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Sales Terms and Conditions

 

Important Information About These Terms and Conditions

Intex reserves the right to update or modify these Terms and Conditions at any time without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by Intex and Customer.

Governing Terms

All products and services offered for sale by Intex, Inc. ("Intex") are sold subject to the terms and conditions stated herein. These terms and conditions (“Terms”) shall apply to the sale of products and/or services (collectively, the “Products”) by Intex Corporation or any of its affiliates or related entities (“Intex”) to Customer regardless of whether Customer purchases the Products through the medium of written purchase orders, electronic orders, verbal or written quotations, or any other writings or communications from Intex and/or Customer relating to the Products (collectively, the “Purchase Orders”) to which these terms and conditions are attached or incorporated by reference.

Except as expressly agreed by an authorized representative of Intex in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Customer's request for quotation, acknowledgment, purchase order or other contract documentation shall apply.

No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a "Statement of Work"). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter.

Upon Intex’s express acceptance by its issuance of a written Sales Order Acknowledgement (“SOA”) or upon commencement of performance by Intex, these Terms and the Purchase Orders become a binding contract between Customer and Intex (the “Sales Agreement”). In case of any conflict between these Terms and the terms of a Purchase Order, these Terms prevail except where Intex has expressly accepted the conflicting term from the Purchase Order in its SOA. Absent such express written acceptance, any such conflicting or additional terms proposed by Customer are expressly rejected by Intex. Except as otherwise set forth in these Terms, Intex must specifically agree to any addition or change to the Sales Agreement in a non-electronic writing signed by a duly authorized representative of Intex before becoming binding on Intex.

Customer's acceptance of the products or services delivered by Intex shall constitute an affirmation by Customer that the terms and conditions set forth herein govern the purchase and sale of the goods or services.

Governing Law

THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN PIMA COUNTY, ARIZONA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Intex under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity. The United Nations Convention on Contracts for the International Sales of Goods does not apply to the Sales Agreement and all of the terms of the Sales Agreement must be construed in accordance with the Uniform Commercial Code as enacted in the State of Arizona

THE SALE OF PRODUCTS AND SERVICES ("PRODUCTS") BY INTEX INC. AND ITS DIVISIONS AND SUBSIDIARIES ("INTEX") ARE SUBJECT TO THESE TERMS AND CONDITIONS (“AGREEMENT”) REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR OTHER COMMUNICATION ("ORDER"). PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER (“CUSTOMER”) DOCUMENT (FOR EXAMPLE: PURCHASE ORDERS OR CONFIRMATIONS) AND/OR INTEX’S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT..

Standard Specifications

Unless otherwise agreed to in writing between Intex and Customer, Intex will manufacture all of the Products in accordance with its own specifications (“Standard Specifications”).

Pricing Information; Availability Disclaimer

Intex’s quoted prices apply for 30 days or as otherwise stated in its quote. Intex may increase prices if Intex’s costs increase or other circumstances beyond Intex’s reasonable control. Intex reserves the right to make adjustments to pricing, Products and specifications of its Products at any time without notice for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. Prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority. Customer agrees to pay to Intex sales, use, excise, or similar taxes applicable to the sale of the Products and such other costs and expenses described in these Terms. In the event Intex is required to prepay any such tax, Customer will reimburse Intex. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, Intex cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by Intex are for planning purposes only.

Orders

All Orders are subject to acceptance by Intex. Orders for special, custom, value-added and Products specifically identified by Intex as non-standard are non-cancelable and nonreturnable (“NCNR”). The Customer may not cancel or reschedule orders for standard Products without Intex’s consent, which shall not be unreasonably withheld. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, internal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement, or any other validly executed agreement between Intex and Customer, will continue to apply to the purchase and sale of Products between Customer and Intex.

Packaging

Intex will endeavor to comply with Customer’s packaging specifications, if any, but Intex reserves the right to substitute any other methods of packaging that is reasonably comparable to the specifications furnished by Customer.

Delivery and Shipment

Customer must pay all transportation costs of the Products and if prepaid by Intex, the amount thereof shall be reimbursed to Intex. Intex may make partial shipments at Intex’s sole discretion. A delivery date indicated in a SOA is not binding on Intex. A delivery date indicated in a SOA by Intex is estimated but is not guaranteed. Intex will make every effort to ship the products or provide the services hereunder in accordance with the requested delivery date, provided that Intex accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. Customer acknowledges that notwithstanding the foregoing, the following events may cause Intex’s failure to perform any of Intex’s obligations under the Sales Agreement (collectively, the events are “Delaying Events” and each event is a “Delaying Event”): (a) any cause beyond Intex’s reasonable control, including, but not limited to, a labor dispute, industry disturbance, fires, unusually severe weather conditions, earthquakes, floods, declared or undeclared war, epidemics, computer malfunctions, civil unrest, riots, lack of supplies, delay in transportation, governmental, regulatory or legal action, act of God; or (b) by acts or omissions of Customer, including, but not limited to, Customer’s failure to promptly comply with the terms of payment under the Sales Agreement. Any date of delivery may be extended for a period equal to the time lost by reason of any Delaying Event. Intex reserves the right to cancel without liability any Sales Agreement, the shipment of which is or may be delayed for more than thirty (30) days by reason of any Delaying Event. Intex reserves the right to allocate at its sole discretion among customers or potential customers, or defer or delay the shipment of, any of the Products, which is in short supply.

Inspection

Customer shall be responsible for inspecting all products shipped hereunder prior to acceptance, provided, that if, Customer shall not have given Intex written notice of rejection within 30 days following shipment to Customer, the products shall be deemed to have been accepted by Customer.

Export Sales

If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by Intex in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported Products may vary or may be null and void for Products exported outside the United States. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required.

Payment

Orders are not binding upon Intex until accepted by Intex. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Intex as a result of using Customer's carrier account number. Terms of payment are within Intex's sole discretion. In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the Services as invoiced by Intex. Invoices are due and payable within the time period specified on the invoice, measured from the date of Product shipment, subject to continuing credit approval by Intex. Intex reserves the right to limit or cancel the credit of Customer, and Intex may require or demand advance payment and/or adequate assurances of performance from Customer prior to taking any preparatory steps for performing under the Sales Agreement or beginning the manufacture of the Products. Intex may apply payments to any of Customer’s accounts. Intex will not schedule Products for manufacture with payment terms of “Payment in Advance” until paid in full by Customer.

Intex or any of its Affiliates on behalf of Intex may issue an invoice to Customer. Intex may invoice Customer separately for partial shipments, and Intex may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. Customer will pay for, and will indemnify and hold Intex and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Intex with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Intex’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, Intex reserves the right to suspend Services or shipment of Products until payment is received. Customer hereby grants to Intex a security interest in the Products to secure payment in full. Customer authorizes Intex to file a financing statement reflecting such security interest. If Customer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay Intex’s invoices as they become due, Intex reserves the right to: (a) delay or cancel any Sales Agreement or Statement of Work; (b) modify terms prior to shipment; (c) require “Payment in Advance” terms; or (d) delay or cancel any shipment.

Credits

Any credit issued by Intex to Customer for any reason must be used within one (1) year from the date that the credit was issued and may only be used for future purchases of Products and/or Services. Any credit or portion thereof not used within the one (1) year period will automatically expire.

Product Returns / Non-Conforming Products

If the Products are in breach of the Express Limited Warranty, and the Express Limited Warranty is not rendered ineffective, Customer must promptly notify Intex in writing. If Intex determines that the Products are in breach of the Express Limited Warranty, then Intex will, at its sole discretion, either repair or replace the non-conforming Product at no cost to Customer. For service under the Express Limited Warranty, Customer must contact Intex to obtain a return material authorization (“RMA”) number and shipping instructions. Customer cannot return Products without a return material authorization ("RMA") number. RMAs will be issued only for damage or other discrepancy to Products created solely by Intex or the original manufacturer, and only if Customer notifies Intex in writing of any damage or other discrepancy to Products within 60 days after delivery. RMAs will not be granted for damage or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Returned Products must be in original manufacturer's shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA. At Intex’s discretion, Intex will return to Customer all Products not eligible for return, freight collect, or hold Product for Customer’s account at Customer’s expense.

If Customer returns Products to Intex without an RMA number, such Products will be held by Intex for thirty (30) days, after which Intex may deem the Products abandoned and dispose of them as it sees fit, without crediting Customer’s account. For Products returned with a valid RMA number, absent any contrary written instructions from the Customer, such Products will be held by Intex for thirty (30) days after completion of testing and then will be deemed abandoned and disposed of as Intex sees fit, without crediting Customer’s account. Intex reserves the right to verify any non-conformity of the Products at the module or sub-assembly level. Intex, at its sole discretion, may perform a destructive physical analysis of any non-conforming Product if requested by Customer, provided the Products are within the sixty (60) day Express Limited Warranty Period and upon payment by Customer of the greater of (a) $250 per unit, or (b) Intex’s actual costs associated with the physical analysis.

Termination / Cancellation

In the event of a breach by Customer, Intex may terminate the Sales Agreement upon giving ten (10) day’s written notice of termination. If the Sales Agreement is terminated by Intex because of Customer’s breach, Intex is entitled to reasonable reimbursement for any labor, material or other expenses incurred in connection with the Sales Agreement, plus a reasonable amount for overhead.

All cancellations and reschedules by Customer require a minimum of: forty-five (45) days prior written notice for standard module Products; sixty (60) days prior written notice for standard configurable Products; and ninety (90) day’s prior written notice for all other Products, unless otherwise agreed to in writing by Intex. Intex will ship all completed Products scheduled for delivery during such periods unless an exception is negotiated and agreed to in writing by both parties. In the event of any cancellation of a Sales Agreement, Customer shall pay Intex: (a) the price for any Products manufactured to firm orders; (b) the cost of any work in process; (c) the cost of materials and components ordered with authorization to meet forecast; and (d) a reasonable mark-up on the cost of work in process and the ordered materials and components. If Customer requires Intex to cancel any authorized orders for materials or components, Customer shall be responsible for any cancellation costs or restocking charges incurred as a result.

Performance

Unless otherwise agreed to in writing, Intex reserves the right to make design changes which Intex believes will improve its products. Intex may also satisfy customer purchase orders by shipping 90-105% of ordered quantities for nonstandard products depending on actual yield from such nonstandard product runs. Intex shall only charge Customer for actual quantities shipped. Intex' performance shall be excused in the event of strikes, accidents, fires, unavailability of materials and all other causes beyond the control of Intex.

Tool Ownership

All tools, dies, and patterns produced by or at the request of Intex, or otherwise utilized by Intex in the production of any products sold to Customer, shall remain the exclusive property of Intex. Intex reserves the right to advertise and/or sell any of the foregoing items and any of its products produced therewith, unless otherwise specifically agreed to in writing by an authorized representative of Intex.

Use of Products

Unless specifically otherwise agreed in writing by Intex, Customer acknowledges that Products sold by Intex are not intended for use in life support systems, human implantation, nuclear facilities or systems or any other application where product failure or malfunction of the component may reasonably be expected to result in personal injury, loss of life or catastrophic property damage (each, a “High Risk Activity”). Customer will indemnify, defend and hold Intex and product manufacturer harmless from any and all liabilities, loss, cost or damage resulting from Customer’s use of the Products to perform any High Risk Activity.

Product Information

Product information, including information related to a Product’s specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by Intex from its suppliers or other sources. Such information is provided by Intex on an "AS IS" basis. Intex makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Intex recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Intex is not responsible for typographical or other errors or omissions in Product information.

Express Limited Warranty and Disclaimer

Customer understands that Intex is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Intex or its Affiliates. In purchasing the Products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Intex or its Affiliates. Intex will transfer to Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Intex warrants that the Products will conform to their manufacturers Standard Specifications (the “Express Limited Warranty”). This warranty is extended to the original Customer for the period expiring sixty (60) days (“Warranty Period”) after the FOB delivery of the Products and is not transferable. Value-added work performed by Intex on Products will conform to Customer’s specifications. UNLESS EXPRESSLY STATED IN THE SALES AGREEMENT, INTEX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER. THIS PARAGRAPH SURVIVES THE TERMINATION OR CANCELLATION OF THE SALES AGREEMENT. If Products do not meet manufacturer's specifications or if value-added work by Intex does not meet Customer’s specifications the Products will be, at Intex’s choice: (1) repaired; or (2) replaced at no cost to Customer. Customer must return Products to Intex, along with acceptable proof of purchase, within the warranty period freight charges prepaid. Customer expressly waives any claim that it may have against Intex or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Intex or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of Intex or its Affiliates is authorized to make any representation or warranty on behalf of Intex or any of its Affiliates that is not in this Agreement. Use of Customer’s part number in any documents evidencing the Sales Agreement or on the Products is for convenience only and does not constitute any representation by Intex with respect to performance, specifications, or fitness of any part for any purpose.

Conditions of Applicability of Express Limited Warranty

The Express Limited Warranty is of no effect if: (a) the Products are not stored, handled or serviced appropriately; (b) the non-conformity of the Products resulted from damages occurring after the FOB delivery of the Products, whether by misuse, accident or improper application or maintenance; (c) the non-conformity of the Products has not been reported to Intex in writing within 60 days after the FOB delivery of the Products; or (d) the non-conformity should have been discovered by Customer in Customer’s inspection and it is not reported in writing within ten (10) days after the FOB delivery of the Products. If Customer or any purchaser from Customer shall alter or modify the Products without Intex’s prior written consent, and any claims are asserted against Intex by reason of such alternation or modification, Customer shall defend, indemnify, and hold Intex harmless against any and all damages, liabilities, expenses and costs in connection therewith or resulting therefrom. Intex will not be liable for any inaccuracies of information published by Intex relating to the Products

Limitation of Liability

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL INTEX, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF INTEX HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY INTEX OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE.

IN THE EVENT OF ANY LIABILITY INCURRED BY INTEX OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF INTEX AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD INTEX HARMLESS FROM ANY CLAIMS BASED ON; (i) INTEX’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN INTEX, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS

Indemnification

To the maximum extent allowed by law, Customer must defend and indemnify Intex and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Intex may incur or be obligated to pay as a result of: (a) Customer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; (b) any infringements or alleged infringement of the industrial and intellectual property rights of others arising from Non-Standard Specifications (including Customer’s trademarks and brand names) or production of configurable Products and/or custom Products ordered by Customer; (c) Customer’s violation or alleged violation of any Federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices; or (d) Customer’s breach of the Sales Agreement.

Technical Advice

Intex may, at Customer's request, furnish technical assistance, advice and information with respect to the products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at the Customer's risk, and which is provided subject to the disclaimers in paragraph “Limitations of Liability” above.

Agents, etc.

No agent, employee or other representative has the right to modify or expand Intex' standard warranty applicable to the product(s) or to make any representations as to the product(s) other than those set forth in Intex' product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Customer and shall not form a part of this Contract.

Confidential Information

Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.

Each party agrees to hold the other Party's Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other Party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable Statement of Work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Statement of Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement and the applicable Statement of Work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.

If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.

Arbitration

Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Intex's or any of its Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF INTEX, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Intex nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Tucson, Arizona. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Intex arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.

Entire Agreement / General Provisions

The Sales Agreement comprises the complete and final agreement between Intex and Customer and supersedes all prior negotiations, proposals, representations, commitments, understandings or agreements between Intex and Customer, either written or oral. Any other representations or warranties made by any person, including employees or other agents of Intex, that are inconsistent with the Sales Agreement must be disregarded by Customer and are not binding upon Intex. If any model or sample were shown to Customer, such model or sample was used merely to illustrate the general type and quality of goods and not to represent that the Products would necessarily conform to the model or sample.

1. Customer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Intex any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of this Contract or any contracts with Intex.
2. Intex and Customer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.
3. Any provision of this Contract that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from this Contract with respect to such party or circumstance without invalidating the remainder of this Contract or the application of such provision to other persons or circumstances.
4. The headings used in this Contract have no legal effect.
5. The Sales Agreement binds and inures to the benefit of Customer and Intex and their respective successors and permitted assigns. Intex may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Intex.
6. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.
7. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission.
8. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
9. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.
10. Customer and Intex will comply with applicable laws and regulations.