PRODUCTS SALES AGREEMENT
A. The Terms and Conditions:
(The “Agreement”) set out below apply to all Products (as defined below) ordered by a Customer (“Customer”) from KRUSECOM LLC. (“KRUSECOM”) from time to time, at any time. Any other agreement term or condition whether oral or written is hereby merged into this Agreement. This Agreement shall constitute the entire relationship between the parties hereto unless an express variation is agreed to in a fully executed writing between a duly-authorized representative of KRUSECOM having the title of Vice President or greater and the Customer or is otherwise allowed herein. KRUSECOM hereby gives notice of its objection to any different or additional terms and conditions in any transaction which may vary the terms herein or otherwise, except for any such terms and conditions as may be expressly accepted by KRUSECOM in writing, which writing is signed by an officer of KRUSECOM holding the title of at least Vice President. If KRUSECOM accepts different or additional terms and conditions in writing, such different or additional terms and conditions shall apply only to the particular subject or transaction covered and to no other subjects or transaction(s); otherwise, the terms and conditions stated below apply, and such terms and conditions below shall supersede any prior or contemporaneous agreements, course of conduct, trade usage or correspondence between the parties.
1. Purchase and Sale:
KRUSECOM agrees to sell to Customer, and Customer agrees to purchase from KRUSECOM, at the purchase price (“Purchase Price”) set forth in KRUSECOM’s invoice (the “Invoice”), goods, equipment, products, and services (“Products”), as may be particularly described therein. Customer agrees to notify KRUSECOM within seven (7) days after receipt of any Products by Customer of any discrepancies between KRUSECOM’s Invoice and the Products received by the Customer or any issues, or rejections relating to any Products received by Customer, and if no such notice is received by KRUSECOM within said seven (7) day period, then all Products shall be conclusively deemed conforming received and accepted. Customer shall purchase Products by issuing a written Purchase Order signed by an authorized Customer representative, indicating specific Products, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifications (if applicable), and any other special instructions, and shall identify the end-user for each Product. Any contingencies contained on such Purchase Order are not binding upon KRUSECOM unless KRUSECOM agrees to the same in writing in accordance with the procedures set for in Paragraph A above. The terms and conditions of this Agreement prevail regardless of any conflicting terms on the Purchase Order or other writings or agreements. All conforming Purchase Orders are subject to approval and acceptance by the KRUSECOM’s assigned sales or customer service representative for Customer’s account, and no other office or employee is authorized to accept orders or approve Customer Purchase Orders on behalf of KRUSECOM. The legal relationship with respect to Purchase Orders, and the Products purchased, shall be between Customer and KRUSECOM (subject to all the terms and conditions of this Agreement) regardless of whether Product(s) are shipped to the customer of Customer, and payment from the Customer shall be due according to the Invoice and this Agreement regardless of the terms that Customer may offer its customer. Nothing herein requires KRUSECOMs to accept any Purchase Order. If Customer is an entity, any person signing a Purchase Order for Customer or signing this document, agrees to personally guaranty to KRUSECOM any sums due to KRUSECOM by Customer. If Customer submits Purchase Orders by or for any of its affiliates or entities, then Customer and each of its officers and directors hereby guaranty to KRUSECOM the performance by any of the financial and other contractual obligations set forth in this Agreement and represents and warrants that Customer is empowered to enter into this Agreement on behalf of any such affiliates, and to bind such Affiliates to the terms and conditions of this Agreement.
2. Term and Termination:
These terms shall be and are incorporated by referral into all transactions relating the sale of Products by KRUSECOM. Failure by Customer to pay the Purchase Price or any other amount specified in the applicable Invoice, when due, shall constitute a breach and default by Customer (without prejudice of any other right or remedy of KRUSECOM) and shall result in a late charge, payable upon demand, calculated daily at an interest rate of 1 1/2% per month (18% per annum) or, if such rate shall exceed the maximum rate of interest allowed by applicable law, then at such maximum rate. Unless otherwise specified on KRUSECOM’s Invoice, the Purchase Price, applicable taxes and other costs are due and payable upon the earlier of: (i) delivery by KRUSECOM of KRUSECOM’s Invoice; or (ii) delivery of the Products to, or for the benefit of, Customer. Notwithstanding the forgoing KRUSECOM shall have the right to require full or partial payment in advance at any time. Without limiting the foregoing, should Customer (i) fail to timely pay any amount to KRUSECOM when and as due hereunder, or otherwise breach the terms of this Agreement, or any other agreement with KRUSECOM, or (ii) cease to carry on business as a going concern, or commence voluntary bankruptcy or similar proceedings, (ii) consent to, or fail to contest in a timely and appropriate manner, any involuntary bankruptcy or similar proceedings, or (iii) become insolvent or generally fail to pay debts as they come due, or (iv) admit its inability to pay its debts, (v) or should KRUSECOM, at any time or from time to time, feel insecure about Customer’s ability to perform herewith then, KRUSECOM shall have the right, at KRUSECOM’s sole option and discretion, to terminate this Agreement immediately, and cancel any Purchase Orders, and recover reasonable cancellation charges (including, but not limited to, shipping and insurance costs, a restocking fee of 15% of the Purchase Price, travel, mobilization and recovery costs, storage fees, loss with respect to materials, equipment, tools, machinery, reasonable overhead, and lost profits and damages) from Customer or Customer’s estate. If any work to be performed by KRUSECOM (or its agents) or delivery of Products is delayed by Customer, KRUSECOM may require immediate payment for storage charges, and restocking fees of 15% of the Purchase Price (if delayed more than 5 business days), and all materials accumulated and work scheduled to be performed on the Purchase Order. Customer shall pay all costs of collection, including reasonable attorneys’ and experts’ fees as incurred by KRUSECOM (whether at trial, on appeal or in any other tribunal or proceeding) together with interest on said unpaid balance relating to any transactions, acts, claims or suits arising from or relating to the relationship between KRUSECOM and the Customer. KRUSECOM may without notice refuse to conduct business with Customer.
3. Risk of Loss and Shipping:
Unless otherwise agreed in a signed writing, the risk of loss or damage to the Products shall pass to the Customer when the Products are made available for loading and carriage at KRUSECOM’s loading dock. Approximate shipping dates will be established by KRUSECOM upon receipt of a Purchase Order from Customer. Shipping dates will be assigned as close as practicable to the Customer’s requested date, based on KRUSECOM’s then current lead-times for the Products. KRUSECOM will use commercially reasonable efforts to notify Customer of the actual scheduled shipping date within ten (10) working days after receipt of the Purchase Order. KRUSECOM shall, at Customer’s sole cost and expense, pack, load and ship the Products. Unless given written instruction by Customer, KRUSECOM shall select the carrier. In no event shall KRUSECOM have any liability in connection with packing or shipment, nor shall the carrier be deemed to be an agent of KRUSECOM. KRUSECOM shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay.
4. Title and Security Interest:
KRUSECOM has good title to the Products, other than software, free and clear of all liens and encumbrances of whatever kind and description other than the interest of KRUSECOM. Title to the Products, other than software, remains or a merger partner statements and disclosures vested in KRUSECOM until the Purchase Price is paid in full. In addition, KRUSECOM hereby reserves, and Customer grants to KRUSECOM, a purchase-money security interest in the Products in the amount of the Purchase Price until fully paid by the Customer, and Customer consents to the filing and recording of this Agreement (and any applicable financing statements to perfect the interests of KRUSECOM) in accordance with the laws of any applicable jurisdiction prior to payment in full of the Purchase Price. Customer hereby appoints KRUSECOM as its agent to execute all financing documents relating to the purchase of the Products that KRUSECOM may require. All software is provided to the Customer pursuant to a software license agreement (set out below), and in no event does Customer acquire title to or ownership of the software.
5. Delivery, Installation and Insurance Costs, Taxes:
The Purchase Price is F.O.B. KRUSECOM’s loading dock unless otherwise agreed. All packing, palletization, delivery, rigging and drayage charges, installation and insurance costs will be paid promptly by Customer in addition to the Purchase Price. Customer shall pay any and all taxes, sales and use taxes, excise taxes, ad valorem or value-added taxes, intangible taxes, duties or government levies however designated, levied or based on the Purchase Price, this Agreement or the Products, except taxes paid on KRUSECOM’s net income. If Customer is purchasing for resale purposes, a duly-executed resale certificate shall be delivered to KRUSECOM prior to shipment of the Products to Customer.
6. Serial Number Substitution:
Prior to delivery of the Products, KRUSECOM shall have the right to substitute for any item(s) of Products or components of Products, any item(s) of the same type and condition but differing in serial number.
7. Extra Features:
Customer acknowledges that KRUSECOM purchases, de-installs, refurbishes or breaks finished goods into component parts, as such Customer may remove or replace components of equipment or otherwise make modifications to the original goods (including, but not limited to, removing extra features). Customer agrees that the altered Product shall be deemed fully conforming when it meets to specifications described in the Purchase Order and, even if non conforming, accepted if Customer (or Customer’s customer) fails to a timely object in accordance with Paragraph 1 above. Any features currently installed on the Products that are not specified on the Purchase Order and the Invoice are and shall remain the sole and exclusive property of KRUSECOM. Customer grants to KRUSECOM the right and opportunity, even after delivery of Products, to remove such features at KRUSECOM’s expense. The removal of any such features shall be performed by KRUSECOM or its representative at a time convenient to Customer, but the Customer shall not unreasonably delay the removal of any such feature.
Customer hereby agrees to defend, indemnify and save harmless KRUSECOM, and its agents and employees, officers, directors, affiliates, successors and assigns from and against any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses, including attorneys’ fees and legal expenses at pre-trial, trial and appellate levels (“Liabilities”), of any kind whatsoever, arising from or relating to this Agreement (or any statements, representations, misrepresentations or opinions (including, without limitation, third party claims by Customer’s customers or end-users) arising from or relating to this Agreement or to Products sold or delivered Pursuant to this Agreement. Each Party agrees to give the other Party prompt notice of any matter or claim subject to this indemnity. This indemnity shall continue in full force and effect through, from and after full payment of the Purchase Price and shall not be extinguished by payment of the Purchase Price.
9. KRUSECOM’S Right to Repossess:
In the event Customer refuses or is unable to accept delivery of the Products, or fails to pay for the Products when due, then KRUSECOM shall have the rights: (a) to obtain and recover immediate possession of the Products at Customer’s expense; (b) to re-sell or lease the Products as KRUSECOM deems appropriate in its sole discretion; and (c) to avail itself of any and all other legal remedies under the Uniform Commercial Code or other applicable law. In addition to any other right or remedy which KRUSECOM may have at law or in equity, KRUSECOM shall be entitled to setoff and retain all monies paid (including, but not limited to, credits, monies or balances owed to Customer or any of its affiliates) relating to the Products and apply the monies to amounts owed to KRUSECOM in KRUSECOM’s sole discretion, as KRUSECOM deems appropriate.
10. Force Majeure:
If KRUSECOM is unable to deliver the Products due to an act of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond the control of KRUSECOM, KRUSECOM shall not be liable for such failure during the period of and to the extent of the disability. The obligations and rights of KRUSECOM shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. If such disability prevents or interferes with the shipment of the Products by the carrier that KRUSECOM would ordinarily have used, KRUSECOM will have no obligation to undertake shipment by a more costly carrier unless Customer advises KRUSECOM that Customer will assume the additional costs.
11. Limitation Of Liability, Limited Warranty, Disclaimer of Warranties:
CUSTOMER ACKNOWLEDGES THAT KRUSECOM IS NOT THE MANUFACTURER OF THE PRODUCTS NOR THE AGENT OF THE MANUFACTURER, AND THAT THE PRODUCTS ARE “PREVIOUSLY USED” OR “EXPERIENCED” PRODUCTS. HOWEVER,
(A) FOR ALL SALES, EXCEPT “AS IS” SALES, FOR WHICH THIS PROVISION SHALL NOT APPLY AND FOR WHICH THERE ARE NO WARRANTIES EITHER EXPRESSED OR IMPLIED, PROVIDED CUSTOMER HAS TIMELY INSPECTED THE PRODUCTS, AND TIMELY NOTIFIED KRUSECOM OF NONCONFORMITIES, FOR A PERIOD OF THIRTY (30) DAYS FROM THE DAY THE PRODUCTS ARE RECEIVED BY CUSTOMER. KRUSECOM AGREES TO PROVIDE THE FOLLOWING LIMITED WARRANTY WITH RESPECT TO SALES. THIS LIMITED WARRANTY EXTENDS ONLY TO CUSTOMER AS ORIGINAL CUSTOMER AND TO NO OTHERS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF KRUSECOM [AND ITS SUPPLIERS] UNDER THIS LIMITED WARRANTY WILL BE, AT KRUSECOM’S OPTION TO: (1) REPAIR OR REPLACE THE DEFECTIVE PRODUCT(S) IF THE PRODUCT(S) IS RETURNED TO KRUSECOM, FREIGHT AND INSURANCE PREPAID BY CUSTOMER, OR (2) SHIPMENT OF REPLACEMENT WITHIN A REASONABLE TIME AT KRUSECOM’S EXPENSE.
KRUSECOM SHALL HAVE NO LIABILITY TO CUSTOMER OR ITS CUSTOMERS FOR ANY CLAIM, LOSS OR DAMAGE WHETHER FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER DIRECT OR INDIRECT DAMAGES, CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE PRODUCTS, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, WHETHER ARISING IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF KRUSECOM OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. EXCEPT AS OTHERWISE SPECIFICALLY STATED HEREIN, ALL PRODUCTS ARE SOLD OR DELIVERED “AS IS, WITH ALL FAULTS” AND KRUSECOM MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND KRUSECOM EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, OR INTEGRATION WITH RESPECT TO THE PRODUCTS AND ANY OTHER PRODUCTS, OR WITH RESPECT TO THE PRODUCTS BEING YEAR 2000 COMPLIANT, OR PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SPECIFICALLY, BECAUSE THE PRODUCTS ARE USED, KRUSECOM MAKES NO WARRANTY AND EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE PRODUCTS SHALL BE “YEAR 2000 COMPLIANT” OR OTHERWISE CAPABLE OF FUNCTIONING ADEQUATELY AND WITHOUT INTERRUPTION BEFORE, DURING, AND AFTER January 1, 2000, WITHOUT ANY CHANGE IN OPERATIONS ASSOCIATED WITH THE ADVENT OF THE NEW CENTURY. CUSTOMER IS ON NOTICE AND UNDERSTANDS THAT THE PRODUCTS MAY NOT BE YEAR 2000 COMPLIANT. If any Products or any part thereof are new Products, Customer acknowledges receipt of product warranty information provided by the manufacturer. Customer further acknowledges and understands that the sole remedy of Customer (or its end-user customer upon resale of Products) for the breach of any such warranty, or defects or other failure of the Product, shall be against the manufacturer and not against KRUSECOM, and that any such breach shall not affect the obligations of the Customer to KRUSECOM hereunder. Customer shall deliver any such product warranty to its end-user customer, and Customer shall defend, indemnify and hold harmless KRUSECOM from and against any and all claims of every kind and nature that may be brought by or through Customer or its customers. KRUSECOM does not warrant, and KRUSECOM expressly disclaims all warranties, with respect to software or firmware, all of which shall be provided “AS IS, WITH ALL FAULTS”.
12. Maximum Liability:
IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION HOLDS THAT THE AFORESTATED EXCLUSION AND LIMITATION OF LIABILITY SHALL BE UNENFORCEABLE, THE PARTIES HERETO AGREE THAT, IN ANY EVENT (NOTWITHSTANDING SUCH HOLDING), ALL LIABILITY OF KRUSECOM AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID TO KRUSECOM FOR THE PRODUCT PURCHASED UNDER THE PURCHASE ORDER IN QUESTION IF THIS MAXIMUM LIABILITY IS A CUMULATIVE LIMITATION AND NOT PER INCIDENT.
13. No Damages for Termination by KRUSECOM:
CUSTOMER agrees in the event of termination of this Agreement for any reason, it shall have no rights to damages or indemnification of any nature related to such termination, specifically including no rights to damages or indemnification for commercial severance pay, whether by way of loss of future profits, expenditures for promotion of the KRUSECOM Products, or other commitments in connection with the business and good will of CUSTOMER. CUSTOMER expressly waives and renounces any claim to compensation or indemnities for any termination of a business relationship.
14. Software Licenses:
Customer understands and acknowledges that all computer software provided to Customer as part of the Products is or shall be provided subject to a software license agreement for use of the software in object code format only and solely as provided in the applicable software license agreement. Such Customer shall obtain or provide a copy of any software license agreement to each end-user of the software prior to the installation or use. Customer agrees to notify KRUSECOM promptly after discovery of any breach of a software license agreement and further agrees that Customer will defend, indemnify and hold harmless KRUSECOM, and will reasonably assist KRUSECOM in defending or pursuing an action against any third parties related to the breach of the license. Customer agrees that it is bound by the terms of any such software license agreement, and that Customer will abide by the terms of any such agreement.
15. Xport Law Compliance:
Customer hereby acknowledges that the Products and technology or direct products thereof (hereafter referred to as “Products and Technology”), supplied by KRUSECOM hereunder are, or may be, subject to export controls under the laws and regulations of the United States of America (U.S.). Customer shall comply with such laws and regulations and agrees not to export, re-export or transfer Products and Technology without first obtaining all required U.S. Government authorizations or licenses. KRUSECOM and Customer each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. Customer hereby certifies that none of the Products and Technology supplied by KRUSECOM to Customer hereunder will be exported, re-exported, or otherwise transferred by Customer (without first obtaining all required U.S. Government authorizations, permits or licenses): (i) to a U.S. embargoed or highly restricted destination, (15 United States Code of Federal Regulations (“CFR”) Part 746); (ii) for use by or for any military end-user, or in any military end-use located in or operating under the authority of any country identified in Country Group D1 under 15 CFR, Supplement No. 1 to Part 740, (15 CFR Part 740); (iii) to, or made available by Customer for use by or for, any entity that is engaged in the design, development, production, stockpile or use of nuclear, biological or chemical weapons or missiles, (15 CFR Part 744); (iv) to parties or persons on any of the U.S. Government’s lists of denied persons, (15 CFR Part 764), including but not limited to the U.S. Department of Treasury Office of Foreign Assets Control (OFAC) “Specially Designated Nationals and Blocked Persons” list. Customer’s obligation under this clause shall survive the expiration or termination of this Agreement. Customer agrees to maintain a record of exports, re-exports, and transfers of the Products and Technology for five (5) years and to forward within that time period any required records to KRUSECOM or, at KRUSECOM’s request, the U.S. Government. Customer agrees to permit audits by KRUSECOM or the U.S. Government as required under the regulations to ensure compliance with this Agreement.
16. Law Compliance:
Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies, regulations and procedures including requirements applicable to the use of Products under applicable laws, rules, policies, regulations, and procedures of any government where the Products are to be sold, used or deployed (collectively “Applicable Laws”). Customer will defend, indemnify and hold harmless KRUSECOM for any violation or alleged violation of any Applicable Laws. Customer hereby represents and warrants that: (a) it shall comply with all Applicable Laws; (b) this Agreement and each of its terms are in full conformance and in compliance with such laws; and (c) it shall not act in any fashion or take any action or permit or authorize any action which will render KRUSECOM liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or KRUSECOM in obtaining or retaining business and (i) it will not violate or cause KRUSECOM to violate such act in connection with the sale or distribution of KRUSECOM Products and/or services; and (ii) it will notify KRUSECOM in writing if any of its owners, partners, principals, officers, and employees are or become during the term of this Agreement officials, officers or representatives of any government or political party or candidates for political office. Customer shall use its reasonable best efforts to regularly and continuously inform KRUSECOM of any requirements of laws, statutes, ordinances, governmental authorities directly or indirectly affecting this Agreement, the sale, use and distribution of Products. KRUSECOM does not accept any flowdown provisions including, but not limited to, United States Government Federal Acquisition Regulations (“ FARs”), Defense FARs, or NASA FARs notwithstanding the existence of such provisions on Customer’s Purchase Orders or supplementary documentation or KRUSECOM’s acceptance of such Purchase Orders or documentation. Customer will not distribute the Products to the United States Federal Government either directly or indirectly, or through General Services Administration (“GSA”).
17. Privacy Rights and Data Security:
Customer acknowledges that certain federal and state laws, and various privacy rules and regulations promulgated thereunder, may require that Customer undertake measures to protect the security, confidentiality and integrity of various forms of personal information and data that could be available or accessible on the hard drives or other media forming a part of the Products, including, without limitation: (a) privacy regulations under Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., pursuant to which regulations Customer shall be required to make certain undertakings with regard to the privacy, use and protection of nonpublic personal financial information of Customers or prospective Customers of KRUSECOM’s customers; and (b) Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Public Law 104-191, known as “the Administrative Simplification provisions,” pursuant to which Administrative Simplification provisions, the Secretary of Health and Human Services has issued regulations modifying 45 CFR Parts 160 and 164 (the “HIPAA Privacy Rule”) requiring certain undertakings with regard to the privacy, security, confidentiality and integrity of health information of patients or prospective patients of KRUSECOM’s customers. Customer hereby represents, warrants, and covenants that if Customer, or its customer or any other third party, discovers that the “drivewipe” or other overwriting process performed by KRUSECOM (or its agents or contractors) may have been unsuccessful and that there may exist on the hard drive (or other data storage media or devices) of the Products software, files, information, data, or material (other than any operating system or software that Customer elects to install after purchasing the Products from KRUSECOM), then immediately Customer shall: (i) secure the Product(s) and prohibit every person from accessing or manipulating, in any way whatsoever, any programs, files, information, data or materials (or otherwise using the Products); and (ii) notify KRUSECOM of the discovery. Customer’s agreements with its customers shall require that, in any such circumstance, the third party customer shall discontinue use of the Products. Immediately upon such notification, Customer shall make available to KRUSECOM (or take all steps necessary to make available to KRUSECOM if the equipment is in the possession and custody of a third party) any such Products, and ensure that KRUSECOM shall have access to the Products to perform any and all procedures and testing that KRUSECOM deems necessary to remove, destroy, and delete (and confirm/validate deletion of) such software, files, information, data or material. KRUSECOM shall determine, in its sole discretion, when the Customer or third party may resume using the equipment, or whether the equipment must be destroyed (whereupon KRUSECOM shall credit to Customer the purchase price for the destroyed unit, and KRUSECOM shall be released of and from any other duties, obligations, or liabilities in connection therewith). If KRUSECOM shall determine that any third party customer may not continue to use such equipment, any and all liability relating to any cessation of use shall be the sole responsibility of Customer (except to the extent of the unit purchase price credit to Customer, as described in the preceding sentence). Under no circumstance, shall Customer or any third party: (A) access, manipulate, use, copy, print, forward, or modify any such software, files, information, data, or material discovered on the Products purchased from KRUSECOM; or (B) discuss or disclose to any person other than KRUSECOM, the fact of the discovery or circumstances relating thereto, nor the contents of any software, files, information, data, or material as may have been discovered. Customer shall ensure that Customer obtains in its contracts/agreements with third parties to which it resells or distributes the purchased Products hereunder all necessary permissions and approvals needed to implement the provisions of this Section 17 and the provisions of this Agreement. Customer acknowledges and agrees that: KRUSECOM would not enter into this Agreement or otherwise sell Products to Customer without the obligations of Customer under this Section 17 to undertake measures to protect the security, confidentiality and integrity of information and data, and the relationship of KRUSECOM with its customers; KRUSECOM derives substantial economic value from the relationship of KRUSECOM with its customers and prospective customers; the unauthorized disclosure of the fact or allegation of discovery of potentially protected information (or unauthorized disclosure of protected information or data), is a “trade secret” of KRUSECOM under the Florida Law and is competitively sensitive information of KRUSECOM of a special, unique, and extraordinary character; a breach, or threatened breach, by Customer of the provisions of this Section 17 cannot reasonably or adequately be compensated in damages in an action at law and would cause immediate and irreparable injury and damage to KRUSECOM (and its customers); KRUSECOM shall be entitled, in addition to any other remedies KRUSECOM may have under this Agreement or applicable law to preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of this Agreement (without the need for posting a bond), and Customer waives the right to object thereto; KRUSECOM shall be entitled to recover from Customer KRUSECOM’s attorneys’ fees and costs of litigation to enforce the terms of this Agreement (whether incurred prior to trial, at trial, appeal or otherwise, and whether seeking equitable relief to enjoin any further breach or threatened breach of this Agreement, or enforcement of the obligation of Customer to pay liquidated damages to KRUSECOM arising from a previous breach by Customer); no specification in this Agreement of a specific equitable or legal remedy shall be construed as a waiver or prohibition against KRUSECOM’s pursuit of other equitable or legal remedies in the event of such a breach; any unauthorized use, misappropriation, or disclosure of computer information or data, or other breach or violation of the terms of this Section 17, could constitute a crime under the Florida Law subjecting the violator to criminal penalties, as well as civil remedies for the recovery of damages. Furthermore, Customer acknowledges and agrees that actual damages arising from a breach or violation by Customer of the terms of this Section 17 would difficult or impossible to predict, ascertain or demonstrate, including without limitation, lost business or profits of KRUSECOM arising from such a violation; Customer’s failure to observe or comply with the terms of this Section 17 as described above will cause the KRUSECOM to incur costs and suffer substantial damages not otherwise provided for herein, which costs include expenses required to monitor performance of Customer, and the costs to enforce this Agreement; therefore, Customer agrees to pay to KRUSECOM as liquidated damages of Two Million Dollars ($2,000,000.00) for each instance or violation of this Section 17 by Customer (or its officers, directors, employees, agents, representatives, contractors, subcontractors, customers, successors, assigns, or those for whom it is responsible), together with KRUSECOM’s attorneys’ fees and costs of litigation (whether at trial, appeal or otherwise) to enforce the terms of this Agreement and, specifically, the obligation of Customer to pay to KRUSECOM liquidated damages arising from any breach or violation by Customer. The parties hereto agree that: the liquidated damages reserved hereby are not intended as a penalty, and are reasonable in amount, considering the terms of this Agreement, the KRUSECOM’s business, the value of KRUSECOM’s relationships with its customers, the costs required to address the unauthorized disclosure of protected information, and considering all of the circumstances existing on the day of this Agreement; and a fair and reasonable estimate of the damages that the KRUSECOM will incur or suffer by reason of Customer’s noncompliance. KRUSECOM’s pursuit of liquidated damages for a prior breach or violation, or acceptance of any such liquidated damages, shall not prohibit KRUSECOM from pursuing its equitable remedies hereunder to enjoin any further violation; shall not constitute KRUSECOM’s waiver of any breach with respect to the Customer’s failure to comply with such provisions; and shall not prevent the KRUSECOM from exercising any other rights or remedies available to KRUSECOM under applicable law, this Agreement, or other related documents.
Any communication or notice to KRUSECOM shall be given in writing to KRUSECOM 400 Royal Palm Way, Suite 302, Palm Beach, FL 33480, Attention: Marc Sherman, President with a copy to Alan M. Burger, Esq. at McDonald Hopkins LLC, 505 S Flagler Dr, Suite 300, West Palm Beach, FL 33401. Any notice to Customer shall be given in writing to Customer’s address of business shown above. All notices required or permitted under this Agreement will be in writing and will be deemed given: (a) when delivered personally; (b) when sent by confirmed facsimile to the number provided by the receiving party (followed by the actual document in air mail/air courier); (c) three (3) days after deposit if sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt. Any change in address for receipt of notice may be designated in writing by one party to the other and shall be deemed given when delivered to the other party according to one of the approved methods set forth above.
19. Acknowledgement of Receipt:
Customers agrees and acknowledges that these Sales Terms and Conditions apply to all transactions for which KRUSECOM sells Products; and a copy of the same transmitted by facsimile transmission or posted on KRUSECOM’s website shall be conclusively considered to be valid and binding as if it were the original document, and the facsimile transmission copy or confirmation or proof of website posting will be sufficient, valid and conclusive proof that these terms and conditions apply to transactions between the parties.
Customer agrees and acknowledges that this Agreement was negotiated and accepted in the State of Florida, and Customer knowingly, intentionally and voluntarily hereby irrevocably: (a) submits to the exclusive, personal jurisdiction of the state court sitting in Palm Beach County, Florida or the federal courts sitting in the Southern District of Florida (collectively, the “Courts”) over any suit, action or proceeding arising out of or relating to this Agreement or any of the related documents (individually, an “Agreement Action”); (b) waives, to the fullest extent permitted by the law of any state, any and all personal rights and objections that Customer may now or hereafter have based on improper venue, lack of personal jurisdiction, inconvenience of forum or any similar matter in any Agreement Action brought in any of the Courts; (c) agrees that final judgment in any Agreement Action brought in any of the Courts shall be conclusive and binding upon Customer and may be enforced in any other court to the jurisdiction of which Customer is subject, by a suit upon such judgment; (d) consents in advance to the perfection of service of process on Customer in any Agreement Action by the mailing of a copy thereof (any pleadings, including but not limited to, Summons and Complaint, or other process or papers) by registered or certified mail (return receipt requested), postage prepaid, to Customer at the address stated above (or as designated in or pursuant to Section 18 hereof); (e) agrees that service in the manner specified in clause (d) next above shall in every respect be effective and binding on Customer to the same extent as though such service of process were served on Customer in person by a person duly authorized to serve such process; and (f) agrees that if Customer fails to appear or answer any Summons, Complaint, Process or papers so served within thirty (30) days after the mailing thereof, Customer shall be deemed in default and an Order and/or Judgment may be entered against Customer as demanded or prayed for in such Summons, Complaint, Process or Papers. Nothing contained herein, however, shall prevent KRUSECOM from bringing any Agreement Action or exercising any rights against any Collateral or security pursuant to the terms of the Customer Agreement or other Purchase Documents in any other manner or in any other courts. Initiating such proceeding or taking such action in any other state shall in no event constitute a waiver of the agreement contained herein that the law of the State of Florida shall govern the rights and obligations of Customer and KRUSECOM hereunder or of the submission herein made by Customer to personal jurisdiction to the Courts within the State of Florida. If Customer is an entity (ie LLC, Corporation, Limited Partnership, Partner) the person(s) signing this document on behalf of Customer hereby guarantees all sums due from Customer to KRUSECOM. The aforesaid means of obtaining personal jurisdiction and perfecting service of process are intended to be cumulative and in addition to all other means of obtaining personal jurisdiction and perfecting service of process now or hereafter provided by the law of the State of Florida.
21. Entire Agreement:
For all sales of Products (and other products or services) by KRUSECOM or its affiliates, the terms and conditions contained herein and applicable purchase documents (including, without limitation, an unconditional guaranty), shall constitute the entire agreement between the Customer and KRUSECOM with respect to the purchase and sale of Products. There are no other understandings or agreements, oral or written, relating to the sale of Products (or other products or services) by KRUSECOM to Customer at the time of execution of this Agreement. There shall be no other binding understandings or agreements, oral or otherwise, which relate to the sale of Products (or other products or services) by KRUSECOM to Customer including, without limitation, any understandings that may arise from negotiations or discussions to amend this Agreement unless and until contained in, and agreed to by both parties, in a written agreement signed by the duly-authorized representatives of both parties. The terms of any written agreement duly signed by both parties shall supersede the terms and conditions of this Agreement to the extent of any conflict. THE FOREGOING TERMS AND CONDITIONS SHALL PREVAIL NOTWITHSTANDING ANY VARIANCE WITH THE TERMS AND CONDITIONS OF ANY PURCHASE ORDER SUBMITTED BY THE CUSTOMER TO KRUSECOM IN RESPECT OF THE PRODUCTS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Customer agrees that KRUSECOM may use Customer’s name, logo and/or likeness in advertisements, promotional material or advertising.
(A) Each Party agrees that any Proprietary Information it obtains from the other Party (the “Disclosing Party”) is of a highly confidential and proprietary nature. The Party receiving the Proprietary Information (the “Receiving Party”) will not use such Information except as reasonably necessary to perform its obligations under this Agreement. Except as expressly permitted in this Agreement, the Receiving Party will hold in strict confidence and not use or disclose any Proprietary Information of the Disclosing Party.
(B) For purposes of this Agreement, “Proprietary Information” means (a) all inventions, designs, processes, materials, trade secrets, technical information and know how and ideas of a proprietary and confidential nature of such party; (b) non-public financial information concerning such party; (c) such party’s research and development, pricing, new product and marketing plans, unless and until publicly announced; (d) the terms of this Agreement; and (e) any other information designated as confidential by such party orally or in writing; provided that no oral communications shall be deemed confidential unless confirmed in writing to be so within thirty (30) days of the time such information is orally communicated, and provided further that Proprietary Information shall not include any information that: (i) becomes known to the general public without fault or breach on the part of the Receiving Party; (ii) the Disclosing Party customarily provides to third parties without restriction on disclosure; (iii) the Receiving Party obtains from a third party without breach of any nondisclosure obligation; or (iv) is required to be disclosed to a tribunal or other legal authority, provided that in the case of such required disclosures, the Receiving Party will provide advance notice of such disclosure to the Disclosing Party.
This Agreement, and the obligations of the Customer hereunder, shall be continuing and shall survive termination of this Agreement.
The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof (as if such invalid or unenforceable provision were omitted), and the terms of this Agreement shall be construed and enforced in all respects to the greatest extent permissible under applicable law.
26. No Agency:
This Agreement does not create any agency, partnership, joint venture or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
This Agreement shall be binding upon and inure to the benefit of KRUSECOM and its respective successors and assigns; Customer may not assign its rights or obligations hereunder without the prior written consent of KRUSECOM, which consent may be withheld for any reason.