereunder. Further, upon said nonpayment, (i) BUYER shall have been deemed to have given notice of termination to be effective one hundred and eighty (180) days after the date the payment is due, (ii) all amounts due under these Terms and Conditions, including those under Section 11.4(i), shall be immediately due and payable, and (iii) until the foregoing amounts are paid, MAINLINE’s obligations under these Terms and Conditions shall be suspended, but the one hundred and eighty (180) day remaining term of these Terms and Conditions shall not be thereby extended. All MAINLINEs’ costs of collection, including reasonable attorney’s fees, shall be the obligation of the BUYER.

12. NOTICES

12.1. All notices (including requests, consents or waivers) made under these Terms and Conditions shall be in writing and sent by courier, prepaid registered mail, or delivered by hand. MAINLINE will send notices to the CLIENT at the address listed in the Proposal. CLIENT will send notices to MAINLINE at 1700 Summit Lake Drive, Tallahassee, Florida 32317, Attention: General Counsel. Either party may change its notice address by proper notice to the other party.

13. GENERAL PROVISIONS

13.1. RELATIONSHIP OF THE PARTIES. The parties are independent contractors and neither party is an employee, agent, partner, or joint venture of the other party. Neither party shall have the right to bind the other party to any agreement with a third party or to incur any obligation or liability on behalf of the other party. Each party assumes full responsibility for its actions and the actions of its personnel in rendering performance pursuant to these Terms and Conditions, and each party shall have sole responsibility for the supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), worker’s compensation, disability benefits and the like of its personnel. MAINLINE reserves the right to engage subcontractors in the performance of Services under these Terms and Conditions. Each party assumes full responsibility for the acts of all its subcontractors.

13.2. FORCE MAJEURE. MAINLINE’s duty to perform will be suspended due to an act of God or force of nature which hinders or prevents MAINLINE from complying with these Terms and Conditions, provided, however, that MAINLINE will use every commercially practical means to overcome any act of God or force of nature in performing under these Terms and Conditions.

13.3. VENUE. Exclusive venue for any dispute shall be Leon County, Florida. The applicable law governing these Terms and Conditions shall be Florida law. THE PARTIES WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, ACTIONS, PROCEEDING, OR COUNTERCLAIM BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS.

13.4. DISPUTE RESOLUTION. In the event of a dispute between the parties related to these Terms and Conditions, the parties shall attempt to resolve the dispute between the operations personnel of the parties. Failing resolution at that level, the parties shall refer the dispute to management who will meet, by phone or in person, to resolve the dispute. If after thirty (30) days following referral of the dispute to management the dispute remains unsettled, either party may file a legal action, subject to Section 14.3, above.

13.5. SEVERABILITY. If any provision of these Terms and Conditions is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of these Terms and Conditions, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of these Terms and Conditions a provision as similar in terms to such illegal, invalid, or unenforceable provisions as may be possible and be legal, valid, and enforceable.

13.6. PARAGRAPH HEADINGS AND INTERPRETATION. The paragraph headings contained herein are for reference only and will not be considered substantive parts of these Terms and Conditions. All of the defined terms, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense. Similarly, when applicable, a reference to one gender shall include the other.

13.7. EXCLUSIVE REMEDIES. The remedies set forth in these Terms and Conditions shall be the exclusive remedies of each party.

13.8. ASSIGNMENT. these Terms and Conditions may not be assigned in whole or in part by BUYER without the written consent of MAINLINE.

13.9. COMPLETE AGREEMENT. These Terms and Conditions constitute the exclusive and entire agreement between the parties with respect to its subject matter, and as of the effective date, supersedes all prior or contemporaneous agreements, negotiations, representations and proposals of any kind, whether written, oral, express or implied, relating to its subject matter. The parties agree that unless other terms are specifically acknowledged or initialed by a MAINLINE officer, or an employee to whom MAINLINE’s Board of Directors has delegated the authority to sign contracts on behalf of MAINLINE, the terms and conditions found herein shall prevail.

13.10. NON-WAIVER. No waiver by MAINLINE or default by BUYER shall be deemed a waiver of any subsequent default.

13.11. SURVIVAL. Sections 1, 2, 5, 6, 8, 9, 10, 11, 12, and 13 14 shall survive any termination or expiration of these Terms and Conditions.