Customer may request from time to time that MNJ or one of its affiliates or vendors (“MNJ“) configure and / or install (the “Installation“) certain software images, data and / or configuration settings desired by Customer (collectively, the “Software“) on to computer equipment purchased by Customer (the “Equipment“). MNJ is willing to do so subject to the terms and conditions contained in this Installation Indemnity Agreement (“Agreement”).
MNJ’s INSTALLATION SERVICES PROVIDED IN CONNECTION WITH THE SOFTWARE SHALL BE SUBJECT TO THE TERMS AND CONDITIONS HEREIN.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer hereby agrees as follows:
Customer hereby represents and warrants to MNJ: (a) Customer has full authority, right and power to cause the Software to be installed on the Equipment it is being installed on (including, if applicable, to cause it to be transferred from existing hardware) and to use the Software on the Equipment, either as owner, through valid and existing license agreements or otherwise; and (b) neither the Installation nor the use of the Software in the Equipment will violate any copyright, license agreement, intellectual property right or other right affecting the Software.
If Customer is procuring any Services from MNJ and Customer has requested direct access to use MNJ’s internet connection to download Software (“Direct Access”), Customer additionally acknowledges, warrants and represents that it understands that (a) Direct Access can potentially expose Customer’s devices and MNJ’s other customers, and their devices, to malware; (b) while MNJ maintains and manages industry standard information security protocols for its own environment, these standards may differ from Customer’s, and be exposed to additional potential threats and malware, arising out of Customer’s use of MNJ’s internet; (c) it is using MNJ’s internet AS-IS, without warranty of any kind, (d) it will exercise due care and follow no less than its own information security policies and practices in utilizing MNJ’s internet connection, and (e) it is aware of the potential for malware arising from access to MNJ’s internet connection.
Customer acknowledges and agrees that:
MNJ EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE INSTALLATION AND THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. IN NO CASE SHALL MNJ, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO THE INSTALLATION, THE SOFTWARE OR CUSTOMER’S USE OF THE SOFTWARE.
Customer shall be solely responsible for reconstructing data stored on disk files, tapes, memories or otherwise lost during the Installation of the Software. If, at any time, in the sole discretion of MNJ, MNJ determines that any representation or warranty is inaccurate, in whole or in part, MNJ may, at its option, terminate the Installation of the Software or request such further assurances and security as MNJ may determine. Termination by MNJ will not release Customer of its obligation to pay for services rendered and to be rendered under its agreements with MNJ.
Customer agrees to at all times indemnify, defend and hold harmless MNJ, its affiliates and their respective directors, officers, employees and agents and suppliers, from and against any and all liabilities, debts, obligations, claims, penalties, fines, demands, judgments, actions, causes of action, losses, damages, costs or expenses (including attorney fees and any other costs or expenses imposed upon or incurred in the defense, investigation or settlement of any matter which is subject to this Agreement), of any amount and nature whatsoever, incurred by or imposed upon MNJ as a result of, related to or in any way connected with or arising out of: (a) any claim made by any party that the Installation or use of the Software violates any copyright, license or other right; and (b) the inaccuracy of or breach of any representation or warranty of Customer.
Any failure by MNJ to assert any right hereunder shall not constitute a waiver of any other right or remedy under this Agreement. This Agreement shall be binding upon and inure to the benefit of Customer and MNJ and their respective successors and assigns. This Agreement and the representations, warranties and covenants of Customer contained herein shall survive the completion of any and all services rendered by MNJ and the payment therefor. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law rules. Any action arising out of a dispute between the Customer and MNJ shall be brought exclusively in the courts located in Cook County, Illinois and Customer consents to the jurisdiction of the federal and state courts located in Cook County, Illinois and submits to the jurisdiction thereof and waives the right to change venue. In the event of the invalidity or unenforceability of any provision of this Agreement under applicable law, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement.