iVision Scale, LLC d/b/a iVision
PRODUCT RESALE TERMS AND CONDITIONS
SCOPE OF AGREEMENT/TERM. This PRODUCT RESALE AGREEMENT and all attachments, exhibits and schedules thereto (the “Agreement”), is entered into on the date of signature above, by and between iVision Scale, LLC, a Delaware Limited Liability Corporation Company with a place of business at 1430 West Peachtree Street, NW, Suite 425, Atlanta, GA 30309 (“iVision”); and “Client” listed above (“Client”). This Agreement is for the purchase of hardware, software and third party maintenance services referenced on the attached order and any attached exhibits (collectively, “Products”). This Agreement is effective on the date signed by Client (“Effective Date”), provided that it is subsequently accepted and signed by iVision, and will remain in effect for a duration of twelve (12) months (“Term”), unless terminated earlier by iVision in accordance with Section 7 (Payment Default). The Term will be automatically renewed for successive twelve (12) month periods unless either party provides the other party with a notice of termination at least thirty (30) days prior to the last day of the Term or any renewal thereof. iVision and Client hereby agree that facsimile signatures will be binding and enforceable against the other party.
- ORDERS. All orders placed under this Agreement for the Products (collectively, “Orders”) must be in writing pursuant to an iVision price quote and purchase order and are subject to credit approval. Receipt and acceptance of Orders shall be confirmed in writing by iVision. Subsequent Orders placed by Client for changes to the Products identified in this Agreement, or for additional Products to be ordered under this Agreement, will become an integral part of this Agreement and the Agreement when accepted by iVision. Terms and conditions on any non-iVision order form or purchase order will not apply. Orders for hardware and software may not be modified, postponed, or cancelled prior to shipment except with the written consent of iVision. After an Order is submitted by Client and accepted by iVision, no modification, postponement, or cancellation will be accepted. Orders for third party maintenance services may not be modified, postponed or cancelled unless iVision is able to cancel the associated order with the third party without liability. iVision reserves the right to modify the Order process in its sole discretion. Notice of any modifications to the Order process shall be provided to Client at least thirty (30) days prior to implementation.
- ACCEPTANCE OF PRODUCTS AND TITLE. For hardware and software, Client will take control of the shipment when it is delivered at the address indicated in this Agreement or otherwise as agreed by Client and iVision. Client will give iVision written notice within three (3) days of the delivery of the Products that the Products do not conform to the terms of this Agreement or Order, in which case iVision will facilitate the replacement of such Products by the manufacturer. If Client does not provide such notice in a timely manner, the Products will be deemed accepted. Title to the Products passes to Client upon delivery of the Products to the carrier for shipment to Client; provided, however, iVision hereby reserves and maintains, and Client hereby grants and conveys to iVision, a purchase money security interest in the Products until iVision receives full payment of all amounts due. Client’s right to possession of and interest in the Products will cease immediately upon Client’s failure to make payment in full on the due date, or if Client is declared bankrupt or a receiver or an administrator is appointed in respect of Client. In such cases, without prejudice to any other rights of iVision, iVision will be entitled to enter Client’s premises for the purpose of recovering the Products.
- TRANSPORTATION AND INSURANCE. For hardware and software, iVision will arrange for shipment and prepay all freight charges, including, but not limited to, transportation, insurance (if confirmed in an Order) and handling charges, duties and all brokerage fees for delivery of the Products to Client’s locations, as set forth in this Agreement (collectively, “Freight Charges”). Client will reimburse iVision for all Freight Charges in accordance with Section 4 below. Upon delivery of the Products to the carrier, Client will bear any and all risk of loss, damage or destruction. The carrier will not be construed to be an agent of iVision.
- INVOICING AND PAYMENT. Charges will be invoiced and paid in U.S. Dollars unless expressly stated otherwise. Charges for hardware and software will be invoiced to Client upon acceptance of the Order by iVision. If iVision is exporting the Products from the United States, then any Freight Charges will be invoiced separately and will be immediately due and payable by Client to iVision. For shipments within the United States, Freight Charges will be invoiced along with the Charges for the Products. Installation charges will be invoiced upon shipment of the Products or upon iVision’s completion of the Product installation unless an advance payment, progress payment or other form of security is required by iVision. Charges for third party maintenance services will be invoiced by iVision prior to commencement of such services by the third party. All payments, other than Freight Charges, will be due twenty (20) days from the date of invoice at iVision’s address specified on the invoice. Client’s obligation to remit payment for Products is not contingent upon acceptance of the Products by Client.
- TAXES. The charges specified in this Agreement do not include taxes, including VAT, sales, excise, gross receipts and withholding taxes, universal service fund fees, and any similar tax or tax-like charges levied by any duly constituted authority or any government imposed fees or surcharges which may be applicable, all of which Client agrees to pay and which will be invoiced to Client in accordance with local law, excluding tax on iVision’s income. If iVision provides local billing in countries where a withholding tax applies, then Client will pay such additional amounts as may be necessary so that iVision receives the amount it would have received had no withholding tax been imposed
- PAYMENT DEFAULT. iVision may terminate this Agreement or any Order with immediate effect by giving notice to Client if Client fails to pay an invoice for the Products within the time period required by Section 4 (Invoicing and Payment). Upon termination of this Agreement or an Order by iVision due to Client’s payment default, Client will pay the following (which Client agrees is reasonable) (i) any unpaid balance of the charges set forth in this Agreement or any Order; (ii) any reshipping, restocking and refurbishment charges; (iii) any cancellation or other charges imposed by third parties for maintenance services, and (iv) an administrative fee equal to 5% of the total charges set forth on an Order.
- SOFTWARE LICENSING. Client authorizes iVision to act on its behalf for the limited purpose of facilitating Client’s purchase of the required number of personal, non-transferable and nonexclusive licenses from third party licensors to use, in object code form, all software and related documentation furnished to Client under this Agreement from the respective software licensors. These licenses will be limited to use of the software with the Products or other hardware for which the software was obtained, or, on a temporary basis, on back-up hardware when the original hardware is inoperable. All licenses will be subject to the terms and conditions of the software licensor, which will be provided to Client at the time of delivery or installation of the Product, and Client will comply with all terms and conditions of each such license. Client acknowledges that the software is copyrighted by the software licensors and Client agrees that it will fully respect the rights of iVision and the software licensors under one or more licenses relating to the software and under the copyright laws. Client shall be responsible for payment of all fees and expenses associated with the software licenses and shall indemnify iVision for any losses incurred by iVision in this regard. Client agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent of the software. Use of the software on any Product other than that for which it was obtained, or any other material breach by Client hereunder, will automatically terminate the applicable license. If the terms of this Agreement conflict with the terms of any license, then the terms of the license will govern.
- INDEMNITY; LIMITATIONS OF LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES. Client agrees to indemnify and hold iVision, its affiliates and their respective officers, employees, and agents harmless from any and all losses and/or damages to the extent arising from (a) Client’s negligence or willful misconduct, or (b) Client’s breach of the terms of this Agreement. Client’s indemnification obligations hereunder shall not apply to the extent that any claim is proven to have been caused by the negligence or misconduct of iVision. NEITHER IVISION NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES OR REPRESENTATIVES WILL BE LIABLE TO CLIENT FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS ATTACHMENT, ANY ORDER, SERVICES, WORK, RELATED PRODUCTS, EQUIPMENT, DOCUMENTATION, INFORMATION AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF IVISION, ITS SUBSIDIARIES OR AFFILIATES HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE PROVISIONS OF THE IMMEDIATELY PRECEEDING PARAGRAGH, THE TOTAL LIABILITY OF IVISION, ITS SUBSIDIARIES AND AFFILIATES TO CLIENT IN CONNECTION WITH THIS AGREEMENT AND ALL ORDERS PLACED HEREUNDER WILL BE LIMITED TO THE LESSER OF (i) DIRECT DAMAGES PROVEN BY CLIENT OR (ii) $10,000. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND CLAIMS UNDER ANY FEDERAL OR STATE STATUTE OR REGULATION. CLIENT ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN 1 YEAR PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY CLIENT. HOWEVER, NOTHING IN THIS PARAGRAPH SHALL LIMIT IVISION’S LIABILITY IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT, OR FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY IVISION’S NEGLIGENCE.
- WARRANTIES. THE PRODUCTS ARE SUPPLIED “AS-IS”, AND IVISION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS. IVISION SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLIENT WILL HAVE ONLY SUCH WARRANTIES, EXPRESS OR IMPLIED, IF ANY, AS PROVIDED BY THE THIRD PARTY SOFTWARE LICENSOR, SERVICES PROVIDER OR VENDOR OF SUCH PRODUCTS. CLIENT ACKNOWLEDGES THAT IT HAS SELECTED THE PRODUCTS ON THE BASIS OF ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS MADE BY IVISION. ANY WARRANTIES THAT ARE PROVIDED BY A MANUFACTURER, PROVIDER OR LICENSOR ARE SUBJECT TO THE RESPECTIVE MANUFACTURER’S, PROVIDER’S OR LICENSOR’S EXCLUSIONS AND LIMITATIONS.
- GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement and all matters regarding the interpretation or enforcement hereof, will be governed exclusively by the laws of the State of Georgia, without regard to its conflicts of laws provisions. All disputes arising in connection with this Agreement will be finally settled, exclusively by arbitration before a single arbitrator in Atlanta, Georgia in accordance with the Arbitration Rules of the American Arbitration Association. Each party irrevocably consents to personal jurisdiction and to ex parte action should any party refuse to participate in such proceedings. The arbitrator’s award will be final and binding on all parties and judgment on the award may be entered and the award enforced in any court having jurisdiction thereof.
- CONFIDENTIALITY. “Confidential Information” means the contents of the Agreement and all information either Party discloses (whether written or oral, and whether before or after the Effective Date) to the other Party, which is marked or otherwise indicated as “Confidential”, including information relating to the disclosing Party’s products and services, operations, customers and prospects, market opportunities, business affairs or trade secrets. During the Term of this Agreement and for three (3) years after its expiration or termination, each Party (a) may use the other Party’s Confidential Information only for the purpose of this Agreement (which may include iVision’s disclosure to sub-contractors); (b) may not disclose the other Party’s Confidential Information to any third party without such other Party’s prior written consent; and (c) to protect the other Party’s Confidential Information, shall use at least the same degree of care exercised to protect its own Confidential Information, and at least reasonable care. This Section 12 will not apply to information (a) which is in the public domain at the time of disclosure otherwise than by the receiving Party’s breach hereof; (b) which is rightfully received from a third party or independently developed by the receiving Party; or (c) disclosed in accordance with the order of a court or governmental authority, in which case the receiving Party will give as much advance notice thereof to the disclosing Party as is reasonably practicable and will use its reasonable efforts to limit the extent of any such disclosure.
- FORCE MAJEURE. iVision will not be liable or deemed to be in default for any delay or failure in performance under this Agreement resulting from cause(s) beyond its control, including, but will not be limited to, acts of God, acts of the public enemy, acts of government, civil or military, acts of supplier or sub-contractors, war, fires, flood, earthquakes, labor disputes, freight embargoes, unusually severe weather or any similar cause, omissions or causes attributable to the manufacturer of the hardware, third party licensor of the software or third party provider of maintenance services.
- NOTICES. Any and all notices required or permitted to be given under this Agreement will be in writing and will be sufficiently given when delivered by (i) hand, (ii) certified or registered mail, postage prepaid and return receipt requested, (iii) reputable overnight delivery service to iVision or Client at their respective addresses specified in this Agreement. Either party may change its address for notice by giving written notice in accordance with this Section 13 to the other party. Notice sent in accordance with this Section 13 deemed effective when received.
- SUCCESSORS AND ASSIGNS; NO ASSIGNMENT. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided, however, that Client may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of iVision which shall not be unreasonably withheld.
- INDEPENDENT CONTRACTORS. The relationship created hereunder is that of independent contractors. It is expressly acknowledged and agreed that neither party has any authority to bind the other to any agreement or obligation with any third party.
- SEVERABILITY. In the event any clause, section or part of this Agreement is held or declared to be void, illegal or invalid for any reason, all other clauses, sections or parts of this Agreement which can be effected without such void, illegal or invalid clause, section or part will nevertheless continue in full force and effect.
- AMENDMENTS. Any supplement, modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties.
- HEADINGS. Clause titles or references used in this Agreement shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties evidenced hereby.
- WAIVER. No waiver is effective unless it is set forth in writing and signed by the party providing the waiver. No delay or failure by iVision in exercising any right, nor any partial exercise thereof, will be deemed to constitute a waiver of any rights granted hereunder or at law or equity.
- SURVIVAL. Those obligations or responsibilities contained in this Agreement which are continuing in nature shall survive the expiration or termination of this Agreement.
- ENTIRE AGREEMENT. The terms of this Agreement (including the Orders) constitute the entire agreement and understanding between the parties and supersede any and all prior oral and written communications with regard to the Products. No change or amendment, termination or waiver of any of the provisions hereof will be effective unless in writing executed by the duly authorized representatives of both parties.