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WHEREAS Purchaser has requested access to system (the “System”) and to acquire a password in order to use the System; and WHEREAS Morbark will allow Purchaser access to the System and will provide Purchaser a password on and subject the following terms. NOW THEREFORE in consideration of the mutual covenants contained herein and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Purchaser acknowledges the confidential and proprietary nature of the System and of the information contained therein. By reason thereof, Purchaser agrees to maintain confidential and not to disclose to any third parties the System or any information contained therein, nor to do any act or fain to do any act as a result of which disclosure to any third parties would result, and agrees to obligate its employees and agents not to disclose to any third parties the System or any information contained therein. 2. The System and the information contained therein shall remain at all times the property of Morbark. Purchaser’s only right under this Agreement shall be the right to access the System. 3. Purchaser agrees to use the System and the information contained therein only in connection with Morbark products and parts and shall make no other use whatsoever. 4. Purchaser acknowledges that the remedy at law for any breach of its obligations hereunder would be inadequate and that Morbark shall be entitled to an injunction restraining any violation by Purchaser of the Agreement (without any bond or other security being required) or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy which Morbark may have. 5. For all parts ordered and purchased by Purchaser using the System, the following shall apply: a. All parts purchased by Purchaser from Morbark shall be at Morbark’s published prices in effect on the date of shipment, subject to the applicable discounts, charges specified in Morbark Price Lists and Schedules of Discounts and Charges. The Terms of Sale applicable to each purchase of parts shall be Morbark’s standard Terms of Sale then in effect. Morbark’s Terms of Sale shall apply to and be controlling as to all parts purchases and no other terms shall be added to Morbark’s standard Terms of Sale. b. No order submitted to Morbark by Purchaser shall become effective unless and until it is accepted by Morbark by shipment of the ordered parts and Morbark, in its discretion, need not accept any order. No order may be canceled by Purchaser after such acceptance by Morbark without the written consent of Morbark. c. Morbark reserves the right, at any time, to change it’s Terms of Sale and where practicable will give advance notice of such changes. Further, Morbark reserves the right to make at any time, without notice, changes in any part (whether in design, materials, or otherwise) or to discontinue sale of any part without any obligation or liability, of any kine (including, without limitation, for failure to fill accepted orders). d. Purchaser agrees to pay or be responsible for payment of any and all sales, use and excise taxes, duties and other similar taxes, fees or charges resulting from or arising out of the purchase by Purchaser of any parts and any sale by Purchaser of any part. e. Purchaser agrees to comply with all of Morbark’s policies and procedures applicable to the sale and use of the parts and with all applicable laws and standards. f. The only warranty applicable to the parts is Morbark’s stardard parts warranty. Morbark EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER AS TO THE PARTS SOLD, INCLUDING BUT NO LIMITED TO EXPRESS OR IMPLIED WARRANTIES AS TO MERCHANTIBILITY, FINESS FOR PARTICULAR PURPOSES SOLD, DISCRIPTION OR QUALITY OF THE PRODUCT FURNISHED HEREUNDER. 6. Morbark may terminate this Agreement and Purchaser’s ability to use the System and to purchase parts i) upon sixty (60) days advance notice or ii) immediately upon Morbark determining that any event has occurred which Morbark believes may affect Purchaser’s ability to pay for parts purchased. 7. This Agreement, the sale and purchase of the parts, and the rights and obligations of Purchaser shall be in accordance with and governed by the laws of the State of Texas.
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