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The following standard terms and conditions are hereby incorporated into each ICS Reseller Agreement, ICS Electronic Commerce User Agreement and ICS Web Linking Agreement (collectively, the "Agreements" and singularly, an "Agreement") between Interlink Communication Systems, Inc. ("ICS") and the undersigned Reseller (the "Reseller"). Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Agreements.
1. Acts of God, Strikes, Etc
Neither party hereto shall be liable for any failure to perform under this Agreement if such failure to perform is caused by fire, strike, other labor troubles, accidents to delivery vehicles, blackouts, floods, severe weather, failure of sources of supply or of materials, mechanical, electronic or data communications failure, or any other act or state of facts beyond the reasonable control of the party whose performance is adversely affected (collectively, a "Force Majeure Event"); provided, however, that such party must notify the other party of its inability to perform within a reasonable time after the onset of such Force Majeure Event.
2. Waiver
The parties hereto agree that the waiver by either party of a breach by the other party of any of the provisions contained in this Agreement shall not operate or be construed to be a waiver of any other breach of this Agreement by either party hereto.
3. Attorneys' Fees
Should either party hereto institute any action or proceeding in court or otherwise to enforce any provision hereof or for damages by reason of an alleged breach of any provision of this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party such amount as the court may judge to be reasonable attorneys' and paralegals' fees for the services rendered to the prevailing party in such action or proceeding, plus the prevailing party's costs and expenses therein, regardless of whether such action or proceeding is prosecuted to judgment.
4. Disclaimer of Agency Relationship
Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between the parties hereto, except to the extent provided in the ICS Web Linking Agreement with respect to Documents and acknowledgments transmitted or received by ICS on behalf of the Reseller.
5. Notices
Except as expressly permitted in the Agreement, any notices to be given under this Agreement shall be in writing and be sent by first class mail or certified mail, postage prepaid, addressed to the other party at the address first set forth in the Agreement, or to such other address(es) as hereinafter shall be furnished in writing by either party hereto to the other party hereto.
6. Assignment
Neither party shall delegate its duties nor assign its rights under this Agreement, whether in whole or in part, without the prior written consent of the other party.
7. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
8. Counterparts
This Agreement may be executed simultaneously in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Severability
The provisions of this Agreement are severable and if any provision of this Agreement shall be held to be invalid or otherwise unenforceable, in whole or in part, the remainder of the provisions, or enforceable parts thereof, shall not be affected thereby.
10. Choice of Law; Forum Selection
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida, including, without limitation, the Florida Uniform Commercial Code. The forum selected for any proceeding or suit related to this Agreement shall be in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, and the parties consent to this Court's personal jurisdiction over them, or, if the State Court does not have subject matter jurisdiction, then in the District Court of the United States for the Middle District of Florida, Tampa Division, to which the parties also consent to personal jurisdiction. This is intended to be a mandatory, and not a permissive, forum selection provision.
11. Disclaimer of Warranties
(a) ICS is licensing the Databases, the Web Site and the Linked Text to the Reseller "AS IS" and "AS AVAILABLE." The Reseller acknowledges that the Databases and the Web Site are licensed for use by the Reseller and its Customers as a convenience in communicating with ICS, and assumes total responsibility and risk for its use thereof.
(b) ICS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY INFORMATION PROVIDED TO THE RESELLER OR THE CUSTOMERS VIA THE DATABASES OR THE WEB SITE.
(c) THE DATABASES CONTAIN INFORMATION OBTAINED BY ICS FROM MANUFACTURERS AND OTHERS THAT INDUSTRY SOURCES BELIEVE TO BE RELIABLE, BUT ICS MAKES NO WARRANTY AND DISCLAIMS ALL WARRANTIES AND LIABILITY REGARDING DATABASE ERRORS AND OMISSIONS. IT IS THE SOLE RESPONSIBILITY OF THE RESELLER AND THE CUSTOMERS TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES OR OTHER INFORMATION CONTAINED IN THE DATABASES AND THE WEB SITE.
12. Limitation of Remedies
(a) ICS shall not be liable to the Reseller, any Customer or any third party for any damages arising from or as a result of any delay, omission or error in electronic transmission or receipt of any Documents, even if advised of the possibility of such damages.
(b) The Reseller agrees that the Databases and the Web Site provide a significant benefit to it for no, or a modest, consideration, and that its sole and exclusive remedy for any breach of this Agreement by ICS shall be to terminate the Agreement, cease submitting Orders via the Web Site, and cease all links between the Home Site and the Web Site.
(c) IN NO EVENT WILL ICS BE LIABLE TO THE RESELLER OR ANY CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ON ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, EQUITY OR LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Additional disclaimers may be contained in the Databases or the Web Site.
13. Survival
These Standard Terms and Conditions shall survive the termination or expiration of any Agreement in accordance with their respective terms.
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ACCEPTED AND AGREED:
INTERLINK COMMUNICATION SYSTEMS, INC., a Florida corporation
Date:7/25/2008 1:36:00 PM By: Al Higgins, ICS President
Date:7/25/2008 1:36:00 PM By:
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