INNOVATIVE IDM TERMS AND CONDITIONS
These Innovative IDM Terms and Conditions (“Terms”) apply to all products, goods and services (the “Products”) sold by Innovative IDM, LLC (“Innovative”) to customers (the “Customers”) anywhere in the world. By purchasing Products, or by signing or accepting a contract for Products, or by using this website, the Customer agrees to these Terms. If the Customer does not agree completely with these Terms, do not purchase Products from Innovative and do not use this website (the “Site”). Services provided by Innovative may be sometimes separately referred to herein as “Services.”
Innovative reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms at any time. It is the Customer’s responsibility to check these Terms periodically for changes. The Customer’s continued use of the Site following the posting of changes will mean that the Customer accepts and agrees to the changes. As long as the Customer complies with these Terms, Innovative grants the Customer a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.
All text, graphics, user interfaces, visual interfaces, photographs, images, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Innovative, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly provided in these Terms, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Innovative’s express prior written consent.
The Customer may use information on the Products and Innovative’s services purposely made available by Innovative for downloading from the Site, provided that the Customer may (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for the Customer’s personal, non-commercial informational purpose and does not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.
Use of the Site
The Customer may not use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Innovative reserves the right to bar any such activity.
The Customer may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Innovative server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
The Customer may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. The Customer may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Innovative, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than the Customer’s own information, as provided for by the Site.
The Customer agrees not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Innovative’s systems or networks, or any systems or networks connected to the Site or to Innovative.
The Customer agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
The Customer may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal the Customer may send to Innovative on or through the Site or any service offered on or through the Site.
The Customer may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of Innovative or others.
Innovative may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Innovative makes no commitment to update the materials on the Site with respect to such products and services.
Accounts, Passwords and Security
Certain features or services offered on or through the Site may require the Customer to open an account (including setting up an Innovative ID and password). The Customer is entirely responsible for maintaining the confidentiality of the information the Customer holds for the Customer’s account, including the Customer’s password, and for any and all activity that occurs under the Customer’s account as a result of the Customer failing to keep this information secure and confidential. The Customer agrees to notify Innovative immediately of any unauthorized use of the Customer’s account or password, or any other breach of security. The Customer may be held liable for losses incurred by Innovative or any other user of or visitor to the Site due to someone else using the Customer’s Innovative ID, password or account as a result of the Customer failing to keep the Customer’s account information secure and confidential.
INNOVATIVE DOES NOT PROMISE THAT THE SITE OR ANY INNOVATIVE CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE CUSTOMER’S USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. INNOVATIVE CANNOT AND DOES NOT ENSURE OR REPRESENT THAT ANY FILES OR OTHER DATA THE CUSTOMER DOWNLOADS FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OF DESTRUCTIVE FEATURES. INNOVATIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INNOVATIVE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO THE CUSTOMER’S USE OF THE SITE. THE CUSTOMER’S SOLE REMEDY AGAINST INNOVATIVE FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Innovative reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Limitation of Liability
Except where prohibited by law, in no event will Innovative be liable to the Customer for any indirect, consequential, exemplary, incidental or punitive damages, or lost profits, even if Innovative has been advised of the possibility of such damages.
If, notwithstanding the other provisions of these Terms, Innovative is found to be liable to the Customer for any damage or loss which arises out of or is in any way connected with the Customer’s use of the Site or any Content, Innovative’s liability shall in no event exceed US$100.00.
The Customer agrees to indemnify and hold Innovative, its officers, directors, shareholders, members, managers, partners, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Innovative by any third party due to or arising out of or in connection with the Customer’s use of the Site.
Innovative may disclose any information Innovative has about the Customer if Innovative determines that such disclosure is necessary in connection with any investigation or complaint regarding the Customer’s use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Innovative’s rights or property, or the rights or property of visitors to or users of the Site. Innovative reserves the right at all times to disclose any information that Innovative deems necessary to comply with any applicable law, regulation, legal process or governmental request. Innovative also may disclose the Customer’s information when Innovative determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
The Customer acknowledges and agrees that Innovative may preserve any transmittal or communication by the Customer with Innovative through the Site or concerning any Products offered on or through the Site, and may also disclose such data if required to do so by law or if Innovative determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Innovative, its employees, users of or visitors to the Site, and the public.
The Customer agrees that Innovative may, in its sole discretion and without prior notice, terminate the Customer’s access to the Site and/or block the Customer’s future access to the Site if Innovative determines that the Customer has violated these Terms or other agreements or guidelines which may be associated with the Customer’s use of the Site. The Customer also agrees that any violation by the Customer of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to Innovative, for which monetary damages would be inadequate, and the Customer consents to Innovative obtaining any injunctive or equitable relief that Innovative deems necessary or appropriate in such circumstances, without posting a bond, or, if a bond is required by applicable law, then a bond in the amount of $1,000.00 shall be deemed and admitted to be adequate. These remedies are in addition to any other remedies Innovative may have at law or in equity.
The Customer agrees that Innovative may, in its sole discretion and without prior notice, terminate the Customer’s access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by the Customer (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
If Innovative does take any legal action against the Customer as a result of the Customer’s violation of these Terms, Innovative will be entitled to recover from the Customer, and the Customer agrees to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Innovative. The Customer agrees that Innovative will not be liable to the Customer or to any third party for termination of the Customer’s access to the Site as a result of any violation of these Terms.
The Customer acknowledges that any transaction between the Customer and Innovative bears a reasonable relation to the State of Texas and agrees that the law of Texas will govern the rights and duties of the parties to any transaction or dispute between the Customer and Innovative. The Customer specifically intends that the provisions of the Texas Business and Commerce Code, as amended, will apply to the interpretation of these Terms, except where these Terms expressly provide otherwise.
Description Not of Bargain
The Customer agrees that the description of the Products by Innovative in a contract, on the Site, in the Content or otherwise, shall be only for purposes of identification and not to be made part of the basis of the bargain between the parties.
Innovative IDM Products and Services
- Products. Innovative will sell to Customer the Products as described or portrayed on the Site.
- Software Products. To the extent the Products purchased by Customer include or incorporate Content, Customer is granted a nonexclusive, nontransferable license to use the Content, but only in conjunction with the Products purchased on the Site and as provided in any applicable software license.
- Systems. The Products sold to Customer by Innovative may be integrated by Innovative through its performance of Services at Innovative’s location or at Customer’s Premises, into a “System.” The functions and requirements of the System shall be as set forth on the Functional Requirements Specification included in the Proposal.
- Services. Innovative will sell to Customer the Services described in the Scope of Work included in the Proposal. Innovative’s schedule for performing these Services shall also be set forth in the Scope of Work.
Delivery and Installation by Innovative
- Innovative will deliver the Products F.O.B. Origin, freight prepaid and charged.
- At the Premises, Innovative will, when so requested by Customer, install the Products and provide the Services in accordance with the Scope of Work agreed to in writing by the parties.
- Innovative will maintain all work areas at the Premises in a neat and orderly condition.
- Title and all risk of loss to the Products shall pass to Customer at the time of delivery thereof to the carrier for shipment. If any Products shall arrive at Customer’s destination in a damaged condition or should any shortage exist, Customer shall immediately notify the carrier and Innovative and, in the case of damage, permit a joint inspection by representatives of the carrier and Innovative.
- Shipping dates will be established by Innovative as accurately as conditions will permit, but in no event will Innovative be liable for or assume any obligation with respect to any delays which may occur in delivery or shipment of Products.
- Items Required for Installation. In connection with Innovative’s installation of the Products or System, and performance of Services, at the Premises, Customer will furnish any conduit, holes, wireways, plans, equipment, space, temporary and permanent power and other utilities, and all other items and services reasonably required for the installation/integration of the Products and the other Services to be provided in accordance with the Scope of Work. Innovative will rely on but will not independently verify all information provided by Customer and will not be responsible or held liable for any damages or costs that result from errors or omissions in such information.
- Preparation for Installation. Customer will prepare the Premises and will coordinate the relocation of its work force to accommodate Innovative’s installation personnel, and timely inspect and acknowledge all pre-installation and installation work performed by Innovative. Customer may move any Customer items or property which must be moved to enable Innovative to perform.
- Safe Work Environment.
- Customer will provide a safe work environment for Innovative personnel. Customer’s obligations include, but are not limited to:
- notifying Innovative prior to the delivery of any Products or the performance of any Services, of any environmental hazards, including, but not limited to the presence of friable asbestos, which are present in the Premises;
- removing or abating, at its expense, the risk posed by any such environmental hazards when required by law or deemed necessary by Innovative; and
- adopting, at its expense, any other work site safety measures required by law or deemed necessary by Innovative.
- Notwithstanding anything else contained in these terms,
- Innovative shall have the right to suspend performance or to pursue any other remedies provided in these Terms where Customer delays or fails to comply with this Safe Work Environment provision; and
- where any of the measures described above are unreasonably expensive, Customer may request that Innovative suspend its performance until such time as an alternative remedy or course of performance is secured or agreed upon; provided, however, that Innovative may terminate any Proposal where any such suspension lasts longer than thirty (30) days.
- Storage of Equipment. Innovative and/or Innovative-designated subcontractors may store a reasonable amount of Products, materials, tools and other items necessary for the performance of Services on the Premises or in such other secure location(s) as Customer may designate, at no charge to Innovative. Customer will take reasonable precautions to protect and maintain the integrity of any such items and will accept delivery of any such items delivered to Customer's facilities when Innovative personnel are not available to accept delivery and place or direct the placement of such items on the Premises or other secure location(s). In the event that the Customer accepts delivery of any Products, it will promptly notify Innovative of the delivery and location of the items delivered.
- Concealed and Latent Conditions. Innovative is entitled to increased compensation and/or time for completion where it encounters concealed physical conditions which differ materially from those indicated in any documents provided prior thereto by Customer or otherwise represented by Customer, or latent physical conditions which differ materially from those ordinarily found to exist and generally recognized as inherent in the installation and/or maintenance activities contemplated by these Terms, where such conditions would materially interfere with, delay or increase cost of Innovative’s performance. Unless the amount of such compensation is expressly agreed to by the Customer in writing, Innovative shall be entitled to recover such compensation on a quantum meruit basis.
- Change Orders. Customer may request in writing changes in the Products and Services or the scheduling dates. Innovative will respond in writing within ten (10) days, confirming receipt of Customer's change notice with an assessment of the impact on scheduling and costs. Customer will accept or reject Innovative’s change notice response within ten (10) days. Change notices timely accepted by Customer will then be implemented promptly. If Customer rejects Innovative's response, then Customer and Innovative will negotiate in good faith to reach agreement. If no agreement is reached, Innovative will continue to perform the original Scope of Work and may disregard the Customer’s requested change.
Prices; Payment Terms
- Customer will pay Innovative the price for the purchase of the Products and the Services as specified in an applicable quote therefor or the Scope of Work, applicable freight charges, plus any applicable taxes.
- Invoicing. Invoices will be due net 30 days from the date of the invoice, unless otherwise specified in quote. Delinquent payments are subject to a late charge at the rate of one and one-half percent (1½%) per month of the amount due (but in no event may any late charge hereunder exceed the maximum amount permitted under applicable law). Customer will pay Innovative's attorneys fees and other costs incurred by Innovative in the collection of any amount invoiced and due hereunder or in connection with any litigation arising out of or related to the sale of the Products.
- Change Orders. Change orders will be invoiced separately, unless otherwise mutually agreed by the parties in writing.
- General. Following the completion of the delivery and/or installation of the Products or System and/or the provision of other Services, the Products or System shall be subjected to the Acceptance Testing, if any, specified in the Scope of Work. When the Products or System have passed the Acceptance Testing criteria in all material respects, Customer will accept the Products or System and document such acceptance by signing a Certificate of Acceptance in the form furnished by Supplier.
- Beneficial Use. In the event Customer does not accept the Products or System, it will give Innovative prompt written notice specifying the material nonconformity giving rise to the rejection and allow Innovative the right to cure within a reasonable time and manner. In the absence of written notice to Innovative of any material nonconformity within ten (10) days following completion of any Acceptance Testing, or if none, installation or in the event Customer deploys the Products or System for its beneficial use, the Products or System will be deemed accepted by Customer.
- Innovative Products. Innovative’s sole and exclusive warranty is that the Products will be free from defects in materials and workmanship for a period of twelve months from the date of sale by Innovative (or such other period expressed in writing by Innovative).
- Disclaimer of Implied Warranty of Merchantability. INNOVATIVE DISCLAIMS ANY WARRANTY OF MERCHANTABILITY WITH RESPECT TO THE PRODUCTS, AND THE CUSTOMER AGREES TO ACCEPT THE PRODUCTS WITHOUT ANY WARRANTY OF MERCHANTABILITY.
- Disclaimer of Implied Warranty of Fitness. INNOVATIVE DISCLAIMS ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSES WHATSOEVER WITH RESPECT TO THE PRODUCTS, AND THE CUSTOMER AGREES TO ACCEPT THE PRODUCTS WITHOUT ANY WARRANTY OF FITNESS.
- Third Party Products. Innovative’s sole and exclusive warranty regarding any product which is manufactured by others, is that such product is warranted only to the extent of the manufacturer’s warranty. This warranty will be furnished upon request.
- Systems. If any failure in Innovative’s workmanship leads to the damage or destruction of any component(s) included in the product manufactured by Innovative, the first set of damaged component(s) will be covered by Innovative’s warranty. Innovative is not responsible for any damage to components(s) or otherwise by troubleshooting efforts by any personnel not employed by Innovative. If within 12 months from date of shipment unless otherwise stated in an extended warranty contract, should any defect covered by Innovative’s warranty appear, Innovative will repair or replace such products or components that are promptly returned to Innovative; and determined by Innovative to be covered. Innovative will not assume any responsibility for removal, installation, or expense incurred in shipping the product to and from the repair point. Consumables or items with a useful life affected by factors other than defective equipment such as fuses and filters are not covered by Innovative’s warranty.
- Notwithstanding anything else contained herein or in any other agreement between the Customer and Innovative, Innovative shall not be liable, and the Customer shall be entitled to no warranty remedies, in the event of any one or more of the following:
- The Products are damaged by natural disasters, conditions, events, or circumstances including, but not limited to, lightning, fire, insect infestation or damage, earthquake, tornado, hail, hurricanes, mold, fungi, wood rot, termites, water damage, or similar or related causes unrelated to the quality of the Products.
- The Products are damaged by any intentional or negligent acts, accidents, misuses, abuse, vandalism, civil disobedience, terrorism, or similar or related causes.
- The Products are exposed to acids, oils, harmful chemicals, pollutants, hazardous materials or waste, or other foreign substances which cause physical damage or deterioration to the Products.
- Innovative’s warranty shall be null and void, and shall be inapplicable to any Products to the extent that any of the following shall occur:
- If, after delivery by Innovative of the Products, there are any alterations to the Products or repairs made by a party other than Innovative.
- Failure by the Customer to use reasonable care in maintaining and caring for the Products.
- The Customer shall not be entitled to any benefits or rights with regard to Innovative’s warranty until the Customer has paid in full the purchase price for the Products.
- With regard to Innovative’s warranty, Innovative shall not be liable for any incidental, consequential, punitive or other damages, including, without limitation, lost profits or damage to the Customer’s other property or contents under any theory of law or equity.
- Notwithstanding any other provision contained herein, Innovative shall not be liable for any warranty benefits or remedies unless the Customer provides timely notice to Innovative of a warranty claim within the period of time (duration) specified for the existence of the warranty for a particular item of the Products.
- Software Products. Innovative’s sole and exclusive warranty regarding software is that the Software Products will functionally conform to the specifications and documentation for such Products. No warranty is made that any Software Products will run uninterrupted or error free.
- Services. Innovative Services are sold on a reasonable effort basis and therefore no warranty is provided in connection with Services.
- Limitations. INNOVATIVE MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ABOUT NON-INFRINGEMENT OF OR WITH INTELLECTUAL PROPERTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE PRODUCTS WILL SUITABLY MEET THE REQUIREMENTS OF THEIR INTENDED USE. Innovative further disclaims all warranties and responsibility of any type for claims or expenses based on infringement by the Products or otherwise of any intellectual property right. All causes of action against Innovative in connection with or relating to the sale of the Products shall lapse, expire and be void unless brought within 1 year of the time of accrual thereof. An adjustment made under warranty does not void warranty, nor does it imply an extension of the original 12 month warranty period. Products serviced and/or replaced on a no-charge basis during the warranty period carry the remaining portion of the original warranty only.
- On-Site Warranty Work for all Products and Services. In the event the Customer requests on-site warranty work, the Customer must approve and supply a written purchase order prior to work and/or travel commencement at Innovative’s standard service rate schedule. The Innovative warranty may be modified only by writing signed by an officer of Innovative and shall extend to the Customer to whom Innovative sold the Products and to no other party.
- Customer Remedy
- Products and Systems. Innovative’s sole obligation in connection with its express warranty shall be, at Innovative’s election, to (1) replace (in the form originally shipped with Customer responsible for labor charges for removal or replacement thereof) the non-complying Product, (2) repair the non-complying Product, or (3) repay or credit Customer an amount equal to the purchase price of the Product; provided that in no event shall Innovative be responsible for warranty, repair, indemnity or any other claims or expenses regarding the Products unless Innovative’s analysis confirms that the Products were properly handled, stored, installed and maintained and not subject to contamination, abuse, misuse or inappropriate modification. Return of any Products by Customer must be approved in writing by Innovative before shipment. Innovative shall not be liable for the suitability or unsuitability or the results from the use of Products in combination with any electrical or electronic components, circuits, system assemblies or any other materials or substances or environments. Any advice, recommendations or information given orally or in writing are not to be construed as an amendment or addition to the above warranty.
- Services. No remedy for Services, as sold on a reasonable effort basis.
Innovative will indemnify, defend and hold Customer harmless from and against losses, damages, suits and related costs and expenses ("Losses") arising out of claims of third parties for bodily injuries (including death) or damage to real or tangible personal property to the extent such Losses are legally determined to result solely from a breach by Innovative of its standard product warranty as set forth in the Terms or from the sole negligence of Innovative; provided that Innovative’s liability hereunder shall in no event exceed the price of individual Products or the Services provided as to which such liability is claimed. Notwithstanding any other provision, Customer shall indemnify, defend and hold harmless Innovative and its officers, directors, shareholders, affiliates, agents and employees harmless from and against all claims, liabilities, costs and expenses, including legal fees and costs (except those resulting from the willful misconduct or gross negligence of Innovative), arising in any way in connection with (i) acts or omission of Customer or its employees or agents, or (ii) Customer’s use of the Products or System or the Services.
Limitation of Liability
INNOVATIVE SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR PRODUCTION OR COMMERCIAL LOSS IN ANY WAY CONNECTED WITH THE PRODUCTS, WHETHER SUCH CLAIM IS BASED ON A GOVERNMENTAL STATUTE, RULE OR REGULATION, OR IN CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY. Further, in no event shall liability of Innovative exceed the individual price of the Products, Software Products, Systems and/or Services on which liability is asserted.
During the term hereof, each of Innovative and Customer acknowledge that it will receive Confidential Information from or about the other party. As used herein, “Confidential Information” includes trade secrets, new product information, technical data and know-how, instructional and operating manuals, financial information, marketing and sales data and plans, and any other proprietary information relating to a party or any affiliate. Each party shall use reasonable care to protect the confidentiality of Confidential Information disclosed to it by the other party. Neither party shall, at any time (including after termination hereof) directly or indirectly (i) disclose any Confidential Information to a third party or (ii) make any use for its own benefit of any Confidential Information which was acquired by it at any time. The foregoing shall not apply to information that (1) is already or independently in possession of a party; (2) is received by a party from a third party; (3) is or becomes publicly available through no act of a party; (4) is disclosed with the party’s consent; or (5) is required to be disclosed pursuant to an order issued by a court or regulatory agency.
Innovative shall not be liable for any delay or failure in delivery resulting from causes beyond its control, including earthquakes, fires, floods, strikes or other labor disputes, shortage of labor or materials, accidents to machinery, acts of sabotage, riots, delay in or lack of transportation or the requirements of any government authority.
Customer acknowledges its obligations to control access to technical data and equipment under the U.S. export laws and regulations and agrees to adhere to such laws and regulations and any license(s) issued thereunder with regard to any technical data or equipment received under these Terms.
The following words have the prescribed meanings: (1) "Acceptance Date" means with respect to Products or Systems the date that the products or Systems have satisfactorily completed the applicable Acceptance Testing, or if earlier the date such products or Systems are deemed to have been accepted under these Terms; (2) "Acceptance Testing" means the acceptance testing for the products or Systems, if any, as specified in the Scope of Work; (3) "Equipment" means the equipment and software set forth in the Scope of Work; (4) “Premises" mean the Customer's facility or location specified in a quote or in the Scope of Work where the Products or Systems will be installed or Services performed; (5) "Confidential Information" means the proprietary or confidential information of either party as described in these Terms; (6) "Services" mean the services to be provided by Innovative which are described in the Scope of Work; (7) "Software" means the computer programs supplied by Innovative, including any hardwired logic instructions, micro code and other computer instructions that are provided with the Products or Systems or separately, as set forth in the Scope of Work; (8) “Functional Requirements Specification” means the functions and requirements of a System as furnished by Customer and included herewith as part of the Proposal; (9) "Scope of Work" means the duties of Innovative and Customer as described in the scope of work included herewith as part of the Proposal; (10) “Proposal” means that certain proposal for Products and Services prepared by Innovative and submitted to Customer herewith, of which these Terms are a part; (11) “Innovative Companies” (or similar words) mean Innovative and any direct or indirect subsidiary or affiliate thereof.
The following miscellaneous provisions shall apply to the sale and delivery of the Products:
- These Terms contain the sole, only and entire agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter hereof. No representations, warranties or promises not expressly contained herein shall be binding upon the parties.
- In the event that any one or more of the provisions contained in these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and these Terms shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
- These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by these Terms.
- The responsibilities, obligations or benefits of the parties shall not be assigned by either party without the prior written consent of the other party.
- All obligations of the parties created in connection with the sale or delivery of Products are performable in whole or in part in Dallas County, Texas, where venue shall lie for any action brought hereunder or brought between the parties hereto, and shall be governed by Texas law.
- The covenants contained in these Terms which, by their terms, require or contemplate their performance after the completion of the sale and delivery of the Products, shall be enforceable notwithstanding the sale and delivery of the Products.
- The headings or captions of the numbered paragraphs are for convenience only and shall not limit or enlarge the scope or meaning of the various and several paragraphs hereof.
- Words of any gender used in these Terms shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires.
- For purposes of these Terms: (a) those words, names or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (b) the words “hereof,” “herein,” “hereunder,” and words of similar import, when used in these Terms, shall refer to these Terms as a whole and not to any particular provision of these Terms; (c) all references to designated “Articles,” “Sections,” and to other subdivisions are to the designated Articles, Sections and other subdivisions of these Terms; (d) all references to “Dollars” or “$” shall be construed as being United States dollars; (e) the term “including” is not limiting and means “including without limitation”; and (f) all references to all statutes, statutory provisions, regulations or similar administrative provisions shall be construed as a reference to such statute, statutory provision, regulation or similar administrative provision as in force at the date of these Terms and as may be subsequently amended.
- All notices to Innovative shall be in writing and shall be delivered to the address for such party set forth below by facsimile or electronic mail, with an additional copy delivered personally, by United States mail or by delivery service, and shall be effective upon receipt.
INNOVATIVE IDM, LLC