Payment Plan Policy
Software License Agreement
CAD Choke Assist Device
|Referral Program Policy
Terms & Conditions of Sale
All sales are final.
We stand behind the products we sell. Your satisfaction with your purchase is extremely important to us. If you are unsatisfied with your purchase for any reason please contact us at firstname.lastname@example.org.
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.
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.
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.
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
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
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:
- To comply with county, state or federal agency requests
- 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)
- Third parties with which ITD has contractual agreements to assist in administration of company sponsored benefits
- 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.
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 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.
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.
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: email@example.com
- or by mail at 3905 W. Eau Gallie Blvd. | Suite 101 | Melbourne, FL 32934
We will address your concern and attempt to resolve any problem.
Links to Non-ITD Web Sites and Third Parties
Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”), is made by and between INNOVATIVE TECHNOLOGIES BY DESIGN, INC., d/b/a ITD FOOD SAFETY, INC., and you as the customer. In this Agreement, the customer will be referred to as the “Customer,” “you” or “your,” and ITD FOOD SAFETY, INC. will be referred to as “ITD,” or as “we”, “us,” or “our.”
1) ITD has developed and will supply to you the computer software, documentation, and related materials known as the PREP N TEMP 7®, PREP-PAL 7®, and/or TEMP-TAKER 7®, as previously specified by you (each, the “Software”), subject to all of the terms and conditions of this Agreement.
2) 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, of the payments made by you, and of the mutual covenants hereinafter set forth, the receipt and sufficiency of all of which is acknowledged by each party hereto, you and we agree as follows:
(1) Use of Software and License.
1.1 Grant of License. ITD grants to you a personal, non-exclusive, non-transferable (whether voluntary, involuntary, by operation of law, or otherwise), non-sublicensable, and, subject to the termination provisions contained in this Agreement and/or applicable law, perpetual, license to use (but not to own) the Software, in accordance with the documentation and instruction materials supplied by ITD, and for your own internal business use only. You may make two (2) copies of the Software and related documentation and other materials, subject to all of the terms of this Agreement, 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 of the Software or any related documentation or materials may be made by you without ITD’s prior written consent, in ITD’s sole and absolute discretion.
1.2 Restrictions on Customer. You will not, directly or through others: (A) market, license, distribute, transfer, sublicense, or otherwise commercially exploit, voluntarily, involuntarily, by operation of law, or otherwise, the Software, except as expressly licensed herein solely for your own internal business purposes; (B) permit the use of the Software by others, including, without limitation, any entity or other person affiliated with or related to you, except that you may permit your employees, agents, and third party subcontractors to you, within the scope of their duties for you (collectively, “Agents”), to use the Software solely for your internal business purposes as described above, provided you ensure that each such Agent is legally bound in favor of ITD by appropriate restrictions on nondisclosure of ITD’s Confidential Information, at least as restrictive as those contained in this Agreement, and which Agents will use the Software solely 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; (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 any part of the Software or related documentation or materials except as authorized in this Agreement or without ITD’s copyright and trademark notices; (F) sell, lend, rent, give, assign, sublicense, or otherwise transfer or dispose of the Software, whether voluntarily, involuntarily, by operation of law, or otherwise; (G) use the Software to provide time-sharing, outsourcing, service bureau, application service provider, managed service provider environment, or similar services; (H) use the Software with Third Party Software, hardware, or labels which have not been previously approved by ITD in writing; and/or, (I) use the Software in any manner not expressly permitted by the terms of this Agreement.
1.3 Ownership; Proprietary Rights. The Software is licensed, not sold, to you and any and all rights not expressly and 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 or any related documentation or other materials supplied by ITD, nor any copyright, trademark, trade secret, or other proprietary right, is transferred to you under this Agreement. All modifications, adjust-ments, enhancements, updates, bug fixes, error corrections, other updates, or new versions or releases to the Software licensed hereunder provided to you by ITD in accordance with the requirements of §5.1 of this Agreement, or otherwise at the sole option of ITD, if any, will become part of the Software, as applicable, and will remain the exclusive property of ITD.
1.4 Special Provisions Applicable Only to PREP N TEMP 7®Software. Licensee specifically understands and agrees that, with respect to the PREP N TEMP 7® Software: (A) Such Software includes a seven (7) month expiration period for auto-updates. Consequently, if Customer fails to update the Software beyond this seven (7) month period, the Software will cease functioning until Customer installs the then current update to the latest Software version. (B) Use of such Software requires the use of ITD proprietary printers in order for the Software and printers to properly function together. (C) Label printers used in connection with PREP N TEMP 7® Software require the use of certified ITD labels to function properly. ***WARNING***Use of non-ITD certified labels in connection with PREP N TEMP 7 printers could result in serious performance issues and could result in the need to replace printer equipment. (D) PREP N TEMP 7® Software requires subscription-based access, which will be made available to Customer through ITD support services at Customer’s expense.
(2) Use of Third Party Software. You understand that the Software is a software
(3) You Will Not Use or Disclose Our Confidential Information. Confidential Information
hereunder includes, without limitation, 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 (collec-tively, 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 expressly 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 permitted 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 of our Confidential Information at least as restrictive as those contained in this Agreement. Your nondisclosure obligations hereunder shall not apply to information you can prove: (A) is generally available to the public other than through the breach of any agreement, including, without limitation, this Agreement, or other lawful obligation; (B) is rightfully disclosed to you by a third party without any obligation of confidentiality; or, (C) 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, in equity, or otherwise. Upon expiration or termination of this Agreement and/or your license hereunder for any reason, you will immediately, at ITD’s option, return or destroy all copies of all ITD Confidential Information in your possession or under your control, and will provide proof of such return or destruction in accordance with instructions from ITD.
(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 ITD with comments and feedback regarding your use and evaluation of the Software, including any defect found therein and any recommendation 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 I-TBD.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 Rights 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, without limitation, any change, modification, or correction 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 or otherwise, 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 the Software or any Feedback. In the event any such right cannot be assigned, you hereby agree to waive enforcement on a worldwide basis 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, and without cost to 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 (“Warranty Period”), unless extended warranties are provided by separate written agreement with us. ITD also warrants that the Software shall, during the Warranty Period, conform to any Software technical specifications (“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. In order for this Warranty to be applicable, you must notify ITD within the Warranty Period that the Software contains defects in workmanship or does not conform to and perform in accordance with the Specifications. In the event that ITD is able to confirm that the Software is defective or not conforming, and provided that you cooperate with us in our efforts to identify any defective or nonconformance item, then ITD, at its sole cost, and as your exclusive remedy against ITD, will replace, correct, repair or make such modifications as may be required to make the Software free of the stated defective item and to conform to and perform in accordance with the Specifications.
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 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, use with unauthorized software, hardware, or labels, modification or attempts to modify the Software, and/or use in an improper operating 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 hereby expressly 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 or maintenance of 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 WRITTEN AGREE-MENT WITH US, ITD DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, AND/OR TO ANY RELATED DOCUMENTS OR MATERIALS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIM-ITATION, ALL WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PART-TICULAR PURPOSE. EXCEPT AS OTHERWISE EXPRESSLY STATED IN §5.1 OF THIS AGREEMENT, 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 ITD’S LIABILITY UNDER ANY CIRCUMSTANCE EXCEED THE LICENSE FEE PAID FOR ANY SOFTWARE ITEM GIVING RISE TO ANY CLAIM.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREE-MENT 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.
(6) INDEMNIFICATION BY YOU. YOU AGREE TO, AT YOUR EXPENSE,
INDEMNIFY AND HOLD HARMLESS ITD FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, ACTIONS, DAMAGES, OR CLAIMS, INCLUDING, WITH-OUT LIMITATION, ALL REASONABLE EXPENSES, COSTS, AND ATTORNEYS’ FEES, THAT RESULT FROM: (A) YOUR OR YOUR AGENTS’ MISAPPROPRI-ATION OF ANY INTELLECTUAL PROPERTY RIGHTS CONTAINED IN ANY SOFTWARE; (B) YOUR OR YOUR AGENTS’ USE OF THE SOFTWARE, EXCEPT FOR AND LIMITED TO ANY LOSS OR DAMAGES PROXIMATELY CAUSED BY ANY BREACH OF THIS AGREEMENT BY ITD; 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 modification, adjustment, enhancement, update, bug fix, error correction, other update, or new version or release of the Software or any maintenance thereof. Notwithstanding the foregoing, ITD reserves the right, at any time or from time to time, to modify the Software and/or any related documentation or materials supplied by ITD.
(8) Termination. The license granted hereunder to you may be terminated by ITD immediately upon notice of any breach by you of the provisions of this Agreement. Upon any such termination, you will immediately cease all use of the Software and will, at ITD’s option, destroy or return to ITD all copies of the Software, together with any and all documentation and other materials regarding the Software and any other ITD Confidential Information in your possession or under your control, and any and all copies and extracts of any of the foregoing, and you will provide proof of such return or destruction in accordance with instructions from ITD. All other terms of this Agreement shall remain in effect following any such termination by ITD.
(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 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, at our option, be either added to our invoice or shall be 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, in ITD’s sole and absolute discretion. Notwithstanding the foregoing, nothing in this Agreement or otherwise shall prohibit ITD from using Customer’s name in ITD advertising materials or from otherwise referencing that you are a customer of ITD, and you hereby consent to such use by ITD.
(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 Regulations 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 of, 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 Product,” 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 Provisions.
(13.1) Negotiation in advance of Arbitration: (A) The parties shall attempt in good faith
to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between persons who have authority to settle the controversy. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include, with reasonable particularity: (i) a statement of each party’s position and a summary of arguments supporting that position; and, (ii) the name and title of the person who will represent that party and of any other person who will accompany such person. Within thirty (30) days after delivery of the notice, both parties shall meet at a mutually acceptable time and place. (B) All offers, promises, conduct, and statements, whether oral or written, made in the course of the negotiation by either of the parties, their agents, employees, experts, and/or attorneys are confidential, privileged, and inadmissible for any purpose, including
impeachment, in arbitration or other proceedings involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiations. (C) At no time prior to the first meeting shall either party initiate an arbitration or litigation related to this Agreement, except to pursue provisional, injunctive, equitable, emergency, or interim relief on a temporary basis solely to preserve the status quo until a decision in arbitration or litigation, as authorized pursuant to this Agreement, is concluded. However, the limitations in this Paragraph (C) are inapplicable to a party if the other party refuses to comply with the requirements of Paragraph (A) of this §13.1. (D) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraph (A) hereof are pending and for fifteen (15) calendar days thereafter. The parties will mutually take such action, if any, required to effectuate such tolling.
(13.2) MANDATORY ARBITRATION. SUBJECT TO THE PROVISIONS OF §13.1 HEREOF, 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 ITD’S RELATIONSHIP HEREUNDER WITH YOU, SHALL BE DETERMINED EXCLUSIVELY BY ARBITRATION IN BREVARD COUNTY, FLORIDA, BEFORE ONE ARBITRATOR SELECTED BY THE PARTIES WITHIN THIRTY (30) DAYS OF SUCH DEMAND AND 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: (A) FOR PROVISIONAL, INJUNCTIVE, EQUITABLE, EMERGENCY, OR INTERIM RELIEF ON A TEMPORARY BASIS SOLELY TO PRESERVE THE STATUS QUOTO UNTIL A DECISION IN ARBITRATION IS OBTAINED; OR, (B) TO ENFORCE ANY PRIOR DECISION OF AN ARBITRATOR MADE HEREUNDER.
(13.3) 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.
(13.4) Notices. All notices, requests, demands, claims, and other communications under this Agreement shall be in writing. Any such notice, request, demand, claim, or other communication hereunder shall be deemed duly given: (A) when delivered personally to the recipient; (B) one (1) business day after being sent to the recipient by reputable overnight courier service with charges prepaid; (C) one (1) business day after being sent to the recipient by facsimile trans-mission or electronic mail; or, (D) four (4) business days after being mailed to the recipient by certified or registered U.S. mail, return receipt requested and postage prepaid, in each case addressed to the recipient as set forth below:
If to ITD, to:
ITD Food Safety
3905 W. Eau Gallie Blvd.
Melbourne, FL 32934
Facsimile #: 321-676-3194
If to Customer, to: The address, facsimile, and email information provided to ITD in your completed ITD Notice to Customers.
Any party hereto may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner set forth herein.
(13.5) 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.
(13.6) Separability. If any provision of this Agreement shall be adjudged 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 by applicable law.
(13.7) Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws, both substantive and procedural laws, of the state of Florida, and, to the extent applicable, the United States of America, without regard to the conflict of law provisions thereof or any rule that would cause the application of the laws of any jurisdiction other than the state of Florida, or, to the extent applicable, the United States of America, in connection with the enforcement or interpretation of this Agreement. 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 §13.1 and §13.2 hereof, the exclusive jurisdiction and venue for all disputes relating to this Agreement shall be in the federal or state courts with jurisdiction in Brevard County, Florida, and each party hereto consents thereto, and waives the claim or defense that such courts constitute an inconvenient forum.
(13.8) 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.
(13.9) 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 in respect of the subject matter of this Agreement are expressly cancelled or superseded. This Agreement may be modified, replaced, or rescinded only in a writing signed by each party.
(13.10) Prevailing Party’s Fees. In any action to enforce this Agreement, the prevailing party will be entitled to all reasonable costs and attorneys’ fees, including as well costs of expert witnesses and all costs upon any appeal or in connection with any bankruptcy of a party or other similar proceeding relating to the enforcement of this Agreement.
(13.11) Force Majeure. 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 govern-mental authorities, utility or communication failures, fire, flood, storms, earthquake, epidemics, riots, terrorism, civil commotion, strikes, or war.
(13.12) 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.
(13.13) Further Assurances. Each party hereto shall execute such further instruments, docu-ments, 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.
(13.14) 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 or entity 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.
Disclaimer: Choke Assist Device (“CAD”)
Thank you for using our website. The following disclosures, terms, and conditions are strictly applicable to the purchase of our Choke Assist Device (“CAD”), and are not subject to modifi-cation:
ITD Food Safety (“ITD”) cannot guarantee that all information provided by ITD in connection with the CAD, whether contained in advertising, on this website, or otherwise, is always correct, complete, and/or current. ITD does not represent or warrant that the CAD will always operate in accordance with its accompanying instructional materials and/or documentation (collectively, “Materials”), or will have the specific results described therein. Purchaser should test the CAD in advance to assure Purchaser of the suitability of the CAD for Purchaser’s intended needs and usage.
THE CAD IS PURCHASED BY PURCHASER “AS IS” AND “WITH ALL FAULTS,” AND, IN CONNECTION THEREWITH, ITD MAKES NO REPRESENTATION, WARRANTY, COVENANT, OR ASSURANCE OF ANY KIND, WHETHER EX-PRESS, WRITTEN, ORAL, IMPLIED, STATUTORY, OR OTHERWISE, INCLUD-ING, WITHOUT LIMITATION, ITS SUITABILITY FOR INTENDED USE, CONDI-TION, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION PRO-VIDED BY ITD OR OTHERWISE PROVIDED. ITD DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF WHATEVER NATURE, INCLUDING, WITHOUT LIM-ITATION, OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, IN-FORMATION ACCURACY OR COMPLETENESS, OR INFRINGEMENT OF THE RIGHTS OF OTHERS. ALL RISK ARISING OUT OF USE OR PERFORMANCE OF THE CAD RESTS SOLELY WITH PURCHASER.
IN NO EVENT SHALL ITD, OR ANY OF ITS DIRECTORS, OFFICERS, EM-PLOYEES, OWNERS, AGENTS, SUPPLIERS, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, ALL OF THE FOREGOING SHALL HEREIN BE RE-FERRED TO AS THE “INDEMNIFIED PARTIES”), BE RESPONSIBLE OR LI-ABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNI-TIVE OR EXEMPLARY DAMAGES WHATSOEVER ARISING, DIRECTLY OR IN-DIRECTLY, IN CONNECTION WITH PURCHASER’S USE OF OR INABILITY TO USE THE CAD OR ANY OF THE MATERIALS, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFIT OR INFORMATION, BUSINESS FAILURE OR INTERRUPTION, PERSONAL INJURY TO OR THE DEATH OF ANY PERSON, FAILURE TO PERFORM ANY LEGAL OR OTHER DUTY, NEGLIGENCE, OR ANY OTHER CLAIM FOR DAMAGE OR LOSS BY PURCHASER OR OTHERWISE. THE FOREGOING APPLIES EVEN IN THE EVENT ITD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
THE ENTIRE LIABILITY OF ALL INDEMNIFIED PARTIES TO PURCHASER IN CONNECTION WITH THE PURCHASE AND/OR USE OF ANY CAD, AND PURCHASER’S EXCLUSIVE REMEDY IN CONNECTION THEREWITH AGAINST ALL INDEMNIFIED PARTIES COLLECTIVELY, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY PURCHASER FOR THE APPLICABLE CAD.
PURCHASER SHALL INDEMNIFY, DEFEND, HOLD HARMLESS, AND PROTECT ITD, AND EACH OF THE OTHER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, ACTIONS, CAUSES OF ACTION, ATTORNEYS’ FEES, COURT COSTS, AND OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL SUCH ITEMS DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH, PERSONAL INJURY AND/OR WRONGFUL DEATH, PROPERTY DAMAGE, AND/OR INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE CAD BY PURCHASER. PUR-CHASER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT THE USE OF THE CAD INVOLVES RISKS AND DANGERS OF SERIOUS BODI-LY INJURY, INCLUDING, POTENTIALLY AND WITHOUT LIMITATION, PERMANENT DISABILITY, PARALYSIS, AND DEATH. PURCHASER AC-CEPTS AND ASSUMES ALL SUCH RISKS AND ALL RESPONSIBILITY THEREFOR, INCLUDING, WITHOUT LIMITATION, ALL LOSSES, COSTS, AND DAMAGES INCURRED AS A RESULT OF SUCH USE.
THE IMPROPER USE OR MISUSE OF THE CAD COULD RESULT IN SERIOUS PERSONAL INJURY OR DEATH. THE CAD IS NOT INTENDED TO BE USED BY CHILDREN OR BY ANYONE OTHER THAN A COMPETENTLY TRAINED ADULT PERSON. THE CAD IS INTENDED FOR USE ONLY WHERE TRADI-TIONAL METHODS OF CPR, INCLUDING, WITHOUT LIMITATION, THE HEIMLICH MANEUVER, ARE NOT AVAILABLE, FAIL, OR ARE TOO DAN-GEROUS TO EMPLOY UNDER THE CIRCUMSTANCES.THE CAD SHALL BE USED BY PURCHASER SOLELY AS DESCRIBED, AND IN ACCORDANCE WITH THE PROCEDURES SPECIFIED, IN THE CAD ACCOMPANYING MA-TERIALS. THE PROPER AND COMPETENT USE OF THE CAD IN ACCORD-ANCE WITH ALL INSTRUCTIONS CONTAINED WITHIN THE MATERIALS IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF PURCHASER. ITD IS UN-DER NO OBLIGATION TO PROVIDE SUPPORT SERVICES OF ANY NATURE IN CONNECTION WITH THE PURCHASE OR USE OF ANY CAD BY PUR-CHASER. PERSONS RESCUED BY A CAD SHOULD BE IMMEDIATELY EVALUATED BY A LICENSED MEDICAL PROFESSIONAL.
THE FOREGOING PROVISIONS OF THIS DISCLAIMER SET FORTH THE ENTIRE OBLIGATION OF ITD WITH RESPECT TO THE PURCHASE AND/OR USE OF ANY CAD. IF ANY PART OF THE FOREGOING DISCLAIMER IS DETERMINED TO BE VOID, INVALID, OR UNENFORCEABLE, INCLUDING, WITHOUT LIMITATION, THE WARRANTY DISCLAIMERS, LIABILITY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND OR INDEMNIFICATIONS SET FORTH HEREIN, ANY INVALID OR UNENFORCEABLE PROVISION SHALL BE DEEMED TO BE SUPERSEDED BY A VALID AND ENFORCEABLE SUBSTITUTE PROVISION THAT MOST CLOSELY MATCHES THE INTENT AND PURPOSE OF THE ORIGINAL PROVISION AND THE REMAINDER OF ALL DISCLAIMER PROVISIONS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. IT IS THE SPECIFIC INTENTION OF ITD AND PURCHASER THAT ALL PROVISIONS OF THIS DISCLAIMER BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. ALL PROVI-SIONS OF THIS DISCLAIMER ARE TO BE APPLIED AND ENFORCED SOLELY IN ACCORDANCE WITH THE SUBSTANTIVE AND PROCEDURAL LAWS, EXCLU-SIVE OF THE PRINCIPLES OF THE CONFLICTS OF LAWS, OF THE STATE OF FLORIDA, AND EXCLUSIVE JURISDICTION AND VENUE OF ALL OF THE SAME SHALL RESIDE IN THE STATE AND FEDERAL COURTS WITH JURISDICTION IN BREVARD COUNTY, FLORIDA.
LAST UPDATED: ITD 9/6/2023