GENERAL TERMS AND CONDITIONS OF SALE

THESE GENERAL TERMS AND CONDITIONS OF SALE (THESE “GENERAL TERMS”) ARE INCORPORATED BY REFERENCE INTO THE QUOTATION, SALES ORDER, SALES CONFIRMATION, INVOICE, OR OTHER DOCUMENT SIGNED BY SHOW CATS, LLC, D/B/A INNER CIRCLE DISTRIBUTION (“ICD”), TO WHICH THEY ARE ATTACHED OR WITH WHICH THEY OTHERWISE ACCOMPANY (A “SALES DOCUMENT”, AND COLLECTIVELY WITH THESE GENERAL TERMS, THE “AGREEMENT”) AND CONSTITUTE AN ESSENTIAL PART THEREOF. THESE GENERAL TERMS MAY BE MODIFIED OR AMENDED BY ICD AT ANY TIME AND FROM TIME TO TIME IN ICD’S SOLE DISCRETION, UPON WRITTEN DELIVERY TO BUYER (AS DEFINED BELOW) PROVIDED THAT NO SUCH AMENDMENT SHALL APPLY TO ANY ORDER OF PRODUCTS (AS DEFINED BELOW) THAT HAS ALREADY BEEN ACCEPTED BY ICD.

 

1.  General Information

1.1 These General Terms shall apply to the sales and deliveries of products (“Products”) by ICD to the buyer specified in the Sales Document (hereinafter “Buyer” and with ICD, the “Parties” and each a “Party") pursuant to the Sales Document. The Agreement comprises the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Agreement  supersedes any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer's general terms and conditions of purchase, and fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions or serve to modify or amend these General Terms.

 

2.  Quotations, Product Lists, and Purchase Order Sales

2.1  Quotations are Buyer-specific letter offers valid for thirty (30) calendar days and immediately expiring on the 30th day unless otherwise stated therein. ICD may choose to send unsolicited quotations to Buyer on a monthly basis or any other regular basis. Failure to send a monthly quotation or any other regular quote does not obligate ICD to honor any previous quote greater than thirty (30) days. All quotations shall have a quotation date. Quotations shall be strictly construed and treated as Confidential Information (as defined below) and shall never be shared by Buyer with another buyer, dealer, customer, or any other third party.

2.2  Product lists are detailed lists with item description, units of sale, and prices which may be given to Buyer at any time and which are representative of ICD’s then current prices, except when superseded by a formally written and delivered quotation (“Product Lists”). ICD reserves the right to change the prices from past Product Lists at any time without notice. Any date shown on a Product List solely represents the date such Product List was produced, printed, or copied and does not represent a date from which offer and acceptance can be relied upon. Product Lists shall be strictly construed and treated as Confidential Information and shall never be shared by Buyer with another buyer, dealer, customer, or any other third party.

2.3  If Buyer desires to order Products pursuant to a quotation or similar Sales Document, Buyer shall submit a form that clearly states: (1) Buyer’s complete business name, address, email, and phone number and the name of its authorized representative; (2) a unique purchase order number easily identifiable as “Purchase Order Number” or “PO Number”; (3) the order date, which shall be within 5 business days of receipt by ICD; (4) the shipping/delivery method expressed in terms related to either pickup at the Distribution Center (as defined below) by Buyer or by a third-party carrier; (5) the item description/Product written in the same manner and exactly as seen on ICD’s most recent quotation, Product List, or website; (6) the exact price quoted by ICD, (7) the unit of sale; (8) the quantity being ordered; (9) a line total for itemized orders; (10) the subtotal, applicable taxes, and order total; (11) the desired delivery date (which shall not be binding on ICD); and (12) a statement that such order is entered in accordance with the prices, terms, and specifications of ICD’s written quotation dated mm/dd/yyyy, pursuant to these General Terms, or, that the order is entered in accordance with the prices, terms, and specifications of ICD’s most recent Product List, pursuant to these General Terms. ICD reserves the right to accept or deny any purchase order in its discretion and no such purchase order shall be binding on ICD unless and until accepted in writing by ICD. In any case, these General Terms shall govern all transactions entered into in connection with the Sales Document, unless expressly agreed otherwise in writing and signed by both Parties.

2.4  If Buyer submits a purchase order in accordance with the prior section which ICD desires to accept, ICD will send an electronic order confirmation to Buyer promptly after Buyer’s purchase order is received and accepted. To the extent that Buyer’s purchase order contains any additional terms or conditions of sale, or contains any terms or conditions that conflict with the terms or conditions of the Agreement, including all exhibits or other attachments thereto (including these General Terms), such terms and conditions are hereby rejected and are not part of the terms or conditions of any sale from ICD to Buyer. Buyer shall be deemed to have accepted all of ICD’s terms and conditions as set forth in the Agreement. ICD’s failure to reject terms or conditions included in Buyer’s purchase order or other documents proposed by Buyer shall not constitute acceptance of such terms or conditions.

2.5  If Buyer cancels an order more than five (5) business days after an order has been confirmed by ICD, Buyer shall pay ICD a cancellation fee equal to twenty percent (20%) of the aggregate order price. If Buyer cancels an order more than ten (10) business days after an order has been confirmed by ICD, Buyer shall pay ICD a cancellation fee equal to forty percent (40%) of the aggregate order price without prejudice to ICD’s right to seek reimbursement for actual losses or any other right or remedy it may have at law or in equity.

2.6  All order confirmations will be sent to Buyer by electronic mail or SMS to Buyer’s authorized representative set forth in the purchase order.

3.1  All deliveries shall be at ICD’s distribution center (warehouse located at 3300 Davie Road, Suite 105, Davie, Florida 33314 or such other distribution center as ICD may designate from time to time) (the “Distribution Center”) whether any Product is picked up by Buyer at the Distribution Center, or if the Products are shipped by a common carrier from the Distribution Center. Risk of loss passes to Buyer upon delivery at the Distribution Center, which shall occur upon ICD’s notice that the Products are available for pickup, whether accepted by Buyer or a carrier. Upon Buyer’s written request, ICD may, at its sole discretion and for the convenience of Buyer, arrange for the applicable common carrier to ship the Products to Buyer, provided, that, such carrier and shipment shall be at Buyer’s cost and risk of loss. Buyer is fully responsible for all freight costs.

3.2  The Products become property of Buyer immediately upon the later to occur of delivery and full payment. Until such time, ICD maintains all rights and title in and to the Products regardless of risk of loss provisions. Buyer shall ensure that all of ICD’s Products in its possession are at all times readily identifiable by ICD as ICD’s property on Buyer’s premises until payment is made in full.

3.3  Products will be delivered in ICD’s standard packaging with ICD’s standard labeling and markings.

 

4.  Time of Delivery

4.1  The delivery time shall be designated for each quoted Product. ICD will endeavor to estimate a reasonable delivery time, which delivery time shall be the target date and shall not be binding on ICD, unless otherwise agreed in writing. Buyer’s desired delivery time on its purchase order is considered a target date and is not binding between Buyer and ICD.

4.2  ICD may postpone delivery for any delays caused by postponement of delivery of materials or components that make up the Products by ICD’s suppliers or any other form of Force Majeure Event (as defined below) not mentioned here. In such case, ICD shall not be liable for any of Buyer’s losses except for refund of any payments made for any delayed deliveries pursuant to cancellation in accordance with section 4.3 below.

4.3   Buyer is entitled to cancel any purchase order which has been delayed for causes referenced in section 4.2 if such a delay extends more than thirty (30) calendar days, provided Buyer gives written cancellation notice ten (10) calendar days in advance and ICD is not able to make the delivery within the ten-day period. Where there is a contract for the sale of Products to be delivered in installments, delay in delivery of any installment shall not entitle Buyer to reject one or more of the other installments whether or not previously delivered.

4.4  Buyer shall have no other remedies in connection with delivery delays other than the right to cancel the order pursuant to section 4.3.

 

5.  Invoicing – Payment – Short Term Credit – Default

5.1  ICD shall invoice Buyer, and Buyer shall pay to ICD, the price of the Products in US Dollars ($ or “USD”) on a per shipment basis.

5.2 Invoices shall be delivered to Buyer promptly upon order confirmation, and payment to ICD shall be due immediately, cash in advance before shipment, in order to make delivery, except when short-term credit is extended to Buyer pursuant to the payment terms in this Article 5.

5.3  If ICD offers, in its discretion, short term credit to Buyer, such short term credit shall only be effective if (a) Buyer has duly executed ICD’s standard (i) Short Term Credit Agreement and (ii) Guaranty, and (b) ICD has duly executed the same, as required. By signing ICD’s Short Term Credit Agreement, Buyer warrants its ability to pay and promises to pay ICD’s invoice net 30 days after delivery, interest free without any deduction, set-off or reduction whatsoever. Net 30 short-term credit is only extended to Buyer if ICD has approved credit up to $30,000.00 (ICD’s “Standard Offer of Credit”) and, in any event, shall be at the discretion of ICD. Credit terms for any amount greater than ICD’s Standard Offer of Credit, or fixed interest rate installment plans may be agreed to in writing, at ICD’s discretion, with express written exception to these General Terms and upon Buyer’s signed acknowledgement that payments must be made according to such payment terms whether or not any Products purchased by Buyer from ICD have actually been resold to customers.

5.4  If payment is delayed, Buyer shall owe ICD default interest from the day on which payment became due at a rate of 1.5% per month or any part thereof, unless another rate is agreed to in the Short Term Credit Agreement. If such interest rate is contrary to applicable law, ICD shall be entitled to the highest interest rate allowed under applicable law. The extension of the payment term shall in no event result in a novation. ICD also may apply a surcharge of ten percent (10%) on the overdue amount, with a minimum of Fifty Dollars ($50), to compensate ICD for increased administration costs and expenses.

5.5  Non-payment of an invoice on the due date shall without summons automatically nullify the payment terms and any extension of the period which ICD may have granted for payment of deliveries already effected, and shall render all invoices immediately payable. Moreover, in such circumstances, and/or in the event Buyer becomes insolvent or Buyer’s credit becomes impaired in the reasonable opinion of ICD, ICD shall have the right to change with immediate effect the payment conditions then in effect to “cash in advance” or to request Buyer to furnish adequate security with no formalities other than written notice. If Buyer fails to comply with ICD’s payment terms or is unable to provide satisfactory security, ICD may, at its option, suspend further deliveries or cancel all current orders for Products until full payment or until satisfactory security has been received by ICD. Any claim by Buyer shall not entitle Buyer to delay or withhold payment of any overdue amounts.

5.6  Buyer agrees to pay ICD an $85 service fee for any dishonored check for any reason by Buyer’s bank.

5.7   Monies from Buyer received by ICD may be applied toward payment of any debt owed by Buyer, at ICD’s sole discretion, notwithstanding any instructions to the contrary from Buyer.

5.8  To secure all of Buyer’s obligations to ICD, Buyer hereby grants to ICD a security interest in all Products purchased from ICD together with any and all proceeds thereof (the “Collateral”). Buyer hereby appoints ICD as Buyer’s attorney in fact to do all acts and things, including the execution and filing of financing statements, that ICD may deem necessary to perfect the security interest created hereby and to protect the Collateral. Buyer will pay as part of the debt hereby secured, all amounts, including reasonable attorneys’ fees, incurred by ICD in maintaining, repairing and otherwise protecting the value of the Collateral and in taking possession of, disposing of or preserving the Collateral upon any default of any of Buyer’s obligations to ICD.

5.9  Buyer shall pay all of ICD’s reasonable expenses incurred to collect any debts or payment obligations owed by Buyer to ICD, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred with or without the commencement of litigation, arbitration, or administrative proceeding, and including any appellate or bankruptcy proceedings.

 

6.  Taxes

6.1  Any taxes, duties, excises and/or other charges, including without limitation VAT, now or henceforth levied in connection with the sale and delivery of the Products shall be borne by Buyer, including any taxes and duties which are payable by Buyer prior to the delivery of the Products pursuant to Section 3.1 hereof.

 

7.  Changes

7.1  Buyer may request changes to any order at any time prior to shipment of the order by submitting a written change order (“Change Order”) to ICD. ICD may accept or reject a Change Order in its sole discretion, but will endeavor to accommodate requested changes in good faith. Change Orders will be binding upon ICD only when signed by an authorized representative of ICD, and only once an equitable price change has been made.

7.2   In the event that delivery dates are moved by Buyer thirty (30) days past the target date plus 5 days, ICD will begin to assess a monthly warehousing fee of 5% of the total order value per month beginning on the 36th day and every thirty (30) days thereafter.

8.1  ICD will replace or issue a credit for Products that fail under normal conditions in accordance with the warranties set forth in Article 9 hereof. ICD has the right to refuse any warranty claim on items that have been subject to abuse or misapplication by Buyer or any other user of the Products or which otherwise are not in compliance with the terms of Article 9.

8.2  All returns must be accompanied by a Return Authorization in the form of a Return Authorization Number issued by ICD (“Return Authorization”). Any Products returned without a Return Authorization Number clearly labeled or displayed on the exterior packaging will be refused. It shall be Buyer responsibility to contact ICD directly to request a Return Authorization.

8.3  In those circumstances where ICD authorizes the return of Products in a written Return Authorization, shipping charges relating to the return of Products are to be prepaid by Buyer, unless otherwise authorized by ICD on ICD’s Return Authorization. All functioning returns will incur a restocking fee equal to 15% of the total value of the returned Products, based on the non-discounted sale price at the time the order was made.

8.4  Any and all Products returned with a Return Authorization must be shipped to ICD within thirty (30) calendar days from the date the Return Authorization was issued, or the Return Authorization will be considered null and void.

8.5  Unless otherwise agreed to, special ordered and non-stock items are non-returnable and the order non-cancelable.

 

9.  Limited Warranty

9.1  Warranties shall be for the term set forth herein, unless otherwise expressly specified in a Sales Document issued by ICD in writing (“Warranty Period”).

9.2  Hardware: ICD warrants that, upon delivery, hereunder any Products that are hardware (“Hardware”) shall (i) conform in all material respects to their specifications in effect at the date of delivery as issued by ICD in writing and (ii) be free from defects in material and workmanship under normal use. Notwithstanding the foregoing, ICD makes no warranties with respect to such Hardware that is expressly provided to Buyer on an “as-is” basis pursuant to the applicable Sales Document.

9.3  Software: ICD warrants that any software provided by ICD (“Software”) shall perform in all material respects in accordance with the specifications in effect at the date of delivery as issued by ICD in writing. Buyer acknowledges that Software is inherently susceptible to bugs and errors and agrees that ICD makes no warranty that the Software will be free from such or be error-free. ICD makes no warranties with respect to any Software that is provided to Buyer on an “as-is” basis pursuant to the applicable Sales Document and ICD does not warrant uninterrupted or error-free operation of the Software.

9.4 The Warranty Period for Hardware shall be one (1) year commencing on the date of delivery, or, if applicable, the date of acceptance of the Product by Buyer. The Warranty Period for Software shall be ninety (90) days commencing on the date of delivery, or, if applicable, the date of acceptance of the Product by Buyer. After expiration of the applicable Warranty Period, ICD and Buyer shall, at Buyer’s request, negotiate in good faith the scope and mutually acceptable terms and conditions of after sales services, if any, that may be provided by ICD.

9.5  The warranties set forth herein shall apply only to the extent the Products or any parts thereof have:

(a) been transported and stored at all times in the original packaging in the conditions as specified by the original manufacturer (such as covered and secure location, minimum temperature, maximum humidity) or, in absence thereof, at least in conditions consistent with generally accepted practice for this type of product; (b) been handled at all times in accordance with ICD’s instructions or, in absence thereof, at least with the care and caution consistent with generally accepted practice for this type of product; (c)  been installed strictly in accordance with the instructions and directions given by ICD (if and to the extent the Product has not been installed by ICD or its authorized subcontractors); (d) not been subject to any unauthorized access, alteration, modification or repair attempts thereto; (e) been at all times “normally used” for the specified purpose and operated and maintained in strict accordance with the operating and maintenance instructions set forth in the operating and maintenance manual of the Product, or in the absence thereof, at least with intervals and in a manner consistent with generally accepted practice for this type of product, and shall not have been otherwise misused, abused or damaged. For the purpose hereof, “normally used” shall mean a regular, ordinary and routine usage of the Product in question as intended and/or as recommended by ICD; and (f)  not been connected to or used in combination with other equipment, products or systems (hardware and/or software), which are not compatible with the specifications of the Product in question.

9.6  In no event shall ICD be liable, whether during or after the expiration of the Warranty Period for any defects, failures, loss of or damage to the Products or any part thereof which are caused by or resulting from (a) normal wear and tear, (b) any Force Majeure Event, (c) Buyer’s use or operation of the Product prior to the completion of ICD’s acceptance test(s) for the Product (if applicable), (d) Buyer’s use of the Product outside the specifications contained in the user documentation, (e) the use of spare parts not supplied by ICD, (f) any deviations from the procedures specified by ICD, or (g) any action or negligence on the part of Buyer or any third party (including without limitation Buyer’s employees, customers, agents, carriers and contractors). In such case the repair or replacement of the Product or any part thereof shall be at Buyer’s sole option and cost. 

9.7  Notwithstanding anything to the contrary herein, any Product or part thereof, which is entirely manufactured by third parties, is subject to the original manufacturer’s warranty, and no separate warranty is given in respect thereof by ICD.

9.8  Any claim by Buyer under the warranties specified in this Article 9 must be notified to ICD in writing within ten (10) days from the date the defect or failure has been discovered or noticed for the first time or from the date which such defect or failure reasonably should have been discovered, whichever is earlier.

9.9  For Hardware: If during the Warranty Period any Hardware, or any part thereof, fails to meet any of the applicable warranties herein, then, upon Buyer’s request, and ICD’s determination that such Hardware has failed to meet the warranty, ICD shall, at its sole option and cost, and without undue delay, either: (a) repair or correct the Product or part; (b) replace the Product or supply part(s) or component(s); or (c) credit Buyer the purchase price of such Product. A replacement part shall be at least functionally equivalent to the original part. The repair or replacement under the warranties covers the cost of material and labor. The replaced Product, parts and/or components shall become property of ICD and shall, at ICD’s request, be returned by Buyer to ICD at ICD’s cost.

9.10  EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE 9, NEITHER ICD NOR ANY PERSON ON ICD’S BEHALF HAS MADE OR MAKES FOR BUYER’S, OR ANY OTHER PERSON’S, BENEFIT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON- INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY ICD, OR ANY OTHER PERSON ON ICD’S BEHALF.

10.1  Except for claims for breach of the warranties set forth in Article 9, Buyer’s failure to give notice to ICD of any claim (including without limitation claims for delayed delivery or non-delivery with regard to the Products delivered hereunder) within ten (10) days after delivery of a Product (or if such claim is with respect to delayed or non-delivery, within ten (10) days of the delivery date agreed to by ICD) shall be an unqualified acceptance of such Product and a waiver by Buyer of all claims with respect thereto.

10.2  Buyer is responsible for making any claim for loss of and/or transport damages to Products against the carrier immediately upon delivery, and notifying ICD accordingly.

10.3    Contested Products must be kept at ICD’s disposal and access, and can only be returned to ICD with a Return Authorization issued by ICD pursuant to Article 8, Sections 8.2, 8.3, and 8.4.

 

11.  Limitation of Liability

11.1   ICD’s exclusive liability and Buyer’s exclusive remedy for any and all claims as to the Product delivered, for delayed delivery or non-delivery thereof, or otherwise under the Agreement, whether arising out of contract, warranty, negligence, ICD’s failure to comply with laws and regulations, strict liability or otherwise, shall be limited to the sale price of the Product in relation to which the claim is made, or at ICD’s option, the replacement thereof.

11.2  Buyer represents and warrants that Buyer has sufficient personal knowledge and expertise in the use of the Products and parts being purchased from ICD and that Buyer is NOT relying on the expertise of ICD in the use of such Products and/or parts in the purchase of such Products and/or parts from ICD.

11.3  In no event shall either Party be liable for special, incidental, punitive, indirect or consequential damages (including without limitation loss of profits, business, revenue, goodwill, or anticipated savings), whether or not caused or resulting from the negligence or willful misconduct of such Party.

 

12.  Indemnity for Claims by Third-Party for Infringement

12.1  ICD shall hold harmless and indemnify Buyer from and against direct damages, losses and expenses arising from infringement or alleged infringement of any patent, trademark or copyright of a third party by a Product, and defend and settle at ICD’s sole expense any such claim, action, suit or proceeding brought against Buyer, provided that (a) ICD is promptly notified by Buyer in writing after a claim has been asserted against Buyer or the commencement of any claim, action, suit or proceeding, and (b) ICD shall be permitted to assume sole control of the defense and any settlement negotiations related to any claim, action, suit or proceeding, (c) Buyer shall not make any representation or concession, negotiate, settle or compromise any claim, action, suit or proceeding without the prior written consent of ICD, and (d) Buyer, at its cost, shall cooperate with ICD and provide assistance and support, as may reasonably be required by ICD, in connection with the defense and any settlement negotiations related to any claim, action, suit or proceeding.

12.2  ICD shall have no indemnity obligation for any Product, or any portion thereof, (a) that is based on specifications, drawings, models or other data furnished by Buyer, (b) that is not provided by ICD, or (c)  that is modified by a party other than ICD and not at ICD’s direction, or (d) to the extent Buyer continues the allegedly infringing activity after having been provided modifications that avoid the alleged infringement, or (e) where the use of the Product, or the combination thereof with other products, processes or materials, or the distribution thereof rather than the Product itself is the primary cause of an alleged infringement.

12.3   In case it has been determined by a finally awarded judgment that ICD or Buyer has infringed or misappropriated such third party rights, or earlier at ICD’s discretion, ICD may, at its option and cost, (a) modify the Product in such a way that it shall not infringe upon or misappropriate the rights of the third

party, (b) obtain for Buyer a license or other right to use the Product, or (c) replace the Product with a non- infringing product. If the foregoing options are not available on commercially reasonable terms and conditions, ICD may require the return of the Product and refund to Buyer amounts paid for the Product minus a reasonable allowance for the period Buyer has used the Product.

12.4   The remedies set forth in this Article 12 shall constitute Buyer’s sole and exclusive remedy and ICD’s sole and exclusive liability for a third party claim that the Product infringes or misappropriates any intellectual property right of a third party.

13.1  All non-public, confidential, or proprietary information of ICD, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by ICD to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with the Agreement (collectively, “Confidential Information”) is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by ICD in writing. Upon ICD’s request, Buyer shall promptly return all documents and other materials received from ICD. ICD shall be entitled to injunctive relief for any violation of this section 13.1. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

13.2  Any patents, trademarks, copyrights and/or any other intellectual property rights, and/or any proprietary or Confidential Information related to the Products, whether existing prior to the date of Buyer’s order or developed as of, or after, the date thereof, shall remain the property of ICD or its licensor, as the case may be, and nothing herein shall be construed as conferring on Buyer by implication or otherwise, any right, title or interest in, or any license under an intellectual property right, Confidential Information or other trade secret. 

13.3  The software supplied by ICD to Buyer hereunder shall remain the property of ICD or the applicable licensor at all times. Buyer shall at all times comply with the terms and conditions of the (sub) license imposed by ICD or the licensor. Subject to compliance with the terms herein, ICD hereby grants to Buyer a limited, non-exclusive (sub) license to use the Software solely for the purpose of operating the Products delivered hereunder. ICD hereby grants to Buyer the right to assign the Software user license referred to herein to the end-user to whom Buyer resells the Products, provided that such end-user shall have no right to transfer, assign, or sublicense such license.

13.4   Buyer shall not, nor shall permit any other person to, use any Software for any purposes beyond the scope of the license granted herein. Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Buyer shall not, and shall not permit any other person to, at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software; (iv) remove any proprietary notices from the Software; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

14.1  Buyer acknowledges that Buyer is solely responsible for compliance with United States export laws, regulations and controls, with which Buyer shall comply. Buyer will not export, re-export, transfer, divert or disclose, directly or indirectly, the Products, or any information about  the Products,  except as authorized under United States law, and not otherwise in violation of the Agreement.

14.2  Compliance with federal, state, and local environmental laws and regulations in connection with use, storage or disposal of Products is solely the responsibility of Buyer.

15.1  The Agreement, and all sales thereunder, shall be governed by and construed in accordance with the internal laws (both substantive and procedural) of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida, including the Florida Uniform Commercial Code.

15.2  Each Party irrevocably and unconditionally agrees that any dispute, controversy or claim of any kind whatsoever against the other Party in any way arising from or relating to the Agreement, and all contemplated transactions, shall be resolved by binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules (the “AAA Rules”). The place of arbitration shall be Ft. Lauderdale, Broward County, Florida, United States. Such arbitration shall be conducted by a sole arbitrator mutually selected by written agreement of the Parties. In the event that the Parties are not able to mutually select the sole arbitrator, the arbitration shall be conducted by a panel of three (3) arbitrators, consisting of one arbitrator to be selected by the Party referring such matter to arbitration and one arbitrator to be selected by the other Party, and the third to be selected jointly by the two arbitrators selected by the Parties in accordance with the AAA Rules. The arbitration shall be conducted in English.

 

15.3  Notwithstanding the foregoing, each of the Parties shall have the right to bring an action or claim for interim measures, including specific performance or injunctive relief, in order to preserve its rights or enforce the obligations of the other Party under the Agreement. With respect to any such action, or any action that cannot otherwise be submitted to arbitration, ICD and Buyer submit to the exclusive jurisdiction of the state and federal courts in Florida, and agree that proper venue for any suit or action arising out of the Agreement shall be in Broward County, Florida.

 

16.  Assignment

16.1  Neither ICD nor Buyer may, without prior written consent of the other, assign or otherwise transfer to a third party the benefits or obligations arising from the Agreement or in connection therewith, in whole or in part, except that ICD may assign, without Buyer’s consent, the Agreement to an affiliate of ICD or to a third party in connection with the sale of the business of ICD. Any purported assignment in violation of this Article 16 shall be void. The Agreement shall be binding and shall inure to the benefit of the permitted legal successors of both Parties.

 

17.  General Other Terms

17.1   The invalidity, unenforceability or illegality of any term, condition, or stipulation in the Agreement shall not affect the validity, enforceability or legality of its remaining terms and conditions.

17.2    Notwithstanding anything to the contrary contained in the Agreement, the title to the Products shall not pass to Buyer unless and until such time as ICD has received full payment of the purchase price for all Products sold or to be sold by ICD to Buyer for which payment is then due. Until such time as title in the Products passes to Buyer, Buyer shall hold the Products as ICD’s fiduciary agent and bailee and shall keep such Products separate from those goods of Buyer’s and third parties and properly store, protect and insure the Products and identify such Products as ICD’s property; provided however, that Buyer may sell or use the Products in the ordinary course of its business. Until such time as the title in the Products passes to Buyer (and provided such Products have not been resold), ICD may at any time require Buyer to return the Products to ICD. Buyer shall not be entitled to pledge or provide a security interest in the Products, which remain the property of ICD, to any third party, but if Buyer does so, all amounts Buyer owes to ICD shall (without limiting any other rights or remedy of ICD) become immediately due and payable.

17.3  Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's reasonable control, including, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d)  order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of the Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the impacted Party.

17.4   Any required or permitted notices hereunder must be given in writing at the registered address of the applicable Party hereto, or to such other address as such Party may notify to the other Party by written notice in the manner contemplated herein. Delivery of written notice shall be by one of the following methods: hand delivery, electronic mail with telephone confirmation of receipt, or commercial courier. Notices will be deemed given on the date received.

17.5  The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

17.6  No waiver by ICD of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by ICD. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by ICD operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by ICD precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by ICD.

17.7  The Agreement benefits solely the Parties. Nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.