CTIconnect, LLC Terms of Service
Please read these Terms of sale ("Terms", "Terms and Conditions") carefully before using the https://cticonnect.com/ website (the "Service") operated by CTIconnect, LLC ("us", "we", or "our"). Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. By accessing or using the Service you agree to be bound by these Terms.
In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings when used in this Agreement:
a. “Buyer” means jointly and severally the individual(s) or entity(ies) executing the Contract with CTIconnect and of each Buyer’s parents, subsidiaries and affiliated entities to which CTIconnect sells or otherwise provides Goods in connection with the Contract. Any reasonably certain identification of “Buyer,” considered in context, is sufficient to identify Buyer for purposes of this Agreement, even if the name of the Buyer as provided is incomplete or inaccurate.
b. “Carrier(s)” means any common carrier or other person or entity that takes possession or control of the Goods for the purpose, in whole or in part, of shipping the Goods, or causing the Goods to be shipped, on any leg of the journey from Shipping Point to Buyer, including loading, unloading, transshipping and any excursions from the planned route.
c. “Claim(s)” means claims, demands and actions of every kind or type, known or unknown, arising in contract, tort, negligence, strict liability, warranty or otherwise, regardless of how styled or presented, including for contribution or indemnity or as a claim, counterclaim, affirmative defense or otherwise.
d. “Document(s)” means written and visible information and all tangible things, including information in electronic form that is visible or reasonably capable of being converted into visible form. “Document(s)” includes emails, SMS messages, text messages and other electronic communications, audio and video recordings, letters, memoranda, notes and agreements.
e. “Goods” means the devices, equipment and materials and all other tangible things sold, shipped or otherwise provided by or on behalf of CTICONNECT to Buyer including purchased Goods, samples and prototypes.
f. “Invoice” means an invoice or other written request for payment provided to Buyer from CTIconnect that identifies or refers to the Goods and indicates the purchase price of the Goods.
g. “Invoiced Sums” means the purchase price of Goods and all other charges, including NPP Charges, that an Invoice identifies as owed by Buyer to CTIconnect.
h. “NPP Charges” and “Non-Purchase Price Charges” means charges for shipping, Taxes, insurance, administrative fees, interest and other charges not constituting the actual purchase price of the Goods as specified in the Invoice.
i. “Rejectable Goods” means, subject to and as modified by the terms of this Agreement, Goods that Buyer is entitled to reject on the basis that the Goods fail to conform to the parties’ contract pursuant to Section 2-601 of the Uniform Commercial Code, codified at 810 ILCS 5/2-601. Goods constitute “Rejectable Goods” only if Buyer complies in full with the terms of this Agreement when rejecting the Goods.
j. “Shipping Point” means the “Shipping Point” or “FOB” or “Free on Board” location or other point of origin specified in the Invoice. If the Invoice does not specify a Shipping Point, the Shipping Point is deemed to be CTIconnect’s warehouse dock or other facility or location at which the Goods are made available to Buyer or any Carrier for shipment to Buyer by CTIconnect, including a manufacturer’s or distributer’s dock, if goods are shipped from the manufacturer or distributor to Buyer and not to CTIconnect first.
k. “Taxes” means all government-mandated charges, including sales taxes, surcharges, duties or fees levied on the manufacture, sale, shipment or use of the Goods.
l. Additional definitions: “including” means including but not limited to; “includes” means includes but is not limited to.
2. This Agreement Controls; Modification
a. This Agreement governs all transactions between CTIconnect and Buyer related to Goods, including the ordering, sale, shipment, delivery, receipt, payment for, allocation of liabilities for, and use of the Goods. To the extent permitted by law, the terms of this Agreement supersede and render inoperative conflicting and inconsistent terms of the Uniform Commercial Code and other applicable laws.
b. Except as set forth in Subsection 2.c., below, this Agreement supersedes and renders inoperative conflicting and inconsistent terms in all current and future (1) signed and unsigned Documents, including purchase orders, requests for proposal, requests for quotation, shipment-related Documents and delivery-related Documents (collectively, “Buyer Order and Shipping Documents”) and (2) verbal communications and agreements. It is expressly agreed that no statement, arrangement, warranty, or understanding, oral or written, express or implied, will be recognized unless it is expressly stated herein, or in the Contract or any Invoice.
c. The terms of this Agreement may be modified solely by:
(1) The express terms of an Invoice, but only as to the specific Goods identified in the Invoice; or
(2) A writing signed by an Officer of CTIconnect and Buyer that explicitly states that the writing is an “Amendment to Terms of Sale Agreement,” identifies the Parties, the effective date of the Contract and the effective date of the amendment. No other purported modification will be effective to alter this Agreement.
d. If all or any portion of any provision of this Agreement becomes, or is declared by an arbitrator or arbitrators of competent jurisdiction (“Arbitrators”), or by the Parties, or if permissible under this Agreement a court of competent jurisdiction, to be unenforceable for any reason, the offending provision(s), to the extent necessary to restore the enforceability of the Agreement, will be severed from this Agreement, and the Parties will replace the offending provision with a valid, enforceable and fair provision that will achieve, to the extent reasonably possible, the same economic, business and other purposes of the offending provision. If within fourteen (14) days from the date on which the offending provision is deemed or agreed to be unenforceable, the Parties fail to agree to a replacement provision, each Party will present the Arbitrators with one (1) proposed replacement wording. The Arbitrators will select, without modification, the submitted wording that best conforms to the terms and intent of this paragraph. Neither Party will serve the other Party with the replacement wording submitted to the Arbitrators, but the Arbitrators will promptly provide both Parties’ respective replacement wordings to the Parties.
Shipment; Deemed Delivered to Buyer; Buyer Bears Risk of Loss or Damage During Shipment
e. Unless otherwise specified in the relevant Invoice, CTIconnect will provide the Goods Free on Board (“FOB”) at the Shipping Point.
f. CTIconnect may, but is not obligated to, agree to ship or pay a Carrier for shipping Goods from the Shipping Point to Buyer.
g. Regardless of whether CTIconnect or Buyer ships, pays for shipping, or arranges or participates in arranging shipping, Goods are deemed delivered to, and received by, Buyer at the Shipping Point when Carrier or Buyer takes possession or control of the Goods. All risk of loss and damage to the Goods passes to Buyer at the Shipping Point when Buyer is deemed to take delivery of the Goods pursuant to the preceding sentence.
h. CTIconnect is not obligated to declare the value of Goods to any Carrier or to purchase insurance covering loss or damage to Goods during shipment, regardless of whether CTIconnect contracts with the Carrier to ship the Goods. CTIconnect will not, in the normal course of business, declare the value of or pay for insurance from any Carrier. Buyer is obligated to timely notify CTIconnect in writing if Buyer wishes CTIconnect to obtain insurance on any shipment of Goods. Buyer is responsible for paying CTIconnect’s costs of procuring all such insurance, including, in CTIconnect’s discretion, CTIconnect’s administrative costs incurred in obtaining the insurance. CTIconnect may designate one (1) or more forms that Buyer is obligated to complete and submit to CTIconnect in accord with instructions on the forms for Buyer to request CTIconnect to declare the value of any shipment of Goods or purchase insurance covering loss or damage to the Goods during shipment.
i. Buyer or Carrier are responsible for loading the Goods onto any truck or other vehicle or vessel used to transport the Goods. CTIconnect may voluntarily assist in loading or may load the Goods onto the transport vehicle or vessel or onto any pallet, gondola or cart of other implement of shipping as part of the process of loading the Goods onto the transport vehicle or vessel. (The actions described in the preceding sentence are collectively referred to as “CTIconnect Loading Assistance.”) CTIconnect disclaims all liability for Claims arising from CTIconnect Loading Assistance, and Buyer agrees to defend, indemnify and hold CTIconnect harmless from and for all Claims arising from or related to CTIconnect Loading Assistance.
j. In addition to paying the purchase price of the Goods, Buyer is solely responsible for paying all shipping costs and other NPP Charges, including cost increases after shipping costs are quoted by CTIconnect or others.
k. CTIconnect will make reasonable efforts to comply with Buyer’s timely written shipping instructions that are reasonable, appropriate, clear and specific. In the absence of instructions meeting this standard, CTIconnect may select any available shipping method or Carrier without regard to route. In doing so, CTIconnect disclaims all responsibility for the adequacy or appropriateness of the shipping method, Carrier and route, and the possession and risk of loss or damage will pass to Buyer as specified in Subsection 3.c., above.
l. All delivery dates provided by or through CTIconnect or any Carrier are estimates and are not guaranteed.
3. Rejectable Goods and Returns; RMA
a. Buyer will promptly unpack and inspect all Goods that Buyer receives. Within three (3) days of receiving Rejectable Goods, Buyer will inform CTIconnect verbally or in writing of the identity of any Rejectable Goods Buyer has received and the reason(s) that the Goods are Rejectable Goods.
b. Within five (5) days of receiving Rejectable Goods, Buyer will provide CTIconnect with the following information in writing regarding such Rejectable Goods:
(1) Applicable purchase order number;
(2) Applicable Invoice;
(3) Shipping date;
(4) Delivery date to Buyer’s facility;
(5) The specific Goods, by serial number or, if no serial number is available, by line item on the relevant Invoice, that Buyer contends are Rejectable Goods;
(6) The specific reason(s) that each of the Goods is Rejectable Goods;
(7) The date on which Buyer intends to return the Goods to CTIconnect, subject to the provisions of this Agreement; and
(8) Copies of all Buyer Order and Shipping Documents, test results, photographs, video tapes and other information in Buyer’s possession or control related to the Rejectable Goods, including the reasons that Buyer contends the Goods are Rejectable Goods.
c. Buyer must return Rejectable Goods no later than ten (10) days after receiving such Rejectable Goods from CTIconnect.
d. Buyer must obtain a Return Materials Authorization (“RMA”) form from CTIconnect before returning Goods, including Rejectable Goods, to CTIconnect. CTIconnect is entitled to reject delivery of returned Goods, including Rejectable Goods, not accompanied by a CTIconnect-issued RMA affixed to the shipping package in compliance with this Agreement, including Subsection 4.b, above.
e. All returned Goods, including Rejectable Goods, must be repacked in their original packaging and accompanied by a complete packing list. A clearly visible CTIconnect-issued RMA number must be within, and a second CTIconnect-issued RMA number securely affixed to the outside of, each carton or container returned.
f. Buyer’s failure to comply with the provisions of this Section 4., will permanently waive any right Buyer may have to reject Goods that Buyer receives.
g. All sales are final, and, excepting only Rejectable Goods rejected in compliance with this Section 4., Buyer has no right to return Goods once purchased. CTIconnect may, in its sole discretion, allow Buyer to return specific Goods or specific categories of Goods without requiring strict compliance with the provisions of this Section 4. in the sole and exclusive discretion of CTIconnect. In doing so, CTIconnect will not be deemed to have established, in whole or in part, a course of dealing applicable to other Goods or to have waived strict compliance with this Section 4.
a. Buyer is obligated to pay all Invoiced Sums in full on or before the payment due date shown in the Invoice, or, if no payment due date is shown in the Invoice, then by the date indicated by Section 6. of this Agreement.
b. CTIconnect’s pricing for Goods does not include Taxes or other NPP Charges. Buyer is solely responsible for payment of all Taxes, shipping costs and other NPP Charges, in addition to the purchase price of the Goods.
c. CTIconnect purchase price discounts apply solely to the purchase price of Goods. No discounts are available on NPP Charges.
d. All statements in any Invoice or other Document, including this Agreement, regarding early payment discounts or other discounts on the purchase price of Goods are contingent upon Buyer’s timely payment of all prior CTIconnect Invoices. Any Buyer with past-due balances owed to CTIconnect at the time of invoicing will not be entitled to receive otherwise available discounts on the purchase price of Goods.
e. All CTIconnect price quotations and standard pricing lists are contingent on market conditions. When submitting its Invoice to Buyer, CTIconnect may increase its previously quoted or list prices due to currency rate fluctuations, wholesale price increases, material cost increases and other marketplace changes.
5. Payment and Nonpayment
a. Unless otherwise specified in the Invoice or permitted by this Agreement, Buyer’s payment for Goods is due in full at the remittance address provided by CTIconnect within thirty (30) days of the Invoice date.
b. Buyer will pay interest on all past-due balances at the rate of one and one-half percent (1.5%) per month compounded or the highest rate permitted by law, whichever is lower.
c. In addition to all other remedies available to CTIconnect under applicable law, if Buyer fails to timely pay sums due to CTIconnect, Buyer authorizes CTIconnect to take the following actions without notice:
(1) Cancel all further deliveries and retain all associated payments and deposits up to the amount owed by Buyer, including interest, fees, expenses and any NPP Charges that CTIconnect incurs; and
(2) If Buyer has signed a CTIconnect “Balance Due Electronic Withdrawal Form,” withdraw the full amount due from Buyer’s bank account via ACH or other means of withdrawal; and
(3) If Buyer has executed a CTIconnect “Balance Due Credit Card Payment Form,” charge Buyer’s credit card the full amount due to Buyer’s credit card on file with CTIconnect.
d. Buyer will pay on demand all sums, including court and litigation- and arbitration-related costs and attorney’s fees, costs, and expenses incurred in any efforts by CTIconnect in connection with enforcing this Agreement, the Contract, or any Invoice, including collecting sums due from Buyer, whether or not a lawsuit is filed or arbitration is commenced. Buyer will also reimburse CTIconnect at $110 per hour for time incurred by CTIconnect’s employees and contractors involved in CTIconnect’s efforts to enforce this Agreement, based on CTIconnect’s reasonable estimates of the time incurred.
e. Buyer will strictly comply with the following procedures for contesting Invoiced Sums.
(1) Buyer will promptly review and confirm the Invoiced Sums. Within ten (10) days of receiving each Invoice, Buyer will:
(A) Notify CTIconnect of all Invoiced Sums and portions of Invoiced Sums that Buyer contends, or may at any time in the future contend, do not conform to the Parties’ agreement regarding the Goods and NPP Charges that are part of the Invoiced Sums (“Contested Sums”);
(B) Provide CTIconnect with all Documents and information in Buyer’s possession or control regarding the Contested Sums; and
(C) Explain in writing to CTIconnect all bases on which Buyer contends it does not owe the Contested Sums.
f. Buyer acknowledges that Buyer’s strict compliance with the time frames and disclosure obligations set forth in Subsection 6.e., above, is necessary to enable CTIconnect to timely identify and respond to disputed charges and manage its billing and collection operations. Buyer’s failure to strictly comply with the notice and disclosure obligations of Subsection 6.e. with respect to Contested Sums will permanently waive any right Buyer may have to dispute the Contested Sums or to avoid paying the full amount of the Invoiced Sums, except that CTIconnect will promptly acknowledge and correct any Invoiced Sums that are the result of typographical errors, as determined in CTIconnect’s sole and exclusive discretion, or otherwise sums that CTIconnect has no rational basis for charging to Buyer, in CTIconnect’s sole and exclusive discretion.
g. If Buyer timely complies with Subsection 6.e., above, and the Parties do not resolve all disputes between them regarding the Contested Sums prior to the date on which payment under the Invoice is due, Buyer will timely pay that portion of the Invoice that Buyer has not timely contested in accord with Subsection 6.e., and will, at the time of payment, inform CTIconnect of the specific Contested Sums that Buyer is not paying and will specify Buyer’s reasons for nonpayment. CTIconnect will have the right to seek recovery of the Contested Sums pursuant to the terms of this Agreement.
6. Security Interest
a. Buyer grants CTIconnect a purchase money security interest (“PMSI”) in all Goods sold by CTIconnect to Buyer pursuant to the Uniform Commercial Code—Secured Transactions, 810 ILCS 5/9-101 et seq. (the “UCC”). If and to the extent that CTIconnect does not timely perfect its PMSI or fails to timely or adequately notify any party required to be notified under the UCC for purposes of perfection and priority, Buyer agrees and acknowledges that CTIconnect shall have a continuing security interest in all goods sold by CTIconnect to Buyer, which interest may be perfected at any time.
b. Buyer hereby authorizes CTIconnect to file any and all UCC-1 and UCC-3 financing statements and all other appropriate Documents in the public records, as and when deemed appropriate by CTIconnect, to perfect and maintain CTIconnect’s PMSI and further security interests in Goods. Buyer waives any and all obligations of CTIconnect to notify Buyer of such UCC-1 and UCC-3 financing statements, whether before filing or after.
c. The description of the collateral in which Buyer grants a security interest to CTIconnect is deemed set forth in each Invoice.
d. Buyer’s signature on this Agreement constitutes Buyer’s express written authorization for CTIconnect to perfect, preserve and foreclose each and every CTIconnect PMSI and other security interest in Goods granted through this Agreement.
e. Buyer will promptly execute all Documents and provide all cooperation reasonably requested by CTIconnect to assist CTIconnect to perfect, preserve and foreclose its PMSI and other security interests in Goods. If Buyer fails to comply with the preceding sentence, Buyer authorizes CTIconnect, and expressly appoints CTIconnect as its attorney-in-fact, to execute all such Documents on Buyer’s behalf.
f. Buyer will keep CTIconnect fully informed regarding the specific location, including street address and specific location at the address, of Goods subject to a PMSI or a security interest granted under this Agreement at all times until Buyer has paid all sums owed to CTIconnect in connection with such Goods.
g. If Buyer fails to timely pay sums owed to CTIconnect in connection with Goods, Buyer will, upon CTIconnect’s request, provide CTIconnect with access to the Goods and allow CTIconnect to remove and re-take possession of the Goods. Buyer will, at its cost, provide all assistance reasonably requested by CTIconnect to assist CTIconnect to remove and re-take possession of the Goods that have not been timely paid for. CTIconnect is permitted but not required to remove and re-take possession of the Goods that have not been timely paid for, and CTIconnect’s failure to do so does not diminish any of CTIconnect’s other rights against Buyer regarding payment of sums that Buyer owes to CTIconnect. If CTIconnect does remove and re-take possession of the Goods that have not been timely paid for, such removal and repossession does not equate to a satisfaction of amounts owed by Buyer to CTIconnect. Buyer will remain obligated for the full unpaid amount until CTIconnect is able to sell such removed and repossessed Goods and the amount owed by the Borrower for such Goods will only be reduced by the sale price minus administrative costs incurred by CTIconnect in selling such Goods and minus any fees, costs, and expenses incurred by CTIconnect, including attorneys’ fees, in removing, repossessing, and selling such Goods.
h. Buyer hereby authorizes law enforcement authorities with jurisdiction over the Goods within the scope of Subsection 7.g., above, to open and enter upon all property where the Goods are or reasonably may be found for the purpose of allowing CTIconnect to remove and take possession of the Goods, including removing the Goods from communications towers, data centers and other locations.
i. Buyer agrees to defend, indemnify and hold all law enforcement authorities and CTIconnect harmless for and from all Claims for damage to the Goods and real and personal property at each location from which law enforcement authorities or CTIconnect seek to remove, repossess, and/or reclaim the Goods, including damage to any lock, gate, door, tower or rack, in accordance with Subsection 7.h.
j. Buyer acknowledges and agrees that the Goods are specialized goods that have been manufactured in part specifically for Buyer and in the event Buyer fails to perform its obligations under this Agreement, the Contract, and/or any Invoice, CTIconnect cannot readily resell the Goods to another buyer. Therefore, Buyer agrees that it may not cancel this Agreement, the Contract, and/or any Invoice after receipt of Goods and that CTIconnect may seek to enforce Buyer’s specific performance of this Agreement, the Contract, and/or any Invoice.
7. Force Majeure
a. As used in this Agreement, “Force Majeure” means any cause beyond CTIconnect’s reasonable direct control, including government action, war, embargoes, labor strife, labor shortage, fire, flood, tornado or other casualty, shortage of materials, fuel, production facilities or transportation, unavailability of devices, materials, equipment and other tangible things, and contingencies of design, manufacture, warehousing and shipment.
b. CTIconnect is not liable to Buyer for CTIconnect’s delay in performing or failure to perform its obligations to Buyer if the failure is due in whole or material part to a Force Majeure event. If, despite the Force Majeure event, CTIconnect believes that it is reasonably capable of performing within thirty (30) days of the date that its original performance was due, CTIconnect’s time for performance will, upon CTIconnect’s notice to Buyer, be extended for 30 days from the original due date. If, at the conclusion of the 30-day period, CTIconnect has not performed, the Parties’ contract will be deemed cancelled from inception, and CTIconnect will refund Buyer’s deposits and advance payments for the affected Goods.
8. Limited and Exclusive Warranty
a. In lieu of all other warranties of every type, CTIconnect warrants that CTIconnect will provide Buyer with Goods that appear to CTIconnect to be of the make, model and quantity that CTIconnect has agreed to provide to Buyer.
b. The limited warranty in the preceding Subsection 9.a. is the sole and exclusive warranty provided with respect to Goods. CTIconnect expressly disclaims all other representations and warranties, express or implied, oral or written, including any warranty of merchantability, fitness for a particular purpose or warranty claimed to arise from course of dealing, usage or trade practice.
c. Statements in CTIconnect’s marketing and advertising materials and CTIconnect’s other statements not contained in this Agreement related to the Goods, do not constitute representations or warranties, and Buyer will not rely on such statements as representations or warranties. All such statements are superseded and rendered nonactionable by the disclaimer in Subsection 9.b., above.
d. As a distributor and reseller, CTIconnect sells goods manufactured by others and may provide specifications and other information related to goods manufactured by others. Buyer acknowledges that CTIconnect makes no representation or warranty whatsoever regarding the accuracy of any such specifications or other information and that Buyer assumes sole responsibility for investigating and confirming the accuracy of all such specifications and information.
9. Limitation of Claims and Claim Procedures
a. Buyer’s sole and exclusive remedy for CTIconnect’s breach of any warranty owed to Buyer is strictly limited to repair or replacement (in the form originally shipped) of the Goods or, at CTIconnect’s option, repaying or crediting Buyer with an amount equal to the purchase price, excluding NPP Charges, that Buyer paid for the Goods.
b. Under no circumstances will CTIconnect be liable to Buyer for incidental or consequential losses, damages or expenses directly or indirectly arising from or related to the Goods or the timeliness or other aspects of CTIconnect’s sale or delivery of the Goods (“Consequential Damages”), including Claims for lost profit, lost business opportunity, damage to reputation or loss of goodwill. Buyer irrevocably waives any right to recover Consequential Damages from CTIconnect.
c. Buyer will file any complaint in a court of competent jurisdiction or any arbitration demand as permitted by this Agreement with respect to Claims related to any alleged defect in the design or manufacturing of, or materials used in, the Goods:
(1) Within one hundred and eighty (180) days of the date Buyer discovers or should have, with diligent inspection and testing, discovered the defect or deficiency; or
(2) Within the limitations period provided by applicable law, whichever is sooner.
d. Buyer irrevocably waives and abandons all Claims that are untimely pursuant to this Section 10.
10. Assumption of Risk and Indemnification
a. Buyer assumes all risk and liability for Claims arising from or related to Buyer’s use, incorporation into other products or systems, deployment, sale and all other dispositions of Goods by Buyer.
b. Buyer acknowledges that some or all of the Goods may be subject to United States export restrictions. Buyer is solely responsible for obtaining all required licenses, permits and approvals required to export Goods from the United States, import the Goods into other countries or otherwise move the Goods from the United States to any country other than the United States.
(1) Buyer acknowledges that, even if CTIconnect is aware of Buyer’s intent to export the Goods or remove the Goods from the United States, CTIconnect assumes no responsibility whatsoever for Buyer’s compliance with export restrictions, U.S. embargo laws or other laws or regulations that may affect Buyer’s exportation of the Goods. No representative of CTIconnect is authorized by CTIconnect to make any statement, written or oral, regarding any such laws or regulations.
c. Buyer agrees to defend and indemnify CTIconnect and hold CTIconnect harmless from all Claims described in Subsection 11.a., above, and all Claims against CTIconnect that may arise out of Buyer’s violation of laws or regulations referenced in Subsection 11.b., above, including paying the reasonable attorneys’ fees and expenses of an attorney selected by CTIconnect to protect CTIconnect’s interests with respect to any such Claim(s).
11. Buyer’s Warranties Regarding Related Documents
a. Buyer warrants that all statements and information that Buyer submits or has submitted to CTIconnect related to the Goods are and will be accurate and not materially incomplete or misleading. Buyer assumes all risks or loss and agrees to indemnify CTIconnect for all Claims arising from or related to inaccuracies in or the incompleteness or misleading nature of statements or information that Buyer provides to CTIconnect in any Document or otherwise.
b. Buyer warrants that its Bank Credit Reference Information, Credit Application and all other credit-related information provided to CTIconnect is and will be accurate and not misleading or materially incomplete.
c. Buyer’s breach of this Section 12 constitutes a material breach of this Agreement and the Contract.
12. Governmental Restrictions on Goods
a. Buyer accepts full responsibility for complying with all government-imposed restrictions on the use, transport and re-sale of Goods.
b. The United States Government may preclude the use, within the United States, of certain Goods pursuant to laws, executive orders or regulations (“U.S. Domestic Use Restrictions”). These Goods or the packaging for or Documents included with the products may or may not be marked “For Export, non-U.S.,” “Rest of World,” or may have other markings or wording indicating that the Goods are not to be used in the United States. The United States Government may also restrict the export of certain Goods pursuant to laws, executive orders or regulations (“U.S. Export Controls”).
c. From the time that Buyer is deemed to take delivery of the Goods pursuant to Subsection 3.c., above, Buyer is solely responsible for ensuring that the Goods are used in compliance with all U.S. Domestic Use Restrictions and shipped and exported in accord with all U.S. Export Controls.
d. Buyer will promptly execute all Documents required or recommended, including as “best practices,” by any agency of the United States Government or reasonably requested by CTIconnect related to Buyer’s compliance with U.S. Domestic Use Restrictions, U.S. Export Controls or other governmental restrictions on the use, transport, sale or other disposition of the Goods.
a. Excepting only a verbal notice provided pursuant to Subsection 4.a., above, all notices permitted or required by this Agreement will be in writing and will be sent via email to the email address listed in the Contract for Buyer and CTIconnect respectively.
b. If the Party sending a notice pursuant to this Agreement (“Sending Party”) requests confirmation of receipt, the Party receiving the notice (“Receiving Party”) will promptly cooperate in confirming receipt, including ensuring that the Sending Party’s notice email did not go to the Receiving Party’s spam folder.
c. If the Sending Party is unable to confirm the Receiving Party’s receipt of one or more emailed notices sent pursuant to this Agreement, the Sending Party will send the notice(s) via overnight courier, such as FedEx or UPS, or messenger to the address for such Party referenced in the Contract.
d. Notwithstanding Subsection 14.a., above, either Party may specify a different address for notices by sending a notice that includes the subject line: “Terms of Sale Agreement—Change of Address for Notice,” or similar language that reasonably informs the Receiving Party that the purpose of the notice is to change the Sending Party’s address for notices sent pursuant to this Agreement and the Contract.
14. Headings for Convenience
The headings used in this Agreement are for convenience and do not in any way limit or otherwise affect the provisions of this Agreement.
15. Access to Counsel; Contra Proferentem Waived
Each Party acknowledges that it has carefully read this Agreement and has reviewed, or had the opportunity to review, this Agreement with counsel and raise questions regarding and seek changes in any provision that the Party believes to be vague or ambiguous. The parties waive and agree not to raise any argument that any claimed ambiguity in this Agreement should be construed against the drafter.
16. Choice of Law, Forum and Arbitration
a. This Agreement and all rights and obligations under this Agreement, including matters of construction, validity and performance, are governed by the laws of the State of Illinois, without regard to its conflict of laws standards. Notwithstanding any other provision of this Agreement, the United Nations Convention on Contracts for the International Sale of Goods and other international treaties that are inconsistent or in conflict with this Agreement do not apply to transactions between CTIconnect and Buyer.
b. Subject to Subsection 17.c., for all Claims arising from or related to the Goods or the formation, effect, interpretation, performance or breach of this Agreement, the Contract, and/or any Invoice, whether in law or in equity, the Parties consent to the exclusive personal jurisdiction of the state and federal courts located in each of the following locations: (i) West Palm Beach County within the State of Florida; (ii) Cook County within the State of Illinois; and (iii) DuPage County within the State of Illinois. The Parties admit that the courts referenced in this Subsection 17.b. shall have personal jurisdiction over each of them. The Parties waive any and all rights to a jury trial. This waiver of right to trial by jury is given knowingly and voluntarily by the Parties, and is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue. The Parties acknowledge that they have been represented by, or have been afforded adequate opportunity to be represented by, competent counsel and have consulted, or have had adequate opportunity to consult, Such counsel before agreeing to the terms herein.
c. Notwithstanding the preceding subsection, Subsection 17.b., or any other part of this Agreement, any Claim arising from or related to Goods or the formation, effect, interpretation, performance or breach of this Agreement or the Contract may be resolved, upon the written request of either Party made prior to that Party filing its pleading (not including any request to require arbitration) in litigation involving the matter to be arbitrated, by final and binding arbitration under the then-applicable rules of JAMS, Inc. (formerly Judicial Arbitration and Mediation Services) in either Boca Raton, Florida, or Chicago, Illinois. The Parties agree that if a Party files a request for arbitration, the matter shall proceed to arbitration in accordance with this Subsection 17.c.; provided, however, that if a Party has commenced litigation against the other Party, the other Party shall not move or request that the matter proceed to arbitration more than sixty (60) days after such litigation commenced, and such other Party waives its rights under this Subsection 17.c. after this sixty-day period.
17. Successors and Assigns
This Agreement is binding on the Parties’ respective successors, assigns, heirs and administrators.
18. Facsimile Signatures and Counterparts
The Contract may be executed in counterparts, each of which will be deemed to be an original, and all such counterparts together will constitute one (1) agreement. The Parties acknowledge that facsimile and emailed copies, including PDF and scanned copies of their respective signatures, will be treated as original signatures.
CTIconnect may waive any single default by Buyer hereunder without waiving any other prior or subsequent default and may remedy any default by Buyer hereunder without waiving the default remedied. Neither the failure or delay by CTIconnect in exercising any right, power, or remedy upon any default by Buyer hereunder shall be construed as a waiver of such default or as a waiver of the right to exercise any such right, power, or remedy at a later date. No single or partial exercise by CTIconnect of any right, power, or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right, power, or remedy hereunder may be exercised at any time and from time to time.
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