1. Governing Terms. These 3millID Standard Sales Terms together with the terms set forth in the Sales Order delivered by 3millID to Buyer (collectively, the “Agreement”), are the only terms which govern the sale by 3millID of the products listed on the Sales Order (the “Products”). No other terms are part of the Agreement, including Buyer’s additional or different terms set forth in a purchase order or other Buyer document, and 3millID hereby gives notice of objection to such other terms and conditions. 3millID’s supply of the Products to Buyer is conditional on Buyer’s assent to the terms of the Agreement. By allowing delivery of the Products, Buyer is withdrawing any condition that 3millID assent to Buyer’s additional or different terms set forth or referenced in Buyer’s documents.
2. Prices / Payment. The prices for the Products are specified on the Sales Order. Unless otherwise agreed in writing by 3millID or specified in the Sales Order, all prices are exclusive of shipping costs (e.g. transportation, insurance ), duties, and all taxes (e.g. value added, goods and services). Payment terms shall be as stated on the Sales Order. Buyer acknowledges that 3millID may invoice each shipment of Products separately. Every late payment shall be charged interest computed on a daily basis from the due date until it is paid in full, at the rate of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law, whichever is less. Shipment costs within the United States will be paid initially by 3millID, but billed separately to Buyer as shown on an invoice. Shipments outside the United States shall be freight collect. In the absence of specific instructions by Buyer, the carrier will be selected by 3millID. In no event shall 3millID be liable for any delay in delivery, or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of 3millID.
3. Delivery / Acceptance / Changes / Cancellations. All shipments are made ex works 3millID’s distribution center. Delivery will be deemed complete and risk of loss or damage to the Products will pass to Buyer upon delivery to the carrier. The Products shall be deemed accepted by Buyer upon delivery of the Products to the carrier for shipment. In the event of discovery of a defective Product at that time, Buyer’s sole remedy shall be to exchange such Product for a new one of the same type. Thereafter, any defective Product issue shall be addressed through the 3millID’s warranty remedy set forth in this Agreement. Changes may result in delays of the scheduled ship date and must be approved by 3millID. Cancellations and changes will not be allowed when custom material has been prepared or assembled or after production has commenced. Custom products include but are not limited to: cards, transponders, tags with custom programming or custom print. 3millID reserves the right to treat additions to orders as separate orders and apply charges for changes, cancellations or rush charges. Rush orders must be approved by the 3millID’s customer service manager and shipping escalation will be the responsibility of the Buyer.
4. Warranties / Disclaimers / Returns.
(a) 3millID warrants to Buyer that the Products are free from defects in materials and workmanship for a maximum period of 48 months from shipment of the Product to Buyer. Buyer’s sole and exclusive remedy for breach of this warranty is replacement of the defective Product or credit for the defective Product in an amount not to exceed the purchase price, at the sole discretion of 3millID. 3millID reserves the right to replace any Product under warranty with new or remanufactured product. The warranty shall not apply to any Product which has been (i) altered, except by 3millID or with 3millID’s written consent, (ii) subjected to physical or electric stress, misuse, abuse, negligence, accident or catastrophe, or (iii) improperly installed, maintained, stored or used outside its intended and normal manner. 3millID will not be responsible for back charges, labor costs of removal or re-installation of said Products. The foregoing warranty is exclusive and in lieu of all other warranties, whether oral, written, implied or statutory, and 3millID hereby disclaims all other warranties, including but not limited to, merchantability and/or fitness for a particular purpose.
(b) Buyer shall send Products with defects covered by the foregoing warranty to 3millID’s address set forth on the Sales Order or such other address provided by 3millID from time to time. Buyer shall request authorization from 3millID prior to the return of each defective Product for repair or replacement by 3millID. Upon such request, 3millID shall provide Buyer with a Return Material Authorization (“RMA”) number. Within ten (10) working days of receipt of the RMA number, Buyer shall return the defective Product with the RMA number prominently displayed on the shipping container of the defective Product. Returned material will not be accepted without prior written authorization from 3millID. Prior authorization will include a Returned Merchandise Authorization Number (RMA) and the Buyer will include a written explanation of problem or defect (with RMA) enclosed in the box and the RMA clearly marked on the outside of the box. If the Product is found not to be defective, 3millID may/shall send the Product back to Buyer at Buyer’s cost.
5. Intellectual Property / Indemnities / Limitation of Damages.
(a) The ownership and all right, title and interest in and to any invention, trademark, service mark, mask work, trade secret, trade name, design, copyright or patent, including updates, upgrades and improvements, (collectively “Intellectual Property”) relating to the Products is and shall remain vested solely in 3millID and its licensors. Buyer acquires no rights to any Intellectual Property relating to the Products. Buyer shall use reasonable efforts to protect the Intellectual Property relating to the Products. This shall be done but not limited by marking all Products with the appropriate patent numbers, trademark identifications, etc. Any software furnished with the Products shall be subject to a license as included with the software. If Buyer resells the Products as stand-alone products or as part of their own products, 3millID grants Buyer a non-exclusive, non-transferable limited right to use the 3millID designated trademarks in the product packaging, literature and advertising regarding the Products; provided such use is in accordance with applicable trademark law and 3millID’s policies regarding trademark usage as amended from time to time. Buyer shall prominently display 3millID’s designated Product logo on the packaging of any of its products, which incorporates the Product.
(b) 3millID agrees to defend and pay all damages and costs finally awarded against Buyer in any action resulting from any claim that any Product provided by 3millID under this Agreement infringes a patent, copyright or trademark of a third party, protected under the laws of the United States, or from any claim for misappropriation of trade secrets by 3millID under the laws of the United States, provided that Buyer gives 3millID prompt written notice of the claim, cooperates with 3millID in the investigation and defense or settlement of such claim, and gives 3millID exclusive control of the defense and settlement thereof. In the event of any such infringement, or if in 3millID’s opinion any Product supplied to Buyer under this Agreement is likely to become the subject of a claim of infringement, then 3millID may, at its option and expense (i) procure for Buyer the right under such third party patent, copyright, trademark or trade secret to sell or use, as appropriate, the Product, (ii) replace or modify the Product so that it becomes non-infringing or (iii) if it is not commercially reasonable to take the actions specified in items (i) and (ii), request return of the Product and, upon receipt, refund the purchase price less depreciation on a straight line basis over a three (3) year life. Notwithstanding the provisions of this Section 5 (b), 3millID shall have no liability for any claim based upon the combination, operation or use of any Product supplied under this Agreement with equipment, software or technology not provided by 3millID, or based upon or resulting from the alteration or modification of Products supplied under this Agreement. 3millID shall have no liability for any claim based upon the combination, operation or use of any Product with any product or software other than or in addition to the software supplied by 3millID. 3millID shall have no liability for any claim that software provided by a third party vendor and included in or with the Products infringes the rights of any other person. THE FOREGOING PROVISIONS OF THIS SECTION 5(b) STATE THE ENTIRE LIABILITY OF 3MILLID AND THE EXCLUSIVE REMEDY OF BUYER, WITH RESPECT TO ANY CLAIM OR ACTION FOR ANY INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR MISAPPROPRIATION BY ANY PRODUCTS SOLD OR LICENSED BY 3MILLID PURSUANT TO THIS AGREEMENT.
(c) 3millID will not be responsible for any loss or damage resulting from the Products being used in conjunction with other parts or systems not manufactured by 3millID. Except for the indemnification obligations in Section 5(b), the liability of 3millID under this Agreement for all claims shall not exceed two times the sum of Buyer’s payments for the Products at issue. IN NO EVENT WILL 3MILLID BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF THE SALE OR USE OF THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Confidentiality. “Confidential Information” shall mean any non-public information which a party discloses (the “Disclosing Party”) to the other party (the “Receiving Party”) and (i) if disclosed in tangible form is marked as “confidential” (or words of similar import) by the Disclosing Party at the time of disclosure or (ii) if disclosed in any other matter is identified as confidential at the time of disclosure by the Disclosing Party. Notwithstanding the foregoing, the following information shall not constitute Confidential Information: (a) information already in the possession of the Receiving Party at the time of disclosure; (b) information that is independently developed by the Receiving Party; (c) information that becomes lawfully known or available to the Receiving Party from another source without breach of this Agreement; or (d) information that becomes publicly available without a breach of this Agreement by the Receiving Party. Each party shall use the Confidential Information only in connection with the performance of this Agreement and shall use reasonable care to protect the Confidential Information. The confidentiality obligations shall survive for a period of five (5) years from the date of disclosure.
7. Force Majeure / Relationship of the Parties / Compliance with Laws. Neither party shall be liable to the other party for any failure or delay in its performance hereunder to the extent resulting from causes beyond its reasonable control and without its fault or negligence, including acts of God, fire, natural disasters, pandemics, or acts of government (each, a “Force Majeure”), provided that such non-performing or delayed party gives the other party prompt written notice of the Force Majeure and promptly commences performance when the event of Force Majeure ceases to prevent such performance. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Each party will comply with the laws and regulations applicable to the party as a seller or purchaser of the Products.
8. Choice of Law / Dispute Resolution. This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any unresolved disputes arising out of or in connection with this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) before a single neutral and competent arbitrator selected in accordance with the AAA Rules. Such arbitration shall be conducted in the English language. The award rendered by the arbitrator shall be final and binding upon the parties and judgment on such award may be entered in any court having jurisdiction thereof. Nothing in this Agreement shall be deemed to prevent either party from seeking relief from the courts as necessary to protect its confidential information or intellectual property and the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction, without submitting such matter to arbitration.
9. Miscellaneous. Any notice given under this Agreement shall be in writing and sent to the other party’s address set forth in the Sales Order or to such other address as the receiving party may provide for the receipt of notice. This Agreement constitutes the entire agreement between the parties with respect to the purchase of the Products. This Agreement may be amended only in writing by authorized representatives of both parties. The waiver of a term in this Agreement by a party on one occasion shall not constitute a continuing waiver thereof. If any part of this Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force. Except as provided herein, neither party may assign this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld, and any attempt to do so without consent will be void. Notwithstanding the foregoing, (i) a party may assign this Agreement to any third party that acquires a party or its business or substantially all of its assets, and (ii) 3millID may use subcontractors in the performance of this Agreement. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.