SALES TERMS & CONDITIONS

All sales of products, software, and services (“Products”) made by 3Eye to its customer (“Customer”) are subject to these Terms and Conditions. Customer’s acceptance of these Terms and Conditions shall be made by any of the following, whichever first occurs: (a) Customer’s written acknowledgment; (b) Customer’s application for an account and/or credit submitted to 3Eye, whether delivered in writing, email, fax of via online application; (c) submission of an order (“Order”) via any means; or (d) accessing any 3Eye e-commerce web site. These Terms and Conditions shall apply to sales of all Products by 3Eye to Customer.

3Eye’s acceptance of any order from Customer is limited to these Terms and Conditions in their entirety without addition, modification, or exception. Unless agreed to by both parties in writing, any additional or different terms in Customer’s purchase order or submitted by Customer in any form are hereby deemed to be material alterations hereto and notice of rejection to them is hereby given. 3Eye’s silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be 3Eye’s acceptance or approval thereof. All Products sold to Customer hereunder are for resale or OEM sale only.

1. ORDERING
Prior to placing an order, Customer must have completed account profile and application and Customer’s account must be current and in good standing. Customer must provide 3Eye with complete Product order information as required by 3Eye, which may vary by Product.
For government or educational orders, Customer will provide the required Product order information as well as end-user (“End-User”) name and zip code. Orders for software licenses, software-as-a-service (“SaaS”), or cloud services (“Cloud Services”) must include an End-User contact name, email, and phone number for fulfillment of license, or setup, provisioning and delivery of SaaS or Cloud Services, as applicable. 3Eye reserves the right to require additional information based on the requirements of the Manufacturer or publisher of the Product or provider of the SaaS or Cloud Service.

Customer will identify, for each Product order, the ship-to destination as either itself, its End User, or to some other specified third party. Customer may place orders over telephone, via facsimile, and via 3Eye- approved electronic ordering methods. 3Eye reserves the right to reschedule any order, with notice to Customer, at 3Eye’s reasonable discretion, and to decline any order for any reason, or no reason, in 3Eye’s sole discretion. Customer shall not disclose any confidential information when ordering from 3Eye.

All Product pricing, description and availability information (“Information”) provided by 3Eye, in any form, is the property of 3Eye. 3Eye hereby grants Customer a limited, non-exclusive, non-transferable license to use the Information for Customer’s internal use only for purposes of Customer’s sales and purchases of Products sold by 3Eye. Customer agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilize the Information for any purpose except as permitted herein. 3EYE MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, ON THE INFORMATION. ALL INFORMATION IS PROVIDED TO CUSTOMER “AS IS”. 3EYE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO INFORMATION INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

2. ORDER CANCELLATION & RESCHEDULING
3Eye will use commercially reasonable efforts to accommodate order reschedule or cancellation requests, however there is no guarantee such requests can be accommodated. Custom products, special order products, software, SaaS, and Cloud Service orders are 100% non-cancelable and non-returnable.

3. CUSTOMER RESPONSIBILITIES
Customer warrants it is familiar with the Products and their intended use(s) and is qualified to resell and market the Products to End-Users. Customer agrees to adhere to and abide by any Minimum Advertised Price (MAP) policy of the Products, as published by the Product Manufacturer. Customer agrees to provide sales reporting if required by Product Manufacturer. Customer shall not resell Products in any manner that would create a “black market” or “gray market” for such Products. As used in this paragraph, the term “black market” shall include, but is not limited to, situations in which Customer sells Products to End-Users in geographic areas that are not permitted by the Manufacturer, and the term “gray market” shall include, but is not limited to, bundling Products that do not add significant value in order to sell Products at a discount.
Customer warrants that it is and at all times during its relationship with 3Eye shall remain in good financial condition, solvent and able to pay its bills when due and perform its obligations as agreed, regardless of its ability or inability to collect payments from its End Users. Customer shall maintain commercially reasonable insurance in an amount appropriate to Customer’s industry and risk profile.

4. PRICE
All prices are subject to change without notice and will be established at time of order acceptance by 3Eye. Order acceptance and sale by 3Eye occurs at time of shipment, license fulfillment, or provisioning of SaaS or Cloud Service. Prices for backordered Products are not guaranteed.

5. SHIPMENT AND DELIVERY
Unless otherwise stated on official 3Eye sales quote, all Product shipments will be made FOB origin. Customer or End User shall examine all Products upon receipt and shall notify 3Eye within 48 hours of receipt of all discrepancies and/or refusal to accept delivery of purchased Product. If Customer does not give 3Eye such notice as stated herein, Customer agrees that such Products have been accepted by Customer as of the date of shipment.
Any product quantity shipped in excess of Customer PO, may be returned at the expense of 3Eye within 30 days of receipt, provided 3Eye is notified within 15 days of receipt of over-shipment.

6. CREDIT AND PAYMENT TERMS
Customer shall furnish to 3Eye all financial information reasonably requested by 3Eye from time to time for the purpose of establishing or continuing Customer’s credit limit. Customer agrees that 3Eye shall have the right to decline or to extend credit to Customer and to require that the applicable purchase price be paid prior to shipment if credit is deemed to be in poor standing.  Customer consents that 3Eye may share Customer credit information or customer application information with its Vendors. Customer shall promptly notify 3Eye of all changes to Customer’s name, address, or the sale of substantially all of its assets. 3Eye shall have the right from time to time, with notice, to change or revoke Customer’s credit limit on the basis of changes in 3Eye’s credit policies or Customer’s financial condition and/or payment record. Customer shall not deduct any amounts owing from any 3Eye invoice without 3Eye’s express written approval, which approval shall be contingent upon Customer providing all supporting documentation for such deduction as required by 3Eye. Customer’s obligation to make timely payment is a material element of these Terms & Conditions and if breached with cause damage. A service charge of the lesser of one and one-half percent (1 ½%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due. Credit cards (MasterCard, VISA and Discover Card) will only be accepted at the time of order. No cash payments will be accepted. Payments will be deemed to have been made on the date of receipt of check, or the date of the ACH deposit, as applicable.

3Eye retains, and Customer grants to 3Eye by placing and order, a security interest in the Products to secure payment in full, and Customer agrees to execute any additional documents necessary to perfect such security interest. If Customer fails to make timely payment of any amount invoiced hereunder, 3Eye shall have the right, in addition to any and all other rights and remedies available to 3Eye at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Customer. Customer shall pay all costs of collection including reasonable attorneys’ fees. Any obligation of 3Eye under these terms and conditions to deliver Products on credit terms shall terminate without notice if Customer files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against Customer, or if a receiver or trustee is appointed to take possession of the assets of Customer.

7. TAXES
Customer shall bear applicable federal, state, municipal, and other government taxes. Unless otherwise specified, prices do not include such taxes. Tax exempt certificates must be presented to 3Eye prior to shipment if they are to be honored.

8. WARRANTY
Product warranties, if any, are provided by the Manufacturer or publisher of the Products. 3Eye makes no warranties whatsoever. 3Eye’s sole obligation, and Customer’s sole remedy, in the event of breach of any warranty shall be to facilitate the repair or replacement of defective Products. In no event shall 3Eye be liable for any consequential damages or damages of any kind or nature alleged to have resulted from any breach of warranty. 3Eye does not warrant the merchantability of the Products or their fitness for any particular purpose. 3Eye makes no warranty, express or implied, other than those specifically set for herein.

9. PRODUCT RETURNS
Customer must obtain a valid Return Material Authorization (“RMA”) number from 3Eye for all returns. RMAs will be issued, at 3Eye’s sole discretion, in accordance with the Manufacturer or publishers return policy. 3Eye reserves the right to require Customer to return defective Products directly to the Manufacturer or publisher for replacement according to its defective Products return policy. Customer or End-User shall refuse any Product delivered in damaged condition. If the Product is received in damaged condition, Customer shall notify 3Eye and request an RMA within three (3) business days of receipt of such Product. Failure to notify 3Eye and request an RMA within such time shall be deemed an acceptance of the Product as of the date of shipment.

10. BILLING AND SHIPPING DISCREPANCIES
Billing and shipping discrepancies are for Products purchased from 3Eye that were invoiced or shipped incorrectly. These include lost shipments, short shipments, wrong sales, wrong shipments and pricing/invoice errors. Customer may request an RMA for verified billing and shipping discrepancies within thirty (30) calendar days of invoice date. In addition, Customer must notify 3Eye of any billing discrepancies related to Customer’s authorized returns within ninety (90) calendar days of RMA date. Such notice shall be reasonably detailed and shall specify the discrepancy. Failure to give such notice within the time specified herein shall be deemed a waiver of Customer’s rights to claim such discrepancy.

11. INDEMNIFICATION
Customer shall defend, indemnify and hold 3Eye, its officers, agents, employees, representatives, Manufacturers, and publishers harmless from and against any claim, injury, loss or expense, including attorneys’ fees and expenses, arising out of (i) any breach by Customer of these Terms & Conditions, (ii) improper acts or omissions by Customer relating to its purchase and resale of the Products (iii) any infringements by Customer of any third party patents, copyrights, trademarks, design rights or other intellectual property, (iv) misrepresentation of Products by Customer, and (v) and any gross negligence, willful misconduct or fraud of Customer.
Customer acknowledges that 3Eye will have no responsibility for any claims for infringement of intellectual property rights pertaining to distribution, sale or use of the Products. 3EYE SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY CUSTOMER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS.

12. LIMITATION OF LIABILITY
3EYE SHALL NOT BE LIABLE TO CUSTOMER, END-USER, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY CUSTOMER, END-USER, OR ANY OTHER THIRD PARTY, OF PRODUCTS DELIVERED TO CUSTOMER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF 3EYE. IN NO EVENT SHALL 3EYE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH 3EYE’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH THESE TERMS & CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICE, USE OR PERFORMANCE OF ANY PRODUCTS OR INFORMATION 3EYE SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. 3EYE’S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE LESSER OF $50,000 USD OR THE TOTAL AMOUNTS PAID BY CUSTOMER TO 3EYE FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13. CONFIDENTIALITY
The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper
disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other’s Confidential Information of restrictions required to comply with this Section. Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure. Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving party may use such Confidential Information under these Terms & Conditions, solely for the purposes of satisfying its obligations hereunder.
Each party acknowledges that any material violation of the rights and obligations provided in this Section may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law.

14. ANTI-CORRUPTION AND ANTI-BRIBERY
Customer has not made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, or promise to give, anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Customer in obtaining or retaining business, or securing and improper advantage.
Customer acknowledges and agrees that it will not tolerate bribery in any form in connection with the conduct of its business. Customer shall (i) comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption (“Anti-bribery Laws”), including without limitation the US Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act; (ii) not engage in any activity, practice or conduct which would constitute an offense under the FCPA if such activity, practice or conduct had been carried out in the United States; and (iii) maintain its own anti-bribery policies and procedures including without limitation adequate procedures to ensure compliance with the Anti-Bribery Laws and the Anti-bribery Policies and this Section, and provide a copy of such policies and procedures to on request, and enforce such policies and procedures where appropriate. Breach of this Section shall be deemed a material breach of these Terms & Conditions.

15. DISPUTES
In the event that a dispute occurs in connection with these Terms & Conditions, the parties agree that each will make a good faith attempt to reconcile such dispute with the other party. In the event of any litigation arising out of these Terms & Conditions or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgment, reasonable attorneys’ fees and court costs.

16. COMPLIANCE WITH U.S. EXPORT LAWS
If Customer delivers the Products to its customer who may use the Products outside the United States, Customer acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export. Customer agrees that it will not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States. Customer warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Customer has obtained prior approval from the Department of Commerce. Customer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the Department of Commerce.

17. RELATIONSHIP OF THE PARTIES
The customer’s relationship with 3Eye will be that of an independent contractor. Customer will not have, and will not represent that it has, any power, right, or authority to bind 3Eye, or to assume or create any obligation or responsibility, express, implied, or by appearances, on behalf of 3Eye or in 3Eye’s name, except as herein expressly provided. Nothing stated in these terms and conditions will be construed as constituting Customer and 3Eye as partners or as creating the relationships of employer/employee, franchisor/franchisee, or principal/agent between the parties. The customer will make no warranty, guarantee, or representation, whether written or oral, on 3Eye’s behalf.

18. FORCE MAJEURE
Any delay or failure in the performance by 3Eye hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of 3Eye, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage, terrorism, vandalism, accident, restraint of government, governmental acts, injunctions, labor strikes, and other like events that are beyond the reasonable anticipation and control of 3Eye.

19. MANUFACTURER, PUBLISHER, AND SUPPLIER RESTRICTIONS
If authorization for resale is required by the Manufacturer or publisher of any Product, then 3Eye will not be obligated to sell such Product to the Customer unless 3Eye has received notification of such authorization from the Manufacturer or publisher. Products delivered to Customer hereunder may have additional restrictions on their use required by the Manufacturer or publisher. The customer is solely responsible for ensuring its adherence to any and all such restrictions and requirements. If any supplier prohibits 3Eye from selling specific Products to Customer, then 3Eye reserves the right not to sell such Products to Customer. 3Eye will use commercially reasonable efforts to notify Customers if a Product requires special authorization.

20. GOVERNING LAW
These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to any conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the United States of America located in the Western District of Michigan or the courts of the State of Michigan located in Calhoun County, as applicable, for any actions, suits or proceedings arising out of or relating to these Terms & Conditions and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Each party hereby irrevocably and unconditionally waives any objection or challenge to the laying of venue on any action, suit, or proceeding or the transactions contemplated hereby in the courts of the United States of America located in the Western District of Michigan or the courts of the State of Michigan located in Calhoun County, as applicable.