1. Orders. For each purchase transaction by Customer, Reseller will provide Customer with an Invoice, which shall be effective for 10 days, specifying:
- computer or other hardware (“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; and
- installation, training, maintenance, support, and other services (“Services”) for or relating to Equipment, Software, and/or Systems, which an OEM will perform in accordance with its then current published services offerings or as specifically provided in an Invoice.
The Invoice will also specify the quantity, price, delivery method (if applicable), and shipment location of each item of Equipment, Software, System, and any applicable Services. Customer shall sign and return the Invoice to Reseller, which shall not be binding until it has been accepted by Reseller. Customer understands and agrees that signed Invoices for Equipment, Software, Systems, and/or Services cannot alter the terms and conditions pursuant to which OEM is providing the Equipment, Software, Systems, and/or Services.
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. 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 have the right to cancel the applicable order. In the event that OEM cancels or rejects Reseller’s order of the Equipment, Software, Systems, and/or Services necessary to fulfill an accepted Invoice, Reseller will promptly refund to Customer all amounts paid less a 3.5% transaction fee by Customer to Reseller with respect to such Equipment, Software, Systems and/or Services and the Invoice will be deemed to be canceled and neither party will have any further obligations with respect to such Invoice. Customer will pay all sums equal to taxes (including, without limitation, sales, withholding, value-added, 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 Reseller’s net income. ALL SALES ARE FINAL.
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 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.
- 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 with respect to the delivery of the Services or will enter into a electronic written agreement, either click wrap or click and accept with OEM pursuant to which it will receive the Services.
- Reseller Services. Any services provided by Reseller, without regard to whether such services are related to any purchases by Customer under these Terms and Conditions, will be provided solely pursuant to a separate agreement between Customer and Reseller.
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. 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 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. Manufacturer & Third Party Equipment Provider Warranties Only; No Reseller Warranty or Liability. OEM or third party equipment provider provides a warranty, which is included in the End User License Agreement, documentation for the Equipment or System, or will otherwise be provided to Customer by OEM or third party equipment provider, and Customer agrees to rely exclusively on such warranty and, as applicable, maintenance 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 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.
a. 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 equipment/software provider, or to either party’s breach of Section 12. Repair, support, and warranty claims shall be submitted by Customer directly to OEM or third party equipment provider, and Reseller shall not be liable to Customer for any such claim(s).
b. 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. 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, OEMs will have the right to terminate any license as provided under the terms of the applicable End User License Agreement.
a. 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.
b. 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.
c. 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.
d. 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.
12. 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 of the equipment, 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 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.
a. 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.
b. 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.
c. 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.
d. 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 shall not apply to the transaction governed by these Terms and Conditions.
e. 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. Any modification or amendment to these Terms and Conditions must be in writing and signed by authorized representatives of both parties.
f. 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.
g. 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.
h. 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.
With respect to sales of Carlson Software licenses and/or sublicense of Software by Carlson Software, Inc, ("OEM"), The Carlson End User License Agreement provided to Customer as part of the activation process must be accepted by Customer prior to downloading any Carlson Software module(s). You may view a preliminary copy of the Carlson End User License Agreement at https://files.carlsonsw.com/mirror/manuals/Carlson_2022/source/Introduction/EULA/eula.htm; 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 and warranty claims will be made directly through Carlson Software, Inc, “OEM”.