These Standard Company Terms and Conditions of Sale (“terms and conditions” or “Agreement”) govern the sale, license, resale, and distribution, as applicable, of third-party vendor (“Vendor”) hardware, products, software (including all open source licensed or distributed by Vendor, or incorporated into any Vendor software), and services (collectively “Products”) by A.I Smarter World, LLC. (“Company”) to the entity selling or licensing the Products for Company (“Reseller”). Company will not accept any other terms or conditions, unless Reseller and Company have executed a written agreement which specifically modifies, supersedes, or replaces these terms and conditions. Certain Company Vendors require Company to pass-through terms for the Product to resellers and end users. By selling the Products for Company, Reseller agrees to these Vendor pass-through terms and acknowledges and represents they are aware and understand said pass-through terms and are in compliance and shall remain in compliance with same. Reseller further acknowledges their responsibilities and liabilities relating to the party to whom Reseller sold the product (“End User”).
1. ACCEPTANCE OF PURCHASE ORDERS
Acceptance: Reseller accepts these terms and conditions through any of the following, whichever occurs first: (a) Reseller induces an End User to place an order on ELM, as defined below, (b) Reseller submits a purchase order (“Order”) to Company; (c) Reseller provides written acknowledgment; (d) Reseller accepts any shipment of any Products; or (e) Reseller performs any other act or expression of acceptance. All Orders are subject to Company acceptance, which may occur through Company in writing, electronic acknowledgment, or execution of Order. Such acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception, and Company rejects any term, condition or proposals submitted by Reseller (whether oral or in writing), which are inconsistent with or in addition to these terms and conditions. Company’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be Company’s acceptance thereof. Reseller may not change, cancel, or reschedule orders for Products without Company’s prior written consent.
Quotations: Quotes from Company shall be applicable for the period specified in the quote. Company reserves the right to allocate the sale of Products among its Resellers. Furthermore, unless otherwise stated on Company’s proposal, quote, or invoice: (i) quotes are invitations to tender and are subject to change at any time without notice; (ii) prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively “Additional Fees”); and (iii) Reseller is responsible for any and all Additional Fees. Additional Fees also specifically include customs clearance, import or customs duties, VAT, applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), license fees, freight (except as otherwise provided in Company shipping policy) and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products.
2. DELIVERY
Unless otherwise agreed in writing, in Company’s sole discretion, Company will deliver or arrange to deliver in most efficient manner possible on the date of shipment. Delivery times provided are only estimates.
For all domestic transactions, including drop shipments, unless otherwise stated on the front of the invoice, title to the Products and all risk of loss or damage with respect to the Products, except software as a service or services, shall pass to Reseller upon delivery to the carrier or Reseller’s representative at Company’s logistics center.
For all international transactions, the Company assumes no responsibility for Additional Fees for the country designated for delivery by the Reseller. Title and risk of loss shall pass to the Reseller upon delivery to the Reseller or Reseller’s representative at Company’s logistics center or, for drop shipments, upon delivery of the Products to the first common carrier. Delivery is subject to Company’s receipt of all necessary information and documentation from Reseller including all import certificates, exemption, resale certificates, licenses and other documents as may be required from Reseller for export of the Product.
Reseller shall notify Company, no later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery and must meet all other Company requirements as stated in Company return policies located https://aismarterworld.com/claims. Reseller shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Reseller’s failure to give such notice within the time specified is deemed an acceptance in full of any such delivery.
Bill & Hold Program: Company presently offers a “Bill and Hold” program designed for customers who want to take advantage of vendor promotions but want Company to fulfill the Orders from Company’s facilities. Reseller understands and agrees that: (a) “Bill and Hold” Orders are non-cancelable purchase Orders at agreed terms, FOB Destination, and as to any Product are generally limited to a quantity that does not exceed Reseller’s normal 60 day sales rate; (b) like any other Order, a “Bill & Hold” Order is subject to product availability and Company shall have no liability for delays with respect to goods in transit; (c) all “Bill & Hold” Orders must be paid for in full at time of Order placement or accompanied by a deposit as determined by Company in its sole discretion, and all deposits will be applied to the final payment for the Bill & Hold Order in respect of which made; (d) Company retains title to all Products until payment in full by Reseller; (e) delivery must be taken by the Reseller of all Products which are purchased by a “Bill and Hold” Order within forty five (45) days of Order placement, unless otherwise agreed in writing by Company; (f) Bill and Hold Orders are not cancellable by Reseller; (g) price reductions offered after placement and acceptance of a Bill & Hold Order shall not apply to that Order or constitute grounds for cancellation; (h) Bill and Hold Orders may be cancelled by Company in its sole discretion in the event of non-payment in accordance with terms or non-compliance with this Agreement; and (i) a minimum restocking fee of fifteen percent (15%) may be charged by Company with respect to cancelled Orders. In the event a Product is subject to a software version change, the procedures of the supplier may determine if the return policy described herein can be altered to accommodate software update exchanges. The foregoing does not reduce, limit, or decrease Reseller’s obligations or Company’s rights under any other provision of this Agreement.
3. PRICES
The prices charged for Products and Services purchased by Reseller from Company shall be the amounts set forth on the Website or other quotation or as provided by the applicable invoice relating to such Products and Services. Quoted prices will remain in effect only until the expiration date of the quote or Company’s acceptance of Reseller’s Order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors. All prices, Products and Services are subject to change and availability without notice.
Prices are exclusive of all Taxes (as hereinafter defined). Reseller shall pay all applicable taxes, including sales, use, income, personal property, value-added, excise or stamp taxes and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from Company, including penalties and interest, but specifically excluding taxes based upon Company’s income (collectively, “Taxes”). Sales tax and other applicable Taxes will be charged by Company, where applicable, unless a certificate of exemption is on file with Company, however, Company shall have no obligation, responsibility, or liability for collection of sale, use, excise, income, or other taxes. In the event Taxes are imposed for transactions in a location where Reseller is not authorized to transact business, authorization has expired or due to other causes, then Reseller is responsible for all Taxes. If required by Laws, Reseller shall provide to Company, promptly and without cost, all documentation requested or required by any Governmental Entity from Company in connection with purchases made by Reseller. Company may suspend delivery of Products and Services to Reseller and Reseller’s use of the Website until Reseller has provided such documentation. Promptly upon request by Company, Reseller will provide Company with proof of payment of all Taxes.
Unless otherwise agreed in writing by Company, Reseller shall pay all freight, insurance and other charges associated with Reseller’s purchase of Products and/or Services. Shipping and handling charges and insurance are not included in the prices for Products or Services unless expressly agreed to by Company at the time of sale.
Subject to any Reseller contract to the contrary, Reseller shall bear all Additional Fees. Company’s prices set forth on invoice do not include Additional Fees. All information relating Company pricing is Company proprietary and confidential and Reseller will keep such information confidential. Reseller must present exemption certificates to Company prior to shipment if they are to be honored. Company shall invoice Reseller for all taxes applicable to sales of the Products which Company is required by law to collect from Reseller. Upon Reseller’s request, Company will provide Reseller with sufficient documentation to enable Reseller to complete any necessary tax filings or claim any applicable tax credits for amounts paid to Company. If applicable law requires Reseller to deduct any amount from the amounts to be paid to Company due to withholding taxes or any other taxes or levies of any kind, Reseller shall pay all such additional amounts so that the net amounts received by Company are the amounts specified on the invoice.
Payment Terms:
If Reseller has a previously established credit arrangement (“credit line”) with Company, invoices are due and payable within the time period noted on Reseller’s invoice, subject to continuing credit approval by Company. Such approval may be revoked without further notice from Company; past due accounts may have their credit lines suspended. Company may invoice parts of an Order separately or may invoice multiple purchases of Products and Services in one invoice to Reseller. Company may accept payment by Reseller’s credit card, debit card or other like charge account (“Card”) at time of sale, in Company’s sole discretion, provided that Cards may not be used for payment of open account balances on Reseller’s previously established credit line with Company. Purchases of Products and Services for which payment is not made as set forth above shall be paid for by Reseller in advance of shipment or C.O.D. Orders shipped to past due accounts will be shipped prepaid or C.O.D., and payment of overdue amounts shall be required as part of the payment. REGARDLESS OF ORDER TERMS, AT COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE, PAYMENTS RECEIVED FROM PAST DUE ACCOUNTS WILL BE APPLIED TO OLDEST INVOICES FIRST.
In the absence of other arrangements approved in writing by Company, all payments due Company from Reseller shall be made at the Company location where the Products or Services were purchased or shall be mailed to:
A.I. Smarter World, Inc.
3860 Via Del Rey
Bonita Springs, FL 34134
Company is not responsible for pricing, typographical or other errors on the Website or in any offer and reserves the right to cancel Orders arising from such errors. Reseller agrees that all invoices shall be deemed accurate unless Reseller advises Company in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. If Reseller advises Company in writing of a material error, payment of any amounts corrected or modified by Company in writing shall be due within ten (10) days of such correction, and all other amounts shall be paid by Reseller by the invoice due date. If Reseller withholds payment of any invoiced amounts based on a claim by Reseller that such amounts are erroneous, and Company subsequently determines that such invoiced amounts are accurate, Reseller shall pay interest on such amounts as described below for past due amounts.
Payment is due as stated on Company’s invoice without offset or any deduction for withholding taxes or other fees to the remit to address on invoice. Company, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices will bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Reseller’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements. At any time, Company may change the terms of Reseller’s credit. Company may apply payments to any of Reseller’s accounts. Notwithstanding any “net” payment provisions specified on the invoice, Company shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by Company at any time and without prior notice. Prior to accepting an Order, Company may require Reseller to grant Company a security interest in the Product, plus all accounts resulting therefrom as a condition of accepting an Order. Reseller agrees to execute a Security Agreement in a form acceptable to Company, and Reseller authorizes Company to file such financing statements as Company deems appropriate to perfect and/or continue Company’s purchase money security interest therein.
Collections: If Company engages an attorney or collection agency for the purpose of collection of money due from Reseller, or enforcing Company’s security interest in the Products, with or without litigation, Reseller shall pay any and all associated costs, including, without limitation, attorneys’ fees, collection fees, interest, and court costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor’s rights proceedings. When Company pursues an End User on behalf of a Reseller all expenses associated may be deducted from Reseller. Company reserves the right to effect a recoupment, to set off of any funds due at any time to Reseller from Company, and to set off any amounts against amounts owed by Reseller to Company.
Currency: Unless specifically specified in writing by Company, all transactions will be conducted in US Dollars. If a sale is to occur (or the Product is to be shipped) outside of the United States, Reseller acknowledges and agrees that the amount due Company is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Reseller in local currency or the receipt by Company of local currency as a consequence of enforcement procedures against Reseller will be deemed (a) an authorization for Company to use that local currency to purchase U.S. Dollars or, (b) if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Reseller’s country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to Company by Reseller. Reseller is responsible for any deficiency as a result of conversion of payment into U.S. Dollars.
Service Agreements: Payment for all Support Orders and any other technical support may be required in advance, in Company’s sole discretion, and cannot be cancelled without 30 days advance written notice.
4. RETURNS
Company’s Product Return policies in effect on the date of the invoice, or as otherwise provided by Company to Reseller in writing, will control any return of Products. All Orders for Products that Company identifies as non-standard or “Special Order” are non-cancelable and non-returnable. Company may identify Products as Special Order by various means including, but not limited to, quotes and product lists. Company’s Product Return policies are located at https://aismarterworld.com/returns. Company reserves the right to modify or eliminate such policies at any time. The right to return defective Products as set forth herein shall constitute Company’s sole liability and Reseller’s exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. If Company issues a return authorization to Reseller allowing Reseller to return Product to Company, Reseller will deliver the Product to Company’s specified address in the United States, and at Company’s sole discretion, Reseller shall bear Additional Fees designated or levied, on any replacement Product to be shipped by Company to Reseller. If Company determines such Products are not eligible for return, Company will, at its sole discretion, send such Products back to Reseller on freight collect basis, or hold such Products (at Reseller’s expense) for Reseller’s collection and on Reseller’s account.
5. DISCLAIMER OF WARRANTIES
Although Company’s policies may permit Reseller to return defective Products under certain circumstances as specified in Section 4, Company makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. Company HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Company WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Any express warranties with respect to Products are provided by the Vendor. Company will pass through to Reseller such warranties to the extent it is legally permitted to do so. Reseller shall not provide or make any representations and warranties on behalf of or purporting to bind Company or the Vendor other than express warranties for the Product(s) provided by the Vendor.
6. LIMITATION OF LIABILITY
SUBJECT TO THE LIMITATIONS OF SECTIONS 4 AND 5, COMPANY’S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, OR OTHERWISE WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL: (1) BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES; AND (2) WILL NOT EXCEED THE NET AMOUNT PAID TO COMPANY BY END USER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM OR $1,000, WHICHEVER IS LESS. COMPANY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, COSTS OF COVER, OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY APPLIES WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL Company HAVE ANY LIABILITY OR RESPONSIBILITY OF ANY TYPE WITH RESPECT TO ANY CLAIM WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM Company, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, UNLESS SUCH CLAIM IS MADE BY BUYER WITHIN THREE HUNDRED SIXTY FIVE (365) DAYS AFTER THE DATE OF BUYER’S RECEIPT OF THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, AS THE CASE MAY BE, TIME BEING OF THE ESSENCE. ANY AND ALL CLAIMS NOT MADE WITHIN SUCH THREE HUNDRED SIXTY FIVE (365) DAY PERIOD SHALL BE TIME BARRED, WAIVED AND RELEASED FOREVER.
7. ELM
ELM is an online sales platform (“Website”) offered by Company to sell Cloud Solutions such as software as a service and other Products. If Reseller chooses to use ELM, Reseller’s use is subject to these terms and conditions, and any additional ELM platform agreements, which will be communicated to Reseller via a separate contract. The additional terms found in this Section 7 will specifically apply to all sales by Company through ELM or any other website owned by Company. All data and other information available on ELM are proprietary, confidential and the sole property of Company or third parties licensing such information to Company. Subject to any ELM related contract, Reseller acknowledges that Company’s processing of orders generated by Reseller through ELM are as if the Company sold to the Reseller and the Reseller sold the End User and Reseller bears all similar responsibilities and risks of same.
Electronic Delivery / Access: Unless otherwise agreed in writing, the Products made available through ELM will be made available for use by software download or the transmission of (or access to) enabling information and software electronically. ELM may also fulfill sales of other physical products as required.
Credit Card Authorization: If Reseller pays by credit card, Reseller represents that it is the owner of or is authorized to use the credit card and Reseller authorizes Company to charge the credit card for all transactions, unless otherwise specified in writing. If Company extends credit to Reseller, Reseller will be invoiced on the agreed upon terms. When Reseller is using ELM to fulfill End User Orders, Reseller makes same representations of authorization.
Automatic Renewals and Recurring Services: For Products made available on a subscription or recurring term basis (“Subscriptions”), Reseller agrees that Company may invoice Reseller for automatic renewals and recurring Subscriptions, using Resellers initial purchase order number as authorization for subsequent invoices until Reseller properly cancels the applicable Subscription. Reseller further agrees to notify End Users of the applicable renewal or recurring Subscriptions and payments due therefore and acknowledges that Reseller’s obligation to pay is not conditioned on: (a) Company’s invoice for such Products, (b) Reseller’s placement of a renewal purchase order, or (c) Reseller’s receipt of a renewal order from its customer (d) automated renewal of Products.
Reseller further acknowledges that information from the end user is necessary for end users to access or use certain Products. Reseller agrees to provide such information as requested by the Vendor to both Company and the Vendor. Reseller represents and warrants that Reseller has properly obtained the consent of the end user to provide said information to Company and the Vendor. If Reseller defaults on these terms and conditions, Company reserves the right to move Reseller’s end users to another reseller or other provider to avoid interruption of access by the end user.
Website Use: Reseller shall create a user identification (“User I.D.”) and a password (“Password”) when completing the New Account Form, or by such other procedure adopted by Company from time to time. Reseller’s choice and establishment of a User I.D. and Password is a precondition to use of the Website. Protected areas of the Website cannot be accessed and used without a User I.D. and Password. The Website includes mechanisms which permit Reseller to change Reseller’s User I.D. and Password.
Reseller is entirely responsible for maintaining the confidentiality of Reseller’s User I.D. and Password and is obligated to make it unique, complex, and confidential. Reseller is and shall be fully responsible for all activities occurring under Reseller’s User I.D. and Password. Reseller shall notify Company immediately if Reseller suspects, detects, or receives notice of any unauthorized use of Reseller’s User I.D and Password or any other breach of security with reference to Reseller’s use of the Website. In such event, Reseller is obligated to change Reseller’s User I.D. and Password immediately pending resolution of the unauthorized use or security breach. Reseller may not use any other Person’s User I.D. or Password at any time and shall not share their confidential password with any Party outside this Agreement. Reseller may be held liable for losses incurred by Company or any other Person arising from any Person other than Reseller using Reseller’s User I.D. or Password as a result of Reseller failing to keep that information secure and confidential. Company cannot and will not be liable for any damage or loss arising from Reseller’s failure to meet its obligations under this Paragraph or arising from unauthorized use of Reseller’s User I.D. or Password, except in the case of gross negligence or intentional misconduct by Company. Similarly, Company shall not be responsible for unauthorized use of any Reseller’s Card or other account information (including, but not limited to, Reseller’s name, billing address, Card number(s), related security code number, and Card expiration date(s)) by any Person unless such information was disclosed by Company to such other Person through Company’s gross negligence or willful misconduct.
Reseller shall provide all information and execute all documents which Company may reasonably require for proper use of the Website by Reseller. Reseller represents and agrees that all information and documentation which Reseller provides is true, accurate, current, and complete. Reseller shall update and maintain all information and documentation so that it is true, accurate, current, and complete at all times during Reseller’s use of the Website and the purchase by Reseller of Products and Services from Company. Reseller shall notify Company promptly of any and all inaccuracies in or changes to such information and documentation. Company shall in no event be liable for any claims, debts, demands, suits, causes of action, damages, losses, liabilities and costs, including but not limited to reasonable attorneys’ fees, court costs, and costs of any administrative proceeding of any nature or liabilities of any kind (“Claims”) which result, directly or indirectly, from Reseller’s failure to provide Company with true, accurate, current and complete information and documentation, and shall indemnify and hold Company harmless from and against any and all damages, losses, costs and expenses arising therefrom.
Reseller may not use the Website for any illegal purpose or otherwise in violation of applicable Laws, or in any manner inconsistent with this Agreement.
Reseller shall comply with this Agreement and all applicable Company policies and limits concerning use of the Website, as updated by Company from time to time, including without limitation: (i) Company’s requirements for data security; and (ii) any operating rules and/or policies.
Company has the right, in Company’s sole discretion: (i) to change, suspend or discontinue the Website; and (ii) to impose limits on certain features or restrict access to parts or all of the Website, without notice and without liability, whenever deemed necessary by Company to protect the integrity of the Website or for any other reason. Company reserves the right to modify the features and functionality of the Website, at any time and from time to time, without notice; provided, however, that Company will not modify the Website in a manner that would, as determined by Company in its sole discretion, materially adversely affect the use of the Website, without providing prior notice to Reseller of any such modification (except in case of emergency).
COMPANY DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT BUYER’S USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. COMPANY MAKES NO WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE INTERNET OR ANY PORTION THEREOF (INCLUDING, BUT NOT LIMITED TO, THE “WORLD WIDE WEB”) OR ANY TELEPHONE SERVICE OR INTERNET PROVIDER, OR THAT ANY SERVICES ESTABLISHED THEREON WILL BE UNINTERRUPTED OR ERROR-FREE. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. COMPANY CANNOT ENSURE THAT ANY FILES OR OTHER DATA BUYER IS PERMITTED TO DOWNLOAD FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY OTHER PERSON IN CONNECTION WITH OR RELATED TO BUYER’S USE OF THE WEBSITE AND/OR ANY OTHER COMPANY SERVICES. BUYER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE WEBSITE AND ANY LINKED SITES. BUYER’S SOLE REMEDY AGAINST COMPANY FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THIS LIMITATION OF RELIEF IS A PART OF THE AGREEMENT BETWEEN THE PARTIES, WITHOUT WHICH, COMPANY WOULD NOT PERMIT USE OF THE WEBSITE.
THE ABOVE DISCLAIMERS APPLY TO ALL DAMAGES, LIABILITY OR INJURIES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE, WHETHER BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
THE WEBSITE OR THIRD PARTIES MAY PROVIDE LINKS TO OTHER INTERNET RESOURCES INCLUDING, BUT NOT LIMITED TO, WORLD WIDE WEB SITES OTHER THAN THE WEBSITE. COMPANY HAS NO CONTROL OVER SUCH WEB SITES AND RESOURCES. COMPANY IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEB SITES OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY, OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
8. INTELLECTUAL PROPERTY
Company and/or its licensors own and shall retain all proprietary rights in and to the Website and all derivations and enhancements thereof, and all applications, software, documentation, content, and other materials that Company may use or provide in connection with implementation and operation of the Website. The Website and all site design, including, but not limited to, software, processes, text, content, photographs, video, audio, interfaces, graphics, trademarks, logos, sounds, music, artwork, and computer code and the selection and the arrangement thereof (collectively, “Content”), including, but not limited to, the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Website and/or used in connection with the function of the Website and all articles of information, policies and other elements making up the Website are owned, controlled or licensed by or to Company and are protected by patents, copyrights, trademarks, service marks, international treaties and/or other proprietary rights and Laws of the United States and other countries.
Reseller does not acquire any right, title, or interest in the Website, except for the limited right to use the Website strictly in accordance with the provisions of this Agreement. Reseller shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Website. Except as expressly provided in this Agreement, no part of the Website may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any way (including “mirroring”) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Company’s express prior written consent. Company reserves all rights to Company’s intellectual property, including all intellectual property rights in the Website and materials on the Website.
Reseller may view, download for caching purposes only, or print pages from the Website, solely for use by Reseller placing Orders with Company and in providing support to Reseller’s customers and for no other purpose, and subject to the restrictions below and elsewhere in this Agreement. Reseller shall not: (i) republish any material from the Website; (ii) sell, rent, or sub-license material from the Website; (iii) show any material from the Website in public; (iv) reproduce, duplicate, copy, or otherwise exploit material on the Website for a commercial purpose; (v) edit or otherwise modify any material on the Website, (vi) disseminate or redistribute material from the Website; or (vii) use any material from the Website in competition with Company or for any other purpose except placing Orders with Company and to provide support to Reseller’s customers. As an accommodation to Reseller in the course of business, Company may provide Reseller access to Company’s or Company’s licensor’s copyrighted works, trademarks, inventions, and trade secrets, and like information, including information: (A) that has commercial value or other utility in the business of Company; (B) that Company identifies as confidential; or (C) that would be detrimental to Company, its suppliers, or its customers, if disclosed. Examples of such information, whether it be from or not from the Website, include certain works of original authorship (including marketing and technical information), service marks, customer lists, supplier lists, price lists, costs, budgets, marketing research, unpublished business and financial information, forecasts and projections, contracts, contract terms, inventions, proprietary techniques, programs and methods, and other intellectual property, portions of which may be patented. Reseller’s access to any and all of the foregoing is solely for use by Reseller in placing Orders with Company and in providing support to Reseller’s customers and for no other purpose. Upon default or breach by Reseller of this Agreement or any other agreement between Reseller and Company, cessation of business transactions between Company and Reseller, or Company providing written notice of revocation of use for any reason and at any time, upon demand by Company, Reseller shall immediately cease and desist use of any intellectual property provided by Company for use by Reseller, including that property referenced above, and returning all documents and media of any and every nature containing or representing Company’s intellectual property. Reseller agrees to and shall comply with such demand. In no event shall Reseller use any of the aforementioned information in competition with Company or for any other purpose except placing Orders with Company and to provide support to Reseller’s customers.
9. RESELLER’S OBLIGATIONS
Compliance with Laws: Reseller represents and warrants that it will comply with all applicable laws, codes, and regulations. Reseller further acknowledges and agrees that the Products are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations, and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Reseller shall not, without prior U.S. government authorization, export, reexport, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, Reseller may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; (3) chemical or biological weapons; and 4) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage.
Vendor Restrictions: Reseller acknowledges and agrees that some Product sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Reseller may also be subject to additional usage restrictions or authorizations or terms and conditions imposed by the Vendor. Reseller is responsible for ensuring compliance with any such restrictions, authorizations or terms and conditions. Reseller shall comply with any applicable rights of third parties regarding Products, including software or other intellectual property, such as patents, copyrights, and user licenses.
Anti-Bribery Anti-Corruption: Reseller agrees it has not and will not in the future directly or indirectly offer or pay, or authorize the offer or payment of, any money or anything of value in an effort to influence any government official or any other person in order to improperly obtain or retain business or gain an improper business advantage, and has not accepted, and will not accept in the future, any such payment.
Software: Software is the machine-readable (object code) version of computer programs (“Software”). To the extent Reseller purchases or licenses Products containing Software, Reseller shall not, directly, or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms, or processes from the Software or permit or encourage any third-party to do so. Reseller’s use of Software and any related documentation is governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
Reseller authorizes Company to accept, on Reseller’s behalf, any end-user license agreement, or similar agreement for Products . Reseller shall secure this same authority from its end user customers. Company has no obligation to accept any end-user license agreements but may use its sole discretion to exercise its authority. Reseller acknowledges that Vendor or Vendor’s third-party licensors will provide any license required to use the Product and not Company.
Records and Audit: Reseller will keep, provide, and allow Company to audit, complete and accurate records related to this Agreement including records relating to sales during the term of this Agreement and for seven (7) years from the date of the record, or longer if required by the applicable Vendor.
Refunds: Reseller will reimburse to Company any funds provided to Reseller by Company or the Vendor, which Company is obligated to return to the Vendor and/or End User (or which Company expected to but did not receive from the Vendor). These funds include but are not limited to discounts, fees, and marketing funds. Company may also recover such refunds by offsetting any amounts due to Reseller from Company.
Notices and Communications: Reseller consents to receive all communications from Company or Vendor regarding Products and shall promptly notify Company in writing of all changes to Reseller’s name, address, and control/ownership of its assets. Additionally, Reseller consents to allow Company to contact Reseller’s customers and end users regarding Products.
Indemnification: Reseller will indemnify, defend, and hold Company, Company’s parents, subsidiaries and affiliates, all Company Suppliers, and the respective shareholders, directors, officers, members, employees, agents and other representatives of Company, Company’s parents, subsidiaries and affiliates and all Company Suppliers (collectively, “Company Indemnified Parties”) harmless of and from any and all liabilities, losses, and damages (including costs, expenses, and attorney’s fees, and costs of establishing rights to indemnification) for any claim including: (i) breach by Reseller of any warranty, representation, or covenant under this Agreement; (ii) breach by Reseller of any agreement with Vendor or Reseller violation of the rights of a Vendor; (iii) non-compliance with requirements hereunder or with applicable laws, regulations, directives, or ordinances; or (iv) claims arising from Reseller’s negligence or willful misconduct; or (v) claims arising from Company’s compliance with Reseller’s designs, specifications or instructions; modifications of any Product by anyone other than Company; use or sale of Products in combination with other products or in violation of the Vendor’s applicable specifications and/or documentation.
10. GOVERNMENT SALES
Reseller has an affirmative duty to notify Company in writing during the quotation, request, and order process of any product sourcing restrictions, including the Trade Agreement Act (“TAA”), Buy American Act, or other sourcing restrictions that apply to the Products.
Company is a distributor of “Commercial Items” as defined in FAR 2.101. Company does not intend to sell Products, whether to the U.S. Government or a higher-tier contractor, that fail to meet the “commercial item” definition in FAR 2.101. Accordingly, Company agrees only to the clauses in the Federal Acquisition Regulation (“FAR”) and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Reseller will receive only those rights in technical data customarily provided to Company by the manufacturers. By no means will this be interpreted as providing to Reseller unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. To the extent Reseller is not an authorized GSA Reseller, Company specifically rejects the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. Company does not accept any Preference for Domestic Specialty Metals regulations unless the Vendor expressly represents and warrants that the Products provided through Company are compliant.
11. GENERAL
Entire Agreement: This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior negotiations, representations, and agreements, whether written or oral, between the parties with respect to the subject matter hereof. Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any party. Further, Company is not obligated to sell Product to Reseller under this Agreement. No other agreement, statement or promise modifies these terms and conditions unless it is in writing and signed by both parties. Any Company waiver or default of one or more of these terms and conditions is not a waiver of the remaining terms and conditions or of any future defaults. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights.
Governing Law and Venue: Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of Florida shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements and these terms and conditions shall be deemed made in, and shall be governed by, the laws of the State of Florida. The venue for any disputes arising out of these terms and conditions shall be, at Company’s sole and exclusive option, Lee County, Florida, or the courts with proper jurisdiction at Reseller’s location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
Force Majeure: Company is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Reseller, operational disruptions, man-made or natural disasters, acts of war, government interference, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
Data Protection and Personal Information: Reseller will maintain industry standard controls for personal information processed under this Agreement that will, among other things, protect against unauthorized access, use, modification, or disclosure by electronic or physical means. Reseller shall update its security controls from time to time as required by applicable law or to conform to standard industry practices. Reseller shall (i) process and hold personal information in the strictest of confidence, (ii) protect such information, (iii) provide required notifications, and (iv) obtain all consents necessary to collect and process end user personal data in accordance with applicable data protection laws. If required by applicable data protection laws, Reseller will execute a data processing agreement, or such other required documentation, and complete a privacy and security risk assessment as reasonably requested by Company, including without limitation executing standard contractual clauses in the event any European or other international personal data is transferred across national borders. If Reseller discovers or is notified of an actual, probable, or reasonably suspected breach of security or any unauthorized access to or acquisition, use, loss, destruction, compromise, alteration, or disclosure of any personal data processed by Reseller pursuant to this Agreement, then Reseller shall notify Company within twenty-four (24) hours of such discovery or notification and investigate, mitigate, or if possible, remediate, the effects of the breach. Reseller shall cooperate and provide reasonable assistance to Company in connection with any legal or regulatory inquiries or investigations relating to any breach.
Accurate Information: Reseller represents and warrants that the information provided in any documents to Company will be true and correct in all material respects and contains all information necessary so that such information is not materially misleading. Reseller acknowledges that Company is relying on the accuracy of the information provided by Reseller.
Independent Contractors. The Parties will act as independent contractors in the performance of this Agreement and neither Party shall act as agent for or partner of the other Party.
By entering into this Agreement, Reseller is agreeing to conduct transactions by electronic means.
The Company Website Privacy Policy, E-SIGN and UETA Disclosure and Consent Agreement and all regulatory notices, to which links are provided on the Website, are incorporated in and made a part of this Agreement.