Company Policies

Return Policy
Auto-Shipment Policy
Payment Plan Policy
Trial (Loaner) Policy
Software License Agreement
  Referral Program Policy
Late Fees
Privacy Policy
Terms

Return Policy

Innovative Technologies by Design, Inc. ("ITD, Inc." or "We") will adhere to this official Return Policy, and accepted returns and given refunds/credits will only be granted in accordance with this Policy, in all cases except those expressly agreed to in writing by an authorized ITD, Inc. representative.

All returns must be received by ITD, Inc. within 30 calendar days from the date of delivery confirmation. Returns will not be accepted without prior authorization from ITD, Inc. and an RMA number, which can be obtained by contacting ITD, Inc. directly. Returned products will be shipped to ITD, Inc. at the customer's expense.

Returns will be accepted only in cases of defective goods or expired Trial Periods. Defective goods are defined as such when the product does not perform as intended by ITD, Inc., except as limited by this Policy. Returns will not be accepted for items damaged in shipping. In this case, you must file a claim with the carrier.

Returns will be accepted only on non-activated products. Once a product is activated, return/refund will not be issued.

ITD, Inc. does not satisfy return requests based on incompatibility of our products with third-party software and/or hardware. We do not guarantee that our products are fully compatible with any third-party software and/or hardware and we do not provide support for third-party applications.

Refunds will be given only for products returned in undamaged, resalable condition, as inspected by ITD, Inc. upon receipt of returned goods. The returned goods must include all original components, literature, and packaging, received in the same salable condition in which it was received. The customer will be assessed a charge for repair of any damaged goods returned to ITD, Inc., and this charge will be subtracted from any applicable refund or credit for the return.

Refunds will not be given for used consumable items, such as labels. Label returns will only be accepted and refunded if the roll is complete and unused. Refunds will not be given for intangibles/services, such as software customization or training.

If made in full accordance with ITD, Inc. Policies, returns will be given a refund or credit for the purchase price, excluding shipping/handling fees. Upon receipt of the product(s), refunds will be issued promptly via check, except in cases where the customer paid by credit card, in which case refund will be issued to the purchasing credit card.

All returns are subject to a restocking fee equal to 15% of the purchase price. This restocking fee will be subtracted from any applicable refund or credit for the return.

Auto-Shipment Policy

Customers enrolled in the Auto-Shipment Program ("Auto-Ship") will automatically receive their label rolls at the beginning of every month and be billed for labels, tax (if applicable) and shipping/handling to their payment method on file. Customers enrolled in Auto-Ship may qualify for discounted label prices as determined by Innovative Technologies by Design, Inc. (ITD, Inc.).

To enroll in Auto-Ship and to qualify for these discounted label prices, a customer must authorize automatic monthly billing of a minimum order of 4 rolls of labels per month. ITD, Inc. must have an order form on file indicating Auto-Ship enrollment, signed by an authorized representative of the customer. A customer may change the method of payment, label type/size, and number of labels (minimum of four rolls) at any time by contacting ITD, Inc. directly. Labels will be shipped via UPS and with aim to arrive by the first business day of every month.

Once an Auto-Ship order is placed on hold or stopped, any future orders will be charged the standard label prices. If a customer is not on Auto-Ship, he/she will be charged the standard label prices for any order they place.

Payment Plan Policy

Payment Plans are available only by offer of Innovative Technologies by Design, Inc. (ITD, Inc.). Not every customer or transaction is eligible for a Payment Plan.

Payment Plan applies to the main unit only and does not include any applicable taxes, shipping and handling, or accessories/labels/services ("extras". Taxes, shipping and handling, and extras will be billed in first month's payment.

Unless otherwise agreed upon by ITD, Inc. in writing, the duration of the Payment Plan will be 3 months and the due date for payments will be the first of the month. Any payments not received by the due date may incur a late fee of 2.5% of the order total, charged daily until payment is received in full.

Trial (Loaner) Policy

Innovative Technologies by Design, Inc. ("ITD, Inc.") will provide the customer, without charge for 30 days, one product trial unit ("Unit"). ITD, Inc. cannot, and hereby disclaims, any responsibility for use of this Unit. All warranties with respect to the unit, including, without limitation, any warranty of merchantability or fitness for a particular purpose, are hereby expressly disclaimed. The customer will be responsible for shipping and handling charges.

In consideration of the delivery of the Unit to the customer without charge for 30 days, the customer agrees to share only with ITD, Inc., on a strictly confidential basis (i.e., all demonstration results will be maintained as confidential internal information by each of us), all results of your demonstration/loaner procedures.

All trial units and their respective transactions are subject to the ITD, Inc. Return Policy.

Referral Program

The Referral Program offers 4 free rolls of labels to Prep-Pal customers for referring new customers. Four free rolls of labels will be awarded for every Prep-Pal unit the referral purchases in full.

This program is valid only for current customers whose accounts are paid in full and in good standing ("referrer"). The program is not valid for customers currently on trial basis or Payment Plan.

Free rolls will be awarded to the referrer after the initial 30 days after a referrer's purchase in full and after the initial 30 days after a referral's purchase in full. A referral counts as any new customer not currently in the ITD system as a customer, potential customer, or past customer. Limit one referrer / Free Roll offer per referral. A referrer may refer more than one referral.

Free rolls will be of the size and type of the referrer's last order. If the referrer is on our Auto-Shipment program, we will credit your account for the free rolls you earn, and that credit will be reflected in his/her next onthly shipment of labels.

Late Fees

For any bill for which payment is not received by the due date, the bill may incur a late fee of 2.5% of the order total, charged daily until payment is received in full.

Privacy Policy

Your privacy is very important to us. This privacy policy discloses how Innovative Technologies by Design ("ITD") collects, protects, uses and shares personal information gathered about you. All Personal Information is collected in a fair and non-intrusive manner, with your voluntary consent. Personal Information is not accessible to anyone outside the specific function for which it is collected. ITD respects the privacy of our customers, our employees, job applicants, and other visitors to our websites who may choose to provide personal information. We recognize the need for appropriate protections and management of personal information that you provide to us. This Privacy Policy will assist you to understand what types of information we may collect, how that information may be used, and with whom the information may be shared.

This Privacy Policy explains ITD's practices regarding the information collected online from users of the ITD website located at www.i-tbd.com. In an effort to comply with the law, and our commitment to protect your personal information, we provide the following, which discloses our policies.

What type of information do we collect?
Personal Information is defined as any information concerning the personal or material circumstances of an identified or identifiable individual. An identifiable person is one who can be identified, directly or indirectly, by reference to a Social Security Number and/or Identification Number (hereinafter "SSN/I.N") or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Personal Information shall include but is not limited to: name, home address, home telephone number, email address, Social Security Number and/or Identification Number, financial information and employment related information such as may be found on resumes, applications, background verification information, or in employment references.

ITD takes measures to maintain the confidentiality of your SSN/I.N to protect your SSN/I.N from unlawful disclosure, and to limit access to your SSN/I.N. ITD will not make your SSN/I.N available to the general public, print your SSN/I.N on any card, require you to provide your SSN/I.N to access any products or services, transmit your SSN/I.N over the Internet unless the connection is secure or your SSN/I.N has been encrypted, or requires the transmittal of your SSN/I.N to access our Website without requiring additional authentication.

Non-personal information is information that is already a matter of public record or knowledge. Business contact information is considered non-personal information and not subjected to special protection and it can be routinely shared with anyone inside or outside of the business. Business contact information shall include but is not limited to: business name, business address, business telephone number, and is not considered personal information in certain jurisdictions.

We will never collect sensitive Personal Information except to comply with Affirmative Action data requirements. Sensitive Personal Information can include but is not limited to: information pertaining to gender, disabilities, and veteran status.

Cookies - Internet Users
In addition to Personal Information, we may use data collection devices such as "cookies" on certain web pages to help analyze our web page flow and measure promotional effectiveness. Cookies are pieces of information a website sends to an individual's hard drive while they are viewing the website. Cookies allow the website to remember important information that will make your visit to the site more useful. We use cookies to help improve your future visits. If you do not wish to receive a cookie or if you wish to set your browser to warn you each time a cookie is being sent, or if you wish to turn off all cookies, use the options on your browser to assist you. The "Help" option on your browser may assist you in changing your cookie preferences. Please note that by turning cookies off, you will not have access to many features available on our website.

Children and Data Collection
ITD adheres to the federal privacy protection standards as stated in the Children's Online Privacy Protection Act ("COPPA"). We care about the safety of children. We will not knowingly allow anyone under 13 to provide us any personally identifying information. Children under 13 years of age are required to obtain the express permission of a parent or guardian before submitting any Personal Information about themselves (such as their names, e-mail address, and phone number) over the Internet. We will use reasonable efforts to promptly delete the child's information from our servers if we become aware that a child under 13 has provided this information without the express permission required.

Our Use of Your Personal Information
We use your Personal Information to facilitate the services you request. We have tailored our Privacy Policy to adequately advise of the use of your Personal Information.

Collection and Use of Employee Personal Information
ITD may also collect Personal Information from its employees and applicants (human resource data) in connection with administration of its Human Resources programs and functions. These programs and functions include, but are not limited to: job applications and hiring programs, compensation and benefit programs, performance appraisals, training, access to ITD facilities and computer networks, employee profiles, internal intranet employee directories, Human Resource recordkeeping, Affirmative Action data, and other employment related purposes.

It is the policy of ITD to keep all past and present employee information private from disclosure to third parties. There are certain business related exceptions and they are:
  1. To comply with county, state or federal agency requests
  2. Inquiries from third parties with a signed authorization from the employee to release the information, except in situations where limited verbal verifications are acceptable (see below)
  3. Third parties with which ITD has contractual agreements to assist in administration of company sponsored benefits
  4. Verifications of Employment

Prospective employers, financial institutions, and residential property managers may contact ITD requesting information on a former or current employee's work history and salary. All such requests of this type shall be completed on a confidential basis.

For written verification of employment requests, information will be provided on the form only when it is accompanied by an employee's signed authorization to release information. The form will be returned directly to the requesting party.

Medical Information
ITD is compliant with federal HIPAA regulations and only utilizes information related to the company sponsored healthcare plan on a "need to know" basis for administration of the healthcare plan.

Collection and Use of Customer Information
A customer placing an order through the www.i-tbd.com website may be asked to provide Personal Information. Our third party service provider collects and processes customer information to expedite orders placed with us. The Personal Information collected shall include, but will not be limited to: name, e-mail address, telephone number, and credit card information. ITD will not collect Personal Information, unless you contact ITD directly. In the future, we may use this information to contact you regarding products or promotions, as well as other products and services, which may be of interest to you. If you do provide us with Personal Information we may use the information to contact you, via e-mail, regular mail, telephone or other means, to provide you with information that you requested about specific products or services, provide additional future information about products or services that may be of interest to you, and to learn about and develop products and services. If you do not want this information disclosed you may "opt out" of future contacts at any time by un-subscribing from our database.

Sharing of Personal Information
We may share Personal Information with our service providers, consultants and affiliates for our internal business purposes. Except as described in this Privacy Policy, ITD will not share Personal Information with a third party, unless a customer requests, consents to such disclosure, or disclosure is required or authorized by law. ITD reserves the right to disclose Personal Information to a third party if a law, regulation, search warrant, subpoena, or court order legally requires or authorizes us to do so. ITD also reserves the right to disclose and/or transfer Personal Information to a third party in the event of a proposed or actual purchase, sale, lease, merger, amalgamation or any other type of acquisition, disposal, or financing of all or any portion of ITD or of any of the business or assets or shares of ITD or a division thereof in order for a customer to continue to receive the same products and services from the third party.

Security
We endeavor to protect your Personal Information using physical, electronic or procedural security measures appropriate to the sensitivity of the information in our control. These measures include safeguards to protect Personal Information against loss or theft, as well as unauthorized access, disclosure, copying, use and modification.

We safeguard your Personal Information on the Internet by using industry-standard practices. Although "guaranteed security" does not exist either on or off the Internet, we make commercially reasonable efforts to make the collection and security of such information consistent with our Privacy Policy and all applicable laws and regulations. We maintain physical, electronic and procedural safeguards as appropriate to safeguard your Personal Information.

Currently, our website utilizes a variety of different security measures designed to protect Personal Information by users both inside and outside ITD, including the use of encryption mechanisms (e.g., Secure Socket Layers or SSLs), password protection, and other security measures to help prevent unauthorized access to your personally identifiable information. This helps maintain the confidentiality, privacy, and integrity of your transactions, and helps to protect your confidential information - such as credit card numbers, online forms and financial data, from loss, misuse, interception and hacking.

Storage, Retention and Accuracy of Personal Information
ITD insures that Personal Information is safeguarded against loss, access, use, modification, disclosure or other misuse. All reasonable steps are taken to prevent unauthorized use or disclosure of your Personal Information.

ITD will retain your Personal Information only for as long as necessary to fulfill the purpose(s) for which it was collected and to comply with applicable laws and your consent to such purpose remains valid after termination of our relationship with you.

We take all reasonable steps to insure that your Personal Information is accurate, up-to-date, complete, relevant and not misleading.

Contact Information
You may contact us to access, correct or delete your Personal Information. If you have any questions or complaints, please direct your communication to "ITD Privacy Officer" at:
  • (321) 676-3194
  • by Facsimile at: (321) 674-7018
  • by email at: info@itdfoodsafety.com
  • or by mail at 2475 Palm Bay Road | Suite 110 | Palm Bay, FL 32905-2928

We will address your concern and attempt to resolve any problem.

Links to Non-ITD Web Sites and Third Parties
Please note that www.i-tbd.com websites may contain links to other websites for your convenience and information. ITD does not control those sites or their privacy practices, which may differ from www.i- tbd.com ITD's privacy policy cannot and does not apply to external websites. We do not endorse or make any representations about third party websites. The personal data you choose to give to unrelated third parties is not covered by the ITD privacy policy. We encourage you to review the privacy policy of any company or website before submitting your Personal Information. Some third parties may choose to share their personal data with ITD; that sharing is governed by that third party company's privacy policy.

Changes to our Privacy Policy
ITD will update this Privacy Policy occasionally. When ITD posts changes to this Privacy Policy, we will also revise the "Last Updated" date below on ITD's Privacy Policy. If there are material changes to this Privacy Policy, ITD will notify you by email, or by means of a notice on our home page. ITD encourages you to review this Privacy Policy periodically to be informed of how ITD is protecting your information and to be aware of any changes to the Privacy Policy. Your continued use of the site after the posting of any amended Privacy Policy shall constitute your agreement to be bound by any such changes. This Privacy Policy is incorporated into any Terms and Conditions governing the various websites and any programs or services operated or managed on or behalf of ITD. Any changes to this Privacy Policy are effective immediately after being posted by ITD.

Software License Agreement

INNOVATIVE TECHNOLOGIES BY DESIGN, INC. dba ITD FOOD SAFETY
TEMP-TAKER® & PREP-PAL® Software License Agreement
NOTICE TO CUSTOMER: PLEASE READ THIS CONTRACT CAREFULLY. BY DOWNLOADING, INSTALLING, OR USING ALL OR ANY PORTION OF THE TEMP-TAKER® SOFTWARE, INCLUDING ANY UPDATE THERETO, YOU ACKNOWLEDGE AND AGREE THAT YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. YOU AGREE THAT THIS AGREEMENT, INCLUDING ALL ATTACHMENTS AND EXHIBITS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING BETWEEN YOU AND US RELATING TO THIS LICENSE, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS, AGREEMENTS, AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, BETWEEN YOU AND US. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE OR ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT INSTALL, DOWNLOAD, OR USE THIS SOFTWARE.

THIS SOFTWARE LICENSE AGREEMENT (the "Agreement"), is made by and between INNOVATIVE TECHNOLOGIES BY DESIGN, INC. and you as the customer. In this Agreement, the customer will be referred to as "you" or "your"; INNOVATIVE TECHNOLOGIES BY DESIGN, INC. will be referred to as "ITD" or as "we", "us" or "our."

WHEREAS, ITD has developed and is willing to supply the computer software, documentation, and related materials known as the Temp-Taker® Software (the “Software”) to you, subject always to the terms and conditions stated herein; and,

WHEREAS, you desire to obtain a license to use the Software strictly in accordance with the terms of this Agreement;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, you and we agree as follows:

(1) Use of the Software and License.

1.1 Scope of License. ITD grants to you a personal, worldwide, fully-paid, non-exclusive, non-transferable, non sublicensable, and perpetual (except as revocable under 7), license to use the Software, in accordance with the documentation and instructions supplied by ITD, and for your own internal use and evaluation purposes. You may make a reasonable number of copies of the Software subject to the license terms herein and solely for non-production archival or back-up purposes. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. No other copies shall be made without ITD's prior written consent.

1.2 Restrictions on License. You will not, directly or through others: (A) market, license, distribute, transfer, sublicense, or otherwise commercially exploit the Software, except as expressly contemplated herein for your own internal business purposes; (B) permit the use of the Software by others, except that you may permit your employees and third party subcontractors and agents (collectively, “Agents”) to use the Software for your internal business purposes only as described above so long as you ensure that your Agents are bound by appropriate restrictions on nondisclosure of ITD’s Confidential Information and will use the Software for your internal business purposes strictly in accordance with the terms of this Agreement; (C) modify or create derivative works of the Software or translate or port the Software into any other computer or human language without the prior written consent of ITD; (D) disassemble, reverse engineer, or decompile the Software or otherwise attempt to discover any portion of the object or source code or trade secrets related to the Software; (E) reproduce the Software without ITD’s copyright and trademark notices; (F) sell, lend, rent, give, assign, sublicense, or otherwise transfer or dispose of the Software; or, (G) use the Software to provide time-sharing, outsourcing, service bureau, application service provider, managed service provider environment, or similar services.

1.3 Ownership; Proprietary Rights. The Software is licensed, not sold, to you and any and all rights not specifically granted to you by this Agreement remain solely in ITD. The Software is protected by copyright, trademark, trade secret, and other proprietary rights of ITD, and you do not acquire any rights, express or implied, in the Software, other than those specified in this Agreement. No title to or ownership of the Software, nor any copyright, trademark, trade secret, or other proprietary right, is transferred to you under this Agreement. All modifications, adjustments, enhancements, bug fixes, error corrections, or other updates to the Software will become part of the Software, as applicable, and will remain the exclusive property of ITD.

(2) Use of Third Party Software. You understand that the Software is a software application that accesses, interacts with, and/or utilizes certain software object and/or source code obtained by ITD from third parties and that is separate from the Software (the “Third Party Software”). Together with its distribution to you of the Software, ITD is making some Third Party Software available to you via download or other distribution. In addition, following your installation of the Software, the Software will be able to and will, based on your instructions, connect to the internet and identify additional Third Party Software for download and installation on your computer. This identification and installation process will require you to provide certain information, including information about the Software as installed, all of which information will be gathered and used by ITD in accordance with its Privacy Policy then in effect. You understand and agree that all such Third Party Software is made available to you for the sole purpose of facilitating your download, installation, and use of the Software as permitted herein. You further acknowledge and agree that your use and distribution of any such Third Party Software is subject to the terms of the applicable Third Party Software license(s), and that you will comply with the terms of such Third Party Software license(s). You expressly acknowledge and agree that, prior to using the Third Party Software for any other purpose, and in any case before copying, modifying, or distributing any Third Party Software, you will confirm that you have all necessary rights and permissions to do so from the applicable third party licensor, which confirmation may include obtaining a separate license from the licensor expressly authorizing you to do so.

(3) You Will Not Use or Disclose Our Confidential Information. Confidential Information hereunder includes, but is not limited to, ITD Software specifications, Software source code, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, Software design and architecture, internal documentation, design and function specifications, Software requirements, analysis and performance information, benchmarks, Software documents, and other non-public technical, business, Software, marketing, and financial information, and plans and data of ITD (collectively, the “Confidential Information”). You agree that all Confidential Information is the confidential property of ITD, and, except with ITD’s prior written consent or as required (and then only to the extent required) by law, you agree to use any Confidential Information you obtain only as permitted by this Agreement, and not to disclose any Confidential Information to third parties. Notwithstanding the foregoing, you may disclose Confidential Information only to those of your Agents as is necessary for the use of the Software licensed hereunder, and only after such Agents have agreed in writing for our benefit to be bound by the obligations of nondisclosure at least as restrictive as those contained in this Agreement. Your nondisclosure obligations hereunder shall not apply to information you can document: (i) is generally available to the public other than through breach of this Agreement; (ii) is rightfully disclosed to you by a third party without any obligation of confidentiality; or, (iii) is independently developed by you without use of any ITD Confidential Information. Because of the unique and proprietary nature of the Confidential Information, you understand and agree that ITD's remedies at law for your breach of your obligations hereunder may be inadequate and that ITD shall be entitled to seek equitable relief (including, without limitation, provisional and permanent injunctive relief and specific performance). Nothing stated herein shall limit any other remedies provided under this Agreement or available to ITD at law or in equity. Upon expiration or termination of this Agreement for any reason, you will return or destroy all copies of all ITD Confidential Information in your possession or control.

(4) Communications and Feedback.
4.1 Feedback. In the course of your use of the Software and in connection with any related support or other services that may be offered to you by ITD (the “Services”), you may provide ITBD with comments and feedback regarding your use and evaluation of the Software, including any defect found therein and any recommendations for changes or modifications to the Software (the “Feedback”). Such Feedback may include, without limitation, any communication from you to ITD, including: (A) all messages, content, materials, or other communications posted to the ITD.com, preppal.com, or any other website(s) owned or maintained by ITD; and/or, (B) relating to your use and evaluation of the Software. Feedback may include communications regarding: (1) which portions of the Software have been used; (2) the nature of that use; (3) the extent or amount of use; (4) errors or difficulties discovered; and/or, (5) characteristic conditions and symptoms of the errors and difficulties. You acknowledge and agree that: (a) ITD may use, in any manner and for any purpose, the information gained as a result of your use and evaluation of the Software, including, without limitation, the Feedback; (b) all corrections, modifications, upgrades, or improvements to the Software based on such Feedback or other input shall be owned and retained entirely and exclusively by ITD; and, (c) ITD shall have no obligation to correct, upgrade, modify, or otherwise support or maintain the Software pursuant to this license to reflect any Feedback or otherwise.

4.2 Assignment. If you are ever held or deemed to hold any right, title, or interest (including, without limitation, any intellectual property right, moral right, or trade secret right) in or to: (A) the Software (including all changes, modifications, or corrections thereto) and/or any portion thereof; and/or, (B) the Feedback, whether by virtue of your provision of Feedback to ITD or otherwise; then you hereby irrevocably assign to ITD all such right, title, and interest. Such assignment includes all rights in or to any invention, work of authorship, mask work, idea, information, feedback, or know-how (whether or not protectable under applicable law) that is conceived, learned, or reduced to practice in the course of performance under this Agreement, and all patent rights, copyrights (including, without limitation, all moral rights, provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights, and all other intellectual and industrial property rights of any sort with respect thereto that in any way relate to or constitute Software or Feedback. In the event that any such right cannot be assigned, you hereby agree to waive enforcement worldwide of such rights against ITD and hereby grant to ITD an exclusive, fully paid, worldwide, irrevocable, perpetual license, with right to assign or sublicense through multiple tiers of sub-licensees, to use, reproduce, create derivative works of, publicly perform, publicly display, transfer, assign, and distribute in any medium or format, whether now known or later developed, any and all property that is subject to such rights. You agree to take any action reasonably requested by ITD to evidence, perfect, obtain, maintain, enforce, and/or defend the foregoing, including, without limitation, executing any and all documents necessary to implement and confirm the letter and intent of this Agreement.

(5) WARRANTY AND DISCLAIMERS AND LIMITS OF LIABILITY.
5.1 Software Warranties. The Software is warranted to be free from defects in workmanship for ninety (90) days from download by you, unless extended warranties are provided by separate written agreement. ITD also warrants that the Software shall conform to any Software technical specifications supplied by ITD to you. ITD’s sole liability and obligation to you in connection with any breach of the warranties contained within this §5.1 shall be to repair or to replace the defective item.

5.2 Warranty Disclaimer. You acknowledge that, except to the extent otherwise provided in §5.1 of this Agreement, the Software is provided “AS IS” and “WITH ALL FAULTS.” The Software’s accuracy and reliability of the Software is not guaranteed, it may not be functional on any particular machine or environment, and it may be modified substantially in future releases, if any. Misuse, tampering, unauthorized (by ITD) modification or improper environment will immediately void all warranties. Except for your rights in respect of any breach of the warranties provided in §5.1 hereof, as expressly granted in this Agreement, you waive any and all claims you may have against ITD arising out of the performance or nonperformance of the Software. Except to the extent specified in §5.1 of this Agreement, nothing in this Agreement obligates ITD to provide any bug fix, hot fix, service pack, or other update to the Software or to any Third Party Software. Further, ITD makes no warranty with respect to any Third Party Software, and all warranty terms, if any, applying to such Third Party Software may or may not be found in any applicable Third Party Software license agreement.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN §5.1 HEREOF OR BY SEPARATE AGREEMENT, ITBD DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ITD DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE, OR THAT ANY SOFTWARE IS, UNINTERRUPTED OR ERROR-FREE.

5.3 LIMITATION OF LIABILITY. ITD IS NOT LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SOFTWARE OR ANY TECHNOLOGY INCORPORATED THEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ITBD’S LIABILITY UNDER ANY CIRCUMSTANCE EXCEED THE LICENSE FEE PAID FOR ANY SOFTWARE ITEM GIVING RISE TO ANY CLAIM.

(6) INDEMNIFICATION BY YOU. YOU AGREE TO, AT YOUR EXPENSE, INDEMNIFY AND HOLD HARMLESS ITBD FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, ACTIONS, DAMAGES, OR CLAIMS (INCLUDING ALL REASONABLE EXPENSES, COSTS, AND ATTORNEYS’ FEES) THAT RESULT FROM: (A) YOUR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS CONTAINED IN ANY SOFTWARE; (B) YOUR (AND YOUR AGENTS’) USE OF THE SOFTWARE, EXCEPT FOR AND LIMITED TO ANY LOSS OR DAMAGES PROXIMATELY CAUSED BY ANY BREACH OF THIS AGREEMENT BY ITBD; AND, (C) ANY BREACH OF THE TERMS OF THIS AGREEMENT BY YOU OR BY YOUR AGENTS.

(7) No Rights to Updates, Bug Fixes, or New Releases. Except to the extent contemplated in §5.1 of this Agreement, you are not entitled to receive from ITD any update, bug fix, or new version or new release of the Software.

(8) Termination. This Agreement may be terminated by ITD immediately upon notice of any breach by you of the provisions of this Agreement. Upon termination, the license granted hereunder shall terminate and you shall immediately cease all use of the Software. Upon any such termination, you shall immediately destroy all copies of the Software, together with any and all documentation regarding the Software, any other Confidential Information, and any and all copies and extracts of the foregoing. All other terms of this Agreement shall remain in effect following termination.

(9) Payment. You agree to pay us for the Software at the time you accept the terms of this Agreement. All payments are non-cancelable and non-refundable. Fees charged by us do not include any sales, use, excise, value-added, or similar taxes, and do not include any duties or fees payable on the delivery of software whether within or outside of the United States. Any such taxes, duties, or fees shall be either added to our invoice or paid directly by you.

(10) Publicity. You may not issue press releases or endorsements which reference ITD or make any use of our name, logos, trademarks, service marks, or other intellectual property rights, without the prior written consent of ITD in each instance.

(11) Export Regulations and other Applicable Laws; Transfer of Personal Data. You agree that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable law, restriction, or regulation (collectively, “Laws”). In addition, if all or any portion of the Software is identified as an export controlled item under any export Law, you represent and warrant that you are not a citizen, or otherwise located within, any embargoed nation, and that you are not otherwise prohibited under any Law from receiving or using the Software. If you reside in any part of the European Union or any other jurisdiction in which the transfer of your personal data may apply, you expressly consent to the transfer of any personal or other data identifying or relating to you or the entity on whose behalf you are accepting this Agreement.

(12) U.S. Government Users. The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software is being provided to U.S. Government end users: (A) only as a Commercial Item; and, (B) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

(13) Miscellaneous.

(A) MANDATORY ARBITRATION. UPON THE DEMAND OF EITHER PARTY HERETO, ANY ACTION OR PROCEEDING SEEKING TO ENFORCE OR TO INTERPRET ANY PROVISION OF THIS AGREEMENT, OR ANY RIGHT OR OBLIGATION, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY RIGHT OR OBLIGATION, OF ANY PARTY UNDER OR PURSUANT TO THIS AGREEMENT OR ARISING OUT OF ITBD’S RELATIONSHIP HEREUNDER WITH YOU, SHALL BE DETERMINED EXCLUSIVELY BY ARBITRATION CONDUCTED BY AND UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION; PROVIDED, HOWEVER, THAT ARBITRATION SHALL NOT BE REQUIRED IN ANY ACTION OR CLAIM BY EITHER PARTY TO THE EXTENT (AND ONLY TO THE EXTENT) THE SAME INCLUDES A REQUEST: (i) FOR INJUNCTIVE, EQUITABLE, EMERGENCY, OR INTERIM RELIEF ON A TEMPORARY BASIS TO PRESERVE A STATUS QUO UNTIL A DECISION IN ARBITRATION CAN BE OBTAINED; OR, (ii) TO ENFORCE ANY PRIOR DECISION OF AN ARBITRATION PANEL MADE HEREUNDER.

(B) Independent Contractor. You and we are independent contractors and neither you nor we is the agent of the other or has any right or authority to assume or create any obligation or responsibility on behalf of the other.

(C) Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three (3) days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party has provided to the other in accordance with the requirements for notices specified in this §13(C).

(D) Waivers. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.

(E) Separability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision or its effect shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable to the maximum extent permitted.

(F) Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the state of Florida and the United States of America without regard to the conflict of law provisions thereof. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. Subject to the express provisions of §13(A) hereof, the sole venue for all disputes relating to this Agreement shall be in Brevard County, Florida.

(G) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.

(H) Entire Agreement. This Agreement constitutes the entire agreement between us pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled or superseded. This Agreement may be modified, replaced, or rescinded only in a writing signed by each party.

(I) Prevailing Party’s Fees. In any action to enforce this Agreement, the prevailing party will be entitled to reasonable costs and attorneys’ fees, including as well costs of expert witnesses and all costs upon any appeal.

(J) Force Majeur. ITD shall not be liable for delays in delivery, failure to deliver, or otherwise to perform any obligation hereunder when such delay or failure arises from causes beyond the reasonable control of ITD, including, without limitation, acts of God or public enemies, labor disputes, supplier or material shortages, embargoes, rationing, acts of governmental authorities, utility or communication failures, fire, flood, storms, earthquake, epidemics, riots, terrorism, civil commotion, strikes, or war.

(K) Construction. The titles and headings herein are for reference purposes only, and shall not in any manner limit the construction of this Agreement which shall be considered as a whole.

(L) Further Assurances. Each party hereto shall execute such further instruments, documents, and agreements, and shall provide such further written assurances, as may be reasonably requested by the other party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement.

(M) No Third Party Beneficiaries. No provision of this Agreement is intended or shall be construed to provide or create any third party beneficiary right or any other right of any kind in any person other than the parties hereto and their proper successors and assigns, and all terms and provisions hereof shall be personal solely between the parties to this Agreement and such proper successors and assigns.

BASIS OF BARGAIN

EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL AND SPECIFICALLY BARGAINED FOR, BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

LAST UPDATED: ITD 12/22/2016