Commercial Terms of Sale
Unless otherwise agreed to by ITI in writing, the Commercial Terms of Sale apply to direct commercial purchasers (including Small, Medium and Large Business and Government and Public sector customers) of ITI hardware, software and services and commercial end-users who purchase through a reseller. By placing your order, you accept and are bound to the Commercial Terms of Sale below:
|1. Your Relationship with ITI.
A. Introduction. ITI’s sale of Products, Software, and Services, as well as its performance of Services and your use of the Software are subject to the terms of this agreement between you (“you ” or “Customer “) and ITI (the “Agreement “). “ITI ” means Irvin Technologies, Incorporated, on behalf of itself and its suppliers and licensors, or the entity identified on your order confirmation, invoice, or other form of purchase document entered into by you at the time you purchased the Products, Software, or Services. “Customer ” shall include any of your affiliates that places a ITI order, and “ITI ” shall include any ITI affiliates with which such an order is placed. Purchases of Products, Software, or Services under this Agreement shall be solely for Customer’s own internal use and not for resale purposes. In instances where Customer purchases through a reseller or distributor, final prices and terms and conditions of sale will be as agreed between Customer and the third party from which Customer makes such purchases; however, the terms set forth herein are applicable to your use of ITI Software and the performance of ITI Services.
I. “Products ” means computer hardware, software, and any other products provided hereunder.
II. “Services ” means any and all services provided by ITI as described in one or more Service Agreements.
III. “Software ” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by ITI to you. Software includes software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, and “cloud-based” solutions).
IV. “Deliverables ” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures, and recommendations prepared by ITI or its suppliers, licensors, or subcontractors in the course of performing the Services.
V. “Materials” means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
VI. “Third-Party Products” means any non-ITI-branded products, software, or services.
C. Additional Agreements. This Agreement, together with the Service Agreements (as defined below), form a legally binding contract between you and ITI in relation to your purchase and use of Products and Software, and ITI’s performance of Services. In the event of a conflict between these agreements, the terms of these documents will be interpreted in the following order of precedence: (1) Service Agreement; and (2) this Agreement.
D. Quotes, Ordering, and Payment.
2. Service Agreements. ITI may provide Services, Software, or Deliverables to you in accordance with one or more “Service Agreements.” “Service Agreements” are service contracts, including “Service Descriptions”, “Statements of Work,” and any other such mutually agreed upon documents. Each Service Agreement will be interpreted as a single agreement, independent of any other Service Agreement, so that all of the provisions are given as full effect as possible.
3. Term; Auto-Renewal; Termination.
4. Proprietary Rights. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Materials, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to ITI or the applicable suppliers or licensors, and you shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Software, Products and Materials are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Software and Materials, in whole or in part.
5. Deliverables. ITI and its applicable suppliers or licensors will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title, and interest in any ideas, concepts, know-how, documentation, and techniques associated with such Deliverables. Subject to payment in full for the applicable Services, ITI grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country or countries in which you do business, solely for your internal use, and solely as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
6. Suspension or Modification of Software or Services. ITI may suspend, terminate, withdraw, or discontinue all or part of the Services or your access or one or more users’ access to the Software (and third-party software) upon receipt of a subpoena or law-enforcement request, or when ITI believes, in its sole discretion, that you (or your users) have breached any term of this Agreement or an applicable Service Agreement, or are involved in any fraudulent, misleading, or illegal activities.
With respect to Software provided or otherwise made available to you by ITI in connection with Services, it may be necessary for ITI to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the software, which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. ITI provides no assurance that you will receive advance notification of such activities or that the Software or Services will be uninterrupted or error-free. Unless otherwise agreed to in writing between you and ITI, any degradation or interruption in the Software or Services shall not give rise to a refund or credit of any fees paid by you.
The operation and availability of the systems used for accessing and interacting with the software, including telephone, computer networks, and the internet, or to transmit information, can be unpredictable and may, from time to time, interfere with or prevent access to or use or operation of the software. ITI shall not be liable for any such interference with or prevention of your access to or use of the software.
7. Support Services.
9. Customer & System Data. In ITI’s performance of the Services or in connection with your use of the Service-related Software, it may be necessary for ITI to obtain, receive, or collect data or information, including system-specific data (collectively, the “Data”). In such cases, you grant ITI a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for those purposes. In addition, you grant ITI a license to aggregate and use the Data in an anonymous manner in support of ITI’s marketing and sales activities. You also grant ITI the right to copy and maintain such material and content on ITI’s servers (or the servers of its suppliers) during the term of this Agreement. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located in conjunction with ITI’s performance of the Services or your use of the Service-related Software (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents, and contractors).
10. High-Risk Disclaimer. Unless specifically identified on the product and/or purchasing documents, the ITI-branded Products, Software and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the products, software, or services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities” ). ITI expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
11. Important Additional Information.
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ITI’S WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALWAYS ENFORCE CLASS ACTION OR JURY WAIVERS, AND MAY LIMIT FORUM SELECTION CLAUSES AND STATUTE OF LIMITATIONS PROVISIONS, AS SUCH, ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY TO YOU, AND ITI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
A. Limited Warranty.
B. Limitation of Liability
C. Confidentiality. In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how,” or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information” ). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party’s personnel, including employees, agents, and subcontractors, on a “need-to-know” basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.
D. Indemnification. ITI shall defend and indemnify you against any third-party claim or action that Products, Software, Services, or Deliverables (excluding Third-Party Products and open source software) prepared or produced by ITI and delivered pursuant to this Agreement infringe or misappropriate that third party’s U.S. patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims” ). In addition, if ITI receives prompt notice of an Indemnified Claim that, in ITI’s reasonable opinion, is likely to result in an adverse ruling, then ITI shall at its option, (1) obtain a right for you to continue using such Products, Deliverables or Software or allow ITI to continue performing the Services; (2) modify such Products, Software, Services or Deliverables to make them non-infringing; (3) replace such Products, Software, Services, or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables, or Software. Notwithstanding the foregoing, ITI shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products, Software, Services, Deliverables that were not performed by or on behalf of ITI; (2) the combination, operation, or use of the Products, Software, Services, or Deliverables in connection with a third-party product, software, or service (the combination of which causes the claimed infringement); or (3) ITI’s compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. ITI’s duty to indemnify and defend under this Section 12.d. is contingent upon: (x) ITI receiving prompt written notice of the third-party claim or action for which ITI must indemnify Customer, (y) ITI having the right to solely control the defense and resolution of such claim or action, and (z) your cooperation with ITI in defending and resolving such claim or action. This Section 12.d. states Customer’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate ITI to provide any greater indemnity to Customer.
You shall defend and indemnify ITI against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Products, Software Services or Deliverables; (2) your breach of ITI’s proprietary rights as stated in this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against ITI due to your violation or alleged violation of applicable export laws, regulations, or orders; or (4) your providing of (or providing access to) Excluded Data to ITI.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
E. Independent Contractor Relationship; Assignment; Subcontracting. The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between ITI and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. ITI has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that ITI shall remain responsible for the performance of Services under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other.
F. Force Majeure. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Service Agreement by giving written notice to the delayed party.
G. Export Compliance. ITI only ships to US domestic locations and does not export. You acknowledge that the Products, Software, and Services provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of the United States (“U.S.”), may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which you or your system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products, Software, or Services are rendered or received. You agree to abide by those laws and regulations as applicable. You are solely responsible for obtaining any necessary licenses relating to the export of ITI Products, Software, and Services. ITI may require export certifications from you for ITI Products, Software, and Services. ITI’s acceptance of any order for Products, Software, or Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; ITI is not liable for delays or failure to deliver Products, Software, or Services resulting from your failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party’s violation or alleged violation of the applicable export laws, regulations or orders. Special Access Data. “Special Access Data” consists of Products, Software and Services designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law. Customer hereby agrees that Customer is solely responsible for reviewing Software and Services provided under this Agreement (or to which ITI will have access) for the presence of Special Access Data. You acknowledge that any Special Access Data provided under this Agreement, are subject to laws and regulations of the United States and may also be subject to laws and regulations of the country in which the Special Access Data are rendered or received. You agree to abide by those laws and regulations.
H. Regulatory Requirements. ITI is not responsible for determining whether any Third-Party Product to be used in the Products, Software, or performance of the Services, satisfies the local regulatory requirements of the country to which such Products, Software, or Services are to be delivered, and ITI shall not be obligated to provide any Product or Software or perform any Services where the resulting Products, Software, or Services do not satisfy the local regulatory requirements.
I. Entire Agreement; Severability. This Agreement is the entire agreement between you and ITI with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and ITI. Any preprinted terms on your purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on ITI. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
J. Updates. ITI reserves the right to update this Agreement at any time; however, your rights and obligations shall be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of Products, Software, or Services or, when applicable, renewal of Software or Services.
K. U.S. Government Restricted Rights. The software and documentation provided with the Products, Software, and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of Software and ITI-branded Products is Irvin Technologies, Incorporated.
L. Governing Law. This Agreement, any related Service Agreement, and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND ITI, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), ITI’s advertising, or any related purchase (a “Dispute” ) shall be governed by the laws of the State of Florida, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
M. Venue. The parties agree that any Dispute (as defined in ¶ 12(l)) shall be brought exclusively in the state or federal courts located in Orange or Seminole County, Florida. Customer and ITI agree to submit to the personal jurisdiction of the state and federal courts located within Orange or Seminole County, Florida, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
N. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute (as defined in ¶ 12(l)).
O. No Class Actions. NEITHER CUSTOMER NOR ITI SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
P. Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Q. Dispute Resolution. Customer and ITI will attempt to resolve any Dispute (as defined in ¶ 12(l)) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in Orange or Seminole County, Florida, a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.
R. Notices. Notice to ITI under this Agreement or any related Service Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified in writing, and will be effective upon receipt.