1. Governing Terms. These Terms and Conditions, together with additional terms and conditions set forth in any quotation or order acknowledgment form(s) delivered by 3millID (“3MILLID”) to Customer (collectively, the “Agreement”), are the only terms and conditions which govern the sale by 3MILLID of the products listed on the front page of an invoice or order acknowledgment (the “Products”). No other terms are part of the Agreement, including Customer’s additional or different terms and conditions set forth in a purchase order or other Customer document, and 3millID hereby gives notice of objection to such other terms and conditions. The acceptance of any or all of the Customer’s purchase orders has been and is conditional on Customer’s assent to the terms and conditions set out here and in all such 3MILLID quotation or order acknowledgment form(s) in lieu of those in Customer’s purchase order. Neither 3MILLID’s commencement of performance nor delivery shall be deemed or constitute an acceptance of Customer’s additional or different terms and conditions.
2. PRICES. The prices of the Products are those specified on the front page of an invoice or order acknowledgment. Unless otherwise agreed to in writing by 3MILLID or specified in an invoice or order acknowledgment, all prices on an invoice or order acknowledgment are exclusive of transportation and insurance costs, and all taxes including federal, state and local use, sales, property (ad valorem) and similar taxes.
(a) Payment terms shall be as stated on the front page of an invoice or order acknowledgment. Customer acknowledges that 3MILLID may invoice each shipment of Products separately and each such shipment shall be considered a separate and individual contract.
(b) 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 (11/2%) per month or the maximum rate permitted by law, whichever is less.
(c) Shipment costs within the United States will be paid initially by 3MILLID, but billed separately to Customer as shown on an invoice. Shipments outside the United States shall be freight collect. In the absence of specific instructions by Customer, 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.
4. DELIVERY, CHANGES AND CANCELLATIONS.
(a) 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 Customer upon delivery to the carrier.
(b) 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 customer service manager and shipping escalation will be the responsibility of the Customer.
5. ACCEPTANCE. The Products shall be deemed accepted by Customer upon delivery of the Products to the carrier for shipment. In the event of discovery of a defective Product at that time, Customer’s sole remedy shall be to exchange such Product for a new one of the same type.
(a) Limited Warranty: 3MILLID warrants to Customer that the Products are free from defects in materials and workmanship for a maximum period of 48 months from shipment of the Product to Customer. Customer’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. 3MILLID will not be responsible for back charges, labor costs of removal or re-installation of said Products. The foregoing limited 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) The above 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.
(c) Customer shall send Products with defects covered by the foregoing warranty to 3MILLID’s address set forth on the front page of an invoice or order acknowledgment or such other address provided by 3MILLID from time to time. Customer 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 Customer with a Return Material Authorization (“RMA”) number. Within ten (10) working days of receipt of the RMA number, Customer 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.
7. TITLE TO INTELLECTUAL PROPERTY; SOFTWARE LICENSE.
(a) It is expressly agreed that 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. Customer acquires no rights to any Intellectual Property relating to the Products. Customer shall continually 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.
(b) Any software furnished with the Products shall be subject to a license as included with the software, and Customer agrees to the terms of the license.
8. EXPORT CONTROL.
(a) Customer understands and acknowledges that 3MILLID is subject to regulation by agencies of the US government, including the US Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of 3MILLID to provide products as well as any technical assistance shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration. Customer agrees to cooperate with 3MILLID, including, without limitation, providing required documentation, in order to obtain export licenses or exemptions therefrom. Customer warrants that it will comply with the Export Administration Regulations and other United States laws and regulations in effect from time to time.
(b) Without in any way limiting the provisions of this Agreement, Customer agrees that unless exempted or prior written authorization is obtained from the Bureau of Export Administration or the Export Administration Regulations explicitly permitting the re-export, it will not export, re-export, or transship, directly or indirectly, to country groups Q, S, W, Y, or Z any Product or any of the technical data or software disclosed or provided to Customer or the direct product of such technical data or software. 3MILLID can withdraw from this Agreement if export control violations are reported.
9. 3MILLID’s INDEMNIFICATION FOR INFRINGEMENT OF PROPRIETARY RIGHTS.
(a) 3MILLID agrees to defend and pay all damages and costs finally awarded against Customer in any action resulting from any claim that any Product provided by 3MILLID hereunder 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 Customer gives 3MILLID prompt written notice of any 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 Customer hereunder is likely to become the subject of a claim of infringement, then 3MILLID may, at its option and expense (i) procure for Customer 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.
(b) Notwithstanding the provisions of Section 9a hereof, 3MILLID shall have no liability for any claim based upon the combination, operation or use of any Product supplied hereunder with equipment, software or technology not provided by 3MILLID, or based upon or resulting from the alteration or modification of Products supplied hereunder. 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. In addition, in no event shall 3MILLID’s liability to Customer under this Section 9 exceed the amounts paid by Customer to 3MILLID pursuant to this Agreement in the twelve (12) months preceding such claim. 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.
(c) THE FOREGOING PROVISIONS OF THIS SECTION 9 STATE THE ENTIRE LIABILITY OF 3MILLID AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OR ACTION FOR ANY INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR MISAPPROPRIATION BY ANY PRODUCTS SOLD OR LICENSED TO CUSTOMER BY 3MILLID PURSUANT TO THIS AGREEMENT OR ANY PART THEREOF.
10. TRADEMARK LICENSE AND LABELING.
(a) 3MILLID grants Customers, who resell Products as stand-alone products or as part of their own products (“Reseller Customers”), a non-exclusive, non-transferable limited right to use the 3MILLID designated trademarks in Reseller Customer’s product packaging, literature and advertising for the Reseller Customer’s and/or 3MILLID’s product. Reseller Customer agrees to prominently display 3MILLID’s designated Product logo on the packaging of any of its products, which incorporates the Product.
(b) Reseller Customer’s use of 3MILLID’s designated trademarks shall be in accordance with applicable trademark law and 3MILLID’s policies regarding trademark usage as amended from time to time. Reseller Customer agrees to promptly notify 3MILLID of any unauthorized use of 3MILLID’s designated trademarks by others as it comes to its attention. Reseller Customer agrees that all uses of and goodwill associated with 3MILLID’s designated trademarks will inure to the benefit of 3MILLID and its licensors.
11. STATUTE OF LIMITATIONS. No action by Customer may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.
12. RELATIONSHIP OF THE PARTIES.
Customer will not represent itself as the agent, representative, or partner of 3MILLID, nor perform any action that might result in other persons believing that it has authority to contract or in any way to enter into commitments on behalf of 3MILLID.
13. DAMAGES WAIVER. 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 USE OF THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF 3MILLID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. LIMITATIONS OF LIABILITY. 3MILLID will not be responsible for any loss or damage resulting from its Products used in conjunction with other parts or systems not manufactured by 3MILLID. Except for the indemnification obligations in Section 9, the liability of 3MILLID hereunder for all claims shall not exceed the sum of Customer’s payments for the Products, which are the subject of the dispute.
15. AMENDMENT. This Agreement may be amended, supplemented or superseded only by a writing that refers explicitly to this Agreement and that is signed by authorized representatives of both parties.
16. WAIVER. No term or provision of this Agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
17. FORCE MAJEURE. 3MILLID will not be in breach of this Agreement or be liable for delay, loss, damage or failure to perform due to causes beyond its reasonable control. Customer’s receipt of goods or services shall constitute acceptance and, therefore, a waiver of any claims for delay.
18. SEVERABILITY. 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.
19. NOTICES. All notices required or permitted under this Agreement must be in writing. They will be deemed given when (i) delivered personally, (ii) sent by confirmed telex or facsimile, (iii) sent by commercial overnight courier with written verification of receipt, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid. All communications must be sent to the receiving party’s initial address on the front of this form, or to such other address that the receiving party may have provided for purpose of notice by notice as provided in this Section.
20. ASSIGNMENT. Except as provided herein, neither party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement (other than the right to receive payments) without the other party’s prior written consent, and any attempt to do so without that consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, 3MILLID may assign this Agreement to any third party that acquires 3miilID or its business or substantially all of its assets and may delegate its duties under this Agreement to contractors.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the purchase of Products and supersedes all prior representations, discussions, negotiations and agreements, whether written or oral.
22. CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Colorado as applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
23. ARBITRATION. Any unresolved disputes arising out of or in connection with or relating to 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 arbitration shall be conducted in accordance with the following time schedule unless otherwise mutually agreed to in writing by the parties: (i) no later than thirty (30) days after the appointment of the arbitrator, the arbitrator shall schedule a hearing on the dispute and (ii) within thirty (30) business days after the date of the hearing referenced in clause (i), the arbitrator shall render a decision. The award rendered by the arbitrator shall be final and binding upon the parties and shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, 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.
24. CHOICE OF FORUM. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for Denver Colorado and the Superior and Municipal Courts of the State of Colorado in any litigation arising out of this Agreement or otherwise relating to the Products. Customer hereby irrevocably consents to personal jurisdiction and venue in any such courts and hereby appoints the Colorado Secretary of State or other applicable government authority as agent for receiving service of process.