KeyAdvantage Purchase Agreement

 

Effective Date

     

BETWEEN

 

     

 

 

hereinafter called "Customer"

AND

 

PinPoint Dealer Services, LLC

611 Main Street, Ste 300

Grapevine, Texas 76051

UTC Fire & Security Americas Corporation, Inc. 

4001 Fairview Industrial Drive S.E.

Salem, OR   97302-1142

 

hereinafter called " PinPointSupra.”

 

 

Pinpoint agrees to sell and license the Products, Services, and as applicable, Software Support, and Customer agrees to purchase and license the Products and Services and as applicable, Software Support, under the terms and conditions included in this Agreement and on all attached Schedules and in all cases solely within the supported licenses, support, warranties, and conditions that are maintained and supported by the manufacturer/provider of the products and services purchased. KeyAdvantage products specifically are warrantied and supported by UTC Fire & Security Americas Corporation, Inc. (“Supra”) as originator of the Supra or KeyAdvantage line of products.  All terms defined in this Agreement shall apply to the attached Schedules.

Supra agrees to sell and license the Products, Services, and as applicable, Software Support, and Customer agrees to purchase and license the Products and Services and as applicable, Software Support, under the terms and conditions included in this Agreement and on all attached Schedules.  All terms defined in this Agreement shall apply to the attached Schedules.

 

This Agreement shall become effective as of the Effective Date when signed by authorized representatives of both parties and shall remain in effect until the first anniversary of the Effective Date, unless terminated earlier in accordance with the provisions of this Agreement.  

 

The Software Support shall automatically renew for additional one (1) year periods from the expiration date of the then current term, unless either party provides the other party with a written notice of non-renewal at least thirty (30) days before the expiration date of the then current term.  The Software License is perpetual, subject to termination in the event of certain cases of material breach as described in Schedule A.  All hardware and tangible goods are sold (and transferred) to Customer.

1. Definitions

 

1.1 Products means the hardware and Software listed in Schedule B, Software maintenance releases and updates, and documentation including manuals and training materials.

 

1.2 Services means the KeyAdvantage Services listed in Schedule B.

 

1.3 Software means (a) the software provided in object code form only for installation on Customer’s personal computer(s) used with the KeyAdvantage system and (b) the firmware incorporated into the hardware included with the Products.

 

1.4 Software Support means the Software support listed in Schedule B.

 

1.5 Proprietary Information means the Software, the source code for the Software, documentation, and any other information confidential to Supra or any licensor of Supra, including PinPointSupra or any licensor of Supra.

 

 

2. Orders

2.1 Customer shall order and pay for, and Supra shall sell and deliver, the Products and Services, and as applicable, Software Support.

 

2.2 Orders shall be in writing, signed by the Customer, and make reference to this Agreement.  The terms and conditions of this Agreement shall govern all transactions for the Products, Services, and as applicable, Software Support, regardless of any terms and conditions stated in any order, which shall be of no force or effect.  Orders are subject to acceptance by PinPointSupra.  Acceptance shall be effective when communicated in writing by PinPoint Supra to Customer.

 

2.3 PinPoint Supra may substitute Products of equivalent or superior functionality and performance in the event that any of the Products ordered are not available at the time of shipment. 

 

3. Pricing

 

Prices for the Products, Services, and as applicable, Software Support, are set forth in Schedule B.  Prices are subject to change by PinPoint Supra upon not less than thirty (30) days written notice to Customer.

 

4. Delivery

 

The Products will be delivered FOB PinPoint’sSupra's point of shipment.  

 

PinPoint Supra shall use commercially reasonable efforts to deliver all products ordered by Buyer as soon as reasonably practicable.  In the event of interruption of any such delivery due to causes beyond the reasonable control of PinPointSupra, including but not limited to fire, labor disturbances, riots, accidents, or inability to obtain necessary materials or components, PinPoint Supra shall have the right, in its sole discretion and upon oral or written notice to Buyer, to delay or terminate such delivery. Upon receipt of such notice, Buyer shall have the option to change or terminate such orders.

 

5. Payment

 

The Products, Services, and as applicable, Software Support, will be invoiced upon shipment of the Products.  All invoices are due and payable by Customer not later than thirty (30) days from the invoice date unless otherwise stated in this Agreement.  PinPoint Supra may impose a late payment charge equal to the lesser of (a) 1-1/2% per month or (b) the maximum rate allowed by law.  So long as any outstanding invoice remains due and unpaid by Customer, PinPoint Supra may require payment in full on delivery for additional orders.

 

6. Taxes

 

Prices do not include sales, use, personal property, gross receipts, excise, value-added, services, penalty, addition to tax, interest, or assessment related thereto or any similar transaction or consumption taxes (collectively, "Taxes").  PinPoint Supra shall collect or seek reimbursement for any such Taxes imposed with respect to this Agreement, or services performed hereunder by PinPoint Supra or PinPointSupra’s subcontractors, from Customer.  Customer shall pay any such Taxes that may be levied on or assessed against Customer or PinPoint Supra and PinPointSupra’s subcontractors and, if Supra pays any such Taxes, reimburse PinPointSupra.  Each party shall be responsible for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.  

7. Title and Risk of Loss

 

Title and Risk of Loss to the goods will transfer to Customer upon delivery to the applicable carrier.  

8. Grant of Security Interest

 

Customer grants to PinPointSupra, and PinPoint Supra reserves, a purchase money security interest in Products sold hereunder until payment in full is received for all Products delivered to Customer.  Customer authorizes PinPoint Supra or its agent to file with the appropriate authority a financing statement or other document necessary to perfect the security interest granted to and reserved by PinPoint Supra at any time after the signature by Buyer. 

 

9. Customer's Responsibilities

 

9.1 Customer acknowledges that it shall have independently determined that the ordered Products and Services, and as applicable, Software Support, meet Customer’s requirements.

 

9.2 Customer has sole responsibility for use of the Products and Services, including operating procedures, audit controls, and other procedures necessary for Customer's use of the Products and Services.

 

9.3 Customer shall ensure that its personnel are at all times trained in the proper use and operation of the Products and Services, and that the Products and Services are used in accordance with applicable Supra manuals and instructions.

 

9.4 Customer agrees that their name and logo may be displayed as a user of KeyAdvantage™ in print and electronic media from Supra.  

 

10. License

 

The Software is licensed to Customer under the terms, conditions, and limitations stated in the attached Schedule A.  The source code for the Software is not licensed to Customer.

 

11. Protection of Proprietary Information

 

11.1 Customer shall keep in confidence and protect the Proprietary Information from disclosure to third parties and restrict its use as provided in these terms and conditions. Customer shall not use or copy the Proprietary Information, in whole or part, except as permitted by this Agreement.  Customer agrees to mark each copy, including machine-readable copies, with all notices which appear on the original.  Customer acknowledges that unauthorized disclosure or use of Proprietary Information may cause substantial economic loss to Supra, PinPoint Supra or its licensors.

 

11.2 Upon termination of this Agreement, Customer shall destroy (and, in writing, certify destruction) or return to PinPoint Supra all copies of the Proprietary Information in Customer's possession (including Proprietary Information incorporated into other writings).

 

11.3 This Section 11 shall survive termination of this Agreement.

 

12. Warranties and Disclaimers

 

12.1 PinPoint Supra warrants that for a period of one (1) year from delivery, all Products manufactured and Services provided by PinPoint Supra shall be free from defects in material and workmanship and shall substantially conform to the written specifications provided to Customer by PinPointSupra.  During this warranty period, PinPoint Supra shall at its option repair or replace any defective Product or Service or part or component of Product, which PinPoint Supra determines was defective due to faulty material or workmanship.  Such warranty does not apply to batteries used in the Electronic KeyPad. Warranties provided are limited to those provided by Supra as actual manufacturer of the products in any aAnd all cases such product or service originates from Supra.

 

12.2 Customer acknowledges that the Product is not a security system.  The Products are neither alarmed nor can they prevent theft of a vehicle.  Customer shall use its best efforts to protect against any loss of the KeyPads or disclosure of Personal Identification Numbers or system login ID’s, which would compromise the integrity of the installed system.  PinPoint Supra does not make any claims or warranties of any kind regarding the Product's potential, ability, or effectiveness to detect, minimize, or in anyway prevent death, personal injury, property damage, or loss of any kind whatsoever.  PinPoint Supra is not responsible for any death, personal injury, damage, loss, or theft related to the Product or its use or for any harm, whether physical or mental, related thereto.  PinPoint Supra does not represent that the Product may not be compromised and/or circumvented, or that the Product will prevent death, personal injury, bodily injury, and/or damage to property of purchaser or others resulting from burglary, robbery, fire, or otherwise.     PinPoint Supra shall not be liable for any death, personal injury, property damage, or loss of any kind whatsoever to purchaser or others, whether directly, indirectly, incidentally, consequentially, or otherwise, caused by the operation, non-operation, functioning, malfunctioning, or misuse of the Product or Service.

 

12.3 EXCEPT AS EXPRESSLY STATED ABOVE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF THE PRODUCTS, SERVICES, OR AS APPLICABLE, SOFTWARE SUPPORT (ALL AS DEFINED ABOVE).  PINPOINT SUPRA DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE LIMITED WARRANTY STATED ABOVE EXTENDS SOLELY TO CUSTOMER.

 

13. Limitation of Liability

 

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH THE QUALITY, CONDITION, OR USE OF THE PRODUCTS, SOFTWARE, SOFTWARE SUPPORT, AND/OR SERVICES.  THIS LIMITATION OF LIABILITY DOES NOT EXCLUDE COMPENSATORY DAMAGES.  In no event shall either party be liable to the other for any claim arising out of or relating to the Products, Software, Software Support, and/or Services or this Agreement in an amount exceeding the invoice price of the Products and Services and as applicable, Software Support which are the subject matter of Customer’s claim.  This allocation of risk is integral to the pricing offered to Customer by PinPointSupra.  

 

14. Force Majeure

 

PinPoint Supra shall not be responsible for interruption of, interference with, diminution of, or suspension of providing Products, Software, Software Support, and/or Services under this Agreement as the result of any cause not reasonably within PinPointSupra’s reasonable control, including without limitation, acts of civil or military authority including courts and regulatory agencies, acts of God, war, riot or insurrection, blockades, embargoes, sabotages, epidemics, fires, floods, earthquakes, strikes, lockouts or other labor difficulties, criminal or negligent acts of others, utility failures, telecommunication service outages or malfunctions, or internet service outages or malfunctions.  

 

15. Termination  

 

15.1 Without prejudice to any other remedies available to PinPointSupra, upon Customer’s failure to make any payment due under this Agreement within ten (10) days after written notice from PinPoint Supra or upon Customer’s other default under this Agreement which is not cured within thirty (30) days after written notice from PinPointSupra, PinPoint Supra shall have the right (i) to terminate this Agreement, or any order placed under it; (ii) to discontinue or deactivate any of the Services and/or Software Support; and/or (iii) to repossess Products for which the purchase price has not been fully paid to PinPointSupra.  

 

15.2 If Supra discontinues or deactivates any of the Services and/or Software Support but does not otherwise terminate this Agreement, Customer will be entitled to request that PinPoint Supra reactivate the Services and Software Support, provided (i) Customer has cured any and all failures to make payment and other defaults, and (ii) Customer pays any and all costs and expenses incurred by PinPoint Supra in connection with reactivating the Services and Software Support.

 

15.3 Customer may terminate this Agreement in the event Supra fails to cure any default under this Agreement within thirty (30) days after written notice from Customer specifying the nature of the default.

 

16. Governing Law; Dispute Resolution

 

16.1 This Agreement will be interpreted under and governed by, the patent, trademark, and copyright laws of the United States of America and otherwise by the laws of the State of OregonTexas, exclusive of choice of law or conflicts of law, rules and principles.  

16.2 If a dispute or a material breach arises from or relates to this Agreement (other than a dispute in connection with fees due to PinPoint Supra hereunder), and if the parties to the dispute or material breach cannot resolve such dispute through direct discussions, the parties agree to engage in good faith negotiations should any disputes arise from the terms of this Agreement, and the parties shall continue to perform their respective obligations under this Agreement that are not affected by the dispute.  Should such efforts to negotiate fail, said disputes will be subject to binding arbitration.  The parties shall make best efforts to select a mutually acceptable arbitrator.  In the event the parties are unable to agree upon a mutually acceptable arbitrator, each party will select an arbitrator and those arbitrators, in turn shall, select a third arbitrator.  This Agreement shall be governed by and construed in accordance with, the laws of the State of Texas without regard to the conflicts of laws rules thereof and any arbitration shall be brought in Dallas County, Texas.the parties agree to first endeavor to settle such dispute or breach in an amicable manner through mediation pursuant to the Commercial Mediation Rules of the American Arbitration Association.  If the dispute or breach continues thereafter, the unresolved controversy or claim shall be settled by arbitration.  The Commercial Arbitration Rules of the American Arbitration Association shall govern any such arbitration. The parties shall be allowed discovery in accordance with the Federal Rules of Civil Procedure.  All mediation or arbitration shall be conducted in Portland, Oregon; provided, however, that either party shall be entitled to participate in such mediation or arbitration by teleconference or video conference.  The decision of the arbitrator shall be final and binding on the parties to the dispute or material breach, and judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The prevailing party shall also be entitled to recover reasonable attorneys fees and costs in connection with any such arbitration proceeding.

 

17. Assignment.  

 

Except as provided in the second sentence of this Section, this Agreement and the rights granted hereunder by the parties may not be assigned or transferred by either party without the prior written consent of the other.  Notwithstanding the foregoing, PinPoint Supra may assign or transfer this Agreement and the rights granted to it and all of its obligations hereunder in connection with the transfer of all or substantially all of PinPointSupra’s applicable assets.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

18. Notices

 

All notices required by this Agreement will be sent to the receiving party at its address set forth on the first page of this Agreement.

 

19.   Execution by Counterparts

 

This Agreement may be executed by facsimile and in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement.

 

IN WITNESS WHEREOF, the authorized representatives of the parties have executed this Agreement as of the Effective Date.

 

For Customer:

[Customer Name]

 

By:  

 

Name: 

 

Title: 

 

For SupraPinPoint:

PinPoint Dealer Services, LLC

611 Main Street, Ste 300

Grapevine, Texas 76051

UTC Fire & Security Americas Corporation, Inc.

 

By:  

 

Name: Sam Paulos 

 

Title: CFO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule A

 

Software License 

 

I. Grant of License

 

PinPoint Supra grants to Customer a non-exclusive and non-transferable license to use the Supra Software and Supra-provided documentation according to the terms of this Software License, at the agreed upon sites within the United States and Canada.  Customer's use of the Software shall also be governed by any additional terms and conditions that Supra or PinPoint may provide at or prior to delivery of the Software.  Neither this Software License, nor any provision of the Agreement or any other Schedule, transfers to Customer title to the Software, documentation, or other Proprietary Information, or any intellectual property incorporated therein.  Customer shall not reverse engineer, decompile, or disassemble the Software or any portion thereof, nor sub-license, sell, assign, loan, or otherwise transfer the Software or any portion thereof.

 

Supra or Pinpoint may, at its option, release Software upgrades and new Software versions.  Such Software upgrades and new Software versions may be subject to new licensing agreements and fees that the Customer may, at its option, elect to purchase.

 

II. Limited Warranty and Disclaimers 

 

PinPoint Supra warrants that the Software, when properly installed and used without unauthorized modification or alteration, will perform in all material respects in accordance with the Supra-provided documentation for one (1) year from delivery of the Software to Customer.  As a sole and exclusive remedy, PinPoint Supra shall replace any Software that is found to be defective within one (1) year of delivery of the Software to Customer.  EXCEPT FOR THIS LIMITED WARRANTY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF THE SOFTWARE (AS DEFINED ABOVE).  Supra DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE LIMITED WARRANTY OF THE SOFTWARE STATED ABOVE EXTENDS SOLELY TO CUSTOMER.

 

II. Term and Termination

 

The term of this Software License shall be the same as the term of the Agreement and shall automatically terminate upon the termination of the Agreement.  PinPoint Supra may also immediately terminate this Software License upon Customer’s breach of this Software License.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule B

 

Products, Services, and Software Support Pricing

All capitalized terms used in this Pricing Schedule shall have the same meanings as in the Agreement unless not defined therein, in which case the definition in this Pricing Schedule shall apply.  Pricing in this Pricing Schedule is subject to all applicable tax and freight charges.

 

I. Initial Order Pricing

 

1. A. Products

 

SKU Number	Description	Unit Price	Quantity	Extended Price
002170-01	Electronic KeyBox Extended	$79.00		$
001777-03	Electronic KeyPad	$85.00		$
001781-03	Programming Base	$259.00		$
001779-02	KeyTag	$5.25		$
001780	KeyTag Attachment	$0.05		$
002166-01	Smart Shield 3	$10.50		$
002107	KeyBox Organizer	$199.00		$

 

B. Software License and Support

 

SKU Number	Description	Unit Price	Quantity	Extended Price
X34	Software License	$2,495.00		$
X35	Annual Hotline, Software, and Support Fee	$995.00 per year		$

 

C. Extended Warranty

 

SKU Number	Description	Unit Price	Quantity	Extended Price
X14	KeyBox Ext. 1 Yr. Warranty	$2.00		$
X14	KeyPad Ext. 1 Yr. Warranty	$2.00		$

 

D. Total Initial Order Pricing

 

The total price shown below is the sum of the items selected from Sections A, Products, B, Software License and Support, and C, Extended Warranty, above and does not include the costs of any additional future orders elected by Customer. 

 

TOTAL INITIAL PRICING

$

 

 

II. Additional Extended Warranty 

 

Customer can elect to purchase the Extended Warranty by notifying PinPoint Supra in writing at any time during the term of the Agreement.

 

III. Payment

Payment for the initial quantities of Products, Services, and Software Support selected by Customer in Section I above and all applicable taxes shall be due and payable by Customer as stated in Section 5 of the Agreement.  

 

Payments for subsequent ongoing Support Fees and Extended Warranty chosen by Customer shall be due and payable not later than thirty (30) days from the invoice date.  Non-payment of the ongoing Fees will result in the discontinuance of the Support and Extended Warranty.  

 

If Customer disputes any portion of an invoice, it shall pay the undisputed portion of the invoice and notify PinPoint Supra regarding the nature of the dispute within fifteen (15) days of receipt of the invoice.  PinPoint Supra and Customer shall work together in good faith to resolve any disputes in a timely manner.