TERMS AND CONDITIONS

  1. Definitions. For the purpose of this document, the following definitions shall apply: (a) 3i refers to Intelligent Imaging Innovations, Inc.; (b) Products refers to the equipment, parts, accessories and services sold by 3i to Buyer, excluding 3i software; (c) Buyer refers to the person or entity purchasing the Products from 3i; (d) Collateral includes the Products, and any substitutions, replacements, or additions thereto, all of which are subject to 3i’s security interest pursuant to this Agreement.
  2. Binding Effect. These terms and conditions of sale bind the parties and take precedence over and supersede any and all additional or different terms and conditions set forth in any purchase order or other communication from Buyer concerning the purchase of any Product, to which notice of objection is hereby given by 3i. 3i’s acceptance of such purchase order is limited to these terms and conditions, which shall be construed as a counteroffer to Buyer. Acceptance by Buyer of the Products or any portion thereof shall be deemed to constitute Buyer’s assent to all of the terms and conditions set forth herein. Neither 3i’s commencement of performance nor delivery shall be deemed or construed as acceptance by 3i of Buyer’s additional or different terms and conditions.
  3. Price. Product prices (i) do not include any additional fittings or adjustments and (ii) are exclusive of shipping, delivery and installation charges and taxes. Buyer shall pay all delivery and shipping charges including, without limitation, rigging and transportation charges, the cost of any transit insurance and the cost of installation. Any tax, fee, levy, assessment, exaction, imposition or other charge imposed by any local, state or federal government now or hereafter levied upon the production, sale, use, import, export, ownership or shipment of the Products, shall be paid for by the Buyer (except for taxes based on 3i net income).
  4. Claims for Damages in Transit. 3i’s responsibility for any damage to Products ends for all purposes upon delivery of the Products to the carrier at 3i’s location or such other shipping point as designated by 3i. Buyer shall examine all Products carefully immediately upon delivery and before signing any If the Products are visibly damaged or there is any shortage, Buyer shall note the same on the shipping receipt and send notice of such damage or shortage to 3i with three (3) days of receipt of delivery. Buyer’s signature on a receipt without notation of damage or shortage or Buyer’s failure to send notice to 3i of damage or shortage within such three (3) days shall constitute conclusive evidence of Buyer’s receipt of all Products in satisfactory condition. All risk of loss of or damage to the Products is assumed by Buyer after 3i has made delivery of the Products to the carrier for shipment to Buyer, and Buyer’s sole recourse for any loss of or damage to the Products shall be against the carrier.
  5. Delivery Dates. Delivery dates quoted or acknowledged by 3i are not an agreement for delivery by a specific date but rather are estimates of actual delivery dates. Shipments of Products purchased hereunder are subject to 3i’s determination of availability. 3i shall not be liable for any delay in shipment or any failure to ship Products or for any damages suffered thereby. Buyer’s sole remedy in the event that any delivery of Products is delayed shall be to cancel this Agreement by notice received by 3i prior to shipment. Such remedy may only be exercised in the event that delivery of Products is delayed more than sixty (60) days beyond the estimated delivery date, as stated in 3i’s quote or acknowledgement.
  6. Acceptance. Unless otherwise specified in the Product sales contract, Buyer shall be deemed to have accepted the Products upon the earliest of (a) delivery to Buyer if installation by 3i is not included in the purchase price; or (b) certification by 3i in such form as 3i shall prescribe that the Products have been installed to 3i’s specifications, if installation by 3i is included in the purchase price; or (c) use of the Products or any portion thereof by Buyer for any purpose.
  7. Payments. Payment for Products shipped on credit shall be made within thirty (30) days of the shipment date without any deductions or offsets or otherwise made in accordance with 3i’s payment terms then in effect and communicated in writing to Buyer. Payment terms will be strictly enforced on all accounts. Amounts past due are subject to a service charge at the maximum rate of interest permitted by lay until paid. Buyer shall pay all of 3i’s costs and expenses incurred in the collection of any outstanding amounts, including reasonable collection agency or attorneys’ fees, court filing fees and other disbursements.
  8. Failure to Take Delivery and Breach. In the event that 3i is ready to ship or has shipped Products conforming to this Agreement to Buyer, and Buyer fails to take delivery or delays delivery or notifies 3i that delivery will be delayed or rejected, 3i may in its sole discretion, treat the same as a rejection and repudiation and breach of the Agreement and pursue all remedies available at law, including, without limitation, storage of the Products at Buyer’s sole cost and expense in which event all risk of loss or damage to the Products shall be assumed by Buyer. In the event Buyer breaches any obligation under this Agreement, Buyer shall be liable to 3i for all damages suffered by it, including loss of profits and other consequential and incidental damages, as well as 3i’s reasonable attorneys’ fees and costs (including expert witness fees), including all fees and costs incurred in collecting such damages and on appeal.
  9. Return of Merchandise. 3i shall not accept any return of Products unless previously authorized by 3i in writing, whether under any applicable warranty or Any returns other than under applicable warranty will be subject to a reasonable restocking charge and other costs and damages incurred by 3i as a result thereof.
  10. Insolvency. Except as may otherwise be prohibited by law in the event that Buyer becomes insolvent or unable to pay its debts as they become due, or in the event of any voluntary or involuntary bankruptcy proceedings by or against Buyer, or appointment of a receiver or assignment by Buyer for the benefits of its creditors, 3i may elect to cancel any and all of its obligations hereunder and all obligations of Buyer to 3i, whether arising out of this Agreement or otherwise, shall immediately become due and payable in full.
  11. Force Majeure. 3i shall not be liable for any delay or failure to perform acts due to unforeseen circumstances or causes beyond its reasonable control, including but not limited to strikes, work stoppages, labor conditions, material shortages, riots, insurrection, fires, flood, storm, earthquake, explosions, man-made catastrophes, natural catastrophes or acts of God, acts of terrorism or sabotage, electronic viruses, worms or corrupting software code, war, governmental action that impedes 3i’s performance herein, accidents, inability to secure transportation or fuel, loss or malfunction of utilities, including communications systems, or pandemic. 3i may at its option cancel this Agreement or delay performance hereunder for any period made necessary by any force majeure event, during which time this Agreement shall remain in full force and effect. 3i shall have the further right to allocate its available materials and products between its own uses and its Buyers in such manner as 3i may consider fair and reasonable. 3i shall have the right to make partial shipments to Buyer and invoice accordingly and Buyer shall be obligated to pay for such partial shipments when invoiced.
  12. Limited Warranty and Disclaimer. The Products purchased by Buyer are subject to a Limited 12-Month Warranty (“Limited Warranty”), which is attached hereto and incorporated herein in its entirety by reference. THE PRODUCTS ARE SUBJECT EXCLUSIVELY TO THE LIMITED WARRANTY. THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR ANY SERVICES PROVIDED BY 3I UNDER THE LIMITED WARRANTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, MARKETABILITY, PROFITABILITY, SUITABILITY, AND/OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED. 3I’S LIABILITY FOR ANY PRODUCT OR SERVICE UNDER OR IN CONNECTION WITH THE LIMITED WARRANTY (WHETHER ARISING FROM CONTRACT OR OTHERWISE) IS LIMITED TO AND SHALL NOT EXCEED THE LESSER OF THE COST OF REPAIR OR REPLACEMENT OF THE PRODUCT. 3I SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED.
  13. Patent Indemnity. 3i shall be entitled to defend or settle any claim made or any suit or proceeding brought against Buyer which is based on an allegation that any Products infringe a third-party patent. Buyer shall promptly notify 3i of any such claim, suit or proceeding and Buyer shall fully cooperate with 3i in defense of the same, and in connection with 3i’s enforcement of any of its intellectual property rights. In the event that any Product is asserted or adjudged to infringe any patent, 3i shall have the option at its own expense, (i) to procure for Buyer the right to continue the use of the Products, or (ii) to modify the Products to avoid infringement or (iii) refund the depreciated value of the Products and accept return thereof. Buyer shall indemnify and defend 3i from and against any claim of infringement resulting from 3i’s compliance with Buyer’s designs, specifications or instructions or in the event of modification of the Products by Buyer, or use by Buyer of the Products other than as specified in 3i‘s publications, or use by Buyer of the Products with products or components or accessories not supplied by 3i. In no event shall 3i have any liability for any infringement in excess of the purchase price of the infringing Products, which shall be the outside cap of any and all damages recoverable by Buyer related in any way to the Products.
  14. Notices. All notices, consents, requests, instructions, approvals and other communications hereunder shall be in writing and delivered by personal delivery or by certified or registered mail, return receipt requested. Notices to 3i shall be sent to:
     
    If to 3i:
    Intelligent Imaging Innovations
    Colin Monks, Co-President
    3575 Ringsby Court, Suite 102
    Denver, Colorado 80216
    +1 (303) 607-9429
    colin@intelligent-imaging.com
     
    With copy to:
    Regina T. Drexler, Esq.
    Drexler Law, LLC
    201 Columbine Street, Suite 150, Box 6658
    Denver, CO 80206
    rdrexler@drexleriplaw.com

     
    Notices to Buyer shall be sent to the contact information included on Buyer’s purchase order for the Products.

  15. Governing Law, Jurisdiction, Venue & Forum. This Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of Colorado as it applies to a contract made and performed in such state, without regard to conflict of laws principles. The exclusive venue and forum for any action arising hereunder shall lie in the state district courts in and for the City and County of Denver, Colorado and/or in the U.S. District Court for the District of Colorado, as applicable, and each party irrevocably consents to the personal jurisdiction of and forum and venue in such courts. Customer waives any objection to personal jurisdiction and venue and waives any right to assert that such forum is an inconvenient forum.
  16. Entire Agreement. This writing is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of its terms. This writing supersedes any previous or contemporaneous communications, representations or agreements by either party whether verbal or written. No representations, understanding or agreements have been relied upon in making this Agreement other than as specifically set forth herein. This Agreement can only be modified in a writing signed by the parties hereto.
  17. No Waiver. Failure or delay by 3i in seeking enforcement of any term or condition hereof at one time shall not constitute a waiver of the right to enforce such term or condition in the future, nor of 3i’s right to enforce any other term or condition hereof.
  18. Severability of Provisions. In the event that any one or more of the provisions contained in this Agreement are determined to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
  19. Assignment. No assignment of rights or transfer of obligations under this Agreement shall be made by Buyer without the prior written consent of 3i, which shall not be unreasonably withheld.
  20. Quotations. Any quotation issued by 3i shall not constitute an offer by 3i to sell Products to Buyer, and 3i reserves the right to withdraw or modify any quotation issued by it at any time without notice to Buyer.