DHI Computing Service, Inc.
- SERVICES. A DHI-Provo representative shall make the number of visits at the frequency set forth in the Agreement. Each such visit will include the representative spending the amount of on site for equipment inspection and training as set forth in the Agreement. In addition to such on-site service, DHI-Provo representatives will also provide remote inspection, review, cleanup of your database(s) at the frequency set forth in the Agreement and assistance with software updates. DHI-Provo shall staff a helpdesk to respond to your questions from 8am to 5pm, Mountain Time, Monday through Friday, with after hours, weekends and holiday support also available, albeit on a returned call basis.
- FEES. Subject to the provisions hereof, you agree to pay DHI-Provo the fees set forth in the credit terms section of the Agreement. DHI-Provo may increase the amount of such fees upon 30-days advance written notice to you. All payments shall be made in U.S. dollars.
- TERM. Your participation in the Program shall commence as of the effective date of the Agreement and shall remain in effect for the period set forth in the Agreement; provided, such term shall automatically renew for successive 12-month periods annually unless terminated prior to any such automatic renewal by either party. Either party may terminate the Agreement upon 30-day advance written notice to the other party.
- COOPERATION. You agree to cooperate with DHI-Provo in the performance by DHI-Provo of its obligations under the Program and the Agreement.
- DHI-REPRESENTATIVES ON YOUR PREMISES. DHI-Provo representatives shall comply with your workplace rules and security regulations when on your premises. You agree to indemnify and hold harmless DHI-Provo from any personal injury or damage to real or tangible personal property resulting from the gross negligence or intentional misconduct of any of your employees or agents while a DHI-Provo representative is on your premises. DHI-Provo agrees to indemnify and hold you harmless from any personal injury or damage to real or tangible personal property resulting from the gross negligence or intentional misconduct or a DHI-Provo representative while on your premises.
- LIMITATIONS ON LIABILITY. THE TOTAL AGGREGATE LIABILITY OF DHI-PROVO TO YOU FOR ALL DAMAGES AND OTHER LOSSES IN CONNECTION WITH THE PROGRAM OR THE AGREEMENT, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, SHALL BE LIMITED TO THE MAXIMUM AMOUNT OF MONTHLY FEES YOU HAVE PAID TO DHI-PROVO PURSUANT TO THE AGREEMENT DURING THE CONSECUTIVE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH DHI-PROVO RECEIVES WRITTEN NOTICE FROM YOU OF YOUR FIRST CLAIM AGAINST DHI-PROVO FOR DAMAGERS OR OTHER LOSSES. The foregoing sentence shall not limit your right to claims for personal injury or damage to real or tangible personal property pursuant to Section 6 herein.
IN NO EVENT SHALL DHI-PROVO BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL) IN CONNECTION WITH THE PROGRAM OR THE AGREEMENT, REGARDLESS OF THE BASIS FOR SUCH LIABILITY, AND EVEN IF DHI-PROVO HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
It is expressly understood and agreed that in the event any remedy under this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall nevertheless remain in effect.
- THIRD PARTY CLAIMS. You agree to indemnify and hold DHI-Provo harmless from any and all claims, losses, and damages asserted against DHI-Provo by any third party, employee, or agent of your or any other individual or entity who may be affected by DHI-Provo's provision of services pursuant to the Program, except for claims arising out of the gross negligence or willful misconduct of DHI-Provo or its representatives.
- EXCUSED PERFORMANCE. DHI-Provo shall not be responsible for any failure to perform due to causes beyond DHI-Provo's reasonable control, including but not limited to labor disputes, strikes, acts of God, fire, storm, water, delays in transportation, criminal acts of third parties, communication line failure, equipment failure, and governmental actions. Any delay beyond DHI-Provo's reasonable control shall be excused and the period of performance extended as may be necessary to enable DHI-Provo to perform after the cause of delay has been removed.
- GOVERNING LAW; LIMITATION ON ACTIONS. The Agreement is entered into in the State of Utah and in all respects shall be construed, interpreted, and governed by the laws of the State of Utah, without regard to conflicts of law principles. No claim or action arising out of the Agreement may be asserted by either party more than one year after the date on which such party has actual knowledge of the material facts upon which the claim is based; provided, however, this sentence shall not extend any applicable statute of limitations.
- LATE PAYMENTS. If any payment owed is not paid when due, such late payment shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less.
- EFFECT OF INVALID OR UNENFORCEABLE PROVISION. The Agreement, including these Terms and Conditions, to the extent possible, shall be construed so as to give validity to all the provisions hereof. Any provision of the Agreement found to be invalid or unenforceable shall not affect the validity or enforceability of any other provision of the Agreement, and each provision of the Agreement shall be enforced to the fullest extent permitted by applicable law.
- ARBITRATION. Any claim arising out of or related to the Program or the Agreement shall be settled by binding arbitration at Salt Lake City, Utah, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each arbitrator shall have knowledge of dairy herd data processing industry practices. In no event may the arbitrator(s) award punitive damages.
- LIMITATIONS ON ASSIGNMENT. The Agreement is not assignable or transferable by you except to a successor in interest of your business and then only with the prior written approval of DHI-Provo, which approval shall not be unreasonably withheld. No assignment or transfer will relieve you of your obligations under the Agreement.
- BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. The Agreement shall be binding upon and inure to the benefit of the parties, their permitted successors and assigns. No provision of the Agreement is intended or shall be construed to create any right in favor of any person or entity other than the parties to the Agreement.
- RELATIONSHIP BETWEEN THE PARTIES. The Agreement does not in any way create an agency relationship, a joint venture, or a partnership. Neither party is granted any right or authority to create any obligation for or on behalf of the other party or to otherwise bind the other party.
- WAIVER. Any waiver by a party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. All waivers by a party shall be in writing.
- NOTICES. Any notices or other communications required hereunder shall be in writing and shall be deemed given when delivered in person or when mailed, by certified or registered first class mail, postage prepaid, return receipt requested, addressed to the parties at their then current business addresses. Notices sent via email to which the receiving party replies to the sending party, thus verifying the receipt of the email, shall also be considered as notices.