GLOBAL TERMS AND CONDITIONS
1. Applicability.
A. These Global Terms and Conditions (these “Terms“) govern the sale of the goods (“Goods“) and services (“Services“) by DealerIT Group, LLC (“DIT“) to the Client pursuant to any DIT-provided purchase order (a “PO”) which references and is governed by these Terms, provided that these Terms shall be read in conjunction with any terms set forth in such Purchase Order. “Client” shall mean the person or entity identified as the client or purchaser of Goods or Services in the Purchase Order. No Purchase Order shall be deemed effective until fully executed by both parties.
B. Each Purchase Order, together with these Terms, (collectively, this “Agreement“) comprises the entire agreement between the parties with respect to the Goods and Services referenced in the Purchase Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding such Goods and Services. This Agreement shall prevail over any of Client’s general terms and conditions of purchase, and any terms included in a purchase order or other instrument provided by Client (collectively, “Client Terms”). Fulfillment of Client’s order does not constitute acceptance of any Client Terms and does not serve to modify or amend this Agreement.
C. Notwithstanding anything to the contrary contained in this Agreement, DIT may, from time to time, change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Purchase Order.
2. Delivery of Goods and Performance of Services.
A. The Goods will be delivered within a reasonable time after the receipt of Client’s purchase order, subject to availability of finished Goods. DIT shall not be liable for any delays, loss, or damage in transit.
B. Unless otherwise agreed in writing by the parties, DIT shall deliver the Goods to 5220 Belfort Road, Suite 400, Jacksonville, Florida 32256 or, in the case of an established Client requesting additional hardware, to the Client’s dealership (the “Delivery Point“) using DIT’s standard methods for packaging and shipping such Goods. Client shall take delivery of the Goods within five (5) days of DIT’s written notice that the Goods have been delivered to the Delivery Point. Client shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point and will unload and release all transportation equipment promptly so DIT incurs no demurrage or other expense.
C. DIT may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Client. Each shipment will constitute a separate sale, and Client shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the relevant Purchase Order.
D. If for any reason Client cancels an order for Goods, or fails to accept delivery of any of the Goods on the date fixed pursuant to DIT’s notice that the Goods have been delivered at the Delivery Point, or if DIT is unable to deliver the Goods at the Delivery Point on such date because Client has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss of the Goods shall pass to Client; (ii) the Goods shall be deemed to have been delivered; and (iii) DIT, at its option, may store the Goods until Client picks them up, and Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
E. DIT shall use reasonable efforts to meet any performance dates to render the Services specified in the Purchase Order, and any such dates shall be interpreted as estimates only.
F. With respect to the Services, Client shall (i) cooperate with DIT in all matters relating to the Services and, as may reasonably be requested by DIT, provide safe access to Client’s premises, office accommodation, electrical power, internet access, and other facilities, for the purposes of performing the Services; (ii) respond promptly to any DIT request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for DIT to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as DIT may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start and throughout the term of the Services.
3. Non-Delivery.
A. The quantity of any installment of Goods as recorded by DIT on dispatch from DIT’s place of business is conclusive evidence of the quantity received by Client on delivery unless Client can provide conclusive evidence proving the contrary.
B. DIT shall not be liable for any non-delivery of Goods (even if caused by DIT’s negligence) unless Client gives written notice to DIT of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
C. Any liability of DIT for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
D. Client acknowledges and agrees that the remedies set forth in Section 3 are Client’s exclusive remedies for any non-delivery of Goods.
4. Quantity. If DIT delivers to Client a quantity of Goods in excess of the amount set forth in the Purchase Order, Client shall notify DIT of the excess and shall cooperate with DIT to coordinate the pickup or return of the excess items. If DIT delivers to Client a quantity of Goods that is less than the amount set forth in the Purchase Order, Client shall notify DIT and DIT shall arrange to deliver the missing Goods. Any excess or shortfall of Goods shall not affect Client’s obligation to accept the Goods delivered up to the amount set forth in the Purchase Order, including any portion thereof, and to pay for such Good at the price set forth in the Purchase Order.
5. Shipping Terms. Delivery of the Goods shall be made FOB Delivery Point.
6. Title and Risk of Loss. Title and risk of loss passes to Client upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Client hereby grants to DIT a lien on and security interest in and to all of the right, title, and interest of Client in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
7. Client’s Acts or Omissions. If DIT’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, DIT shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
8. Inspection and Rejection of Nonconforming Goods.
A. Client shall inspect the Goods within five (5) days of receipt or delivery to the Delivery Point, whichever is earlier (“Inspection Period“). Client will be deemed to have accepted the Goods unless it notifies DIT in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by DIT. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Client’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
B. If Client timely notifies DIT of any Nonconforming Goods, DIT shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Client in connection therewith. Client shall coordinate with DIT to return the Nonconforming Goods to the Delivery Point. If DIT exercises its option to replace Nonconforming Goods, DIT shall, after receiving Nonconforming Goods, ship to Client, at Client’s expense and risk of loss, the replaced Goods to the Delivery Point.
C. Client acknowledges and agrees that the remedies set forth in Section 8(b) are Client’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Client are made on a one-way basis and Client has no right to return to DIT any Goods purchased under this Agreement.
9. Price.
A. Client shall purchase the Goods and Services from DIT at the price set forth in the Purchase Order, or if no such price is set forth in the Purchase Order, then an DIT’s standard retail rate (in either case, the “Price”). If the Price should be increased or decreased by DIT before delivery of the Goods to a carrier for shipment to Client, or performance of the Services, then such changes shall be reflected on the next monthly invoice due and the Agreement shall be construed as if the changed Price was originally inserted therein, and Buyer shall be billed by Seller on the basis of such changed Price.
B. Client agrees to reimburse DIT for all out-of-pocket expenses incurred by DIT in connection with the performance of the Services.
C. DIT may, but is not obligated to, increase the Price with respect to any Purchase Order by three percent (3%) annually, on each anniversary of the Purchase Order.
D. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs and taxes; provided that Client shall not be responsible for any taxes imposed on, or with respect to, DIT’s income, revenues, gross receipts, personal or real property, or other assets.
10. Payment Terms.
A. Client shall pay all invoiced amounts due to DIT within ten (10) days from the date of DIT’s invoice. Client shall make all payments hereunder by the method specified in the Purchase Order and in US dollars.
B. Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse DIT for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which DIT does not waive by the exercise of any rights hereunder), DIT shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Client fails to pay any amounts when due hereunder and such failure continues for thirty (30) days.
C. Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with DIT, whether relating to DIT’s breach, bankruptcy or otherwise.
11. Service Level Agreement. The following terms and conditions in this Section 11 shall constitute DIT’s “Service Level Agreement”:
A. Client must designate a member of Client’s personnel to be the “Contact Person”, who shall be responsible for reporting to DIT any issues relating to the support of Client’s hardware and software. Such reports may be made through the DIT customer web portal, by email to support@DealerITGroup.com, or by phone, if email is unavailable.
B. DIT will make commercially reasonable efforts to resolve all issues relating to the support of Client’s hardware and software when they are reported by Client. If DIT is unable to resolve an issue when it is reported, DIT will create a support ticket and assign the ticket a priority in accordance with the following severity levels:
i. Critical Outage: A problem that affects Client’s entire business or a group of users. Critical Outage tickets will be responded to within one business hour.
ii. VIP/Departmental: A problem without a workaround solution that affects a single user. VIP/Departmental tickets will be responded to within two business hours.
iii. Normal Response: A problem or request with a workaround solution. Normal Response tickets will be responded to within four business hours.
iv. Scheduled: A request that does not require immediate attention or involves long-range planning. Scheduled tickets will be responded to within twenty-four business hours.
C. For issues reported by Client after business hours or on holidays, the time periods set forth above will begin to run at the start of the next business day.
12. Client Obligations Regarding DIT Services. With respect to any Services to be provided by DIT, and in addition to Section 2(F) above, unless otherwise provided in the Purchase Order, Client shall:
A. Provide all hardware and software to be supported by DIT. DIT shall not provide hardware or software in connection with the Services, unless specifically provided in the Purchase Order. DIT is only obligated to support hardware covered under a third-party vendor support agreement and software which is genuine, appropriately licensed, and third-party vendor-supported. DIT may, in its sole discretion, support other hardware or software at the request of Client;
B. In order to ensure DIT can perform the Services, maintain its hardware and software in accordance with the following requirements:
i. All supported servers must run Microsoft Windows-supported operating systems.
ii. All supported desktops, notebooks/laptops must run Microsoft Windows- or Apple-supported operating systems.
iii. All supported servers and desktop software must be genuine, licensed and vendor supported. For the avoidance of doubt, Goods and Services necessary to bring Client’s hardware and software into compliance with this Agreement are not included as a part of this Agreement, unless otherwise expressly provided by a Purchase Order;
C. Directly pay for, or reimburse DIT for, any third-party vendor support charges incurred during the performance of the Services;
D. Make available appropriate personnel of Client as may be needed by DIT to perform the Services;
E. Not interfere with or attempt to modify or repair any hardware or software which is being supported by DIT. Client assumes all risk of loss associated with its hardware and software, including any damages caused to Client hardware or software by Client’s employees, agents, customers, or other affiliates;
F. Accept the original manufacturer warranty, if available, on any Client-owned hardware or software if hardware or software is purchased on behalf of Client by DIT; and
G. Provide and maintain adequate networking and internet connectivity necessary to support Client’s hardware and software and the provision of the Services. DIT shall not be liable for any failure or delay in performing the Services if such failure or delay is directly or indirectly a result of Client’s failure to provide or maintain such adequate networking and internet connectivity. For the avoidance of doubt, inadequate provision and maintenance of networking and internet connectivity includes, but is not limited to, the following examples: Internet Service Provider (ISP) network outages; insufficient bandwidth; misconfigured Client-managed modem, switch, hub, or router; faulty or failed Client-owned modem, switch, hub, or router; faulty Client-provided ethernet cabling; Client-managed security restrictions on firewalls which prevent DIT’s access to provide the Services; interface traffic congestion from Client systems; IP conflicts caused by unapproved or unauthorized Client equipment; failure to provide and maintain adequate electrical resources; voltage sags (or dips); voltage fluctuation (dirty power); voltage spikes or swells; voltage imbalances; long interruptions in electrical power; harmonic distortion; excessive electrical noise; Client relocates, configures, tampers, or modifies DIT hardware; Client’s failure to provide and maintain a secure environment for the storage of DIT hardware; Client’s alteration, relocation, or attempted repair of any DIT provided equipment using Client’s own employees or any service provider not authorized by DIT to provide such services.
13. No Warranty.
A. DIT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
B. Products manufactured by a third party (“Third-Party Product“) and services provided by a third party (“Third-Party Service”) may constitute, contain, or be contained in, incorporated into, attached to or packaged together with, the Goods or Services. For the avoidance of doubt, DIT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT OR THIRD-PARTY SERVICE, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
14. Limitation of Liability.
A. EXCEPT TO THE EXTENT LIABILITY ARISES OUT OF (A) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR (B) EITHER PARTY’S BREACH OF ITS INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY CLAIMS AS SET FORTH IN THE AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
B. IN NO EVENT SHALL DIT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE PAYMENTS RECEIVED BY DIT FROM CLIENT WITH RESPECT TO THE PURCHASE ORDER TO WHICH SUCH LIABILITY RELATES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
C. IF THE SERVICES OR GOODS ARE, OR IN THE OPINION OF DIT MAY BECOME, THE SUBJECT OF A CLAIM FOR INFRINGEMENT, THEN DIT MAY, AT ITS OPTION AND EXPENSE: (A) PROCURE FOR CLIENT THE RIGHT TO USE THE SERVICES OR GOODS IN ITS OR THEIR THEN-CURRENT FORM, (B) REPLACE THE SERVICES OR GOODS WITH OTHER SERVICES OR GOODS WHICH ARE EQUAL OR BETTER IN PERFORMANCE THAN THE SERVICES OR GOODS REPLACED, (C) PROVIDE CLIENT WITH A MODIFIED VERSION OF THE SERVICES OR GOODS, OR (D) REMOVE THE SERVICES OR GOODS FROM THE AGREEMENT OR TERMINATE THE AGREEMENT. IN THE CASE OF (B)-(D), CLIENT AGREES TO COOPERATE WITH DIT AND TAKE SUCH FURTHER STEPS AS ARE NECESSARY TO EFFECTUATE THE SAME OR TERMINATE THE AGREEMENT. THIS SECTION 14(C) STATES THE ENTIRE LIABILITY AND OBLIGATION OF DIT AND THE EXCLUSIVE REMEDY OF CLIENT WITH RESPECT TO ANY ALLEGED INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION OF INTELLECTUAL PROPERTY RIGHTS BY DIT.
15. Indemnification. Client agrees to indemnify DIT and any controlling person, partner, member, director, officer, manager, employee, agent, affiliate, or representative of DIT (each, an “Indemnified Party,” and collectively, the “Indemnified Parties”) and hold each of the Indemnified Parties harmless against any losses, claims, damages, expenses (including the reasonable fees and expenses of their respective attorneys), liabilities, actions, proceedings, investigations (formal or informal), inquiries, or threats thereof to which any Indemnified Party may become subject, arising in any manner out of or in connection with any breach of the Agreement, infringement, or negligent act or omission of the Client. The Indemnified Party shall give Client prompt written notice of any third-party claim (a “Claim”); provided, however, that such notice shall not be a condition to Client’s indemnity obligations hereunder unless Client is materially and adversely affected by the Indemnified Party’s failure or delay in giving such notice. If Client has reconfirmed, in writing and in a timely manner, its obligations to indemnify the Indemnified Party for a particular Claim, and Client has provided the Indemnified Party with assurances satisfactory to the Indemnified Party, acting reasonably, that Client has sufficient resources to satisfy its indemnity obligations hereunder, then the Indemnified Party will allow Client to control the defense of such Claim as long as Client acts promptly and reasonably. The Indemnified Party will reasonably cooperate with Client in the defense of such Claim. Any settlement by Client must be approved by the Indemnified Party, with such approval not to be unreasonably withheld if the Indemnified Party receives a complete release of any such Claim. Notwithstanding anything herein stated, if in the Indemnified Party’s reasonable judgment, the interests of the parties conflict, the Indemnified Party may select, at the Indemnified Party’s expense, its counsel as long as the Indemnified Party provides Client notice of such selection within ten (10) business days after receiving service of a summons and complaint. Further, notwithstanding anything to the contrary herein, the Indemnified Party shall at all times have the right to fully participate in the defense of a Claim at its own expense directly or through counsel; provided, however, if representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct and either party obtains a written legal opinion to such effect, then the reasonable expense of separate counsel for the Indemnified Party shall be paid by Client.
16. Insurance. During the term of this Agreement and for a period of twelve (12) months thereafter, each of DIT and Client shall, each at their own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) with coverage limits no less than $1,000,000.00 per occurrence, and workers’ compensation insurance with coverage limits no less than those required by applicable law, with financially sound and reputable insurers. Upon DIT’s request, Client shall provide DIT with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms. Client shall provide DIT with thirty (30) days’ advance written notice in the event of a cancellation or material change in Client’s insurance policies. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against DIT’s insurers and DIT.
17. Compliance with Law. Each party shall comply with all applicable laws, regulations, and ordinances. Each party shall maintain in effect all the licenses, permissions, authorizations, consents, and permits required to carry out its obligations under this Agreement.
18. Term and Termination.
A. Each Purchase Order, unless otherwise stated therein, is effective as of the date listed on the signature page thereof and shall remain in effect for an initial term of twelve (12) months. Unless otherwise stated therein, each Purchase Order for Services shall automatically renew for a subsequent like term beginning on the day immediately following the end of the initial term unless either party provided the other ninety (90) days’ prior written notice of its intent not to renew the Purchase Order.
B. If either party terminates any or all of its Purchase Orders, in accordance with the termination provision set forth herein, Client may request DIT’s assistance in the orderly termination of the Services provided thereunder, including the timely transfer of the Services to another designated provider (“Transition Services”). Unless specifically included in a Purchase Order, Transition Services are outside the scope of any existing Purchase Order and performance of any Transition Services shall be pursuant to the terms of a separate, specific Purchase Order. Transition Services shall generally extend no longer than thirty (30) days following the termination of the underlying Services, unless specifically stated otherwise in the Purchase Order for Transition Services.
C. DIT may terminate this Agreement with immediate effect upon written notice to Client, if the Client fails to pay any amounts due under the Agreement or any Purchase Order(s). If DIT terminates this Agreement pursuant to this Section, DIT shall be entitled to accelerate and collect from Client all amounts due under the Agreement for the remainder of any applicable term.
D. Client may terminate the Agreement or any Purchase Order if DIT materially breaches any provision of the Agreement or any Purchase Order, if such breach is not cured within thirty (30) days after DIT receives written notice of such breach from Client, which notice shall set forth the breach in sufficient detail to facilitate a cure by DIT. If DIT terminates this Agreement, DIT shall be entitled to accelerate and collect from Client all amounts due under the Agreement for the remainder of any applicable term.
19. Waiver. No waiver by DIT of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by DIT. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
20. Intellectual Property. Client acknowledges and agrees that DIT has the exclusive right, title, and interest in and to its trademarks, patents, trade names, service marks, logos, programs and event names, identification and other proprietary rights and privileges in materials and Services provided by DIT.
21. Confidential Information. From time to time during the term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). For the avoidance of doubt, the Agreement shall be deemed Confidential Information, subject to the terms of this Section 21. Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 21 by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with: (x) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (y) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 21 caused by any of its Representatives. On the expiration or termination of the Agreement, the Receiving Party shall promptly return, and shall require its representatives to return, to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its representatives to prevent the breach or threatened breach of this Section 21 and to secure its enforcement.
22. Force Majeure. NO PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY, NOR BE DEEMED TO HAVE DEFAULTED UNDER OR BREACHED THIS AGREEMENT, FOR ANY FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY TERM OF THIS AGREEMENT, EXCEPT FOR ANY OBLIGATIONS OF CLIENT TO MAKE PAYMENTS TO DIT HEREUNDER, WHEN AND TO THE EXTENT SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM ACTS BEYOND THE IMPACTED PARTY’S (“IMPACTED PARTY”) REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING FORCE MAJEURE EVENTS (“FORCE MAJEURE EVENT(S)”): (A) ACTS OF GOD; (B) FLOOD, FIRE, EARTHQUAKE, EPIDEMIC, OR EXPLOSION; (C) WAR, INVASION, HOSTILITIES (WHETHER WAR IS DECLARED OR NOT), TERRORIST THREATS OR ACTS, RIOT OR OTHER CIVIL UNREST; (D) GOVERNMENT ORDER, LAW, OR ACTIONS; (E) EMBARGOES OR BLOCKADES IN EFFECT ON OR AFTER THE DATE OF THIS AGREEMENT; (F) NATIONAL OR REGIONAL EMERGENCY; (G) STRIKES, LABOR STOPPAGES OR SLOWDOWNS, OR OTHER INDUSTRIAL DISTURBANCES; (H) SHORTAGE OF ADEQUATE POWER OR TRANSPORTATION FACILITIES; AND (I) OTHER SIMILAR EVENTS BEYOND THE REASONABLE CONTROL OF THE IMPACTED PARTY. The Impacted Party shall, within ten (10) days of the Force Majeure Event, give notice to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal or cessation of the Force Majeure Event. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 22, either party may thereafter terminate this Agreement upon sixty (60) days’ written notice.
23. Non-Solicitation. Except to the extent prohibited by applicable law, Client agrees that, while this Agreement is in effect and for a period of twelve (12) months immediately following the termination of the Agreement, whether the termination is initiated by Client or DIT, and regardless of the reason for such termination, Client shall not directly or indirectly: (i) hire, offer to hire, employ, or knowingly permit or cause any company or business directly or indirectly controlled by Client to hire, offer to hire, or employ, any person who was employed by DIT at the time of, or within six (6) months prior to, the Agreement’s termination, or in any manner solicit or seek to induce any such person to leave his or her employment with DIT (including, without limitation, even if such individual first approaches Client or such company or business for employment); (ii) engage, offer to engage, or knowingly permit or cause any company or business directly or indirectly controlled by Client to engage or offer to engage, any vendor that was engaged by DIT to provide services to Client on DIT’s behalf during the term of this Agreement; (iii) knowingly solicit or induce, through the use of Confidential Information, any customer or consumer to patronize any business directly or indirectly in competition with DIT; or (iv) request or advise any person who is a customer or client of DIT to withdraw, curtail, or cancel any such customer’s or client’s business with DIT.
24. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of DIT. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement. DIT may assign this Agreement and any Purchase Orders by providing Client with written notice of such assignment.
25. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever, except that DIT shall have the authority to purchase Goods on behalf of DIT if so provided in a Purchase Order.
26. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
27. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
28. Dispute Resolution. In the event of a dispute, other than a dispute for non-payment or a matter that would cause irreparable harm, the parties agree that prior to commencing any legal suit, action, or proceeding, they will first attempt to resolve the matter through good-faith negotiation for a period of at least thirty (30) days.
29. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Jacksonville, Duval County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
30. Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding against the other party, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and court costs.
31. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth in the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
32. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
33. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Indemnification, Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
34. Amendment and Modification. These Terms may be amended or modified by DIT, by updating these Terms and indicating the last revised date of the amendment.
Revision Date: 04/09/2021
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