IMRON CORP agrees to sell to Reseller the hardware, including spare parts, listed on its website (the "Hardware") for use in conjunction with the sale of IMRON CORP software in accordance with the following terms and conditions.
"Software" refers to the software programs, firmware or microcode (e.g., licensed internal code) and documentation provided with the Hardware. Notwithstanding any other provisions of this Agreement, title to and ownership of the Software shall remain in IMRON CORP and licensors to IMRON CORP at all times. IMRON CORP agrees to sell Software licenses to Reseller for further resale to end user customers in conjunction with customer’s purchase of IMRON CORP hardware. Software is provided pursuant to license agreements which accompany the Software. Reseller agrees to pass through the Software and licenses exactly as ordered and received from IMRON CORP. Reseller is responsible for required training of end users.
Until a credit line is established Reseller will pay for the products that it orders prior to shipment, or on terms as agreed by IMRON. Terms to customers with approved credit is net 30 days after date of invoice / shipment, which shall be electronically issued upon shipment of the units for that order, up to the established credit limit.. Orders will become effective when accepted by IMRON Corp and will be filled at the prices in effect at the time of shipment. All prices, terms, and specifications are subject to change without notice. From the date payment is due hereunder, IMRON CORP may charge Reseller interest at the rate of one and one-half percent per month (or such lesser rate as is the maximum permissible under applicable law). Reseller is required to meet a minimum purchase level and training level to meet its discount level requirements. At IMRON CORP’S sole discretion, it may elect to extend, revise, or withdraw credit terms, require personal guarantees by responsible individuals, implement discount adjustments or terminate Reseller’s account at any time based upon performance, volume, credit worthiness and training levels.
The prices set forth on the IMRON CORP website do not include any applicable taxes, export duties, and/or similar fees. Unless prohibited by law, Reseller shall pay to IMRON CORP any tax, export duty or similar fee assessed against or payable by IMRON CORP on account of any aspect of IMRON CORP'S performance hereunder. If Reseller claims exemption from any such tax, Reseller must provide a tax exemption certification to IMRON CORP to justify such exemption. Reseller shall select its desired method of shipment from the selections available on the IMRON CORP website or specified in a purchase order at the time of placing its order. Risk of loss shall pass to Reseller upon delivery of the Hardware by IMRON CORP to the carrier.
All claims must be made within 10 days of shipment. All claims for damage incurred in shipment shall be the responsibility of the carrier, and should be placed with the carrier.
Once an order is accepted by IMRON CORP, if reseller cancels an order, or any part thereof, Reseller agrees to pay to IMRON CORP a cancellation charge equal to ten percent (10%) if the ordered Product(s) have not been manufactured, and twenty five percent (25%) of the price of the canceled Products if manufacturing has commenced. Customized products are not returnable. In the event a product is found to be defective within the warranty period, Reseller shall obtain an RMA number from IMRON CORP and return the defective product to IMRON CORP at Reseller’s expense. IMRON CORP shall have 15 days in which to correct the defect and ship the product back to Reseller at IMRON CORP’S expense, if the product was found to be defective.
Installation and Training:
Reseller is responsible for the installation, maintenance and operation of the goods sold by it to end users as well as its marketing, training and promotional expenses. IMRON CORP shall provide technical support to Reseller once the Reseller has accomplished minimum Basic and Advanced hardware and software training. Basic and Advanced training sessions are available in Web based sessions. In-house and on-site training is available at a fee established by IMRON CORP. Technical support will include reasonable assistance with questions or problems concerning the installation and configuration of IMRON CORP’S hardware or software.
Wage & Hour Compliance:
IMRON certifies that it is in compliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended and with the regulations and orders of the Administration of the Wage and Hour Division issued thereunder.
IMRON Corp is an equal opportunity employer.
This Agreement shall be governed by the laws of California, except for its choice of law rules, and the venue for any action or arbitration between the parties shall be Orange County, California. Any controversy, dispute, or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this AGREEMENT, including any claim based on contract, tort, or statute, shall be resolved, at the request of any party to this AGREEMENT by final and binding arbitration conducted at a location determined by the arbitrator in Orange County, California, administered by and in accordance with the then existing terms and conditions of the American Arbitration Association Commercial Arbitration Rules. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. The arbitrator shall determine which is the prevailing party and shall include in the award that party’s attorney’s fees and costs.
The terms of this Agreement constitute the final, complete and exclusive terms between the parties hereto on the subject matter hereof and are binding on the parties and their successors in interest. This Agreement may be amended or modified only in writing signed by authorized representatives. This Reseller agrees to fully comply with all United States laws and regulations. This shall include those laws governing the export of Hardware and Software, including the United States Export Control Regulations, assuring IMRON CORP that, unless prior authorization is obtained from the United States Office of Export Administration, Reseller does not intend to and shall not knowingly export or re-export, directly or indirectly, any Hardware or Software in violation of current Export Administration Regulations published by the United States Department of Commerce. If any provision of this Agreement is held illegal, unenforceable or in conflict with any law having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.
Reseller shall not assign this Agreement or any rights hereunder without the prior written consent of IMRON Corp. Any attempt to assign this Agreement or any rights or obligations under this Agreement in violation of this Section shall be void. Title to all copyrights, patents, trademarks, trade names and trade secrets contained in the Software and Confidential Information provided under this Agreement will at all times remain with IMRON CORP Resellers are expressly prohibited from directly or indirectly emulating, copying, reverse engineering, reverse assembling and/or decompiling the Hardware, Software or Confidential Information for any purpose whatsoever.
All information which either Party has acquired from the other Party prior to the Effective Date, and may acquire during the term hereof, related to either Party's inventions, designs, methods, improvements, trade secrets, price lists, schedules, quotations, customer information, including the identity of customers, prospects, or other confidential business and technical information (hereinafter “Confidential Information”), may not be disclosed by either party to any third party. The Parties agree that violation of this Confidential Information restriction may be so injurious to the other Party as not to be fully capable of remediation by money damages alone, and therefore the Parties agree, notwithstanding other provisions of this Agreement, that an aggrieved Party under this Section may take such actions at law and/or at equity, including actions to enjoin the use or disclosure of its Confidential Information as in the sole discretion of the aggrieved Party, are necessary to protect such Party's interests.
Excuse of Performance:
Neither party shall be responsible for its failure to perform or be liable for any damages or penalty for delay due to causes beyond its reasonable control, such as acts of God, fire, theft, war, riot, embargoes, and acts of civil or military authorities, including delays due to recognized industrial shortages. If delivery of Hardware is delayed by such interference, the schedule shall be extended on a day-for-day basis up to thirty (30) days, after which Reseller shall have the right to cancel any purchase order that was so affected without obligation.
Notice: Any notices issued under this Agreement shall be sent by overnight mail or other postal system that provides proof of delivery, and shall be effective when received as established by such proof of delivery. Such notices shall be sent to:
15375 Barranca Parkway, B106
Irvine, CA 92618
and to Reseller at its current address on file with IMRON Corp.
IMRON CORP warrants to Reseller that for a period of eighteen (18) months or, in the case of products supplied by other vendors, the applicable supplier’s warranty period, the Hardware shall be free from defects in materials and workmanship and when (i) operated in a suitable environment as specified in the appropriate product description and (ii) properly maintained and operated, will perform in accordance with IMRON CORP'S applicable published specifications. If an item of Hardware is found not to meet this standard during the warranty period, it will be repaired or, at the option of IMRON CORP, replaced. IMRON CORP'S warranty with respect to repaired or replaced Hardware or components thereof shall extend for the greater of (a) ninety (90) days after installation or (b) the unexpired portion of the warranty period for such Hardware.
IMRON CORP warrants to Reseller and to Customers that the software media shall be free from defects in materials and workmanship and the Software shall substantially conform to its published specifications as they exist at the date of Software delivery for the applicable warranty period, which is one (1) years from date of Software delivery to Customer. IMRON CORP'S sole obligation for breach of this warranty shall be to use its best efforts to correct such defects and conformance failures, and supply Reseller or Customer with a corrected or updated version of such Software as soon as practical after IMRON CORP is informed of such defects or conformance failures. IMRON CORP does not warrant that operation of any of the Software shall be uninterrupted or error-free. IMRON CORP'S warranty obligations shall be void if the licensed Software is modified without written consent of IMRON CORP.
THE WARRANTIES AND REMEDIES SET FORTH ABOVE CONSTITUTE THE ONLY WARRANTIES OF IMRON CORP AND RESELLER'S ONLY REMEDIES IN THE EVENT SUCH WARRANTIES ARE BREACHED. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE FOLLOWING STATEMENT APPLIES WHERE LOCAL LAW REQUIRES: FOR AVOIDANCE OF DOUBT, RESELLER EXPRESSLY AGREES THIS IS NOT A CONSUMER CONTRACT FOR SALE OR HIRE PURCHASE AND THAT THE ABOVE EXCLUSIONS ARE REASONABLE. NEITHER
PARTY'S LIABILITY TO THE OTHER ARISING OUT OF THIS AGREEMENT WILL EXCEED THE TOTAL SUM RECEIVED BY IMRON CORP FOR HARDWARE AND SOFTWARE LICENSES PROVIDED UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, UNDER ANY CAUSE OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING THE FOREGOING, CLAIMS BY EITHER PARTY FOR CONTRIBUTION FROM THE OTHER PARTY FOR THIRD-PARTY BODILY INJURY, INCLUDING DEATH, AND DAMAGE TO REAL OR PERSONAL TANGIBLE PROPERTY ARE NOT WAIVED, RELEASED OR DISCLAIMED.
As an authorized representative of the applicant-Reseller, I acknowledge and accept the terms and conditions of the account to be opened in our behalf. I understand that goods are furnished and services rendered by IMRON Corp only on the terms and conditions stated herein. No other terms and conditions shall apply.
As a condition of opening and maintaining the account I authorize reasonable and periodic credit inquiries with the references furnished.