Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SALE

The following General Terms & Conditions of Sale (the “T&Cs”) in combination with either (a) a signed Retail Sales Agreement or (b) Quote under which AVI Systems, Inc, d/b/a FORTÉ Worldwide (“FORTÉ”) agrees to supply goods or services constitute a binding contract (the “Agreement”) between FORTÉ and the entity identified on page one of the Retail Sales Agreement or Quote (the “Customer”). In the absence of a separately negotiated “Master Services Agreement” between FORTÉ and Customer signed in “wet ink” by the Chief Executive Officer or Chief Financial Officer of FORTÉ, these T&C’s shall apply. Any terms and conditions set forth in any correspondence, purchase order or Internet based form from Customer to FORTÉ which purport to constitute terms and conditions which are in addition to those set forth in this Agreement or which attempt to establish conflicting terms and conditions to those set forth in this Agreement are expressly  rejected by FORTÉ unless the same has been manually countersigned in wet ink by an Officer of FORTÉ.

1. Changes In The Scope of Work – Where a Scope of Work is included with this Agreement, costs resulting from changes in the scope of this project by the Customer, including any additional requirements or restrictions placed on FORTÉ by the Customer or its representatives, will be added to the contract price. When FORTÉ becomes aware of the nature and impact of the change, a contract Change Order will be submitted for review and approval by the Customer before work continues. FORTÉ has the right to suspend the work on the project pending Customer’s written approval of the Change Order.
   
   
2. Ownership and Use of Documents and Electronic Data – Where applicable, drawings, specifications, other documents, and electronic data furnished by FORTÉ for the associated project  under this Agreement are instruments of the services provided. These items are “Confidential Information” as defined in this Agreement and FORTÉ shall retain all common law, statutory and other reserved rights, including any copyright in these instruments. These instruments of service are furnished for use solely with respect to the associated project under this Agreement. The Customer shall be permitted to retain copies of any drawings, specifications, other documents, and electronic data furnished by FORTÉ for information and reference in connection with the associated project and for no other purpose.
   
   
3. Proprietary Protection of Programs – Where applicable this Agreement does not cause any transfer of title, or intellectual rights, in control systems programs, or any materials produced in connection therewith, including any source code. Any applications or programs supplied by FORTÉ are provided, and are authorized for installation, execution, and use only in machine-readable object code form. This Agreement is expressly limited to the use of the programs by the Customer for the equipment in connection with the associated project. Customer agrees that it will not seek to reverse- engineer any program to obtain source codes, and that it will not disclose the programs source codes or configuration files to any third party, without the written consent of FORTÉ. The programs, source codes and configuration files, together with FORTÉ's know-how and integration and configuration techniques, furnished hereunder are proprietary to FORTÉ, and were developed at its private expense. If Customer is a branch of the United States government, for purposes of this Agreement any software furnished by FORTÉ hereunder shall be deemed "restricted computer software", and any data, including installation and systems configuration information, shall be deemed "limited rights data", as those terms are defined in FAR 52.227-14 of the Code of Federal regulations.
   
   
4. Shipping and Handling and Taxes – The prices shown are F.O.B. manufacturer's plant or FORTÉ’s office depending on where items are located when direction is issued to ship to the point of integration. The Customer, in accordance with FORTÉs current shipping and billing practices, will pay all destination charges. In addition to the prices on this Agreement, the Customer agrees to pay amounts equal to any sales tax invoiced by FORTÉ, or (where applicable) any use or personal property taxes resulting from this Agreement or any activities hereunder. Customer will defend, indemnify and hold harmless FORTÉ against any claims by any tax authority for all unpaid taxes or for any sales tax exemption claimed by Customer.
   
   
5. Title – Where applicable, title to the Equipment passes to the Customer on the earlier of: (a) the date of shipment from FORTÉ to Customer, or (b) the date on which FORTÉ transmits its invoice to Customer.
   
   
6. Security Interest – In addition to any mechanics' lien rights, the Customer, for value received, hereby grants to FORTÉ a security interest under the Minnesota commercial code together with the a security interest under the law(s) of the state(s) in which work is performed or equipment is delivered. This security interest shall extend to all Equipment, plus any additions and replacements of such Equipment, and all accessories, parts and connecting Equipment now or hereafter affixed thereto. This security interest will be satisfied by payment in full unless otherwise provided for in an installment payment agreement. The security interest shall be security for all sums owed by Customer under this Agreement. A copy of this Agreement may be filed as a financing statement with the appropriate authority at any time after signature of the Customer. Such filing does not constitute acceptance of this Agreement by FORTÉ.
   
   
7. Risk of Loss or Damage – Notwithstanding Customer’s payment of the purchase price for Equipment, all risk of loss or damage shall transfer from FORTÉ to Customer upon transfer of Title to Customer. Customer shall be responsible for securing insurance on Equipment from this point forward.
   
   
8. Receiving/Integration – Unless the Agreement expressly includes integration services by FORTÉ, the Customer agrees to furnish all services required for receiving, unpacking and placing Equipment in the desired location along with integration. Packaging materials shall be the property of the Customer.
   
   
9. Equipment Warranties – To the extent FORTÉ receives any warranties from a manufacturer on Equipment; it will pass them through to Customer to the full extent permitted by the terms of each warranty. Factory warranties vary by manufacturer, and no additional warranties are expressed or implied.
   
   
10. General Warranties – Each Party represents and warrants to the other that: (i) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, including without limitation the right to bind any party it purports to bind to this Agreement; (ii) the execution, delivery and performance of this Agreement by that Party does not conflict with any other agreement to which it is a Party or by which it is bound, and (iii) it will comply with all applicable laws in its discharge of its obligations under this Agreement. FORTÉ warrants, for a period of 90 days from Substantial Completion, the systems integration to be free from defects in workmanship. CUSTOMER WARRANTS THAT IT HAS NOT RELIED ON ANY INFORMATION OR REPRESENTATION PROVIDED BY OR ON BEHALF OF FORTÉ WHICH IS NOT EXPRESSLY INCLUDED IN THESE GENERALTERMS AND CONDITIONS OR THE RETAIL SALES AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN. FORTÉ DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE EQUIPMENT, MATERIALS AND SERVICES PROVIDED BY FORTÉ, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE.
    
    
11. Indemnification – Customer shall defend, indemnify and hold harmless FORTÉ against all third party damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys' fees and costs, (whether or not a lawsuit or other proceeding is commenced), that arise in whole or in part from:
    (a) any negligent act or omission of Customer, its agents, or subcontractors, (b) Customer's failure to fully conform to all laws, ordinances, rules and regulations which affect the Agreement, or (c) Customer’s breach of this Agreement. If Customer fails to promptly indemnify and defend such claims and/or pay FORTÉ’s expenses, as provided above, FORTÉ shall have the right to defend itself, and in that case, Customer shall reimburse FORTÉ for all of its reasonable attorneys' fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of FORTÉ’s written requests. FORTÉ shall indemnify and hold harmless Customer against all third party damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys' fees and costs, (whether or not a lawsuit or other proceeding is commenced), to the extent that the same is finally determined to be the result of (a) any grossly negligence or willful misconduct of FORTÉ, its agents, or subcontractors, (b) FORTÉ’s failure to fully conform to any material law, ordinance, rule or regulation which affects the Agreement, or (c) FORTÉ’s uncured material breach of this Agreement.
    
    
12. Remedies – Upon default as provided herein, FORTÉ shall have all the rights and remedies of a secured party under the Minnesota commercial code and under any other applicable laws. Any requirements of reasonable notice by FORTÉ to Customer, or to any guarantors or sureties of Customer shall be met if such notice is mailed, postage prepaid, to the address of the party to be notified shown on the first page of this Agreement (or to such other mailing address as that party later furnishes in writing to FORTÉ) at least ten calendar days before the time of the event or contemplated action by FORTÉ set forth in said notice. The rights and remedies herein conferred upon FORTÉ, shall be cumulative and not alternative and shall be in addition to and not in substitution of or in derogation of rights and remedies conferred by the Minnesota commercial code and other applicable laws.
    
    
13. Limitation of Remedies for Equipment – FORTÉ’s entire liability and the Customer's sole and exclusive remedy in all situations involving performance or nonperformance of Equipment furnished under this Agreement, shall be the adjustment or repair of the Equipment or replacement of its parts by FORTÉ, or, at FORTÉ option, replacement of the Equipment.
    
    
14. Limitation on Liability – EXCEPT IN CIRCUMSTANCES INVOLVING ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL LIABILITY OF FORTÉ UNDER THIS AGREEMENT FOR ANY CAUSE SHALL NOT EXCEED (EITHER FOR ANY SINGLE LOSS OR ALL LOSSES IN THE AGGREGATE) THE NET AMOUNT ACTUALLY PAID BY CUSTOMER TO FORTÉUNDER THIS 
    AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH FORTÉ’S LIABILITY FOR THE FIRST SUCH LOSS FIRST AROSE.
    
    
15. No Consequential Damages – FORTÉ SHALL NOT HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY INDIRECT, INCIDENTAL, 
    CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
    
    
16. Acceleration of Obligations and Default – Payment in full for all “Equipment,” which is defined as all goods identified in the section of the Agreement with the same title, as well for any and all other amounts due to FORTÉ shall be due within the terms of the Agreement. Upon the occurrence of any event of default by Customer, FORTÉ may, at its option, with or without notice, declare the whole unpaid balance of any obligation secured by this Agreement immediately due and payable and may declare Customer to be in default under this Agreement.
    
    
17. Choice of Law, Venue and Attorney’s Fees – This Agreement shall be governed by the laws of the State of Minnesota in the United States of America without reference to or use of any conflicts of laws provisions therein. For the purpose of resolving conflicts related to or arising out of this Agreement, the Parties expressly agree that venue shall be in the State of Minnesota in the United States of America only, and, in addition, the Parties hereby consent to the exclusive jurisdiction of the federal and state courts located in Hennepin County, Minnesota in the United States of America and waive any right to assert in any such proceeding that Customer is not subject to the jurisdiction of such court or that the venue of such proceeding is improper or an inconvenient forum. The Parties specifically disclaim application (i) of the United Nations Convention on the International Sale of Goods, 1980, and (ii) of Article 2 of the Uniform Commercial Code as codified. In the event FORTÉ must take action to enforce its rights under the Agreement, the court shall award FORTÉ the attorney’s fees it incurred to enforce its rights under this Agreement.
    
    
18. General – Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The Parties acknowledge and agree that the Agreement has been negotiated by the Parties and that each had the opportunity to consult with its respective counsel, and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party based on draftsmanship of the Agreement. This Agreement is not assignable by Customer without the prior written consent of FORTÉ. Any attempt by Customer to assign any of the rights, duties, or obligations of this Agreement without such consent is void. FORTÉ reserves the right to assign this Agreement to other parties in order to fulfill all warranties and obligations expressed herein, or upon the sale of all or substantially all of FORTÉ’s assets or business. This Agreement can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Customer and of FORTÉ, and variance from the terms and conditions of the Agreement in any order or other written notification from the Customer will be of no effect. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. FORTÉ is not responsible for any delay in, or failure to, fulfill its obligations under this Agreement due to causes such as natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or any other reason or any other cause or condition beyond FORTÉ’s reasonable control. Except as otherwise stated in the Agreement, FORTÉ is not obliged to provide any services hereunder for Equipment located outside the United States or Puerto Rico. Scheduled completion dates are subject to change based on material shortages caused 
    by shortages in cable and materials that are industry wide.
    
    
19. Confidentiality. The term “Confidential Information” shall mean the inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by FORTÉ or the Customer, which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature. All the Confidential Information of a party to this Agreement shall be maintained in confidence by the other party, and neither party shall, during the term of this Agreement or for a period of three (3) years subsequent to the termination of this Agreement, divulge to any person or organization, or use in any manner whatsoever, directly or indirectly, for any reason whatsoever, any of the Confidential Information of the other party without receiving the prior written consent of the other party. FORTÉ and the Customer shall take such actions as may be reasonably necessary to ensure that its employees 
    and agents are bound by the provisions of this Section, which actions shall, as may be reasonably requested by either party, include the execution of written confidentiality agreements with the employees and agents of the other party. The provisions of this Section shall not have application to any information that (i) becomes lawfully available to the public; (ii) is received without restriction from another person or organization lawfully in possession of such information; (iii) was rightfully in the possession of a party without restriction prior to its disclosure; or (iv) is independently developed by a party or its employees or agents without access to the other party’s similar information.
    
    
20. Non-solicitation - To the extent permitted by applicable law, during the term of this Agreement and for a period of one (1) year after the termination this Agreement, each Party agrees that it shall not knowingly solicit or attempt to solicit any of the other Party's executive employees or employees who are key to such Party’s performance of its obligations under this Agreement (“Covered Employees”). Notwithstanding the foregoing, nothing herein shall prevent either Party from hiring as an employee any person who responds to an advertisement for employment placed in the ordinary course of business by that Party and/or who initiates contact with that party without any direct solicitation of that person by that Party or its agents.
    
    
21. Price Quotations and Time to Install – FORTÉ often installs systems at the end of a construction project. The price quoted contemplates that FORTÉ shall have access to the location for the time shown for FORTÉ to complete its work after the work of all other contractors is substantially complete which means, generally, all other trades are no longer generating dust in the location, and final carpeting/flooring is installed (the “Prepared Area”) Failure to give FORTÉ access to the Prepared Area for the amount of time shown for the installation may result in increased installation costs, typically in a manner proportionate to the reduction of time given to FORTÉ to complete its work compared to the original schedule.
    
    
22. Price Quotations – Unless otherwise specified, all prices quoted reflect a discount for a cash payment (i.e., check, wire transfer) made by Customer in full within the terms of each invoice. Payment in other forms, including credit card, p-card, or other non-cash payments shall be subject to a convenience above the cash price. Please speak to your FORTÉ representative if you have any questions in this regard.
    
    
23. Termination - Either party may terminate this Agreement for any reason, with or without cause, by providing at least ninety (90) days written notice to the other party for Dedicated Staffed Resource contracts and thirty (30) days written notice for standard managed services contracts. Additionally, either party may terminate this Agreement immediately upon written notice if the other party fails to perform any material obligation under this Agreement and does not cure such failure within thirty (30) days of receiving written notice. Termination is also permissible if one party becomes insolvent, files for bankruptcy, or undergoes similar proceedings. Upon termination, both parties must promptly return or destroy any confidential information belonging to the other party. The Customer shall pay for all services rendered and expenses incurred up to the date of termination. Furthermore, any provisions that by their 
    nature should survive termination or expiration, including confidentiality obligations and payment obligations, shall continue in effect beyond the termination date. In the event of termination of this Agreement for any reason, the Customer shall be entitled to a partial refund of any prepaid fees, calculated on a pro-rata basis for the remaining term of the contract