Reseller Terms and Conditions of Sale and Website Use
Updated March 1st, 2021
This agreement of company terms and conditions and website use (“Agreement”) is made between A.I. Smarter World, Inc. (“AISW”), a Delaware Corporation, with an address located at 3860 Via Del Rey Bonita Springs, FL 34134 including DBAs of eDist, or Dictation.cloud, or any other current or future DBA(s) used by Parties to transact business with AISW via amendment hereto, specifically indicated in connection with, or a division of, AISW (“Company”), and Person who signs the New Account Form (“Reseller”).
- Appointment, Relationship, Of Parties
- Acceptance Of Agreement And Orders
- Sales Tax
- Payment Terms & Methods
- Disclaimer Of Warranties
- ELM Usage Terms & Conditions
- ELM Order Placement
- ELM Migrations
- ELM Sales Tax
- ELM Sales Tax And Resale Exemption Certificates
- ELM Compliance With Company And Vendor
- ELM Royalty Payments
- Incorporation Of End User Terms And Conditions
Company sells and distributes the products, software and services listed on Program Guides and Price Sheets. Reseller desires to resell the Products in the Territory and Company desires to appoint Reseller, and Reseller desires such appointment, as an independent non-exclusive Reseller in the Territory on the terms and conditions set forth in this Agreement, including any attached Exhibits. Therefore, the Parties, intending to be legally bound, agree as follows.
This Agreement specifically applies to and governs: (A) all sales of Products or Services by Company; (B) use by Reseller of the Reseller Portal and Website; and (C) If applicable, Reseller's authorization to refer End Users to the Platform or End User Portal to order Products or Services from Company; (D) Company processing sales and collection of Sales Tax as applicable on Orders, and (E) any applicable payments to or from Reseller.
Company will not accept any other terms or conditions, unless Company has executed a written agreement by a Company Authorized Representative which specifically modifies, supersedes, or replaces any or all of these Terms and Conditions.
Certain capitalized terms used above and throughout this Agreement are defined in Section 1 below. Other capitalized terms used herein shall have the meaning set forth in the Section or Paragraph in which they are defined. Section and Paragraph references herein are to the Sections and Paragraphs of this Agreement, unless otherwise specified. BY USING THE WEBSITE, OR REFERRING END USERS TO A PLATFORM OR AN END USER PORTAL, BY REFERRAL LINK OR HYPERLINK ON RESELLERS' WEBSITE OR OTHERWISE, OR PLACING ORDERS WITH COMPANY IN ANY MANNER, OR ACCEPTING PAYMENTS FROM OR MAKING PAYMENTS TO COMPANY, RESELLER IS AGREEING TO ALL TERMS AND CONDITIONS SET FORTH HEREIN AND IN THIS AGREEMENT ("COMPANY TERMS AND CONDITIONS OF SALE AND WEBSITE USE") FOUND AT HTTPS://WWW.EDIST.COM/RESELLER-TERMS.
As used in this Agreement:
- "Account Type(s)" means the classification of accounts as a Standard Company Account or an ELM Company Account or any other account that Company and Reseller agree to in writing and is executed by a Company Authorized Representative. At Company’s sole discretion, a Reseller may have more than one account or Account Type.
- "Authorized Third Party" means an entity, including a Vendor, with rights and control over Restricted Programs or otherwise exercises control over the relationship between Company and Reseller and can use such control to determine the authorization of Reseller to utilize the Website or Platform or access to any Program over which they have a controlling influence.
- "Business Day(s)" Means Monday through Friday excluding Company recognized holidays of which an annual list is available upon request.
- "Company Authorized Representative" means the President, Chief Executive Officer, or Chief Financial Officer.
- "Company Indemnified Parties" shall have the meaning set forth in Section 32.
- "CHT" means a Person who or which (a) provides assistance in processing sales transactions of Products or Services on behalf of a Reseller, or a Distributor or (b) provides technical support, training, and other "back office" and support Services or (c) performs other functions pursuant to terms and conditions set forth in an agreement between the CHT and the Reseller or Distributor, as applicable, (d) is approved by any Authorized Third Party listed or Company in any Exhibits to this Agreement.
- "Company Standard Program Guide" means the Company's Program Guide it uses as its primary outline of Company's method to transact business on any ELM Platform, which, at Company's sole discretion, may be modified by other Vendor Program Guides.
- "Current Product" means the version of a Subscription Product offered that may be different than the original Subscription Product.
- "Distributor" means a Person which purchases Products or Services from a manufacturer or provider of such Products or Services for sale to Company or Reseller, which will resell the Products or Services to the End User.
- "ELM" or "Platform(s)" means a website, including https://dictation.cloud that enables a Person to conduct sales transactions and collect payments along with applicable Sales Tax and subsequently pay applicable Royalties to Resellers and remit Sales Tax to Tax Jurisdictions.
- "ELM Sections" means Sections 9, 10,11,12,13,14, and 15 of this Agreement that only apply to Resellers who request and are authorized by Company to transact business on any ELM Platform.
- "ELM Account(s)" means a Reseller account that is a separate account number to exclusively track transactions on any ELM Platform.
- "End User" means the Person who is placing the order for the purchase of Products or Services sold by Company for use in the Tax Jurisdiction.
- "End User Portal" means the portion of a Company owned or controlled Website accessible to End Users, to be used by End Users for the placement and management of Orders.
- "End User Terms and Conditions" means the terms and conditions set forth in the End User Portal or attached to, or accepted in, "Orders".
- "General Terms" means all Sections of this Agreement, before and after the ELM Sections of this Agreement, and thereby apply to any Account type.
- "Governmental Entity" means any: (i) state, county, city, town, village, district, or other jurisdiction of any nature; (ii) federal, state, local, municipal or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); or (iv) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
- "Hyperlink" means an internet link from a hypertext file or document to another location or file, typically activated by clicking on a highlighted word or image on the screen that typically contains a UTM Code.
- "Laws" means federal, state, local, municipal, and other laws, constitutions, ordinances, principles of common law, regulations, statutes, or administrative orders.
- "Migrations" means the transfer of a Subscription from one form to another including, change of End Users, change of Subscription rate or duration, or change of a Reseller assigned to the End User account or End Users.
- "New Account Form" means the Company application to create or update an account and related documents completed and signed by Reseller and submitted to and accepted and approved by Company. There are representations made by Reseller in this document which are relied upon by Company including, to validate Reseller information, establish credit terms, establishing an Account Type, and acceptance of this Agreement, prior to Reseller being authorized to conduct business with Company.
- "Order(s)" means any offer to buy Products from Company placed by Reseller or an End User or Person.
- "Party(ies)" means Company and Reseller (each, a "Party").
- "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, Governmental Entity, or any other entity.
- "Platform(s)" or "ELM" means a website, including https://dictation.cloud that enables the Company to conduct sales transactions and collect payments along with applicable Sales Tax and subsequently pay applicable Royalties to Resellers and remit Sales Tax to Tax Jurisdictions.
- "PPF" means the payment processing fee as described in Company Standard Program Guide, other Program Guide, as applicable, that shall be applied to Orders and deducted from any Royalties due Reseller.
- "Price Sheet(s)" means a listing provided by Company of Products and Services being sold showing costs and sales price or other such listing of prices agreed to in writing between Company and Reseller.
- "Products" means equipment, accessories, software licenses, Subscriptions, software, Software as a Service ("SaaS"), Services, and any other goods sold or subscribed to by or through Company.
- "Program(s)" means an agreement with Company or a third party, such as a Vendor, that enables the sale of Products and Services to End Users.
- "Referral link" means a unique identifier for Reseller, such as a UTM Code, added to a URL web address for a page or series of pages on any Platform that recognizes who referred the transaction to enable Royalties to be generated.
- "Recovery Period" means up to thirty (30) calendar days after a Subscription is terminated for any reason in which Reseller shall attempt to obtain a new or renewal Subscription from End User.
- "Reseller" means any Person who promotes, markets, and purchases Company Products for resale to End Users or directs business to Company or a Company Platform to generate Orders for which said Reseller will receive Royalties.
- "Reseller Portal" means the portion of the Website accessible to Resellers for use to place or track all Orders for each Reseller or their End Users.
- "Restricted Program(s)" means Programs that have certain third-party restrictions and requirements that allow for an Authorized Third Party, typically a Manufacturer, to allow or disallow or otherwise control the sale of the related Products at their sole discretion.
- "Royalty(ies)" means the monetary difference between the selling price, excluding Sales Tax, and the cost of the Products as shown on a Price Sheet, less Transaction Expenses, or other costs or Penalties, to then be paid as commissions to Reseller.
- "Royalty Report(s)" means the monthly report(s) provided to Reseller by Company indicating all transactions for the prior period, and expected monetary compensation to Reseller for same, provided to Reseller for review, reconciliation, and approval.
- "Services" means training and technical support with respect to the use of Products, implementation, and customization of Products, and hardware repairs both in and out of warranty performed by a Company, Reseller, or a CHT.
- "Standard Company Account" means a traditional account where Company is acting as a Distributor and selling Products to Reseller enabling Reseller to sell directly to End Users and is exclusive of the clauses found in the ELM Sections of this Agreement.
- "Standard Company Payment Terms" means Credit terms relating to a Reseller account that incorporate any transaction that is not processed through ELM or as established by Company processing the New Account Form.
- "Subscription(s)" means Products sold on recurring basis with a term limit or renewal sale.
- "Taxes" means all applicable taxes other than Sales Tax, including, use, income, personal property, value-added, excise or stamp taxes, and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from Company, including penalties and interest, but specifically excluding taxes based upon Company's income.
- "Tax Jurisdiction(s)" the physical location of the Person buying the product within the Territory listed in this Agreement or any applicable Exhibits to be applied to calculate Sales Tax.
- "Territory(ies)" means the authorized geographic area where Reseller shall sell Products on behalf of Company for any Program.
- "Transaction Expenses" means all fees deducted from Reseller Royalties related to cost of sales, including PPF, chargebacks, bounced payment fees, cancellation, or other Penalties, if any, as outlined in this Agreement, Program Guides, Price Sheets, or other policies relating to this Agreement.
- "Sales Tax" means taxes imposed on sales transactions by any Governmental Entity associated with the purchase of Products or Services.
- "UTM Code" means a snippet of simple code that you can add to the end of a URL to track the performance of campaigns and content.
- "Vendor" means a manufacturer, Distributor, licensor, other provider or developer of a Service or Product who has ultimate control over the sale of their products. For purposes of this Agreement, a Vendor who sells Products directly to an End User shall be deemed a "Reseller".
- "Website" means collectively, the websites operated or maintained by or on behalf of Company which are accessible through including, https://aismarterworld.com, https://www.edist.com, and the ELM Platform https://www.dictation.cloud and all associated websites controlled by Company ("the Website" or "this Website").
- Non-Exclusive Appointment. Subject to the terms and conditions of this Agreement, Company hereby appoints Reseller, and Reseller agrees to act, as a non-exclusive independent Reseller for Company for the sale of Products to End Users located in the Territory and to render other services as an independent Reseller for Company. Reseller shall limit its activities with respect to the Products to End Users located within the Territory and refrain from selling or otherwise transferring the Products to any person outside the Territory. Company reserves the right to appoint additional sales representatives, agents, Resellers, Distributors or to sell at any time directly the Products whether in the Territory or outside of the Territory on behalf of any Vendor who is an Authorized Third Party.
- Program Guides. In addition to the terms set forth herein, Products in Restricted Programs shall be sold under certain guidelines which detail how Reseller is required to perform their responsibilities with respect to actions involving the Product for which Reseller must follow and remain in good standing to receive applicable Royalties, if any, copies of which shall be attached hereto on Exhibit(s), or website links, or made available upon request, relating to specific Products ("Program Guide(s)"). With Company knowledge and acceptance of terms and of any such agreement, Program Guides made directly with Reseller and an Authorized Third Party may be executed separately and have a controlling influence over the relationship between Reseller and Company.
- Territory. The Territory assigned to Reseller under this Agreement is set forth in the applicable Program Guide or Price Sheet.
- Products. The Products are listed in a Program Guide, or Company Website, or published by a manufacturer or on Price Sheets or other applicable available sources at Company's sole discretion. Program Guides and available Products shall be updated by Company or Authorized Third Party, from time to time, with or without notice, including, to account for any changes in software version, maintenance, functionality, and the like, as further set forth herein. Company will make best efforts to notify Reseller of any such update(s).
- No Subagents. Subject to Program Guides, Reseller has no authority to appoint any sub-agent, sub-reseller, sub-representative, or other Person to promote the sale of the Products or to otherwise perform any of Reseller's obligations under this Agreement and agrees to refrain from using any such sub-agents, sub-resellers, sub-representatives, or other Person, to transact business with Company under this Agreement.
- Relationship of Parties. Reseller is not and shall not be deemed to be the employee, legal representative, dealer, general agent, joint venture, or partner of Company for any purpose. Reseller acknowledges that Company has not granted it any authority to make changes to Company's terms and conditions of sale, grant any warranties in excess of those extended by Company or Vendor or limit its liabilities or remedies less than Company limits its liabilities and remedies, incur obligations (expressed or implied), or in general enter into contracts on behalf of Company or bind Company in any transaction with End Users, a Governmental Entity, or third parties. The Parties will act as independent contractors in the performance of this Agreement and neither Party shall act as agent for or partner of the other Party. Reseller shall not misrepresent its authority..
- Acceptance. Reseller accepts this Agreement through any of the following, whichever occurs first: (a) Reseller completes a New Account Form; (b) Reseller submits a purchase Order to Company via methods including, phone, email, fax, or Company Website; (c) Reseller provides written acknowledgment; (d) Reseller induces an End User to place an order on ELM; (e) Reseller accepts any shipment of any Products; (f) Reseller accepts ELM Royalty Payments from Company; or (g) Reseller performs any other act or expression of acceptance.
- Purchase Orders. All Orders are subject to Company acceptance, which shall occur through Company in writing, electronic acknowledgment, or execution of Order. Such acceptance of Orders is expressly limited to the terms of this Agreement in their entirety without addition, modification or exception, and Company rejects any term, condition or proposals submitted by Reseller, whether oral, in writing, or indicated on any purchase order from Reseller or End User, which are inconsistent with or in addition to those outlined herein. Company's silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be Company's acceptance thereof. Reseller shall not change, cancel, or reschedule orders for Products without Company's prior written consent.
- Quotations. Quotes from Company shall be applicable for the period specified in the quote. Company reserves the right to allocate the sale of Products among its Resellers. Furthermore, unless otherwise stated on Company's proposal, quote, or invoice: (i) quotes are invitations to sell Products and are subject to change at any time without notice; (ii) prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively "Additional Fees"); and (iii) Reseller is responsible for any and all Additional Fees. Additional Fees also specifically include customs clearance, import or customs duties, VAT, applicable federal, state, municipal and other government taxes (such as sales, use, and similar taxes), license fees, freight, and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products.
- Delivery.Unless otherwise agreed in writing, in Company's sole discretion, Company will deliver or arrange to deliver in the most efficient manner possible on the date of shipment. Delivery times provided are only estimates.
- Domestic Shipments. For all domestic transactions, including drop shipments, unless otherwise stated on the front of the invoice, title to the Products and all risk of loss or damage with respect to the Products, except software as a service or services, shall pass to Reseller upon the earlier of delivery to the common carrier or Reseller's representative at Company's or Vendor's logistics center.
- International Shipments. For all international transactions, the Company assumes no responsibility for Additional Fees for the country designated for delivery by the Reseller. Title and risk of loss shall pass to the Reseller upon the earlier of delivery to the Reseller or Reseller's representative at Company's logistics center, or for drop shipments, upon delivery of the Products to the first common carrier. Delivery is subject to Company's receipt of all necessary information and documentation from Reseller including, all import certificates, exemption, resale certificates, licenses, or other documents as may be required from Reseller for export of the Product.
- Shortages & Claims. Reseller shall notify Company, no later than five (5) Business Days after Product delivery, of any claimed shortages or rejection as to any delivery and must meet all other Company requirements as stated in Company freight damage / shortage guidelines policies located https://www.edist.com/returns/. Reseller shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Reseller's failure to give such notice within the time specified is deemed an acceptance in full of any such delivery.
- Bill & Hold Program. Company presently offers a program designed for customers who want to take advantage of Vendor promotions but want Company to fulfill the Orders from Company's facilities at a later date as described herein ("Bill & Hold"). Reseller understands and agrees that: (a) Bill & Hold Orders are non-cancelable purchase Orders at agreed terms, FOB Origin, and as to any Product are generally limited to a quantity that does not exceed Reseller's normal sixty (60) day sales rate; (b) like any other Order, a Bill & Hold Order is subject to product availability and Company shall have no liability for delays with respect to goods in transit; (c) all Bill & Hold Orders must be paid for in full at time of Order placement, or accompanied by a deposit, or on terms as otherwise determined by Company in its sole discretion, and all deposits will be applied to the final payment for the Bill & Hold Order ; (d) Company retains title to all Products until payment in full by Reseller; (e) delivery must be taken by the Reseller of all Products which are purchased by a Bill & Hold Order within forty five (45) days of Order placement, unless otherwise agreed in writing by Company; (f) Bill & Hold Orders are not cancellable by Reseller; (g) price reductions offered after placement and acceptance of a Bill & Hold Order shall not apply to that Order or constitute grounds for cancellation; (h) Bill & Hold Orders shall be cancelled by Company, in its sole discretion, in the event of non-payment in accordance with terms or non-compliance with this Agreement; and (i) a minimum restocking fee of fifteen percent (15%) shall be charged by Company with respect to cancelled Orders. In the event a Product is subject to a software version change, the procedures of the supplier shall determine if the return policy described herein can be altered to accommodate software update exchanges. The foregoing does not reduce, limit, or decrease Reseller's obligations or Company's rights under any other provision of this Agreement.
- Automatic Renewals and Recurring Services.For Subscriptions, Reseller agrees that Company shall invoice Reseller or End User, as applicable per Subscription, for automatic renewals and recurring Subscriptions, using the initial purchase order number as authorization for subsequent invoices until Subscription is properly canceled. Reseller further agrees to notify End Users of the applicable renewal or recurring Subscriptions and payments due therefrom and acknowledges that obligation to pay for Subscriptions is not conditioned on: (a) Company's invoice for such Products, (b) Reseller's or End User's placement of a renewal purchase order, or (c) Reseller's receipt of a renewal order from its End User (d) automated renewal of Products.
- End User Consent. Reseller further acknowledges that information from the End User is necessary for End Users to access or use certain Products. Reseller agrees to provide such information as requested by the Vendor to both Company and the Vendor. Reseller represents and warrants that Reseller has properly obtained the consent of the End User to provide said information to Company and the Vendor. If Reseller defaults on these terms and conditions, Company reserves the right to move Reseller's End Users to another reseller or other provider to avoid interruption of access by the End User.
- Failure to Renew. If any End User fails to renew any Subscription for a Product, or otherwise terminates a contract, a Reseller will be given a Recovery Period to obtain new Subscription or renewal for then Current Version of the Product. After the Recovery Period, Reseller loses all rights relating to said End User for the Current Product for which Subscription did not renew and authorizes Company to publish or otherwise communicate the list of Subscriptions that did not renew to any qualified Reseller as a lead.
- Pricing. The prices charged for Products and Services purchased by Reseller from Company shall be the amounts set forth on the Website, or Price Sheet, or other quotation, or as provided by the applicable invoice relating to such Products and Services and do not include any Sales Tax or other Taxes. Quoted prices will remain in effect only until the expiration date of the quote or Company's acceptance of Reseller's Order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors. All prices, Products and Services are subject to change and availability without notice.
- Shipment Costs. Unless otherwise agreed in writing by Company, Reseller shall pay all freight, insurance and other charges associated with Reseller's purchase of Products or Services. Shipping and handling charges and insurance are not included in the prices for Products or Services unless expressly agreed to by Company at the time of sale.
- Additional Fees & Confidential Pricing. Subject to any Reseller contract to the contrary, Reseller shall bear all Additional Fees. Company's prices set forth on invoice may not include Additional Fees and in such case Additional Fees shall be added to invoice or invoiced separately. All information relating Company pricing is Company proprietary and confidential and Reseller will keep such information confidential.
- Compliance with Sales Tax Laws.Company will be responsible for maintaining registrations, timely filing, proper coding of products, and remittance of all collected Sales Tax and monitoring changing laws regarding Sales Tax for all Tax Jurisdictions regarding Products & Services sold on Company Platforms as listed on Price Sheets for which Resellers designate placement on the Company Platform. IT IS RESELLER'S SOLE RESPONSIBILITY TO ENSURE THEIR OWN COMPLIANCE WITH ANY AND ALL LAWS THAT PERTAIN TO THEIR OBLIGATION TO REGISTER FOR ANY AND ALL TAXES including, INCOME AND SALES TAX.
- Prices are Exclusive of All Taxes. Reseller shall pay all applicable Taxes, including Sales Tax, use, income, personal property, value-added, excise or stamp taxes and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from Company, including penalties and interest, but specifically excluding taxes based upon Company's income. Sales Tax and other applicable Taxes will be charged by Company, where applicable, unless a certificate of exemption or resale certificate is on file with Company before Reseller's Order is processed. Resale Tax exemption forms can be found here: https://www.edist.com/tax/. Unless Company otherwise agrees in writing, Company shall have no obligation, responsibility, or liability for collection of sale, use, excise, income, or other taxes on behalf of Reseller. Company shall have no responsibility to Reseller to ensure the Reseller's registration with any tax jurisdiction is current and it is Reseller's sole responsibility to maintain compliance with same. In the event Taxes are imposed for transactions in a location where Reseller is not authorized to transact business, authorization has expired or due to other causes, then Reseller is responsible for all Taxes. If required by Laws, Reseller shall provide to Company, promptly and without cost, all documentation requested or required by any Governmental Entity from Company in connection with purchases made by Reseller. Company shall suspend delivery of Products and Services to Reseller and Reseller's use of the Website until Reseller has provided such documentation. Promptly upon request by Company, Reseller will provide Company with proof of payment of all Taxes. If applicable law requires Reseller to deduct any amount from the amounts to be paid to Company due to withholding taxes or any other taxes or levies of any kind, Reseller shall pay all such additional amounts so that the net amounts received by Company are the amounts specified on the invoice.(c)
- Sales Tax Audit Requirements. If required by Law, Reseller shall provide to Company, promptly and without cost, all documentation requested or required by any Governmental Entity from Company in connection with purchases made by Reseller. Company shall suspend delivery of Products, Services, and Royalties, to a Reseller (or any of Reseller’s End Users or other customers) and such Reseller’s use of the Platform until such Reseller has provided such documentation.
- Credit Line, Invoicing, & Payment Terms. If Reseller has a previously established payment arrangement ("Credit Line") with Company, invoices are due and payable within the time period noted on Reseller's invoice, subject to continuing credit approval by Company and in Company’s sole discretion. Such approval shall be revoked without further notice from Company; past due accounts shall have their credit lines suspended. Reseller authorizes Company or a contracted entity to contact any credit bureau, or source, to verify any data on the Reseller or its Officers, Principals, or Owners, including, those listed or not on New Account Form, to initially establish a Credit Line and then to continue to do same to enable maintenance or adjustment of Credit Line by Company until 90 days past all payments on Reseller account are made and Company and Reseller have ceased doing business together. Company may invoice parts of an Order separately or may invoice multiple purchases of Products and Services in one invoice to Reseller. Company may accept payment by Reseller's credit card, debit card or other like charge account ("Card") at time of sale, in Company's sole discretion, provided that Cards shall not be used for payment of open account balances on Reseller's previously established credit line with Company, except as specifically agreed in writing. Purchases of Products and Services for which payment is not made as set forth above shall be paid for by Reseller in advance of shipment or C.O.D. Orders shipped to past due accounts will be shipped prepaid or C.O.D., and payment of overdue amounts shall be required as part of the payment. REGARDLESS OF ORDER TERMS OR PAYMENT METHOD, AT COMPANY'S SOLE DISCRETION AND WITHOUT NOTICE, PAYMENTS RECEIVED FROM PAST DUE ACCOUNTS MAY BE APPLIED TO OLDEST INVOICES OWED FIRST.
- Preferred Payment Method.For convenience of all Parties Company prefers payments of all amounts due via ACH or online bill pay. Please contact [email protected] for necessary information to pay in this manner.
- Remit to Address: In the absence of other arrangements approved in writing by Company, or other notifications of change of address by Company, all payments by check due Company from Reseller shall be made at the Company location where the Products or Services were purchased or shall be mailed to:
A.I. Smarter World, Inc.
Drawer # 2502
PO Box 5935
Troy, MI 48007-5935
- Pricing Errors. Company is not responsible for pricing, typographical or other errors on the Website or in any offer and reserves the right to cancel Orders arising from such errors. Reseller agrees that all invoices shall be deemed accurate unless Reseller advises Company in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. If Reseller advises Company in writing of a material error, payment of any amounts corrected or modified by Company in writing shall be due within ten (10) days of such correction, and all other amounts shall be paid by Reseller by the invoice due date. If Reseller withholds payment of any invoiced amounts based on a claim by Reseller that such amounts are erroneous, and Company subsequently determines that such invoiced amounts are accurate, Reseller shall pay interest on such amounts as described below for past due amounts.
- Payment Completion and Timing. Payment is due as stated on Company's invoice without offset or any deduction for withholding taxes or other fees to the remit to address on invoice. Company, at its discretion, shall require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid past due invoices will bear interest at an amount equal to one and a half percent (1.5%) of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Reseller's failure to make timely payment shall result in such action as commencement of proceedings for collection, revocation of credit, cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements or other contracts with Company. At any time, Company shall change the terms of Reseller's credit. Company shall apply payments to any of Reseller's accounts. Notwithstanding any "net" payment provisions specified on the invoice, Company shall have no continuing obligation to deliver Products on credit, and any credit approval shall be withdrawn by Company at any time and without prior notice. Prior to accepting an Order, Company may require Reseller to grant Company a security interest in the Product, plus all accounts resulting therefrom as a condition of accepting an Order. In the event of Reseller defaults on payments for any account with Company, Royalties from an ELM Account or Credit balances on a Standard Company Account, if available, shall be applied, in Company's sole discretion, to mitigate said default. Reseller agrees to execute a Security Agreement in a form acceptable to Company, and Reseller authorizes Company to file such financing statements as Company deems appropriate to perfect or continue Company's purchase money security interest therein.
- Credit Card Authorization. If Reseller pays by credit card, Reseller represents that it is the owner of or is authorized to use the credit card and Reseller authorizes Company to charge the credit card for all transactions, unless otherwise specified in writing. If Company extends credit to Reseller with credit card terms, Reseller will be invoiced on the agreed upon terms. In the event of a Reseller credit default Company shall charge any credit card on file that was used with Company without notice to Reseller to resolve said default. Accounts paying Credit Line invoices with a credit card after shipment shall be charged a 3% additional processing fee.
- Collections. If Company engages an attorney or collection agency for the purpose of collection of money due from Reseller, or enforcing Company's security interest in the Products, with or without litigation, Reseller shall pay any and all associated costs, including, without limitation, attorneys' fees, collection fees, interest, and court costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor's rights proceedings. When Company pursues an End User on behalf of a Reseller all expenses associated shall be deducted from, or charged to, Reseller. Company reserves the right to affect a recoupment, to set off of any funds due at any time to Reseller from Company, and to set off any amounts against amounts owed by Reseller to Company.
- Currency. Unless specifically specified in writing by Company, all transactions will be conducted in US Dollars. If a sale is to occur (or the Product is to be shipped) outside of the United States, Reseller acknowledges and agrees that the amount due Company is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Reseller in local currency or the receipt by Company of local currency as a consequence of enforcement procedures against Reseller will be deemed (a) an authorization for Company to use that local currency to purchase U.S. Dollars or, (b) if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Reseller's country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to Company by Reseller. Reseller is responsible for any deficiency or Additional Fees as a result of conversion of payment into U.S. Dollars.
- Service Agreements.Payment for all Support Orders and any other technical support may be required in advance, in Company's sole discretion, and cannot be cancelled without thirty (30) calendar days advance written notice.
- Standard Company Account. When Reseller is buying under a Standard Company Account, transactions will be processed on a separate Company account under Reseller's Standard Company Payment Terms, as determined by Company herein, and Reseller shall be assigned a unique account number and said account shall be managed separately from Reseller's ELM Account, if applicable, and mutually subject to other Reseller default provisions within this Agreement.
- Returns Policies. Company's Product Return policies in effect on the date of the invoice, or as otherwise provided by Company to Reseller in writing, will control any return of Products. All Orders for Products that Company identifies as non-standard or "Special Order" are non-cancelable and non-returnable. Company may identify Products as Special Order by various means including quotes and product lists. Company's Product Return policies are located at https://www.edist.com/returns/. Company reserves the right to modify or eliminate such policies at any time. The right to return defective Products as set forth herein shall constitute Company's sole liability and Reseller's exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. If Company issues a return authorization to Reseller allowing Reseller to return Product to Company, Reseller will deliver the Product to Company's specified address in the United States, and at Company's sole discretion, Reseller shall bear Additional Fees designated or levied on any replacement Product to be shipped by Company to Reseller. If Company determines such Products are not eligible for return, Company will, at its sole discretion, send such Products back to Reseller plus freight or Additional Fees, or hold such Products (at Reseller's expense) for Reseller's collection and on Reseller's account.
- Company Product Disclaimer. Although Company's policies may permit Reseller to return defective Products under certain circumstances as specified in Section 7, Company makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Any express warranties with respect to Products are provided by the Vendor. Company will pass through to Reseller such warranties to the extent it is legally permitted to do so. Reseller shall not provide or make any representations and warranties on behalf of or purporting to bind Company or the Vendor other than express warranties for the Product(s) provided by the Vendor.
- ELM Additional Terms.If you do not have an ELM Account proceed to Section 16 where the General Terms for all accounts continue. These ELM Sections 9,10,11,12,13,14, and 15 of this Agreement only applies to Resellers with an ELM Account and do not apply to Resellers with a Standard Company Account.
- ELM Platform. ELM is an online sales Platform offered by Company to sell Cloud Solutions such as software as a service and other Products to End Users, collect and remit applicable Sales Tax, and pay applicable Royalties to Resellers.
- ELM Usage Request. Subject to acceptance of Reseller by Company, at Company's sole discretion, to utilize any ELM Platform, when a Reseller selects to be a ("Royalty Reseller or Referral Partner") on the Company New Account Form, and further designates same in the Signature Required Section of the Company New Account Form by checking the appropriate box and initialing such acceptance of same, the Reseller is agreeing to the Company Terms and Conditions of Sale and Website Use and further agrees to terms within the ELM Sectionsof this Agreement and any other terms and conditions including, those of an Authorized Third Party, Program Guides, or other policies referenced herein regarding sale of Products when sold on any ELM Platform.IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE ELM SECTIONS AND THESE COMPANY TERMS AND CONDITIONS OF SALE AND WEBSITE USE AS FOUND HEREIN, THE TERMS OF THIS ELM SECTION AND ANY WRITTEN AMENDMENTS OR EXHIBITS HERETO SHALL BE CONTROLLING TO THE EXTENT THAT THEY APPLY TO TRANSACTIONS ON ANY ELM PLATFORM(S).
- ELM Referral Codes. The ELM Platform is designed for all Orders to be generated via a Hyperlink, Referral Link, UTM Code, or other method directing End Users to the Platform identifying the Reseller as the source to ensure Royalties are correctly attributed to the respective Reseller ("Referral Codes"). Such Referral Codes may be modified by Company with fifteen (15) calendar day notice to Reseller or with or without notice at the direction of an Authorized Third Party. Reseller shall bear sole responsibility for installing and testing appropriate Referral Codes in their marketing. Failure to do so will potentially lead to lost sales for which Company will not be held liable. If Reseller or other Party identifies an account was coded incorrectly and thereby Royalties shall be directed to a different Reseller, subject to dispute resolution between Resellers involved, at Company's sole discretion Company shall move the End User in question and charge a Migration Fee. Company shall not be liable for any lost profits resulting from said action or inaction. No such Migration is allowed after the second billing cycle.
- Legally Bind. To legally bind End Users to the EULA and any other applicable Terms and Conditions of Sale, unless a written agreement is in place between Company and Reseller altering this requirement, or as described in Section 10(b), 10 (c), and 10(d) Company requires all Orders shall be placed by End Users through the End User Portal.
- Authorization to make payments. If Reseller is authorized by an End User to place Orders on End User's behalf or is further authorized to allow another Person to do so, recurring or otherwise, or arrange for recurring payments ("Payments") using an End User's credit card, debit card, ACH, or other like payment method, or other financial instrument or method ("Card"), or accept terms and conditions of sale or EULA, or using End User confidential information Section 10(b), 10(c), and 10(d) apply to said transactions.
- Full Compliance. If Reseller is placing Orders for Products or Services on behalf of an End User, as opposed to an End User placing the Order directly, Reseller covenants, warrants and represents that it has received a signed, written authorization from the End User which expressly authorizes Reseller agency rights ("Authorization Agreement"), on behalf of End User, to: (i) place Orders in End User's name or to bind End User to all obligations associated with such Orders; (ii) to use and enter End User's Card information in connection with such Orders or to allow another Person to do so, recurring or otherwise, or arrange for Payments using End User's Card; (iii) to provide End User Card numbers and information to other Persons in connection with the placement of Orders via any legal means; and (iv) to allow another Person to execute on behalf of and bind End User to all End User license agreements, Subscription agreements, program guides, terms and conditions of sale and other rules and regulations of each Vendor, and Company, including, this Agreement, any CHT Agreement, if applicable, and all other agreements, addenda and other documents and the exhibits thereto associated with and to be executed and delivered in connection with the foregoing. The Authorization Agreement executed by End User and delivered to Reseller shall protect Reseller, Company and all Vendors involved from any and all claims, debts, demands, suits, causes of action, damages, losses, liabilities and costs, including, reasonable attorneys' fees, court costs, and costs of any administrative proceeding of any nature or liabilities of any kind ("Claims") by an End User or any other Person arising therefrom and which ensures that Reseller's use of the End User's Card or confidential information and making of Payments on behalf of End User complies with all applicable Laws, including written authorization and appropriate agency authority from the End User to place the Order, inputting of End User Card or other financial information, and other confidential information into the End User portal, and otherwise as necessary to comply with all Payment Card Industry Data Security Standards as then constituted ("PCI Compliant") and legally bind End User to the EULA.
- Reseller and End User. Subject to any ELM related Program Guide, Reseller acknowledges that Company's processing of orders generated by Reseller through ELM are as if the Company sold to the Reseller and the Reseller sold the End User and Reseller bears all similar responsibilities and risks of same.
If a Program allows for Migrations, there will be policies for said Migrations and fees may be charged by Company or a CHT as outlined in such policies.
Prices of the Products are set forth for Program Guides or the Price Sheets, which shall be updated by the Company from time to time and do not include Taxes or Sales Tax. Sales Tax, if any, due under the laws of any Governmental Entity located within the Tax Jurisdiction in connection with sales of Products made by the Company to End Users on Orders accepted by the Company shall be collected by the Company from End Users and remitted to applicable states and localities. Company will collect Sales Tax as required by the applicable Tax Jurisdiction for Products and Services sold on the Company Platform. Sales Tax will be charged by Company to End User, where applicable, unless a valid End User certificate of exemption is on file with Company naming Company as the exempt Party. However, Company shall have no obligation, responsibility, or liability for collection of excise, income, or other Taxes, or validate End User’s exemption status. In the event Sales Tax is imposed for a Reseller’s Orders in a Tax Jurisdiction where Company or Reseller is not authorized to transact business or resulting from Reseller’s placement of Hypertext, Referral Link, or other method to direct End Users to the Platform in a location outside the Tax Jurisdiction, Reseller provided invalid sales tax exemption or resale forms and such Reseller’s actions have resulted in taxable transactions due to other causes that were otherwise not collected by Company, then Reseller is responsible for all Sales Tax resulting from said transactions.
Unless separately submitted and approved by Company, any exemption or resale certificate on file with Company from Reseller or the End User with ELM will not necessarily apply to Reseller's Standard Company Account.
Reseller has agreed to comply with all policies promulgated by Company and any Vendor as an Authorized Third Party with respect to Restricted Programs. If Reseller fails to do so, then in addition to any other rights and remedies which Company may have under this Agreement or applicable Law, Company may be required by the Vendor of such Product or Service to terminate Reseller's relationship with Company, access to the Platform, and authorization to direct or refer End Users to the End User Portal. Upon instruction from the Vendor in issue, Reseller authorizes Company to assign any or all End Users referred by Reseller to any other Reseller for training, support, or future Orders, as necessary and applicable. In connection with the foregoing rights granted to Company, Reseller designates Company its attorney-in-fact, with the full power of substitution, which power shall be deemed to be coupled with an interest and irrevocable, to perform any act which Reseller might do to execute such assignments if directed by the Vendor in issue to do so.
When Reseller is using the Company Platform to perform sales, subject to the requirements of an Authorized Third Party, Company shall make collections and distribution of payments to appropriate Persons under Company's applicable policies, rules, regulations, and agreements in force with Reseller and Authorized Third Parties. Company shall make commercially reasonable, good faith efforts to collect from the End User the prices charged for the Products or Services sold and subject to the Reseller's full compliance with this Agreement, will remit payments ("Royalty Payments") to the Reseller on a monthly basis in the manner set forth in this Section 15.(a), (b), (c), (d), (e), (f), and (g), the amounts charged and collected by Company, less the Transaction Expenses for the Products and Services in question, which shall be retained by Company.
- Payment Confirmation and Timing. On or before the sixth (6th) Business Day of each calendar month, Company shall prepare and deliver to Reseller a Royalty Report of monthly sales for the immediately preceding calendar month and Company's calculation of the amount due Reseller, as provided by this Agreement, with respect to such sales. Reseller shall have ten (10) calendar days from the date of Company's Royalty Report to review the statement and notify Company in writing of any objections to or dispute of the statement including the amount due Reseller ("Objection Notice"). If Company receives a reply confirming the amount on statement is accurate Company will make best efforts to pay Reseller Royalties on or before the next weekly payment cycle. If Company timely receives an Objection Notice from Reseller, Company shall pay Reseller the undisputed amount due within seven (7) Business Days of receipt of the Reseller's Objection Notice, and Company and Reseller shall work in good faith to resolve the disputed items. If Company does not timely receive an Objection Notice from Reseller, Reseller shall be deemed to have accepted Company's statement and irrevocably waived any and all objections thereto, and Company shall issue a payment to Reseller in payment of the amount due in accordance with the statement on or about the twentieth (20th) day of the calendar month following the month to which the statement relates.
- Preferred Payment Method. For convenience of all Parties Company requests that all Royalty or other payments between Parties are made via ACH. ACH instructions are available upon request.
- Penalty Handling. In the event an End User generating Royalty Payments for Reseller terminates an Order or otherwise defaults on payments relating to same, including, any SaaS Subscription or any other contract, and such termination results in an early cancellation fine as indicated by, including without limitations to, Programs, Program Guides, Price Sheets, Royalty Payments previously paid to Reseller that were unearned due to End User payment defaults, timing issues relating to month end order placement or modifications, and any terms in the EULA (“Penalty”), as commercially feasible, Company shall deduct Penalty amount from, or otherwise have a right of set-off with respect to such Penalty against, any Royalty Payment due Reseller. If Reseller’s Royalty Payment amount due from Company for any month preceding the occurrence in which Penalty occurs resulting in the Reseller to not have funds sufficient to refund the Penalty through deductions in Royalties, Reseller agrees to pay the amount due to Company on demand.
- 1099. As part of your Agreement documents you will be required to complete and return to Company an IRS Form W-9. It is Reseller's sole responsibility to ensure this form is accurate and up to date at all times. All Royalty Payments will be tabulated at year-end, and if applicable, a 1099 will be issued by Company to Reseller as listed on W-9 for same.
- Reseller Payment Default. In the event of Reseller defaults on payments for any account with Company, Royalties shall be applied to any Account Type past due balance, in Company's sole discretion, to mitigate said default.
- Royalty Audits. ALL ROYALTY PAYMENTS TO RESELLER ARE SUBJECT TO AUDIT AND REVISION BY COMPANY AT ANY TIME. COMPANY SHALL PERFORM PERIODIC AND ANNUAL AUDITS TO ENSURE ACCURACY OF PLATFORM AND ROYALTIES. SUCH AUDITS MAY CAUSE A MINOR DELAY IN PAYMENTS OF ROYALTIES TO RESELLER.
THE GENERAL TERMS FOR ALL ACCOUNT TYPES CONTINUE HERE:
For the avoidance of doubt, all terms and conditions relating to prices for Products and Services purchased by or through Company, delivery, freight, insurance, and other charges, payment methods and terms, Claims, returned Products and advance returns, service agreements, agreement or Subscription terminations, and all other matters set forth in the End User Terms and Conditions, to the extent applicable to a Reseller based on Reseller's placement or inducement of an Order or any other action or omission, shall apply to Reseller in the same manner as to an End User.
Company's liability shall be limited to replacement, substitution or repair of defective Products or Services, and only to the extent such replacement, substitution or repair is commercially reasonable and practicable, upon receipt of timely notice in accordance with the End User Terms and Conditions and receipt of Products and documents at Company's designated service center for each incident not later than the fourteen (14) calendar days after End User's placement of the Order for the Product or Service in question. EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL COMPANY OR ANY COMPANY INDEMNIFIED PARTY BE LIABLE TO RESELLER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST ROYALTIES, EVEN IF COMPANY OR AN COMPANY INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR TRANSPORTATION, INSTALLATION, REMOVAL, ADJUSTMENT OR OTHER EXPENSES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PURCHASED FROM COMPANY, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, COMPANY OR A COMPANY INDEMNIFIED PARTY IS FOUND TO BE LIABLE TO RESELLER FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES PURCHASED FROM OR THROUGH COMPANY, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, FAILURE OF ACCESS, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, COMPANY'S LIABILITY SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE-HALF OF THE COSTS OF THE PRODUCTS OR SERVICES GIVING RISE TO THE LIABILITY (AS OPPOSED TO THE COST OF ALL PRODUCTS OR SERVICES PURCHASED BY RESELLER FROM OR THROUGH COMPANY) OR $1,000.00, WHICHEVER IS LESS. COMPANY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY MANNER WHATSOEVER FOR ANY CLAIMS, LOSSES, COSTS, DAMAGES, EXPENSES OF ANY NATURE ARISING OUT OF, RESULTING FROM, OR RELATING TO CANCELLATION, TERMINATION OR REVOCATION OF RESELLER'S CONTRACTS, RIGHTS, AUTHORIZATION OR ACCOUNTS BY A VENDOR OR AUTHORIZED THIRD PARTY. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY OR RESPONSIBILITY OF ANY TYPE WITH RESPECT TO ANY CLAIM WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES PURCHASED FROM OR THROUGH COMPANY, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, UNLESS SUCH CLAIM IS MADE BY RESELLER WITHIN FOURTEEN (14) CALENDAR DAYS AFTER THE EARLIER OF THE DATE OF RESELLER'S RECEIPT OF THE PRODUCT OR SERVICE OR THE DATE OF THE END USER'S PLACEMENT OF THE ORDER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, AS THE CASE MAY BE, TIME BEING OF THE ESSENCE. ANY AND ALL CLAIMS NOT MADE WITHIN SUCH FOURTEEN (14) CALENDAR DAY PERIOD SHALL BE TIME BARRED, WAIVED, AND RELEASED FOREVER.
All Products and Services sold by or through Company carry only the warranty(ies), if any, of the manufacturer(s) or providers of such Products and Services to End Users only. COMPANY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES SOLD TO RESELLER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, Reseller, or representative of Company is authorized to bind Company to any affirmation, contract, representation or warranty, oral or written, unless by separate written instrument written and signed by a Company Authorized Representative which by its terms states that it modifies this Agreement.
Reseller shall create a user identification ("User I.D.") and a password ("Password") when logging into the Website for the first time, or by such other procedure adopted by Company from time to time. Reseller's choice and establishment of a User I.D. and Password is a precondition to use of the Website. Protected areas of the Website cannot be accessed and used without a User I.D. and Password. The Website includes mechanisms that permit Reseller to change Reseller's User I.D. and Password. RESELLER IS ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF RESELLER'S USER I.D. AND PASSWORD AND IS OBLIGATED TO MAKE THE PASSWORD UNIQUE AND COMPLEX, AND TO MAINTAIN THE PASSWORD AS CONFIDENTIAL. Reseller is and shall be fully responsible for all activities occurring under Reseller's User I.D. and Password. Reseller shall notify Company immediately if Reseller suspects, detects, or receives notice of any unauthorized use of Reseller's User I.D. and Password or any other breach of security with reference to Reseller's use of the Website. In such an event, Reseller is obligated to change Reseller's User I.D. and Password immediately pending resolution of the unauthorized use or security breach. Reseller shall not use any other Person's User I.D. or Password at any time and shall not share their confidential Password with any Person outside this Agreement. Reseller shall be held liable for losses incurred by Company or any other Person arising from any Person other than Reseller using Reseller's User I.D. or Password as a result of Reseller failing to keep that information secure and confidential. Company cannot and will not be liable for any damage or loss arising from Reseller's failure to meet its obligations under this Section 19 or arising from unauthorized use of Reseller's User I.D. or Password, except in the case of gross negligence or intentional misconduct by Company. Similarly, Company shall not be responsible for unauthorized use of any Reseller's Credit Card, Debit Card, or other account information including, Reseller's name, billing address, Credit Card or Debit Card number, related security code number, and Credit Card or Debit Card expiration date by any Person unless such information was disclosed by Company to such other Person through Company's gross negligence or willful misconduct. EXCEPT IN THE CASE OF COMPANY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL COMPANY BE LIABLE OR RESPONSIBLE FOR ANY "HACKING" OF A RESELLER'S ACCOUNT ARISING FROM ANY THIRD-PARTY USING RESELLER'S PASSWORD. UNDER SUCH CIRCUMSTANCES, RESELLER SHALL REMAIN LIABLE FOR PAYMENT OF ALL ORDERS PROCESSED BY COMPANY ON RESELLER'S BEHALF. IF A RESELLER IS ENTERING ORDERS ON BEHALF OF AN END USER OR REFERRING ACCESS TO THE END USER PORTAL OF ANY WEBSITE OR PLATFORM ALL OF THE SAME RESPONSIBILITIES AND DISCLAIMERS AND LIMITATIONS OF COMPANY'S LIABILITY SET FORTH HEREIN APPLY TO THE END USER'S PASSWORD AND ACCOUNT INFORMATION AND THE USE THEREOF.
- Reseller Required Information. Reseller shall provide all information and execute all documents which Company shall reasonably require for proper use of the Website and Platform by Reseller. Reseller represents and agrees that all information and documentation which Reseller provides is true, accurate, current, and complete. Reseller shall update and maintain all information and documentation so that it is true, accurate, current, and complete at all times during Reseller's use of the Website or Platform and the purchase by End Users referred or directed to the End User Portal by Reseller of Products and Services from Company. Reseller shall notify Company promptly of any and all inaccuracies in or changes to such information and documentation. Company shall in no event be liable for any claims, damages or liabilities of any kind which result, directly or indirectly, from Reseller's failure to provide Company with true, accurate, current, and complete information and documentation, and shall indemnify and hold Company harmless from and against any and all damages, losses, costs and expenses, arising therefrom.
- Legal Use. Reseller shall not use the Website for any illegal purpose or otherwise in violation of applicable Laws, or any manner inconsistent with this Agreement.
- Reseller Compliance. Reseller shall comply with this Agreement and all applicable Company policies and limits concerning use of the Website, as updated by Company from time to time, including without limitation: (i) Company's requirements for data security; and (ii) any operating rules or instructions.
- Company Website Rights and Disclosure. Company has the right, in Company's sole discretion: (i) to change, suspend or discontinue the Website; and (ii) to impose limits on certain features or restrict access to parts or all of the Website, without notice and without liability, whenever deemed necessary by Company to protect the integrity of the Website or for any other reason. Company reserves the right to modify the features and functionality of the Website, at any time and from time to time, without notice; provided, however, that Company will not modify the Website in a manner that would, as determined by Company in its sole discretion, materially adversely affect the use of the Website, without providing prior notice to Reseller of any such modification (except in case of emergency). COMPANY DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT RESELLER'S USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. COMPANY MAKES NO WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE INTERNET OR ANY PORTION THEREOF INCLUDING, THE "WORLD WIDE WEB", ANY TELEPHONE SERVICE, INTERNET PROVIDER, OR THAT ANY SERVICES ESTABLISHED THEREON WILL BE UNINTERRUPTED OR ERROR-FREE. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. COMPANY CANNOT ENSURE THAT ANY FILES OR OTHER DATA RESELLER IS PERMITTED TO DOWNLOAD FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY OTHER PERSON IN CONNECTION WITH OR RELATED TO RESELLER'S USE OF THE WEBSITE OR ANY OTHER COMPANY SERVICES. RESELLER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE WEBSITE AND ANY LINKED SITES. RESELLER'S SOLE REMEDY AGAINST COMPANY FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THIS LIMITATION OF RELIEF IS A PART OF THE AGREEMENT BETWEEN THE PARTIES, WITHOUT WHICH, COMPANY WOULD NOT PERMIT USE OF THE WEBSITE. THE ABOVE DISCLAIMERS APPLY TO ALL 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 BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. THE WEBSITE OR THIRD PARTIES MAY PROVIDE LINKS TO OTHER INTERNET RESOURCES, INCLUDING, WORLDWIDE WEBSITES, CREDIT CARD PROCESSORS, PROVISIONING INTEGRATIONS, MARKETING TOOLS OR MATERIALS, THIRD PARTY PROVIDERS, AND THE LIKE, OTHER THAN THE WEBSITE WHICH THE WEBSITE RELIES ON FOR CERTAIN FUNCTIONALITY. COMPANY HAS NO CONTROL OVER SUCH WEBSITES AND RESOURCES. COMPANY IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEBSITES OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
- Reporting Bugs. Reseller shall report any Website or Platform performance issues ("Bugs") in a timely fashion to Company CHT via a ticketing system to be resolved by technicians. This is the most efficient way to resolve issues and verbal or other communications regarding Bugs will delay resolution of same. Company shall inform Reseller of any changes to this method. The contact information to report Bugs is in the Company Standard Program Guide or other applicable Program Guide.
- Company Proprietary Rights. Company or its licensors and Vendors own and shall retain all proprietary rights in and to the Website and all derivations and enhancements thereof, and all applications, software, documentation, content, and other materials that Company shall use or provide in connection with implementation and operation of the Website or the provisioning of Products or Services. The Website and all site design, including, software, processes, text, content, photographs, video, audio, interfaces, graphics, trademarks, logos, sounds, music, artwork, and computer code and the selection and the arrangement thereof (collectively, "Content"), including, the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website or used in connection with the function of the Website and all articles of information, policies and other elements making up the Website are owned, controlled or licensed by or to Company or its Vendors and are protected by patents, copyrights, trademarks, service marks, international treaties or other proprietary rights and Laws of the United States and other countries.
- No Transfer. Reseller does not acquire any right, title, or interest in the Website except for the limited right to use the Website, strictly in accordance with the provisions of this Agreement and the End User Terms and Conditions. Reseller shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Website. Except as expressly provided in this Agreement, no part of the Website or any Product or Service shall 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 Company's express prior written consent. Company reserves all rights of Company or its Vendors to their respective intellectual property, including all intellectual property rights on the Website, materials on the Website, Products and Services.
- Allowed Use. Reseller may view, download for caching purposes only, or print pages from the Website, solely for use by Reseller in directing or referring End Users to the Website, tracking Orders by such End Users, and providing training and technical support to End Users and for no other purpose, and subject to the restrictions below and elsewhere in this Agreement and all restrictions set forth in the End User Terms and Conditions, which shall apply with equal force to both End Users and Resellers. Reseller shall not: (i) republish any material from the Website; (ii) sell, rent, or sub-license material from the Website; (iii) show any material from the Website in public; (iv) reproduce, duplicate, copy, or otherwise exploit material on the Website for a commercial purpose; (v) edit or otherwise modify any material on the Website; (vi) disseminate or redistribute material from the Website; or (vii) use any material from the Website in competition with Company or for any other purpose except as set forth above. As an accommodation to Reseller in the course of business, Company may provide Reseller access to Company's or Company's Vendor's copyrighted works, trademarks, inventions, and trade secrets, and like information, including information: (A) that has commercial value or other utility in the business of Company; (B) that Company identifies as confidential; or (C) that would be detrimental to Company, its Vendors, or its customers, including End Users, if disclosed. Examples of such information, whether it be from or not from the Website, include certain works of original authorship (including marketing and technical information), service marks, customer lists, Vendor lists, price lists, costs, budgets, marketing research, unpublished business and financial information, forecasts and projections, contracts, contract terms, inventions, proprietary techniques, programs and methods, and other intellectual property, portions of which may be patented. Reseller's access to any and all of the foregoing is solely for use by Reseller as set forth in the paragraph and for no other purpose. Upon default or breach by Reseller of this Agreement or any other agreement between Reseller and Company, cessation of business transactions between Company and Reseller, or Company providing written notice of revocation of use for any reason and at any time, upon demand by Company, Reseller shall immediately cease and desist use of any intellectual property provided by Company for use by Reseller, including that property referenced above, and returning all documents and media of any and every nature containing or representing Company's intellectual property. Reseller agrees to and shall comply with such demand. In no event shall Reseller use any of the aforementioned information in competition with Company or for any other purpose except placing Orders with Company and to provide support to Reseller's End Users.
Company shall not share Reseller End User information with third parties except as required by certain Vendor agreements as they relate to point-of-sale information or in exception relating to any default clauses in this Agreement. In the ordinary course of business Reseller will receive proprietary information about the Company's business and affairs. Subject to information being in the public domain, Reseller shall not, without the prior written consent of a Company Authorized Representative, disclose any information regarding any aspect of Reseller's relationships with the Company, any Vendor named in any Exhibits to this Agreement, or any non-public aspects of Websites, including but not limited to, information regarding Reseller's contracts, or the content thereof, to any Person except for Reseller's employees and consultants having a need to know and Reseller's attorneys and accountants., In the event there is a court ordered disclosure, Reseller is required to notify Company within ten (10) calendar days of receiving such order and provide Company adequate time to object to any disclosure by legal process before Reseller actually makes any disclosure, Reseller further agrees to give Company the right to object to said court order and seek a protective order. The Parties agree that the disclosing Party may suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party may be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction as defined in this Agreement.
Reseller acknowledges and agrees that End Users for certain Products and Services are healthcare providers who are 'covered entities' subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and are required by law to maintain the privacy and security of protected health information. Protected health information ("PHI") includes any individually identifiable health information held or transmitted by a covered entity in any form or media, whether electronic, paper or oral, that relates to the individual's past, present or future physical or mental health or condition, the provision of health care to the individual, or payments for the provision of health care to the individual. Individually identifiable health information includes but is not limited to, common identifiers such as name, address, birth date and social security numbers. Products and Services are capable of being used to dictate and transmit any speech data, including PHI. Although healthcare providers following best practices avoid the unnecessary transmission of PHI for security purposes, Company maintains a HIPAA compliant program designed to safeguard the privacy of any PHI it receives. When a Reseller may be exposed to PHI while working with an End User, each Reseller agrees, represents, and warrants that it shall enter into a Business Associate Agreement (BAA) with each such End User as part of the End User license agreement or Subscription agreement that governs Reseller's use of that PHI as needed in accordance with this Section 22. Company and Reseller agree they expect it will not be necessary for an End User to disclose or for Reseller to receive or access any PHI in the course of Reseller performing its responsibilities under this Agreement or any related agreement or addendum. Reseller agrees it will not seek or accept access to or disclosure of any PHI from an End User or unless Reseller and the End User mutually agree this is necessary for the Reseller's or End User's proper management and administration, in which case Reseller will enter into its own BAA with the End User. Reseller understands that failure to comply with these provisions may result in liability to Reseller and others, for which Reseller shall be fully liable and responsible. Reseller will not represent itself to an End User as a subcontractor of Company for any purpose, including for purposes of HIPAA or Laws or rules in other industries involving confidentiality of data to which Reseller may be exposed when providing Services.
Reseller will maintain industry standard controls for personal information processed under this Agreement that will, among other things, protect against unauthorized access, use, modification, or disclosure by electronic or physical means. Reseller shall update its security controls from time to time as required by applicable law or to conform to standard industry practices. Reseller shall (i) process and hold personal information in the strictest of confidence, (ii) protect such information, (iii) provide required notifications, and (iv) obtain all consents necessary to collect and process end user personal data in accordance with applicable data protection laws. If required by applicable data protection laws, Reseller will execute a data processing agreement, or such other required documentation, and complete a privacy and security risk assessment as reasonably requested by Company, including without limitation executing standard contractual clauses in the event any European or other international personal data is transferred across national borders. If Reseller discovers or is notified of an actual, probable, or reasonably suspected breach of security or any unauthorized access to or acquisition, use, loss, destruction, compromise, alteration, or disclosure of any personal data processed by Reseller pursuant to this Agreement, then Reseller shall notify Company within twenty-four (24) hours of such discovery or notification and investigate, mitigate, or if possible, remediate, the effects of the breach. Reseller shall cooperate and provide reasonable assistance to Company in connection with any legal or regulatory inquiries or investigations relating to any breach.
Reseller represents and warrants that the information provided in any documents to Company will be true and correct in all material respects and contains all information necessary so that such information is not materially misleading. Reseller acknowledges that Company is relying on the accuracy of the information provided by Reseller.
Reseller will reimburse to Company any funds provided to Reseller by Company or the Vendor on demand, which Company is obligated to return to the Vendor or End User (or which Company expected to but did not receive from the Vendor). These funds include but are not limited to discounts, fees, and marketing funds. Company shall also recover such refunds by offsetting any amounts due to Reseller from Company.
- Software Restrictions. Software is the machine-readable (object code) version of computer programs ("Software"). To the extent Reseller purchases or licenses Products containing Software, Reseller shall not, directly, or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms, or processes from the Software or permit or encourage any third-party to do so. Reseller's use of Software and any related documentation is governed by the Software's applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and shall not be transferred separately.
- Company EULA Acceptance. Reseller authorizes Company to accept, on Reseller's behalf, any end-user license agreement, or similar agreement for Products. Reseller shall secure this same authority from its end user customers. Company has no obligation to accept any end-user license agreements but may use its sole discretion to exercise its authority. Reseller acknowledges that Vendor or Vendor's third-party licensors will provide any license required to use the Product and not Company.
Reseller will keep, provide, and allow Company to audit, complete and accurate records related to this Agreement including records relating to sales during the term of this Agreement and for seven (7) years from the date of the record, or longer if required by the applicable Vendor.
Reseller consents to receive all communications from Company or Vendor regarding Products and shall promptly notify Company in writing of all changes to Reseller's name, address, and control/ownership of its assets. Additionally, Reseller consents to allow Company to contact Reseller's customers and End Users regarding Products.
Reseller has an affirmative duty to notify Company in writing during the quotation, request, and order process of any product sourcing restrictions, including the Trade Agreement Act ("TAA"), Buy American Act, or other sourcing restrictions that apply to the Products. Company is a distributor of "Commercial Items" as defined in FAR 2.101. Company does not intend to sell Products, whether to the U.S. Government or a higher-tier contractor, that fail to meet the "commercial item" definition in FAR 2.101. Accordingly, Company agrees only to the clauses in the Federal Acquisition Regulation ("FAR") and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Reseller will receive only those rights in technical data customarily provided to Company by the manufacturers. By no means will this be interpreted as providing to Reseller unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. To the extent Reseller is not an authorized GSA Reseller, Company specifically rejects the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. Company does not accept any Preference for Domestic Specialty Metals regulations unless the Vendor expressly represents and warrants that the Products provided through Company are compliant.
Reseller agrees to comply with all applicable export Laws, assurances, codes and license requirements, and controls of the United States and other applicable jurisdictions in connection with the use and resale of Products including, Reseller's acceptance of responsibility for the payment of any relevant taxes or duties.
Company is firmly committed to avoid involvement with money laundering, to comply fully with all applicable anti-money laundering and currency reporting and record-keeping requirements and to taking affirmative steps to prevent, detect and report to appropriate authorities suspected violations. Company will request information from its Resellers to sufficiently determine that they or their customer are legitimate, trustworthy, and creditworthy.
Reseller shall defend, indemnify and hold harmless Company, Company’s parents, subsidiaries and affiliates, all Company Vendors, and the respective shareholders, directors, officers, members, employees, agents and other representatives of Company, Company’s parents, subsidiaries and affiliates and all Company Vendors (collectively, “Company Indemnified Parties”) from and against any and all Claims arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to: (a) disputes between Reseller and any End User or any manufacturer of any Products purchased by Reseller from Company; (b) Reseller’s use of the Website; (c) any breach of or non-compliance by Reseller with this Agreement or Reseller’s obligations under any other agreement with Company; (d) Reseller’s violation of any Law or rights of any Person; (e) Sales Tax, penalty or interest imposed by any applicable taxing jurisdiction on the Company in connection with orders placed by Resellers or their End Users or customers; or (f) the actions or inactions of Reseller in connection with this Agreement or the Products or Services to be provided by or through Company. This indemnification obligation shall survive termination, cancellation, or completion of this Agreement.
- Marketing Communications.Reseller shall not use Company's name, trademark or service mark, or the names, trademarks or service marks of any brands owned by Company, or the existence of the contractual relationship between the Parties in any press release, marketing, promotional, advertising or any other materials without Company's prior written consent, which shall be granted or withheld in Company's sole discretion.
- Additional Terms and Conditions. Company's Websites including, https://aismarterworld.com/enduser/ or any Company Platform such as https://dictation.cloud/end-user, includes End User Terms and Conditions which are incorporated herein by this reference and are binding upon Reseller to the extent applicable. In the event of any conflict between the End User Terms and Conditions and this Agreement including any Exhibits, Program Guides, and the like, the provisions which provide the greatest protection to Company shall control.
- Reseller Representations and Warranties.Reseller represents and warrants that: (a) this Agreement constitutes the legal, valid, and binding obligation of Reseller, enforceable against Reseller in accordance with its terms; (b) Reseller has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to perform Reseller's obligations under this Agreement; (c) Reseller has obtained any and all required consents necessary to enter into and perform this Agreement; (d) Reseller's entry into to this Agreement and use of the Website does not violate any Laws or any agreement to which Reseller or its parents, subsidiaries or affiliates are subject or by which any of them is bound, and; (e) Reseller shall comply with all applicable Laws in connection with Reseller's use of the Website. (f) Reseller will attend or otherwise view informational webinars or trainings or any other updates to maintain adequate knowledge required by Programs to effectively deliver Products and Services to End Users. (g) Reseller shall abide by all Company & Authorized Third Party Terms and Conditions of Sale and policies relating to this Agreement. (h) Reseller must remain in good standing with Company and Authorized Third Party Program requirements or they shall be cancelled from same without recourse to Company or applicable Authorized Third Party.
- Modification; Amendment or Waiver. This Agreement shall not be changed, amended, supplemented, or otherwise altered by Reseller except by a statement in writing signed by a Company Authorized Representative. No Person is authorized to execute or make any agreements binding on Company except a Company Authorized Representative. Company shall have the right, in its sole discretion, to change, modify, or amend any of the terms and conditions contained in this Agreement at any time by posting notification on the Website or otherwise communicating the notification to Reseller. Subject to requirements of an Authorized Third Party or at Company's sole discretion, the changes will become effective fifteen (15) calendar days after such posting or delivery of such other communication, as applicable; provided, however, Reseller may terminate all pending Orders and this Agreement with Company upon written notice to Company delivered prior to the end of such fifteen (15) calendar day period. In the event any Company representative that is not a Company Authorized Representative conveys or executes any actions to alter this Agreement, Company, in its sole discretion, may perform actions including, (a) accept or, (b) reject or, (c) allow for a limited use or, (d) formally incorporate into this Agreement or other agreement, any such alteration. In any such case a Company Authorized Representative must execute in writing.
- Entire Agreement; No Modification. This Agreement, the documents incorporated herein by reference, including but not limited to, web links to policies, together with the New Account Form, any Exhibits, Price Sheets, Orders, and Program Guides if applicable, constitute the sole and entire agreement of the Parties regardless of the timing, form, or content of other communications between the Parties. No additional or conflicting provisions contained in any communications including, forms or written directions of any kind received from or engaged in with Reseller will be considered a of this Agreement. Use of this Website by Reseller or direction or referral of End Users to the End User Portal by Reseller, by Hyperlink or Referral link on Resellers' website or otherwise, will be considered an unconditional acceptance of this Agreement, without regard to any additional or conflicting terms proposed by Reseller. None of the provisions of this Agreement shall be varied, amended, or modified by Reseller except by a written agreement signed by a Company Authorized Representative. Company reserves the right to change, amend, or modify any and all of terms and conditions contained in this Agreement, with or without notice, by posting such changes on the Website. RESELLER SHOULD REVIEW THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT PRIOR TO PLACING ORDERS OR UPON EACH USE OF THE COMPANY WEBSITE OR UPON CONTINUING DIRECTION OR REFERRAL OF END USERS TO THE END USER PORTAL.
- Notices. Except as otherwise provided in this Agreement, any notice, request, demand, or any communication to be given to either Party hereunder, except those required to be delivered upon execution of this Agreement, shall be in writing and shall be hand delivered, sent by overnight courier or by registered or certified mail, return receipt requested, or registered e-mail, or by other electronic means capable of verification, addressed to such Party at the address of Company below and to the address for which Reseller is invoiced at time of such notice. Any Party shall change its address for such communications by giving appropriate notice to the other Party as provided in this paragraph. Notices shall be deemed effective on the date of receipt or rejection.
A.I. Smarter World, Inc.
3860 Via Del Rey
Bonita Springs, FL 34134
Email Address: [email protected]
- Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors, and permitted assigns. Company is permitted to assign this Agreement and its rights and any obligations hereunder. Neither this Agreement nor any right, license, privilege, or obligation provided herein shall be assigned or transferred by Reseller without Company's prior written consent; any such attempted assignment or transfer without such consent shall be void.
- Force Majeure: Company is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Reseller, operational disruptions, man-made or natural disasters, mostly peaceful or other protests, acts of war, government interference, pandemic or epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
- Governing Law; Consent to Jurisdiction. This Agreement shall be construed, performed, and enforced in accordance with the internal laws of the State of Florida, County of Lee. Subject to the exclusion listed herein, each Party to this Agreement hereby irrevocably and unconditionally consents to submit to the jurisdiction of the United States District Court for the District of Florida or the United States District Court for the Middle District of Florida, Fort Myers Division, Lee County, Florida, or at Company's sole and exclusive option, the courts with proper jurisdiction at Reseller's location, for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and Reseller agrees not to commence any action, suit or proceeding relating thereto except in such Florida courts), and further agrees that service of any process, summons, notice or document in accordance with the Notice provisions herein shall be effective service of process for any action, suit or proceeding brought against such Party in any such Florida court. Each respective Party irrevocably and unconditionally waives to the fullest extent permitted by applicable Laws (i) any and all rights to trial by jury and (ii) any objections Reseller may now or hereafter have to the laying of venue or convenience of a forum designated by this paragraph. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
- Headings. The Section and Paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof. Sections which begin in ELM refer only to Parties who utilize an ELM Platform.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement.
- No Third-Party Beneficiaries. Except as otherwise specifically set forth herein, nothing in this Agreement will be construed as giving any Person, other than the Parties and their successors and permitted assigns, any right, remedy or claim under, or in respect of, this Agreement or any provision hereof.
- Interpretation. Except as otherwise provided or if the context otherwise requires, whenever used in this Agreement, (a) any noun or pronoun shall be deemed to include the plural and the singular, (b) the terms "include" and "including" shall be deemed to be followed by the phrase "without limitation," (c) the word "or" shall be inclusive and not exclusive, (d) unless the context otherwise requires, all references to Sections and Paragraphs refer to Sections and Paragraphs of this Agreement, all references to particular Exhibits, Schedules or links refer to the Exhibits, Schedules and links attached to or imbedded in this Agreement, (e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement this Agreement as a whole and not to any particular Section, Paragraph or other subdivision, (f) any definition of or reference to any law, agreement, instrument or other document herein will be construed as referring to such law, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, and (g) any definition of or reference to any statute will be construed as referring also to any rules and regulations promulgated thereunder.
- No Waiver. The waiver by either Party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other right hereunder or of any other breach or failure, whether of a similar nature or not.
- Clerical Errors. Typographical or clerical errors and omissions in Company invoices are subject to correction. Any typographical or clerical errors in this Agreement shall be subject to correction by Company.
- Survival. All provisions of this Agreement: (a) necessary to achieve the fundamental purposes of this Agreement; (b) relating to privacy and data gathering and use; (c) authorizing or requiring payment to Company or the recovery of returns, reversals, refunds, chargebacks or other adjustments of payments; and (d) containing indemnifications, disclaimers, liability limitations, and other limitations and provisions affording protection to Company and Company Indemnified Parties, shall survive the for the expiration or sooner termination of this Agreement without limitation,
- Company Standard Program Guide. Unless specifically indicated in a Price Sheet or other Program Guide, and confirmed in writing by a Company Authorized Representative, the below Company Standard Program Guide applies to all Programs and Orders:
Associated URL for Platform:
PPF Reseller Fee Structure:
2.9% of Total Transaction Amount
30¢ per Transaction
$15 per Chargeback for Disputes
$50 Bounced Check Fee
$99 per license
United States of America
Certified eSupport, Corp. ("CES")
Bug Reporting Contact:
dictation.cloud, aismarterworld.com, edist.com
By entering into this Agreement, Reseller is agreeing to conduct transactions by electronic means.
The Company Website E-SIGN and UETA Disclosure and Consent Agreement and all regulatory notices, to which links are provided on the Website, are incorporated in and made a part of this Agreement.