LBX E-BUSINESS TERMS AND CONDITIONS
AND LBX EXPORT COMPLIANCE POLICY
These LBX E-Business Terms and Conditions (“LBX E-Business Terms and Conditions”) and LBX Export Compliance Policy (“LBX Export Compliance Policy”) shall govern Dealer’s use of the System (as defined below) to purchase products from and otherwise conduct business with LBX Company LLC, a Delaware limited liability company (“LBX”). Accessing the Dealer Website (as defined below) will constitute acceptance by Dealer (as defined below) of these LBX E-Business Terms and Conditions.
a. Dealer Website. The term “Dealer Website” means the web site with the Uniform Resource Locator (“URL”) of exchange LBXCO.com.
b. Software. The term “Software” means the computer program accessed through the Dealer Website, including all user interfaces, databases and other software technology, and all corrections, updates, revisions and other modifications to such computer program.
c. System. The term “System” means the functionality provided by the Software, when accessed through the Internet or otherwise, to enable Dealer to access the Dealer Website and to purchase products from LBX (“Products”), including, but not limited to, the functionality of placing Product orders with LBX and receiving order acknowledgments, invoices and other business communications from LBX.
d. Dealer. The term “Dealer” means an authorized dealer of LBX who has a valid LBX Dealership Agreement (as defined below) in full force and effect.
e. Agreement. The term “Agreement” means Dealer’s LBX Dealership Agreement.
2. Grant of Use Rights. In accordance with these LBX E-Business Terms and Conditions, LBX grants Dealer and its authorized employees and agents, the nonexclusive, nontransferable right to use the System. Dealer agrees to use the System in strict compliance with these LBX E-Business Terms and Conditions and solely for Dealer’s use in its ordinary course of dealings with LBX for the purpose of purchasing Products from LBX and otherwise implementing the terms of the Agreement. This grant of use does not provide Dealer an ownership interest in the System or the Software, or in any files, data or images incorporated in or associated with the System or Software.
3. Obligations of Dealer
a. Dealer agrees to use the System in accordance with the following procedures (“Operational Procedures”):
(i) Internet and E-Mail Capability. In order to conduct electronic commerce with LBX, Dealer must have access to the Internet and access to an active e-mail account. Dealer will advise LBX of appropriate Dealer e-mail address and the identification of persons having “Access Codes” (as defined below) from time to time as necessary.
(ii) Purchase Orders. Dealer can process purchase orders (“Orders”) with LBX by using the Dealer Website consistent with the procedures set forth therein. After an Order is processed, a series of validations will occur on the data located within the Order. If there are errors with any of the item numbers submitted as part of the Order, those errors will be identified to Dealer. Dealer may then choose to cancel the entire Order or submit that portion of the Order with correct item numbers only. Dealer will be responsible to re-submit an Order if the Order is cancelled. If Dealer chooses to process the portion of the Order for items without errors, Dealer will be responsible for adding the correct items to the existing Order in the form of an Order revision. Dealer will be required to enter or edit mandatory fields on the Order form to properly submit an Order. When all the mandatory data is entered, the Order shall be submitted to LBX by clicking on the PURCHASE button. Once an Order is properly submitted, Dealer will receive an order confirmation, which may be used to reference the Order. All Orders submitted by Dealer in this fashion will be considered binding offers by Dealer to purchase Product, subject only to LBX’s acceptance by Order Confirmation. No additional Dealer approval will be required. (Reference quoting in new section)
(iii) Order Confirmation. At the time of Order Confirmation, an e-mail will be sent to Dealer’s designated e-mail address, referencing the specific Order and stating that the Order has been acknowledged by LBX. The Order Confirmation, an acknowledgment exception report and the LBX Selling Policy (as defined below) will be attachments to the e-mail. Order Confirmations are also available for review and printing on the Dealer Website.
(iv) Order Invoices. Order Invoices will be sent via e-mail to Dealer. Dealer will provide LBX with a centralized Dealer e-mail address for receipt of Order Invoices.
(v) Receipt of E-mail. Dealer will be responsible for reviewing and verifying all e-mails sent by LBX to the e-mail addresses identified by Dealer and will immediately notify LBX via e-mail or by other appropriate means of known and possible errors.
b. In accordance with the Operational Procedures, Dealer agrees to promptly retrieve, review and retain all Order Confirmations, Order Invoices and other business communications sent via e-mail from LBX to Dealer.
c. Dealer agrees to comply with and abide by in all respects the LBX Selling Policy posted at the Dealer Website as amended from time to time by LBX (“Selling Policy”).
d. Dealer agrees to pay for Products it purchases from LBX in accordance with LBX’s payment terms and conditions and maintain sufficient credit to support Dealer’s purchases.
4. Term. Subject to earlier termination pursuant to the Agreement or Section 16 below, the term of these LBX E-Business Terms and Conditions and the use rights pursuant to Section 2 above shall be the same as the Agreement.
5. Ownership. Dealer agrees that LBX and its licensors own all right, title and interests, including copyrights, trade secrets, patents, trademarks and other proprietary rights, in the Software and the System.
6. Confidentiality. Dealer agrees that the System, including the Software and the Dealer Website, constitute trade secrets and confidential information (“Protected Information”), and such information shall be used solely for the purpose of electronic order processing with LBX. Except as expressly authorized by these LBX E-Business Terms and Conditions, Dealer agrees to treat as confidential and not to disclose or otherwise transfer, copy or use Protected Information. Protected Information does not include information that (a) is or becomes generally available to the public through no fault of Dealer, (b) was known to Dealer prior to its disclosure, or (c) becomes known to Dealer from a source other than LBX, without a breach of these LBX E-Business Terms and Conditions or otherwise not in violation of LBX's rights. Dealer also agrees not to disassemble, decompile or otherwise reverse engineer the Software or the Dealer Website. Dealer shall promptly notify LBX of any actual or suspected misuse or unauthorized disclosure of Protected Information.
8. Restrictions. Dealer, including its authorized employees and agents, agree not to:
a. Copy the System or the Software;
b. Disclose or otherwise transfer the System or the Software;
c. Prepare derivative works of or otherwise modify the System or the Software, other than entering data and interacting with the System as authorized by Section 2 above;
d. Allow any third parties, except as authorized by Section 2 above, to use or access the System or the Software. Dealer agrees to implement procedures designed to restrict access to the System and the Software solely to authorized employees and agents of Dealer;
e. Use the System or the Software to provide service bureau, outsourcing or other such services to third parties, without the prior written consent of LBX;
f. Restrict or inhibit any other authorized LBX dealer or person from using the System and the Software;
g. Input or transmit into or via the System or the Software any unlawful or otherwise objectionable information, including, without limitation, any inputs or transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state or national laws or regulations, or that are threatening, obscene, vulgar, pornographic, profane, indecent, defamatory, or abusive;
h. Input or transmit into or via the System or the Software any virus, worm, corrupted code or other such harmful code;
i. Input or transmit into or via the System or the Software any material which is protected by copyright, trade secret, patent, trade mark or other proprietary rights;
j. Probe, scrape, export, copy, extract, capture or download any information in the System other than as authorized by LBX, including any information related to other dealers; and
k. Assume or claim the identity, characteristics or qualifications of another person.
9. LBX Informational Rights. Dealer authorizes LBX to capture, collate and retain information concerning Dealer’s use of the System solely for LBX’s business purposes, including, but not limited to, evaluating the use and functionality of the System and designing and implementing modifications to the System.
10. LBX Dealer Relationships. Dealer acknowledges and understands that LBX from time to time may offer dealers differing Products, prices and terms via the System (to the extent not otherwise prohibited by applicable law), including, but not limited to, regional promotions and volume discounts.
11. Access Codes. Dealer understands that each of Dealer’s authorized employees and agents allowed to use the System must enter a unique and valid user identification and password (collectively, “Access Codes”) to access and use the System. Dealer agrees that its employees and agents authorized by Dealer to use the System may in all respects act on Dealer’s behalf or obligate Dealer to the same extent as any officer or other principal of Dealer. It is Dealer’s sole responsibility to generate the list of the persons authorized to receive and use the Access Codes in accordance with the Operational Procedures, provide such Access Codes to its authorized employees and agents, and monitor use of such Access Codes. Dealer accepts all responsibility for the security of such Access Codes and the utilization of such Access Codes to place orders and otherwise use the System. Dealer may change the list of the persons authorized to receive and use such Access Codes at any time, and LBX recommends that all passwords be changed at least once each six months. Dealer agrees to notify LBX immediately if any Access Codes and usage of the System thereby have been compromised or if it wishes to terminate access privileges for any Access Codes. Dealer agrees not to disclose Access Codes to any third parties not authorized to act on Dealer’s behalf or to obligate Dealer.
12. Validity. Dealer agrees not to contest the validity or enforceability of Orders, Order Confirmations, Order Invoices or other business communications transmitted using the System by Dealer’s authorized employees and agents. All Orders, Order Confirmations, Order Invoices placed, and other business communication transmitted using Dealer’s Access Codes shall, for all purposes, be deemed to be in writing and signed by Dealer and will be admissible as between the parties to the same extent as other business records originated and maintained in documentary form.
13. No Representations or Warranty. The System and the Software are made available to Dealer “AS IS”. Dealer acknowledges that the System and the Software are made available as a convenience in the operation of Dealer’s business, and Dealer assumes responsibility and risk for Dealer’s use thereof. LBX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THESE LBX E-BUSINESS TERMS AND CONDITIONS AND THE ABILITY OR INABILITY TO PROVIDE ANY SERVICE USING THE SYSTEM OR THE SOFTWARE. DEALER HAS THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE SYSTEM OR THE SOFTWARE AND DEALER AGREES TO HOLD LBX HARMLESS FROM, AND COVENANTS NOT TO SUE LBX FOR, ANY CLAIMS BASED ON USE OF THE SYSTEM OR SOFTWARE, INCLUDING CLAIMS FOR LOST DATA, WORK DELAYS OR LOST PROFITS RESULTING FROM USE OF THE SYSTEM OR SOFTWARE. LBX DOES NOT WARRANT THE ACCURACY OF CONTENT ON THE SYSTEM OR DEALER WEBSITE PROVIDED BY DEALERS OR THIRD-PARTIES.
14. Limitations. LBX AND ITS EMPLOYEES, AFFILIATES, AGENTS, OFFICERS, AND DIRECTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, EQUITY OR AT LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM THESE LBX E-BUSINESS TERMS AND CONDITIONS OR A PARTY’S ABILITY OR INABILITY TO PROVIDE ANY SERVICE USING THE SYSTEM OR THE SOFTWARE. THE ENTIRE RISK OF THE PERFORMANCE, OR THE INABILITY TO USE, THE SYSTEM OR THE SOFTWARE, IS WITH DEALER. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; LBX’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED IN SUCH JURISDICTIONS TO THE EXTENT PERMITTED BY LAW.
15. Indemnification. Dealer agrees to defend, indemnify and hold harmless LBX and its affiliates, including its licensors and operators of the Dealer Website, and their directors, officers, employees, affiliates and agents, from any and all liabilities, costs and expenses, including reasonable attorneys’ fees, relating to or arising from (a) any breach by Dealer of any provision of these LBX E-Business Terms and Conditions, (b) Dealer’s use of the System and the Software, (c) the input or transmission of any information by Dealer into or via the System and the Software, and (d) any negligent acts or omissions by Dealer in connection with its use of the System and the Software.
16. Termination. Dealer’s failure to comply with any of these LBX E-Business Terms and Conditions automatically terminates Dealer’s permission to use the System, and LBX may, at its sole discretion, block or otherwise bar Dealer from future usage of the System, and take any other action it deems necessary and appropriate in law or equity.
17. Amendments. These LBX E-Business Terms and Conditions may be amended by LBX making changes on the LBX E-Business Terms and Conditions posted on the Dealer Website or by sending to Dealer’s Web Administrator an e-mail setting forth the amendment. The amendment shall take effect the earlier of five days after the e-mail is sent by LBX or 30 days after posting the amendment on the Dealer Website.
18. Choice of Law and Arbitration. These LBX E-Business Terms and Conditions and all actions and transactions hereunder shall be construed under, governed by and interpreted in accordance with the internal laws of the Commonwealth of Kentucky, United States of America, without reference to the laws thereof or of any other jurisdiction regarding conflicts of laws or choice of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these LBX E-Business Terms and Conditions or any performance related to these LBX E-Business Terms and Conditions unless otherwise provided in the Agreement. Any dispute, controversy or claim arising out of or relating to these LBX E-Business Terms and Conditions or the breach, termination or invalidity thereof that cannot be settled through cooperation and consultation shall be finally settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the rules of AAA then pertaining by one arbitrator appointed in accordance with said rules. The arbitration shall be in English and held in Lexington, Kentucky, United States of America. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a juridical acceptance of the award and an order of enforcement, as the case may be.
19. Legal Age. The Dealer Website is not intended for children. By using the Dealer Website, the Dealer affirms that it and its authorized employees and agents are at least 18 years of age, and are fully able and competent to enter into these LBX E-Business Terms and Conditions.
20. Submissions. Dealer hereby grants LBX a royalty-free, perpetual, irrevocable, non-exclusive, worldwide license and right to use, reproduce, modify, distribute, display, publish, perform, and create derivative works from any content, remarks, suggestions, ideas, graphics, comments, listings for products, advertisements or other content communicated to LBX through the System (collectively “Submissions”). Dealer agrees that it has the sole responsibility for the accuracy and content of its Submissions, and represents and warrants that its Submissions do not infringe the copyright, trademark, privacy, publicity or other rights of any third-party. If a Dealer’s Submissions are found to be fraudulent, LBX reserves the right to immediately withdraw that Dealer’s right to use the System and remove its Submissions without warning or compensation.
SUBJECT: LBX EXPORT COMPLIANCE POLICY
PURPOSE: To define the logistical responsibilities and requirements for LBX Company and for LBX Dealerships.
SCOPE: LBX Company, all LBX Dealerships and any other entity purchasing LBX Parts or LBX Machines
LBX Company, LBX Dealerships and any other entity purchasing LBX Parts or LBX Machines (“LBX Parties”) will comply with all applicable United States export-control laws and regulations. All LBX Parties and their employees must understand the export control requirements and ensure that no exports are made contrary to those requirements. LBX Company has established procedures and administrative support to aid LBX Parties’ personnel in complying with these laws and regulations. LBX Company recognizes that instances may arise involving the dissemination of certain technical data, information, materials and equipment that are subject to federal export control regulations. This includes abiding by the export rules and regulations set forth by the various agencies of the United States Government. It also includes understanding the export implications of LBX Company and obtaining the proper licenses prior to the export of any product, whether abroad or within the US. Particularly, LBX Company and the LBX Parties will ensure that:
No item is exported without first determining if an export license is required
An export control review is made on all proposals and contracts with possible export control issues
All procedures are followed to ensure that exports are deemed safe and complaint with Federal laws
Export Control Regulations
The US Government strictly regulates all exports of US products, technology and software, the movement of US-Origin commodities and technologies between non-US countries as well as certain activities of US persons wherever located through the use of regulatory requirements known as Export Control Regulations. Violation of these policies can result in criminal and civil penalties, including incarceration, monetary fines and prohibition from future exporting activity. While there are additional regulations, the three main Export Control Regulations applicable to LBX Company are the International Traffic in Arms Regulation (“ITAR”), the Export Administration Regulations (“EAR”), and the Office of Foreign Assets Control (“OFAC”).
EAR, Title 15, sections 730-774 of the Code of Federal Regulations (“CFR”) is promulgated and implemented by the Department of Commerce. EAR regulates the export of ‘dual use’ goods and services (goods and services having both military and civilian uses) identified on the Commodity Control List (“CCL”). Products, technical data, technology and services of LBX Company are subject to US export controls under applicable laws and regulations of the United States, including EAR. Diversion contrary to US law is prohibited. In addition, commodities may not be exported, re-exported or transferred to entities and persons that are ineligible under US law to receive US product, technology and/or software
ITAR, 22 CFR §§ 120-130 is promulgated and implemented by the Department of State and regulates defense articles and services and related technical data. Regulated items are identified on the Munitions Control List (MCL), 22 CFR § 121.
The US Department of the Treasury, through OFAC, regulates economic trade with foreign countries. The Foreign Assets Control Regulations ( “OFAC Regulations”), 31 C.F.R. Parts 500-597, implemented pursuant to the Trading with the Enemy Act (“TWEA”), 50 U.S.C. §§ 1-44 and the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1706, administer the statutory economic trade sanctions imposed against several foreign countries. The sanctions range from partial to full trade embargoes and are imposed in addition to other US export control law penalties
LBX Parts Orders
EAR (Export Administration Regulations)
The dealer agrees that all Products, Technical data, Technology, and Services of LBX Company LLC are subject to U.S. export controls under applicable laws and regulations of the United States, including the Export Administration Regulations (EAR). Diversion contrary to U.S. law is prohibited. In addition, commodities may not be exported, re-exported, or transferred to entities and persons that are ineligible under U.S. law to receive U.S. Product, Technology, and/or Software.
Payment Terms: An LBX Company Invoice constitutes customer’s irrevocable promise to pay the total amount set forth within the terms stated herein. Invoices that are not paid within terms are subject to a late payment fee of 1.5% per month.
LBX Whole goods Invoices
EAR (Export Administration Regulations)
The dealer agrees to comply with the LBX Dealer Agreement including but not limited to Section 11.5 (U.S. Export Administration Regulations (“EAR”)) and Section 11.6 (U.S. Foreign Corrupt Practices Act).
Payment Terms: An LBX Company Invoice constitutes customer’s irrevocable promise to pay the total amount set forth within the terms stated herein. Payment terms for Net 30 or open account machines are to be paid in full by the due date specified or when the equipment is sold, whichever comes first. Invoices that are not paid within terms are subject to a late payment fee of 1.5% per month.
Payment terms for machines approved for financing through LBX Company are 24 months with 10% curtailment payments due in the 9th, 15th, and 18th months, with the remaining balance due in full in the 24th month. If the Equipment is rented, the Dealer is required to remit 80% of the rental proceeds to LBX Company. When the Equipment is sold, full payment becomes due and payable immediately. Interest is charged at an interest rate of Libor 90 plus 8.00% beginning on the first day the machine becomes interest bearing.