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REV: 12-02-25 LF
<br />SBS shall be entitled to payment for work in progress plus reimbursement for out-
<br />of-pocket expenses.
<br />12. INDEMNITY Customer shall indemnify, save and hold SBS, its affiliates,
<br />officers, directors, shareholders, employees, agents and representatives and its and
<br />their successors and assigns (“SBS Parties”) harmless from and against any
<br />liability, loss, cost, expense or damage whatsoever caused by reason of any breach
<br />of this Agreement by Customer or by reason of any injury, whether to body,
<br />property or business or to any other person by reason of any act, neglect, omission
<br />or default by Customer or Customers’ employees, agents, vendors, contractors or
<br />representatives. Customer shall defend, at its sole and absolute cost, any action to
<br />which this indemnity shall apply. In the event Customer fails to defend such action
<br />SBS may do so and recover from Customer in addition, all costs and expenses,
<br />including, attorneys’ fees in connection therewith. SBS shall be entitled to recover
<br />from Customer all costs and expenses, including without limitation, attorneys’ fees
<br />and disbursement, incurred by SBS in connection with actions taken by SBS or its
<br />representatives (i) to enforce any provision of this Agreement; (ii) to effect any
<br />payments or collections provided for herein; (iii) to institute, maintain, preserve,
<br />enforce and foreclose on SBS’s security interest in or lien on the goods, whether
<br />through judicial proceedings or otherwise; or (iv) to defend or prosecute any
<br />actions or proceedings arising out of or relating to any SBS transactions with
<br />Customer. The foregoing provisions of this paragraph 12 shall survive the
<br />termination or expiration of this Agreement to the extent permitted by Law.
<br />13. ENTIRE AGREEMENT This constitutes the entire Agreement between
<br />the parties relating to the subject matter hereof. Any modification to this
<br />Agreement must be in writing and signed by both parties.
<br />14. SUCESSORS AND ASSIGNS Neither party may assign this Agreement or
<br />any of its rights or obligations hereunder, without the prior written approval of the
<br />other party, which will not be unreasonably withheld, except that either party may
<br />assign its obligations and rights to a wholly owned subsidiary, parent corporation,
<br />or entity under the same ownership, operation, or control.
<br />15. SEVERABILITY If any provision in this Agreement is held invalid or
<br />unenforceable by a body of competent jurisdiction, such provision will be
<br />construed, limited or, if necessary, severed to the extent necessary to eliminate such
<br />invalidity or unenforceability. The Parties agree to negotiate in good faith a valid,
<br />enforceable substitute provision that most nearly affects the Parties’ original intent
<br />in entering into this Agreement or to provide an equitable adjustment in the event
<br />no such provision can be added. The other provisions of this Agreement shall
<br />remain in full force and effect.
<br />16. COUNTERPARTS AND ELECTRONIC SIGNATURES This Agreement
<br />may be executed in several counterparts, each of which shall be deemed to be an
<br />original and all of which together shall constitute one Agreement binding on all
<br />parties hereto, notwithstanding, that all the parties have not signed the same
<br />counterpart. A faxed or electronic signature of this Agreement bearing authorized
<br />signatures may be treated as an original.
<br />17. LIMITATION OF LIABILITY To the extent permitted by Law, in no event
<br />shall SBS be liable to Customer for any special, incidental, consequential, or
<br />indirect damages, loss of business profits, business interruption, loss of business
<br />information in any way related to the Equipment or the actions of SBS. The
<br />Customer acknowledges that the Maintenance for MFPs provided by SBS is for
<br />the mechanical maintenance of the Equipment only, and that this Agreement does
<br />not cover any software, networking or any other connectivity or functionality
<br />maintenance, services, or support beyond the MFP. EACH PARTY'S
<br />AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES FROM ANY
<br />AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF
<br />ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE
<br />LIMITED TO THE AMOUNT OF THE AGGRIEVED PARTY'S ACTUAL
<br />DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY
<br />CUSTOMER TO SBS FOR THE SERVICES DURING THE THREE (3)
<br />MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE
<br />OF ACTION ACCRUED.
<br />
<br />18. THIRD PARTY PRODUCTS Any third party products provided to Customer
<br />by SBS, or any third party products that Customer will utilize through SBS’s
<br />services, pursuant to this Agreement including but not limited to third party
<br />hardware, software, peripherals and accessories (collectively, “Third Party
<br />Products”) shall be provided to Customer “as is”. SBS shall use reasonable efforts
<br />to assign all warranties (if any) for the Third Party Products to Customer, but will
<br />have no liability whatsoever for such Third Party Products. All Third Party
<br />Products are provided WITHOUT ANY WARRANTY WHATSOEVER as
<br />between SBS and Customer, and SBS shall not be held liable as an insurer or
<br />guarantor of the performance or quality of Third Party Products. In no event will
<br />SBS be liable for any damages caused by performance or non-performance of any
<br />Third Party Product. In addition, SBS assumes no liability for failure of equipment
<br />or software or any losses resulting from such failure.
<br />19. PRIVACY
<br />Customer and SBS both agree to comply with each of their respective obligations
<br />under the applicable information privacy and data protection laws and regulations
<br />relating to the protection, disclosure and use of individuals’ personal data now in
<br />place or that may come into place during the term of this Agreement (collectively,
<br />the “Privacy Laws”). Customer is and shall remain the controller of all of its data
<br />for purposes of all Privacy Laws and shall determine the scope, purposes, and
<br />manner by which SBS may access such data. SBS shall only access, retain, use or
<br />disclose any Customer data as required for the specific purpose of performing the
<br />Services.
<br />20. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY
<br />Each party (a “Creating Party”) owns and retains all intellectual property rights in
<br />and to all of the Creating Party's works of authorship, including but not limited to
<br />all plans, software or software modifications developed by the Creating Party, and
<br />all modules derived or created from such materials (collectively, “Creating Party's
<br />IP”), provided Creating Party’s IP is not made by using or referencing to the other
<br />party’s owned intellectual property rights. The Creating Party's IP may not be
<br />distributed or sold in any form or manner without the express written consent of
<br />the Creating Party.
<br />21. FORCE MAJEURE SBS shall not be liable to Customer for any failure or
<br />delay caused by events beyond SBS’s control, including, without limitation,
<br />Customer’s failure to furnish necessary information; sabotage; failure or delays in
<br />transportation or communication; boycotts; embargoes; failures or substitutions of
<br />equipment; labor disputes; accidents; shortages of labor, fuel, raw materials,
<br />machinery, or equipment; technical failures; fire; storm; flood; earthquake;
<br />explosion; acts of the public enemy; war; insurrection; riot; public disorder;
<br />epidemic; quarantine restrictions; acts of God; acts of any government or any
<br />quasi-governmental authority, instrumentality or agency.
<br />22. NO WARRANTY SBS DISCLAIMS ALL WARRANTIES, EXPESS OR
<br />IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
<br />MERCHANTABILITY, TECHNICAL COMPATABILTY, FITNESS FOR USE,
<br />OR FITNESS FOR A PARTICULAR PURPOSE.
<br />23. INSURANCE SBS and Customer shall each maintain, at their own expense,
<br />all insurance reasonably required in connection with this Agreement, including but
<br />not limited to, workers compensation and general liability with a limit not less than
<br />$1,000,000 per occurrence. The Customer shall maintain Tech E&O liability
<br />insurance in an amount not less than $1,000,000. If a security package is selected,
<br />the Customer shall maintain network risk and cyber liability coverage (including
<br />coverage for unauthorized access, failure of security, ransomware, 3rd party
<br />liability, breach of privacy perils, as well at notification costs and regulatory
<br />defense) in an amount of not less than $1,000,000. Coverage should be primary
<br />and noncontributory for each policy. SBS and its entities, affiliates, etc. should be
<br />named as additional insured. A waiver of subrogation should apply. The required
<br />insurance coverage shall be issued by an insurance company duly authorized and
<br />licensed with the following minimum qualifications in accordance with the latest
<br />edition of A.M. Best's Insurance Guide: Financial Stability A+.
<br />24. MISCELLANEOUS Additional loading of other drivers, utilities, security
<br />updates, anti-virus, or other programs to existing workstations/servers that causes
<br />SBS supported products to malfunction is not covered under this Agreement and
<br />will be billed at the current hourly rate. It is the responsibility of the Customer to
<br />perform all necessary backups on the PC or Network prior to any installation or
<br />update. SBS bears no responsibility for any damages, data or productivity loss from
<br />said PC or Network Devices. Derivative Works: Customer shall not (i) modify,
<br />copy or create derivative works based on any SBS Software: (ii) frame or mirror
<br />any content forming part of the Software or Services, other than on Customer’s
<br />own intranets or otherwise for its own internal business purposes; (iii) reverse
<br />engineer the SBS Software.
<br />USA-SEC-2025-SBS-183244 (v. 2023.11.15)
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<br />ATTY/AGR.2025.332/Sharp Business Solutions (Page 2 of 2)
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