1. Orders. For each purchase transaction by Customer, Reseller will provide Customer with an Invoice, which shall be effective for 10 days, specifying:
1.1 GNSS receiver(s), data collector(s), tablet(s), drone(s), total station(s), or other related land survey equipment, peripherals, or accessories (“Equipment”), computer software, including software provided with Equipment or as part of a System (“Software”), and/or one or more combinations of interoperable Equipment and Software (“System(s)”) sold, licensed, or sublicensed by the OEM or TPP; and
1.2 Installation, training, support, equipment rentals, and other services (“Services”) for or relating to Equipment, Software, and/or Systems, which the OEM, TPP, or Reseller will perform in accordance with its then current published services offerings or as specifically provided in an Invoice.
1.3 The Invoice will also specify the quantity, price, payment terms, delivery method (if applicable), shipping cost, and applicable taxes of each item of Equipment, Software, System, and any applicable Services. Customer understands and accepts the Invoice(s) for Equipment, Software, Systems, and/or Services cannot alter the Terms and Conditions pursuant to which OEM or TPP is providing the Equipment, Software, Systems, and/or Services. Furthermore, the Invoice shall be deemed accepted and binding upon payment by the Customer.
2. Payment Terms. Promptly upon acceptance of an Invoice, unless otherwise explicitly provided in the Invoice, Customer will pay on receipt or demand to Reseller, in United States Dollars, the full purchase price for all Equipment, Software, Systems and Services specified on the Invoice and, promptly following receipt of payment from Customer, Reseller will order the Equipment, Software, Systems and/or Services from OEM or TPP. Deposit(s) placed on an Invoice are non-refundable and shall be credited towards the total invoiced amount. In the event that payment is not received by Reseller within 10 days of acceptance of an Invoice or as otherwise explicitly provided in the Invoice, Reseller will retain the sole right to cancel the applicable order. Customer will pay all sums equal to taxes (including, without limitation, sales, withholding, value-added taxes, and similar taxes) and any duties paid or payable, however designated, levied or based on amounts payable to Reseller under these Terms and Conditions, but exclusive of United States federal, state, and local taxes based on applicable invoice total. All fees, Services, Equipment, Software, and System(s) are non-refundable, non-cancelable, and non-transferable - ALL SALES FINAL.
2.1 Equipment Rentals. All rental fees are earned in full upon commencement of the applicable rental period. No refunds, credits, or prorations shall be issued for any unused time, early return, non-use, suspension of use, or termination of the rental for any reason, whether voluntary or involuntary, including without limitation Customer convenience, Equipment substitution, force majeure, or any act or omission of Customer. Any portion of a rental period commenced shall be deemed a full rental period for billing purposes.
3. OEM Proprietary Rights. Customer acknowledges that the Software and all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Equipment, Software, and Systems, are and at all times shall remain the valuable property of OEM and its licensors, or their respective successors or assigns.
4. Software; End User License Agreement; Restrictions. In all cases, Customer will acquire only a license to any Software provided by Reseller under these Terms and Conditions (which Software shall be provided as a perpetual or subscription software license). Any use of the term “sell” and its variations shall mean throughout these Terms and Conditions, as applicable to the Software, a license and not a sale. Customer shall only have the rights with respect to the Software expressly set forth in the End User License Agreement, which will be (i) electronically provided to Customer as part of the activation process, (ii) if no End User License Agreement is provided as part of the activation process, as provided in the applicable End User License Agreement specified in Exhibit A or the applicable Order Form, or (iii) otherwise provided by Reseller or OEM. Following Customer’s acceptance of the End User License Agreement, OEM will provide Customer with the ability to access the OEM Software it has licensed. Except as expressly provided in the End User License Agreement, all other rights to Software are expressly reserved to the applicable OEM and its licensors. Customer will not itself, or through any affiliate, agent, or third party: (i) except as expressly permitted under the applicable End User License Agreement, use or permit others to use the Software; (ii) disassemble, reverse engineer, or decompile the Software or otherwise attempt to derive source code from it, except to the extent applicable laws specifically prohibit such restrictions; or (iii) modify, adapt, translate, or create derivative works based upon the Software.
5. Services.
5.1 OEM Services. As a condition to receiving or purchasing any Services from the OEM related to the purchase or delivery of Equipment, Software, and/or Systems, Customer will agree to OEM’s standard terms and conditions applicable to such Services or enter into an electronic written agreement, including a click-wrap or click-and-accept agreement, with the OEM pursuant to which Customer receives such Services, Equipment, and/or Software. Reseller is not responsible for the performance, content, availability, accuracy, or results of Services provided by the OEM or any Third Party Provider (“TPP”).
5.2 Reseller Services and Training. Any training, instruction, consultation, or other services provided directly by Reseller (“Services”) shall be provided solely pursuant to a separate written agreement, statement of work, or Invoice between Customer and Reseller specifying the applicable scope and fees. Reseller Services are limited to the services expressly identified in the applicable agreement, statement of work, or Invoice and are provided solely for general instructional and informational purposes. Reseller does not warrant or guarantee any particular result, performance, accuracy, productivity, project outcome, or fitness for any particular purpose arising from or related to Reseller Services. Customer is solely responsible for determining the suitability and application of any information, instruction, methods, techniques, or recommendations provided through Reseller Services and for all decisions, measurements, calculations, designs, surveys, deliverables, or other work performed by Customer or its personnel. Reseller shall not be responsible or liable for any error, omission, inaccuracy, loss, damage, or claim arising from Customer’s use, interpretation, implementation, or reliance upon Reseller Services. To the fullest extent permitted by Florida law, Reseller Services are provided without any express or implied warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, or suitability. Except for liabilities that cannot lawfully be excluded or limited, any liability arising from or relating to Reseller Services shall be subject exclusively to the disclaimers, exclusions, limitations, and liability cap set forth in Sections 8 and 10 of these Terms and Conditions.
5.3 Remote Access Services. To facilitate installation, configuration, troubleshooting, maintenance, training, software updates, or other technical support services, Customer may authorize Reseller, the applicable OEM, or TPP to remotely access Customer's computer systems, servers, tablets, controllers, GNSS equipment, networks, Software, or other Systems. By requesting or permitting remote support, Customer represents and warrants that it has the legal authority to grant such access. Customer shall ensure that appropriate personnel are available during the remote support session and responsible for creating and maintaining current backups of all data, files, databases, configurations, and software prior to any remote access session. Customer acknowledges that changes made during troubleshooting, software installation, updates, or configuration may affect the operation of Customer Systems. Although Reseller and any TPP will use commercially reasonable care when performing remote support services, Customer acknowledges that remote access services inherently involve risk. To the fullest extent permitted by applicable law, Reseller shall not be liable for any loss of data, corruption of files, interruption of business, cybersecurity incident, system downtime, incompatibility, configuration changes, or other direct, indirect, incidental, consequential, special, exemplary, or punitive damages arising from or relating to remote access services, except to the extent caused by Reseller's gross negligence or willful misconduct. Customer may terminate a remote support session at any time; however, doing so may prevent completion of the requested services. Reseller reserves the right to refuse or discontinue remote support if it reasonably determines that continuation would create an unreasonable security risk, violate applicable law, or otherwise expose Reseller, the OEM, or the TPP to undue risk. Remote support services may be provided using commercially available secure remote access software selected by Reseller, OEM, or TPP. Customer authorizes the temporary installation and use of such software as reasonably necessary to perform the requested services. Any such software remains the property of its respective owner and may be subject to separate license terms. Customer remains solely responsible for maintaining the security of its systems, user credentials, network permissions, antivirus protection, firewall settings, and backup procedures before, during, and after any remote support session.
6. Terms and Conditions; Terms and Conditions Included on Purchase Orders Not Applicable. The Parties agree that any purchase order submitted by Customer (each a “Purchase Order”) will be solely for Customer’s administrative convenience and that all terms and conditions applicable to the transaction will be governed solely by these Terms and Conditions and the Invoice. Any additional or differing terms and conditions included on any Purchase Order are hereby rejected and will have no application to the purchase of the Equipment, Software, Systems, and Services.
7. Delivery and Shipment. Promptly following its receipt of scheduled shipment date(s) or on-site delivery date(s), Reseller will notify Customer of such scheduled shipments. Delivery will be F.O.B. point of shipment and will occur when the Equipment and Systems are ready for pickup by the carrier or Customer may arrange for on-site delivery by Reseller representative at an additional expense. OEM, Reseller, or other contractors or designees will select a carrier and arrange for transit.By selecting a carrier and arranging for delivery on Customer’s behalf, none of OEM, Reseller, nor their contractors or designees assumes any liability for the shipment and the carrier will not be considered their agent. All transportation, applicable surcharges, and insurance charges shall be paid to Reseller by Customer upon invoice. If deliveries are authorized in installments, each shipment shall be paid for when due without regard to other scheduled deliveries.
8. Original Equipment Manufacturer & Third Party Provider Warranties Only; No Reseller Warranty or Liability. OEM or Third Party Provider provides a warranty, which is included in the End User License Agreement, documentation for the Equipment, Software, Service, or System, or will otherwise be provided to Customer by OEM or Third Party Provider, and Customer agrees to rely exclusively on such warranty and, as applicable, maintenance license agreement and Services purchased by Customer. RESELLER EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE EQUIPMENT, SOFTWARE, SYSTEMS, AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF RESELLER IS INFORMED OF SUCH PURPOSE), NON-INFRINGEMENT, OR SUITABILITY, TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE THAT ANY SYSTEMS OR SERVICES WILL MEET CUSTOMER REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT THE REFUND OBLIGATION EXPRESSLY PROVIDED IN SECTION 2, RESELLER SHALL HAVE NO LIABILITY WITH RESPECT TO THE EQUIPMENT, SYSTEMS, SOFTWARE, OR SERVICES.
9. Export Control. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the United States Department of Commerce. Specifically, Customer agrees that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software, documentation, or other technology (including products derived from or based on such software, documentation, or other technology) received from OEM pursuant to an order placed under these Terms and Conditions to any country (or national thereof) subject to anti-terrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to indemnify, to the fullest extent permitted by law, Reseller from and against any fines or penalties that may arise as a result of Customer’s breach of this provision.
10. Limitation of Liability.
10.1 Limitation. It is expressly agreed that each party’s maximum liability for damages to the other party under or in connection with any Invoice, regardless of the form of legal action, whether in contract or in tort, including negligence, shall in no event exceed the actual payments received by and owing to Reseller for the applicable Equipment, Software, System, or Service, except that no such limitation on damages shall apply to losses due to Customer’s violation of intellectual property rights or breach of the End User License Agreement or any other agreement between Customer and OEM, or Third Party Provider, or to either party’s breach of Section 12. Repairs, support, and warranty claims shall be submitted by Customer directly to OEM or Third Party Provider, and Reseller shall not be liable to Customer for any such claim(s).
10.2 No Consequential Damages. OTHER THAN CUSTOMER’S OBLIGATION TO PAY FOR THE EQUIPMENT, SOFTWARE, SYSTEMS, AND SERVICES, IN NO EVENT SHALL RESELLER BE LIABLE TO CUSTOMER FOR LOST PROFITS, LOST REVENUE, LOST USE, LOST DATA, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, OR, IF REASONABLY FORESEEABLE, INCURRED BY THE OTHER PARTY OR CLAIMED AGAINST THE OTHER PARTY BY ANY OTHER PARTY. NO LIMITATION HEREUNDER SHALL APPLY TO (I) LOSSES DUE TO CUSTOMER’S VIOLATION OF ANY AGREEMENT BETWEEN CUSTOMER AND OEM OR OBLIGATION TO THE OEM OR (II) TO EITHER PARTY’S BREACH OF SECTION 12. EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS OR IN RELATION TO ANY OTHER LIABILITY THAT MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED IS NOT EXCLUDED OR LIMITED AND NOTHING IN THESE TERMS AND CONDITIONS SHALL BE CONSTRUED AS AN ATTEMPT TO EXCLUDE OR LIMIT SUCH LIABILITY.
11. Indemnification. CUSTOMER AGREES TO INDEMNIFY AND DEFEND RESELLER AND HOLD IT AND ITS OFFICERS, DIRECTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING, BUT NOT LIMITED TO, ALL COSTS, EXPENSES, LOSSES, DAMAGES, PENALTIES, LIABILITIES AND REASONABLE ATTORNEYS’ FEES) INCLUDING FOR DAMAGE OR INJURY TO ANY PERSON AND PROPERTY, ARISING AS A RESULT OF OR OTHERWISE CONNECTED TO CUSTOMER’S ACTS OR OMISSIONS RELATED TO THESE TERMS & CONDITIONS, OR CUSTOMER’S USE OR POSSESSION OF THE EQUIPMENT, SYSTEMS, SERVICES, AND/OR SOFTWARE.
12. Termination; Suspension. Upon any material breach or default of these Terms and Conditions by Customer or default in payment, Reseller shall have the right to terminate or suspend performance under any outstanding Invoice(s). In addition, OEM will have the right to terminate or suspend any license as provided under the terms of the applicable End User License Agreement (EULA).
12.1 Information. Each party acknowledges that by reason of its relationship to the other party under these Terms and Conditions it may have access to certain information and material concerning the other party's business, plans, customers, technology, and products that are confidential and of substantial value to the disclosing party (“Information”), which value would be impaired if such Information were disclosed to third parties. Each party agrees to maintain all Information received from the other, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Information to any third party without the prior written consent of the disclosing party. Each party further agrees to use the Information only for the purpose of performing these Terms and Conditions. No Information shall be deemed confidential unless so marked if given in writing or, if given orally, identified as confidential orally prior to disclosure, except that Customer agrees that any Information in whatever form relating to the design, functionality, operational methods or coding of OEM Software, including but not limited to any complete or partial source or object code versions, shall be deemed confidential Information of OEM regardless of the presence or absence of any confidential markings or identification and shall be protected hereunder.
12.2 Exclusions. The parties’ obligations of non-disclosure under these Terms and Conditions shall not apply to Information that: (i) is or becomes a matter of public knowledge through no fault of or action by the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party who is lawfully in possession of such Information without restriction; or (iv) is independently developed by the receiving party without resort to Information.
12.3 Return of Information. Whenever requested by a disclosing party, a receiving party shall immediately return to the disclosing party all manifestations of the Information or, at the disclosing party’s option, shall destroy all such Information as the disclosing party may designate. Recipient's obligation of confidentiality shall survive these Terms and Conditions for a period of five years from the date of its termination, and thereafter shall terminate and be of no further force or effect.
12.4 Remedies. Each party acknowledges that any breach of any of its obligations with respect to the other party's confidential information hereunder may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such an event each party shall be entitled to seek equitable relief to protect its interests, including but not limited to temporary restraining orders, preliminary and permanent injunctive relief, as well as money damages.
13. Default & Remedies.
If at any time Customer fails to make payment hereunder when due, or violates any other terms of this Agreement, Customer shall be in default. If Customer is in default, Reseller may take possession or suspend access of the Equipment, accessories, peripherals, Services, and/or Software license(s), with or without legal action and without notice to or consent of the Customer. Reseller may enter upon any premises owned or leased by Customer without liability for any damages occasioned thereby. Customer shall be responsible for all incurred expenses of Reseller in repossession of the Equipment and/or Software license(s) including all past due payments. Pursuant to non-payment collections by Customer, Customer and Reseller shall enter into mandatory binding arbitration to settle collections disputes with exclusive venue and jurisdiction in the state courts of Manatee County, Florida.
14. No Setoff or Withholding
All amounts payable by Customer under these Terms and Conditions are absolute, unconditional, and non-cancelable, and shall be paid in full when due, without setoff, counterclaim, recoupment, defense, deduction, abatement, or withholding of any kind, whether arising under these Terms and Conditions, any other agreement, statute, law, equity, or otherwise. Customer irrevocably waives any right it may have to assert setoff or recoupment against Reseller.
Customer’s payment obligations shall not be subject to any claims, disputes, defenses, or alleged breaches by Reseller, and Customer shall pursue any such claims solely in a separate action without delaying, reducing, or withholding payment.
This provision shall survive termination or expiration of these Terms and Conditions and shall be enforceable to the fullest extent permitted by Florida law.
15. General.
15.1 Notices. All notices required or permitted under these Terms and Conditions will be in writing and will be deemed given: (i) when delivered personally; (ii) when sent by confirmed telex, email, or facsimile; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications will be sent to the addresses first set forth on the applicable Invoice, to the attention of the duly authorized representatives of each party, or to such other address as may be designated by a party by giving written notice to the other party.
15.2 Assignment. Neither party may assign or delegate these Terms and Conditions or any of its licenses, rights or duties under these Terms and Conditions, whether by operation of law or otherwise, without the prior written consent of the duly authorized representatives of the other party, except to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which these Terms and Conditions pertains, by merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under these Terms and Conditions.
15.3 Severability. If any provision of these Terms and Conditions shall be held by a court of law of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be reformed, construed, and enforced to the maximum extent permissible and the remaining provisions shall remain in full force and effect.
15.4 Governing Law and Jurisdiction. These Terms and Conditions shall be governed by and construed under the laws of the State of Florida without regard to conflict of laws provisions. The state courts in Manatee County, Florida shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of these Terms and Conditions. Each party hereto expressly consents to the personal jurisdiction of the courts of the State of Florida and service of process being effected upon it by registered mail sent to the respective addresses set forth in the notice provision hereof. The United Nations Convention on Contracts for the International Sale of Goods nor Uniform Commercial Code shall apply to the transaction governed by these Terms and Conditions.
15.5 Entire Agreement. These Terms and Conditions constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings, or agreements whether oral or in writing, between the parties with respect to the subject matter of these Terms and Conditions.
15.6 Modification of Terms and Effect of Changes. We reserve the right to modify, revise, supplement, or otherwise update these Terms and Conditions from time to time in our sole discretion. Any updated Terms and Conditions will become effective upon posting to our website and will apply prospectively to orders, purchases, transactions, services, and other business conducted after the effective date of the updated Terms and Conditions. The version of these Terms and Conditions in effect at the time an order is accepted by Reseller will govern that transaction, unless otherwise expressly agreed in writing by Reseller and Customer. A subsequent modification, revision, or update to these Terms and Conditions will not, by itself, amend, modify, or invalidate the terms applicable to a previously accepted order. For purposes of determining the Terms and Conditions applicable to a particular transaction, the Customer's order, together with the Terms and Conditions in effect and applicable to that order at the time of acceptance, constitutes the agreement between Reseller and Customer with respect to that transaction. Customer is responsible for retaining a copy of the applicable Terms and Conditions. Notwithstanding the foregoing, Reseller may modify provisions relating to website use, privacy, security, administrative procedures, policies, or other matters that are not specific to the contractual obligations of a previously accepted order, and such modifications may become effective immediately upon posting or on such later effective date as Reseller specifies. Nothing in this section prevents the parties from subsequently agreeing in writing to amend the terms applicable to an existing order or transaction. No modification or update to these Terms and Conditions shall be interpreted to impose upon Reseller any additional warranty, service obligation, representation, indemnification obligation, or liability with respect to a transaction that was accepted prior to the effective date of such modification, unless expressly agreed to by Reseller in writing.
15.7 Excuse of Performance: Reseller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Customer; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Reseller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Reseller upon notice to Customer in the event of any of the foregoing, but the balance of the obligations shall otherwise remain unaffected as a result of the foregoing. If Reseller determines that its ability to supply the total demand for the Equipment, Systems, or Software, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Reseller may allocate its available supply of such items (which may be obtained on commercially reasonable terms) among its customers on such basis as Reseller determines to be equitable without liability for any failure of performance which may result therefrom.
15.8 Independent Contractors. The relationship of Reseller and Customer established by these Terms and Conditions is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. Neither party shall have any power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of the other except as specifically set forth in these Terms and Conditions.
15.9 Survival. The preamble, Sections 1 (last sentence), 2-6, and 8-13 and Exhibit A shall survive any termination of an Invoice and any other portion or all of these Terms and Conditions. Additionally, the terms of these Terms and Conditions shall continue to apply to any accepted Invoice or Purchase Order until delivery and payment have been completed. Termination of these Terms and Conditions shall not relieve Customer’s obligation to pay any sums of money due and payable or accrued under these Terms and Conditions.
Exhibit A
With respect to sales of Carlson Software licenses and/or sublicense of Software by Carlson Software, Inc, ("OEM"), The Carlson Software End User License Agreement (EULA) provided to Customer as part of the activation process must be accepted by Customer prior to downloading any Carlson Software module(s). You may request a preliminary copy of the Carlson Software End User License Agreement (EULA) from Reseller or OEM; provided that the version of the End User License Agreement provided to, and accepted by Customer as part of the activation process will govern Customer’s rights to use certain software module(s) purchased from Carlson Software. Repairs, support, and warranty claims related to Equipment, Systems, Services, and Software will be made directly through Carlson Software, Inc, “OEM”.