DMW&H Parts and Service Terms and Conditions

Parts and Service Terms and Conditions

These terms and conditions are the only terms that govern the agreement between the parties (the “Agreement”) relating to technical specifications expressly outlined in the Scope of Work provided by W & H Systems, Inc. d/b/a DMW&H (hereinafter “DMW&H”), with principal offices at 253 Passaic Avenue, Fairfield, NJ 07004, and the Customer (“Customer”) unless and to the extent that a separate contract is subsequently executed between Customer and DMW&H. Customer means the procuring party. In consideration of the mutual covenants hereinafter set forth, DMW&H and Customer, intending to be legally bound, hereby covenant and agree as follows:

 

Either party may use its standard business forms or other communications to administer transactions under the Agreement, but the use of such forms is for the parties’ convenience only and does not alter or supplement the provisions of this Agreement. Any terms or conditions that are preprinted in such forms are null, void, and of no effect. Any purchase order issued by Customer shall, upon acceptance by DMW&H, automatically incorporate into this Agreement except to the extent that any of the terms contained therein specifically and expressly modify, delete or otherwise amend the terms of the Agreement; provided, however, that any such change shall be incorporated into this Agreement if evidenced in a writing signed by both parties. Preprinted terms shall not be deemed to expressly supplement, modify, delete or otherwise amend the Agreement. The parties acknowledge and agree that DMW&H’s signature, including any electronic signature, on any purchase order issued by Customer, either before or after the issuance of this Agreement or the Proposal shall not constitute an acceptance of any inconsistent terms and conditions contained therein or a modification to the terms of this Agreement and that such signature is provided for the sole purpose of facilitating the transactions contemplated herein. In the event of any conflict or inconsistency between this Agreement and any terms and conditions in any purchase order or other business document issued by Customer, this Agreement shall govern and control.

 

 

I. Definitions and Rules of Interpretation. The terms “herein”, “hereof”, “hereunder” and the like as used in this Agreement shall refer to this entire Agreement. Additionally, the following terms shall have the meanings set forth below for all purposes of this Agreement:

A. “Agreement” means this document and all documents referred to herein, as amended, modified or supplemented from time to time in accordance with the terms hereof.

B. “Customer Premises” means the premise(s) listed in the Scope of Work where the DMW&H Material Handling System is installed.

C. “Documentation” means all documentation and drawings provided to Customer by DMW&H with respect to the DMW&H Material Handling System.

D. “DMW&H Material Handling System” or “System” means the materials handling system defined by the Scope of Work, including the DMW&H Software.

E. “DMW&H Personnel” means persons engaged by DMW&H as its officers, employees, agents, independent contractors or subcontractors.

F. “DMW&H Software” means any software developed by DMW&H for use with the DMW&H Material Handling System to be supported as defined in the Scope of Work.

G. “Scope of Work” means a written document outlining the details a stakeholder knows or could reasonably be expected to know about the Services.

H. “Services” means the support services to be undertaken pursuant to this Agreement as set forth in the Scope of Work.

I. “Purchase Price” means the price set forth in the Scope of Work for the work to be performed hereunder, as adjusted by any change order(s).

J. “Third-Party Software” means any software licensed from a person or entity other than DMW&H and is available from sources other than DMW&H which relates to the Services or the System.

I. Pricing

a. In exchange for the Services specified in the Scope of Work, Customer agrees to pay DMW&H the total annual Purchase Price in advance.

b. Reimbursable Expenses. The Customer shall pay for the following expenses in connection with this Agreement (collectively, “Reimbursable Expenses”):

i. In the event that DMW&H, in its sole discretion, deems it necessary to dispatch

personnel to the Customer Premises to resolve open issues, all travel and accommodation costs incurred in connection with the dispatch of the technician to provide the on-site Services, including, without limitation, the cost of air travel, rented cars, lodging, and meals.

ii. In the event that the Customer requests, and DMW&H accepts, a visit to the Customer Premises, in addition to all travel and accommodations, the Customer shall pay DMW&H’s current hourly rates as defined in the Scope of Work.

iii. The Customer shall pay DMW&H’s current hourly rates as defined in the Scope of Work for Services provided by DMW&H in connection with the use of the System or its customer service desk as a result of malfunctions due to repeated errors in operation, other improper treatment, or technical or operational interventions by Customer or third parties.

iv. Services performed outside of agreed upon Scope of Work at the request of Customer.

c. Price Increases. DMW&H shall be entitled to increase its fees for Services and hourly rates charged as Reimbursable Expenses once per calendar year upon providing thirty (30) days written notice to Customer. Increases in fees for Services shall not exceed five percent (5%) per year and shall take effect upon the earlier of: 1.) the calendar year immediately following DMW&H’s delivery of a notice of increase, or 2.) the beginning of the next term of this Agreement. Increases in the hourly rates charged as Reimbursable Expenses shall take effect, in each case, after written notice has been given by DMW&H to Customer.

II. Additional Obligations and Rights of DMW&H.

a. DMW&H shall maintain insurance with a reputable insurer reasonably satisfactory to Customer which shall include the following types of coverages and in the following amounts : Commercial General Liability (Bodily Injury and Property Damage) – $2,000,000 Aggregate; Personal Injury Liability – $1,000,000 Limit; Business Auto – (Bodily Injury & Property Damage) – $1,000,000 Combined Single Limit; Worker’s

Compensation – Coverage A – Statutory Limits; Coverage B – (Employer’s Liability); $1,000,000 each accident; $1,000,000 each employee; $1,000,000 Policy Limit; and Excess Liability Umbrella- $10,000,000.

b. DMW&H represents that, as of the date of this Agreement, the types of insurance coverages and limits set forth in Section II(a) above are in full force and effect and covers the authorized activities of all of DMW&H’s employees, subcontractors and agents. Each such insurance policy will name Customer, by special written endorsement, as an additional insured. DMW&H agrees that each policy outlined in Section II(a) above, with the exception of the Worker’s Compensation and Employer’s Liability policies described therein, shall provide that such policy may not be canceled without providing at least thirty (30) days’ prior written notice to Customer. Upon request, DMW&H will provide Customer with a duly executed certificate of insurance before commencement of the Services to confirm that DMW&H has acquired all specified insurance coverages. Throughout the term of this Agreement, DMW&H shall maintain all insurance policies as provided herein and shall, upon the cancellation of an insurance policy and its replacement with another, name Customer as an additional insured (except with respect to any Workers Compensation or Employer’s Liability policy as noted above) on said replacement policy and, upon request, shall provide Customer with a new, duly executed certificate of insurance evidencing the same. All insurance required by this Agreement shall be written by a company properly licensed in the state where the Customer Premises are located at the time such policy is issued. The company issuing the insurance must be reasonably acceptable to Customer. This insurance shall be primary, and any insurance of Customer shall not be contributory. DMW&H shall also be responsible for verifying that all subcontractors performing Services maintain adequate insurance consistent with the requirements set forth above.

c. DMW&H may subcontract any of its obligations under this Agreement to any person or entity which DMW&H, in its sole discretion, considers qualified to perform such obligation in connection with the installation of the DMW&H Material Handling System at the Customer Premises or the provision of Services; provided, however, that DMW&H shall remain responsible for the performance of all of its obligations under this Agreement.

III. Additional Obligations and Rights of Customer. In addition to any other obligations of Customer set forth hereunder, Customer agrees:

a. To provide DMW&H developers, DMW&H support personnel, and any authorized third-party sub-contractor developers and support personnel with 24 X 7 X 365 direct remote access to the DMW&H Material Handling System devices connected on the customer’s network.

b. To maintain the connection technologies and provide continuous remote device access to DMW&H. DMW&H is not responsible for the availability of network-to-network connectivity if that method is selected.

c. To provide remote access accounts that can accommodate a minimum of three concurrent user sessions connected to all the devices.

d. To provide Credential Management for these accounts that will allow DMW&H users to renew their own passwords independently after expiration without the need of a help desk.

DMW&H personnel will not be responsible for connecting periodically just to maintain accounts active. They will only connect when requested by the customer’s personnel to assist.

e. To not attempt to implement jump box solutions for remote access to non-desktop devices such as PLCs, drives, and line scanners since these do not provide direct access to the devices as functionally needed.

f. To provide the DMW&H Infrastructure department with advance notice of a minimum of two weeks prior to trying to change any of the remote access technologies previously agreed upon.

g. To provide DMW&H Personnel with such access to Customer Premises as may be necessary, within commercially reasonable parameters, or as DMW&H may reasonably request, for DMW&H to perform its obligations under this Agreement, including, without limitation, the Services.

h. To comply with the operating instructions, maintenance procedures, and other System documentation supplied to Customer for any DMW&H and third-party equipment in order to maintain the System in operational condition;

i. To take all reasonable steps to ensure the safety of Customer personnel, DMW&H Personnel, and any third-party, including but not limited to: (1) ensuring that only persons who have previously received proper training, know how to operate the System and are familiar with the safety devices have access to working areas involving the System; (2) ensuring all System safety devices are activated and working prior to the rendering of any Services; (3) providing DMW&H with written documentation of all site safety and health policies; and (4) providing any additional safety and health related instructions to DMW&H Personnel or third party personnel prior to commencement of on-site Services.

j. To take all reasonable steps to identify faults or malfunctions involving the System and their causes;

k. To the best of its ability support DMW&H Personnel in providing Services by providing, including but not limited to, the following: 1.) unhindered, safe, and secure access to the System and the Customer Premises; 2.) maintain and provide a clean and unobstructed work space from which DMW&H can perform the Services; 3.) lockable room or storage area for DMW&H tools and spare parts; 4.) providing access to telephone and internet connection free of charge; 5.) provide necessary access and passwords required for the testing of the System and all other rendered Services; and 6.) all other reasonable assistance requested by DMW&H Personnel;

l. To maintain a package of spare parts for the System;

m. To keep the package of spare parts in serviceable condition and ready for use as recommended by DMW&H and any third-party manufacturer;

n. To perform or authorize a third party to perform maintenance recommended or otherwise authorized by DMW&H with appropriately trained personnel;

o. To, if necessary, provide adequate windows of time, suggested by DMW&H, for the rendering of Services which may cause interruptions, delays, or downtime in the System or the System’s performance; and

p. To pay the Purchase Price to DMW&H upon DMW&H’s full performance hereunder in accordance with the terms set forth in the Proposal.

IV. DMW&H Warranties and Disclaimers.

a. DMW&H warrants that it will perform the Services in a good and workmanlike manner and in accordance with the provisions of this Agreement. Although the Services are designed to restore and enable normal operation of the System, this Agreement does not include a warranty, guarantee, or any other assurance of normal, fault-free, or continuous uninterrupted operation or functioning of the System. DMW&H does not warrant the success of the Services it provides or the results of such Services. THE WARRANTIES MADE BY DMW&H IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR TRADE USAGE.

b. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, DMW&H DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE DMW&H MATERIAL HANDLING SYSTEM, THE DMW&H SOFTWARE AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT DMW&H KNOWS, OR HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), ANY WARRANTY OF TITLE, OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, CUSTOM OR USAGE OF TRADE, OR OTHERWISE.

V. Damages Limitations. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMW&H’S TOTAL LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL ANNUAL AMOUNT OF PAYMENTS RECEIVED BY DMW&H FROM CUSTOMER PURSUANT TO THIS AGREEMENT. All claims and causes of action arising out of or related to this Agreement must be brought by Customer within twelve (12) months of Customer’s actual or constructive knowledge of the events or circumstances giving rise to such claim or cause of action.

VI. Indemnification.

a. DMW&H shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Services. DMW&H shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to (1) all employers performing the Services and other persons who may be affected thereby, (2) all the work and all materials and equipment to be incorporated in the Services, and (3) other property at the Customer Premises or adjacent thereto.

DMW&H shall post all notices and comply with all applicable laws, ordinances, rules, regulations and orders of any public authority bearing on the safety of persons and property and their protection from damage, injury or loss. DMW&H shall indemnify, defend and hold harmless Customer, their agents and employees from and against all claims, damages, losses and expenses, including but not limited to reasonable attorneys’ fees, arising out of or resulting from the performance of the Services, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, and (2) is caused by any grossly negligent act or omission of DMW&H, a DMW&H subcontractor, a DMW&H material or equipment supplier, or anyone directly or indirectly employed by any of the foregoing parties. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph. In any and all claims against Customer by DMW&H or any DMW&H Personnel , the indemnification obligation under this paragraph shall not be limited by any limitation on the amount or type of damages, compensation or benefits payable by or for DMW&H or any subcontractor under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.

VII. Term and Termination.

a. Unless otherwise provided herein, DMW&H will begin providing Customer with the Services upon the Start Date defined in the Scope of Work and will continue to provide the Services for one (1) year. At the end of the initial term, this Agreement shall automatically renew for successive one (1) year terms until terminated in accordance with these Terms and Conditions.

b. Either party may terminate the Agreement upon ten (10) days advance written notice. Notwithstanding the foregoing, (a) the Agreement shall automatically and immediately terminate in the event of bankruptcy or insolvency of either party; or (b) if either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-defaulting party, at its option, may terminate this Agreement immediately by providing written notice to the defaulting party.

c. Effect of Termination. If this Agreement is terminated pursuant to paragraph VII.a, then such termination is without liability except for obligations which expressly survive the termination of this Agreement, including, without limitation, Customer’s obligation to pay DMW&H any portion of the Purchase Price which remains unpaid as of the date of termination. DMW&H is not obligated to pay back any portion of the Purchase Price or any other fees and expenses charged by DMW&H in connection with the Services in the event of termination, except in the case of material breach by DMW&H. In addition to the foregoing, all effective Services governed by this Agreement will automatically terminate upon termination of this Agreement pursuant to paragraph VII.a of this Agreement.

VIII. Confidentiality and Non-Solicitation.

a. DMW&H agrees to hold and maintain all information and documentation supplied to it by Customer and identified as proprietary and confidential as confidential information and to only use such information to fulfill DMW&H’s obligations under this Agreement, and not to disclose such proprietary and

confidential information to anyone who is not employed by or acting on behalf of either Customer or DMW&H Personnel without Customer’s prior written approval.

b. Customer agrees to hold and maintain all the DMW&H Software, Documentation and all other information and documentation supplied to it by DMW&H pertaining to the DMW&H Material Handling System, including, without limitation, the terms of all agreements pertaining to the DMW&H Material Handling System, as proprietary and confidential and not to disclose such information to anyone who is not employed by or acting on behalf of Customer or DMW&H Personnel without DMW&H’s prior written approval.

c. The parties agree to cooperate with each other in investigating, preventing and stopping the misuse of proprietary and confidential information by their respective current and/or former personnel.

d. The foregoing confidentiality obligations shall not be applicable to any information that (a) is or becomes generally available to or known by the public other than as a result of a breach of the confidentiality obligations by the receiving party, (b) was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party, (c) becomes available to the receiving party on a non-confidential basis from a person or entity who is not known by the receiving party to be bound by a confidentiality agreement with the disclosing party, or is not otherwise prohibited from transmitting the information to the receiving party, or (d) was or is independently developed by the receiving party without violating the receiving party’s obligations hereunder.

e. During the term of this Agreement and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, in any manner solicit or induce for employment any employee, subcontractor or person who performed any work under this Agreement who is then in the employment of the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any such employees or independent contractor who freely responds thereto shall not be deemed a breach of this Section.

f. In the event either party is required by law, regulation or court order to disclose any of the other party’s confidential information, such party will provide the other party with prompt notice thereof so that the other party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not timely obtained; or the other party has consented in writing to the production or disclosure of the confidential information in response to the demand; or the other party has taken no action to protect its interest in the confidential information within seven business days after receipt of notice from such party, then such party will furnish only that portion of the information which it is legally required to furnish per its counsel’s advice, and such party will exercise its best efforts to obtain reliable assurance that all disclosed confidential information pursuant to the foregoing will be treated confidentially as per the terms of this Section VIII.

g. The existence, terms and conditions of this Agreement are considered proprietary and confidential and shall be covered under Section VIII of this Agreement.

IX. Force Majeure. In the event of any condition or contingency, existing or future, which is beyond the current reasonable business judgment contemplation, reasonable control or otherwise occurs without fault or negligence of DMW&H (each, a “Force Majeure Event”), DMW&H shall not be deemed to be in breach of this Agreement for any failure or delay in its performance of any term of this Agreement to the extent such failure or delay is caused by such Force Majeure Event and will be entitled to an appropriate extension of time for performance of its obligations under this Agreement. Examples of Force Majeure Events include, without limitation, acts of God, epidemics, pandemics, quarantines, Public Health Events of International Concern (PHEIC), fire, floods, transport delays, strikes, labor disputes, unavailability of equipment and interference by civil or military authorities.

X. Dispute Resolution and Arbitration.

a. The parties agree to meet and mutually undertake by negotiation to resolve any dispute, except as provided in Section X(c) below, arising out of or related to this Agreement or the breach thereof (the “Dispute”). If, in the opinion of either party, a Dispute cannot be resolved by negotiation, the parties agree that at the request of either party, that they shall try in good faith to settle the Dispute by mediation in Taylor, Michigan with a mediator with knowledge of the industry and who is certified by the Michigan Supreme Court. The parties shall equally share the mediator’s fees. If, after such good faith mediation efforts, the parties are unable to resolve the Dispute, then a party may elect to pursue litigation. The parties agree that pending resolution of any Dispute, DMW&H will continue to perform its obligations under the Agreement and Customer will continue to make undisputed payments in accordance with the terms of the Agreement.

b. Governing Law, Jurisdiction, Venue and Attorney’s Fees. This Agreement shall be governed by the laws of Michigan. In the event of any action, litigation or proceeding of any type regarding or relating to performance of this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorney’s fees at all trial, bankruptcy and appellate levels. All disputes pursuant to this Agreement shall be brought in a state court of competent jurisdiction and exclusive venue shall be given to courts located in Taylor, Michigan. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

c. This Section X shall not apply to any unauthorized disclosure by either party hereto of the other party’s confidential information, it being hereby acknowledged that such disclosure would cause the non-disclosing party irreparable harm, and thus the non-disclosing party shall be entitled to obtain injunctive relief, under the parameters set forth in Paragraph X(b) to prevent the release and dissemination of its confidential information in addition to any other rights which it may have pursuant to this Agreement, in law or in equity.

XI. Taxes, Tariffs, and Cost Increases.

a. Unless otherwise expressly stated in this Agreement, the price quoted herein does not include any applicable excise, sales, use, retailer, occupational, or similar taxes imposed currently or hereafter by any local, state, federal, or other taxing authority, and Customer shall indemnify, and hold DMW&H harmless from and against any liability, cost, penalty, interest, or expenses arising from such tax obligations, including without

limitation any costs or expenses incurred by DMW&H in seeking a refund or credit from any taxing authority for taxes overpaid as a result of Customer’s failure to provide valid exemption documentation or Customer’s provision of inaccurate tax-related information. All transactions pursuant to this Agreement shall be presumed taxable unless Customer provides DMW&H with valid exemptions documentation as set forth below. The amount of any such taxes, whether for services, materials, or equipment, which are payable in accordance with the provisions of any existing or future statute or the rules, regulations, or decisions of any taxing authority, will be paid by the Customer, either directly to the taxing authority or reimbursed to DMW&H for the amount of such taxes paid, as shown on DMW&H’s invoice.

b. If Customer claims an exemption from any sales tax, use tax, or similar tax, Customer shall provide DMW&H with valid exemption certificates, resale certificates, direct pay permits, or other documentation required by applicable law no later than ten (10) business days prior to the date of the first invoice under this Agreement. If Customer fails to provide such documentation within the time period specified herein, DMW&H shall charge all applicable taxes on its invoices and Customer shall remain responsible for payment thereof. In the event that Customer subsequently provides valid exemption documentation, DMW&H shall use commercially reasonable efforts to adjust future invoices accordingly, but shall have no obligation to refund taxes previously invoiced and paid. DMW&H shall be entitled to rely in good faith on any exemption certificate or other tax documentation provided by Customer, and Customer shall indemnify, defend, and hold DMW&H harmless from and against any taxes, interest, penalties, or other costs assessed by any taxing authority as a result of an exemption certificate or other documentation provided by Customer that is subsequently determined to be invalid, inaccurate, or inapplicable.

c. If any taxing authority assesses, levies, or claims taxes, interest, or penalties against DMW&H that are Customer’s responsibility under this Section XI (a), including without limitation any underpayment, additional assessment, or adjustment resulting from Customer’s failure to pay the correct amount of tax or Customer’s provision of invalid or inaccurate exemption documentation, Customer shall be responsible for the full amount of such taxes together with all interest, penalties, and related costs assessed by the taxing authority, regardless of when such assessment occurs. DMW&H shall provide Customer with written notice thereof within fifteen (15) business days of receipt of such assessment or claim. Customer shall, at its option, either (i) pay such amount directly to the taxing authority within thirty (30) days of receipt of DMW&H’s notice, or (ii) reimburse DMW&H in full within thirty (30) days of receipt of DMW&H’s notice. If Customer fails to pay or reimburse within such thirty (30) day period, DMW&H may pay such amount and Customer shall reimburse DMW&H immediately upon demand, together with any additional interest or penalties that accrue after the expiration of such thirty (30) day period. If DMW&H remits taxes to a taxing authority on Customer’s behalf in excess of the amount actually due and DMW&H seeks a refund or credit from such taxing authority, Customer shall cooperate with DMW&H in pursuing such refund or credit, including by providing any documentation reasonably requested, and Customer shall reimburse DMW&H

for all reasonable costs and expenses incurred in connection with such refund efforts. The obligations of Customer under this Section XI(a) shall survive the termination or expiration of this Agreement.

d. The contract price will be adjusted upward to reflect and pass through, on a dollar-for-dollar basis, all increases in DMW&H’s cost of regulatory compliance, taxes, duties, and tariffs related to the manufacture and supply of the Work. DMW&H will endeavor to provide written notice to Customer of any such cost increases and the new price for the Work at least thirty (30) days prior to the date when such new price is to be in effect or as soon as reasonably practical. Such notification of increased costs shall include a description of the applicable costs that have increased and the amount by which each has increased, and DMW&H shall provide supporting documentation relating to such increased costs as Customer may reasonably request. The parties price adjustment shall become effective upon the effective date set forth in the written notice delivered by DMW&H to Customer and the parties shall execute a Change Order to evidence the foregoing. Notwithstanding the foregoing, in an effort to mitigate any increases in costs, DMW&H shall use reasonable commercial efforts to reduce the amount of the price adjustment.

XII. Marketing and Promotion. Neither party will issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of the other party, except that either party may make any public disclosure it believes in good faith is required by applicable law. Notwithstanding the foregoing, if either party, or a third party, makes a public disclosure related to this Agreement that is false or damaging to a party, the aggrieved party will have the right to make a public response reasonably necessary to correct any misstatement, inaccuracies, or material omissions in the initial and wrongful affirmative disclosure without prior approval of the other party. Neither party will be required to obtain consent pursuant to this Section for any proposed release or announcement that is consistent with information that has previously been made public without breach of its obligations under this clause. Notwithstanding the foregoing, DMW&H may list Customer and its logo as a customer on DMW&H’s website and in marketing materials and Customer shall allow DMW&H to create promotional announcements, press releases and/or installation videos of the DMW&H Material Handling System (“Promotional Materials”) and, with reasonable notice, shall grant DMW&H access to Customer Premises to collect video or photographs to be used for such Promotional Materials. Customer shall approve all Promotional Materials, and such approval shall not be unreasonably delayed or withheld.

XIII. Miscellaneous.

a. Customer retains all ownership and other rights to data and other information that Customer or persons acting on Customer’s behalf make available in relation to the Services (“Input Data”). DMW&H and its affiliates have the right to retain, transfer, duplicate, analyze, modify and otherwise use Input Data to provide, improve or develop DMW&H’s offerings. Customer has sole responsibility for obtaining all consents and permissions (including providing notices) and satisfying all requirements necessary to permit DMW&H’s use of Input Data. Customer shall indemnify, hold harmless, and, at DMW&H’s option, defend DMW&H and DMW&H Personnel from and

against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any third-party claim that any Input Data or other data, information, or content provided by Customer in connection with the Services, or any use of any such Input Data or other data, information, or content in connection with the Services, infringes or misappropriates such third party’s intellectual property rights and any claims based on Customer’s (i) negligence or willful misconduct; (ii) use of the DMW&H IP (as defined below) in a manner not authorized by this Agreement; (iii) use of the DMW&H IP in combination with data, software, hardware, equipment, or technology not provided by DMW&H or authorized by DMW&H in writing; or (iv) modifications to the DMW&H IP not made by DMW&H; provided that Customer may not settle any claim against DMW&H unless DMW&H consents to such settlement, and further provided that DMW&H will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. All information, analysis, insights, inventions and algorithms derived from Input Data by DMW&H and/or its affiliates (but excluding Input Data itself) and any intellectual property rights related thereto, are owned exclusively and solely by DMW&H and are part of DMW&H´s confidential information. Unless agreed in writing, DMW&H does not archive Input Data for Customer’s future use.

b. Subject to and conditioned on Customer’s payment of the Purchase Price and all fees and expenses owing to DMW&H hereunder and any other agreement between DMW&H and Customer and Customer’s compliance with all other terms and conditions of this Agreement and any other agreement between DMW&H and Customer, DMW&H hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Services and any other intellectual property owned by DMW&H required to be used in connection therewith (collectively, “DMW&H IP”) during the term of this Agreement in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use only. Customer shall not use the DMW&H IP for any purposes beyond the scope of access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any of its employees, agents, contractors, or agents, to: (i) copy, modify, or create derivative works of the DMW&H IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the DMW&H IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the DMW&H IP, in whole or in part; (iv) remove any proprietary notices from the DMW&H IP; or (v) use the DMW&H IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Customer is responsible and liable for all uses of the DMW&H IP resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its employees, agents, contractors, or agents in connection with the DMW&H IP and any act or omission by such persons that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. DMW&H reserves all rights not expressly granted to

Customer in this Agreement. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DMW&H IP. Customer acknowledges that, as between Customer and DMW&H, DMW&H owns all right, title, and interest, including all intellectual property rights, in and to the DMW&H IP.

c. Notwithstanding anything to the contrary in this Agreement, DMW&H may temporarily suspend Customer’s access to any portion or all of the DMW&H IP if: (i) DMW&H reasonably determines that (A) Customer’s use of the DMW&H IP disrupts or poses a security risk to the DMW&H IP or to any other customer or vendor of DMW&H; (B) Customer is using the DMW&H IP for fraudulent or illegal activities; or (C) DMW&H ‘s provision of the DMW&H IP to Customer is prohibited by applicable law; or (ii) any vendor of DMW&H has suspended or terminated DMW&H’s access to or use of any Third-Party Software required to enable Customer to access the DMW&H IP (a “Suspension”). DMW&H will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Suspension.

d. This Agreement shall be binding upon the successors and assigns and inures to the benefit of permitted successors and assignees respectively of each party hereto. Neither party may assign this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed). Any such assignment without first obtaining written consent of the other party shall be wholly void and ineffective for any and all purposes. Notwithstanding the foregoing: (i) each party may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, except that the effected party must provide written notice of such assignment to the other party, and (ii) DMW&H may assign this Agreement to its affiliates.

e. Any notice required under this Agreement shall be made in writing and, if to Customer, to Customer’s authorized representative or, if to DMW&H, to DMW&H’s authorized representative and shall be deemed given (a) two calendar days after being sent by any service (U.S. mail, courier, overnight delivery service such as Federal Express or other) that requires a receipt to be signed, (b) when dispatched by fax and followed by a confirmation copy mailed by any service (U.S. mail, courier, or overnight delivery service such as Federal Express or other) that requires a receipt to be signed, except that this additional step shall not be necessary if the sender receives written confirmation of receipt signed by the addressee of the fax, (c) when delivered by hand with appropriate proof of delivery, or (d) when sent by e-mail following receipt of a non-automated response from the receiving party confirming receipt of the notice. Notices shall be addressed to the parties at the above addresses unless there has been a written notice of address change in advance.

f. This Agreement (including the exhibits hereto and documents referred to therein and any written modifications thereof signed by DMW&H and Customer) constitutes the entire agreement between DMW&H and Customer with respect to subject matter herein. No changes to this Agreement shall be valid unless they are in writing and signed by a duly authorized representative of each party.

g. Should any provision of the Agreement be held to be unenforceable or in conflict with the law of any jurisdiction in which enforcement of the Agreement or any of its provisions is sought, such ruling shall not affect the validity and enforceability of the remaining provisions of the Agreement. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY PROVIDED UNDER THE AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH IN THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.

h. The waiver of one default by either party shall not constitute a waiver of prior or subsequent defaults of the same or different kind.

i. The titles to sections and paragraphs of this Agreement are for convenience only and do not in any way limit or amplify the terms and conditions of the Agreement.

j. The parties are independent contractors and nothing in the Agreement shall be deemed to place the parties in the relationship of employer, employee, principal, agent, franchisor, franchisees, or joint ventures. A party does not have any authority to bind the other party by contract or otherwise to any obligation. Customer will not represent to the contrary, either expressly or implicitly.

k. All claims, obligations, liabilities, or causes of action (whether based in contract, tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner

to this Agreement, or the negotiation, execution, or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), by Customer may be made only against (and are expressly limited to) DMW&H. No other party, including, without limitation, any director, officer, employee, incorporator, member, partner, manager, stockholder, affiliate, agent, attorney or representative of, and any financial advisor or lender to, DMW&H, or any director, officer, employee, incorporator, member, partner, manager, stockholder, affiliate, agent, attorney, or representative of, and any financial advisor or lender, to any of the foregoing (“Nonparty Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance, or breach; and to the maximum extent permitted by law, Customer hereby waives and releases all such liabilities, claims, causes of action, and obligations against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by law, (i) Customer hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity or granted by statute, to avoid or disregard the entity form of DMW&H or otherwise impose liability of on any Nonparty Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, direct participation, unfairness, undercapitalization, or otherwise; and (ii) Customer disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.