I-CON Terms and Conditions of Sale
Last updated on 8/1/22
These Terms and Conditions of Sale ("Terms") apply to all sales of goods and products (collectively, "Products") I-CON makes to a customer pursuant to the customer's order or other offer to purchase Products (collectively, "Order"). All Orders incorporate these Terms into, and make them a part of, all Orders as if fully repeated in all Orders (regardless of whether any Order specifically incorporates these Terms).
2. Customer Terms and Conditions
As used in these Terms, "Customer Terms and Conditions" means all terms and conditions in any customer acknowledgement, bid, confirmation, communication, offer, Order, proposal, purchase order, request, solicitation, or other writing that attempts or purports to impose any (i) additional, amended, conflicting, deleted, different, inconsistent, limiting, modified, non-identical, qualifying, rejecting, substitute, or supplementary terms and conditions to these Terms or (ii) otherwise affect these Terms in any way. Notwithstanding any Customer Terms and Conditions, I-CON expressly and unequivocally conditions Product sales to customer upon customer's acceptance of, and agreement with, these Terms and no Customer Terms and Conditions. All Customer Terms and Conditions shall be disregarded in their entireties. No Customer Terms and Conditions are part of an Order or any contract between the customer and I-CON. Any Customer Terms and Conditions will have no validity or force or effect and will not be deemed part of a contract between I-CON and customer. I-CON objects to, and rejects all, Customer Terms and Conditions. Customer shall not assert against I-CON and irrevocably, unconditionally, unqualifiedly, and unequivocally waives any action, allegation, argument, assertion, cause of action, claim, defense, demand, proceeding, or suit, whether at law or in equity (collectively, "Claims"), that any Customer Terms and Conditions either (i) amend, conflict with, delete, differ from, are inconsistent with, limit, modify, are non-identical, qualify, reject, substitute, supplement, or (ii) otherwise affect these Terms in any way. I-CON's failure to object specifically to any Customer Terms and Conditions will not validate or give effect to such Customer Terms and Conditions in any way or modify or otherwise affect these Terms in any way.
All Orders are subject to I-CON's acceptance or rejection, in I-CON's sole discretion, and shall comply with I-CON's requirements as to form and substance. No Order will be binding upon I-CON until the earlier of (i) one of I-CON's authorized employees accepts and confirms the Offer in writing ("Order Confirmation") or (ii) I-CON delivers Products to customer pursuant to the Order. If I-CON does not issue an Order Confirmation or deliver Products to customer pursuant to the Order on or before the 30th day after I-CON receives the Order, then, without any additional action of I-CON or the customer, the Order will be deemed to have lapsed and be invalid and of no force or effect. If I-CON issues an Order Confirmation, customer shall confirm that all information in the Order Confirmation (including pricing, type of Products, and quantities of Products) is accurate and complete on or before the third business day of the Order Confirmation's date; and, if customer fails to confirm an Order Confirmation's accuracy and completeness within such 3 business day period, the Order Confirmation will be deemed accurate, complete, and binding upon customer. I-CON may cancel accepted but unfilled Orders, with or without cause, and without liability to customer. If customer cancels or modifies an Order prior to I-CON's delivery of all or part of the Order, customer will pay (i) all costs I-CON shall have incurred through the cancellation or modification date, (ii) all costs I-CON incurs after the cancellation or modification date relating to the cancellation or modification, and (iii) in I-CON's sole discretion, a service charge in an amount up to but not exceeding 25% of the total Order price; however, customer may not cancel or modify Orders for non-stock or custom fabrication Products (collectively, "Custom Products") at any time, except, in I-CON's sole discretion, upon customer's payment of (i) all costs I-CON shall have incurred through the cancellation or modification date, (ii) all costs I-CON incurs after the cancellation or modification date relating to the cancellation or modification, and (iii) a service charge that I-CON shall set based upon the Order's size and pricing. I-CON may refuse any Order for less than $50. If an Order is for any Custom Product, Customer will provide all measurements and other specifications for the Custom Product ("Custom Specifications") to I-CON. Notwithstanding anything to the contrary in these Terms, (i) Customer must submit all Custom Specifications in writing to I-CON's engineering department for prior acceptance and I-CON for pricing, (ii) I-CON's engineering department must accept the Custom Specifications in writing and Customer must accept I-CON's pricing in writing before I-CON will be deemed to have accepted an Order for any Custom Product pursuant to these Term, (iii) I-CON's acceptance of any Custom Specifications will be limited to its acknowledgment that it can manufacture the Custom Specifications, (iv) Customer will be solely responsible and liable for all issues, Claims, and Liabilities arising out or, or relating to, its Custom Specifications (including, without limitation, their sizing and dimensions, fitness for a particular purpose, suitability for use, merchantability, and all other issues), (v) I-CON's sole obligation and liability will be to manufacture the Custom Product according to the Custom Specifications, (vi) I-CON's acceptance of any Custom Specifications will not constitute an approval of the Custom Specifications for any purpose or in any way including, without limitation, that any architect, engineer, or other third party will accept or approve the Custom Product or Custom Specifications. All amendments, changes, modifications, or supplements to any Custom Specifications that I-CON has accepted must be submitted to I-CON for its renewed acceptance and pricing. All Orders for Custom Products are subject to these Terms' provisions governing cancellation and modification of Orders.
4. Price and Payment
Customer will purchase Products at the prices I-CON shall quote to customer in writing, without set-off, reduction, discount, recoupment, or withholding. I-CON does not grant prepayment discounts. I-CON may change Prices without notice at any time, and I-CON's price quotes are conditioned upon customer's acceptance of them on or before the 30th day after their date, unless expressly stated otherwise in a price quote. All price quotes containing typographic or clerical errors are subject to I-CON's correction and will not be binding upon I-CON. Customer will pay in full all invoiced amounts in U.S. dollars on or before the 30th day after I-CON's invoice date, without set-off, reduction, discount, recoupment, or withholding, by such means as I-CON shall require from time to time. If payment shall be due on a non-banking day when banks or financial institutions are not open to receive funds, customer shall make payment on the next banking day. Customer will pay a service charge on delinquent invoiced amounts at the lesser of 2% per month or the highest rate permissible under applicable Laws, calculated daily and compounded monthly. Customer will reimburse I-CON for all costs I-CON incurs to collect delinquent amounts, including I-CON's attorneys' fees. I-CON may refuse to sell or deliver Products to customer if customer is then delinquent in making a payment or otherwise in breach of these Terms. I-CON may fix or change from time to time any credit terms upon which I-CON may be willing to sell Products to customer and may decline to sell or deliver Products to customer until customer has met I-CON's credit terms. Unless specifically set out in an Order Confirmation, I-CON's pricing for Products that customer shall order do not constitute "most favored customer" pricing. Customer will pay for Products by one of the following methods: ACH/electronic funds transfer; credit card; wire payment; or check. Customer shall mail any payment by check to the following address: I-CON Systems, Inc., P.O. Box 748371, Atlanta, Georgia 30374-8371.
I-CON will use commercially reasonable efforts to deliver Products on or before customer's requested delivery dates, but delivery dates are approximations and I-CON does not guarantee delivery dates, even if customer indicates required delivery dates in an Order. Under no circumstances will I-CON have any liability to customer for deliveries that do not meet customer's requested delivery dates. I-CON will select carriers to deliver Products to customer, but carriers are not I-CON's agents, and I-CON will not be liable for any delivery delay or delivery liability, including risk of loss or damage to Products in transit. Except as otherwise set out in an I-CON invoice or other I-CON documentation, I-CON will deliver all Products to customer Ex Works (EXW - Incoterms 2020)) I-CON's warehouse (regardless of the delivery method). I-CON's delivery of Products to the carrier at I-CON's warehouse or other facility constitutes delivery to customer, at which time title and risk of loss or damage to Products will pass to customer. Customer will pay or reimburse I-CON for all freight and delivery charges. I-CON may refuse to deliver Products if customer shall fail to pay any amount on or before its due date.
6. Inspection / Acceptance / Rejection
Customer shall inspect all Products and their containers promptly upon receipt but not later than three business days after receipt ("Inspection Period") for (i) visible or patent damage and (ii) discrepancies from ordered quantities or Product types ("Nonconforming Products"). Notwithstanding the preceding sentence, Customer will use its best efforts to inform the carrier of any damaged or Nonconforming Products upon receipt, but, unless customer shall notify I-CON of damaged or Nonconforming Products during the Inspection Period and furnish such written evidence or other documents as I-CON may require, customer will pay I-CON the full price of the Products and, notwithstanding any warranty I-CON may make regarding the Products, be deemed to have accepted the Products as is, where is, and with all faults. I-CON's sole and exclusive liability will be, at I-CON's cost and expense: (i) for visibly or patently damaged Products, to replace such Products or credit or refund the price customer paid for such Products; and (ii) for Nonconforming Products, deliver conforming Products to customer or credit or refund the price customer paid for the Nonconforming Products. I-CON may make partial deliveries of Products, each of which will constitute a separate sale, and customer will pay for all Products I-CON delivers to customer.
Customer may not return conforming Products, without, in I-CON's sole discretion, I-CON's prior written consent. If I-CON, in its sole discretion, permits a Product return, customer may only return the Products for credit and must return the Products in their original, unopened delivery carton/package or in similar packaging suitable to I-CON in its sole discretion. If customer shall return or refuse a delivery of conforming Products, customer will pay a restocking fee equal to an amount between 25% of the price of the returned or refused Products or the full value of the Products, in I-CON's sole discretion. Customer may return Nonconforming Products for a full refund if (i) customer promptly notifies I-CON about the Nonconforming Products during the Inspection Period and (ii) returns the Nonconforming Products to I-CON in properly packaged containers according to the return delivery method I-CON shall specify. I-CON will not accept returns of abused, altered, cannibalized, changed, damaged, destroyed, mishandled, modified, misused, or vandalized Products, even if they constitute Nonconforming Products, and will return them to customer at customer's cost, risk, and expense (and customer will be liable for their full purchase price). Customer will be solely responsible for all risk of loss or damage when Nonconforming Products are in customer's possession or return transit. Except to the sole and limited extent that I-CON's Limited Warranty accessible at https://www.i-con.com/warranty ("I-CON Limited Warranty") incorporates these Terms by reference, these Terms do not govern returns of defective Products, and such returns are governed exclusively by the I-CON Limited Warranty.
8. Taxes and Charges
Prices exclude sales, use, excise, and other taxes, duties, and charges that may be assessed, charged, imposed, levied, or otherwise placed upon I-CON's sales of Products. Customer will be solely responsible for all such taxes, duties, and charges, excluding taxes imposed upon I-CON's gross income. If applicable, customer shall provide I-CON all proper exemption certificates establishing that customer is licensed to engage in tax-free transactions with respect to Products under applicable Laws; and, if customer does not provide I-CON all proper exemption certificates, customer will pay all such taxes, duties, and charges to I-CON simultaneously with customer's payment for Products.
Products may only be used, marketed, and resold for their intended purposes and in accordance with all documentation, instructions, safety data sheets, suggestions, and warnings. Customer will adopt, follow, and adhere to all safe delivery, disposal, handling, possession, storage, transportation, and other use practices and requirements for Products (collectively, "Use Practices"), including practices that Product documentation, instructions, safety data sheets, suggestions, and warnings may suggest or require (collectively, "Use Writings") or that applicable Laws otherwise require. Customer will review all Use Writings relating to purchased Products, and, if customer does not have copies of all Use Writings, customer will request them from I-CON. If customer resells Products, customer shall provide purchasers with copies of all Use Writings. Customer assumes all damages, liabilities, costs, and expenses (including attorneys' fees and related legal fees and expenses) (collectively, "Liabilities") to persons or properties arising out of, and relating to, customer's implementation and execution of Use Practices. At I-CON's reasonable expense, customer will assist I-CON in connection with recalls or other requests to return Products, including contacting or helping I-CON contact end purchasers. Customer will promptly notify I-CON of any complaint or adverse Claim about the Products or their use.
10. I-CON Services
If Customer requests I-CON to perform any services in connection with a Product, then, except as expressly covered by the I-CON Limited Warranty, I-CON will perform such services on a time and materials basis that I-CON will quote in connection with any request for services. I-CON warrants only that such services will be performed in a good, professional, and workmanlike manner, and I-CON makes no and disclaims all other express and implied guaranties, representations, promises, and warranties with respect to such services.
11. Representations and Warranties
Customer is a duly organized, formed, or incorporated entity, which is validly existing and in good standing under the Laws of its state of organization, formation, or incorporation. Customer has the full power and authority to enter into these Terms and to perform all of its obligations under these Terms. These Terms are Customer's legal, valid, and binding obligation and are enforceable against Customer according to their terms. Customer has taken all necessary action to authorize customer's performance of its obligations under these Terms. Customer's agreement to these Terms will not result in, or constitute a breach of, any term or condition of any other understanding, agreement, instrument, or arrangement between Customer and any third party or constitute (or with notice or lapse of time, or both, would constitute) a breach of any such understanding, agreement, instrument, or arrangement.
12. Compliance with Laws
Customer will comply with all federal, state, and local codes, laws, ordinances, regulations, requirements, rules, statutes, and treaties applicable to its purchase and use of Products and performance of its obligations under these Terms (collectively, "Laws"), including the federal Export Administration Act of 1979, all other import/export Laws, and anti-corruption Laws. Customer shall not re-export, divert, or direct Products other than in and to the ultimate country of destination declared by customer and specified as the country of ultimate destination on I-CON's invoice. Any clause, language, or provision required under applicable Laws to be included in these Terms is, and shall be deemed to be, incorporated by reference in these Terms as if fully repeated in these Terms.
13. Intellectual Property
I-CON retains the absolute, complete, exclusive, sole, and undivided ownership and all other right, title, and interest in and to the intellectual property used in whole or in part in the design, manufacture, sale, and use of any Product or Custom Product (including, without limitation, drawings, concepts, data, discoveries, documentation, formulas, ideas, improvements, know-how, methods, models, plans, processes, prototypes, research, software, specifications, systems, techniques, and work product). Customer shall not use or claim ownership of all or any portion of such intellectual property. Customer shall not disassemble or reverse engineer any Product or Custom Product or create any derivative work based upon all or any portion of such intellectual property. Customer shall not combine all or any portion of such intellectual property with or into any other thing or material. No such intellectual property is a work made for hire under any applicable law, including the federal Copyright Act of 1976. I-CON does not grant, and nothing in these Terms shall be deemed to grant, to Customer any ownership, license, or other right, title, or interest in or to any such intellectual property. At any time and from time to time upon I-CON's request, Customer shall execute and deliver to I-CON all agreements, applications, assignments, confirmations, documents, licenses, and other instruments and take all other actions as I-CON shall reasonably request to confirm, establish, evidence, or perfect I-CON's ownership of all such intellectual property and all right, title, or interest in and to such intellectual property and Customer's assignment, waiver, release, or license, as the case may be, of any rights in or to such intellectual property.
Notwithstanding I-CON's own total, contributory, or partial negligence, customer will defend, indemnify, and hold harmless I-CON and I-CON's parent and affiliate companies and all their respective officers, directors, managers, members, shareholders, employees, agents, successors, and assigns (collectively, the "I-CON Indemnified Parties") from and against all Claims and all Liabilities, which are incurred by, or assessed or alleged against, any I-CON Indemnified Party that arise out of, or relate to, Products or these Terms, including the following: (i) the management, conduct, or operation of customer's business; (ii) any act or omission of customer (including customer's negligence, recklessness, or intentional or willful misconduct); (iii) a breach of these Terms (including Claims relating to a "battle of the forms"); (iv) third party Claims; (v) customer's implementation or execution of Use Practices; provided, that, customer will have no indemnification obligation if, but only to the extent that, Claims or Liabilities are specifically and solely due to I-CON's gross negligence or willful misconduct; and (vi) all Custom Specifications and Custom Products.
I-CON'S SOLE, EXCLUSIVE, AND LIMITED WARRANTY WITH RESPECT TO PRODUCTS IS ACCESSIBLE AT https://www.i-con.com/warranty ("I-CON LIMITED WARRANTY"). EXCEPT FOR THE I-CON LIMITED WARRANTY, AND AS MORE FULLY DESCRIBED IN THE I-CON LIMITED WARRANTY, I-CON SELLS ALL PRODUCTS "AS IS," "WHERE IS," AND "WITH ALL FAULTS," AND I-CON MAKES NO AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
16. Limitation of Liability
EXCEPT FOR CLAIMS SUBJECT TO THE I-CON LIMITED WARRANTY AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, ANY ORDER, ANY CUSTOMER TERMS AND CONDITIONS, OR OTHERWISE TO THE CONTRARY, I-CON'S ENTIRE LIABILITY (AND CUSTOMER'S EXCLUSIVE REMEDY) FOR ANY CLAIMS ARISING OUT OF, OR RELATING TO, ANY PRODUCT (INCLUDING THAT THE PRODUCT DOES NOT CONFORM TO SPECIFICATIONS), OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE, WILL BE LIMITED TO, IN I-CON'S SOLE OPTION AND DISCRETION, REPAIRING OR REPLACING THE PRODUCTS OR REIMBURSING CUSTOMER THE PRICE CUSTOMER SHALL HAVE PAID FOR THE PRODUCTS. IN NO EVENT SHALL I-CON BE LIABLE TO CUSTOMER ARISING OUT OF, OR RELATING TO, ANY PRODUCTS OR THESE TERMS FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES (INCLUDING DAMAGES FOR DOWN TIME, LOST TIME, LOST PROFITS OR REVENUES, AND COMMERCIAL LOSSES), REGARDLESS OF (1) WHETHER SUCH DAMAGES WERE FORESEEABLE, (2) WHETHER I-CON SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (3) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, BREACH OF WARRANTY, STRICT LIABILITY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, OR (4) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL I-CON'S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF, OR RELATING TO, ANY PRODUCTS, THESE TERMS, OR OTHERWISE EXCEED THE TOTAL OF THE AMOUNT CUSTOMER SHALL HAVE PAID FOR THE PRODUCTS SUBJECT TO THE CLAIM. SUBJECT TO ANY SHORTER TIME PERIOD SET OUT IN THE I-CON LIMITED WARRANTY, CUSTOMER MAY NOT FILE OR PROSECUTE ANY CLAIM AGAINST I-CON, OR SEEK RELIEF OR REMEDIES FOR ANY LIABILITIES FROM I-CON, MORE THAN ONE (1) YEAR AFTER THE DATE THE CLAIM AROSE, REGARDLESS OF WHETHER CUSTOMER HAD KNOWLEDGE OF THE CLAIM OR LIABILITY ON THAT DATE.
Any notice required or permitted to be given under these Terms must be in writing and will be validly given and delivered only: (i) if personally delivered (including by recognized overnight delivery service), when actually delivered to the party to which notice is being given or such party refuses delivery, or (ii) if deposited in the United States mail, when the party to which notice is being given accepts or refuses delivery. Any notice delivered by United States Mail must be delivered by registered or certified mail, return receipt requested, and postage prepaid. All notices must be properly addressed to the party to which notice is being given at the following addresses: if to I-CON, 3100 Camp Road, Oviedo, Florida 32765, Attention: Compliance Department; and, if to customer, to the address on file with I-CON. Either I-CON or customer may change its notice address by giving notice to the other party in the manner provided in these Terms.
Any waiver of these Terms must be in a writing signed by the waiving party, and no course of dealing, use of trade, course of performance, or other act or omission will waive any of these Terms. A waiver on one occasion will not be a waiver of the same or similar issue, provision, or subject in the future.
19. Choice of Law; Jurisdiction; Jury Waiver
Florida Laws governs these Terms and all Claims and Liabilities arising out of, or relating to, Products or these Terms (excluding Florida's conflict or choice of law, rules, or principles that may refer or defer to the Laws of another state or jurisdiction). Any Claim arising out of, or relating to, Products or these Terms must be commenced, filed, and prosecuted exclusively within the state and federal courts in Seminole County, Florida. I-CON and customer waive all rights to a jury trial of any Claim arising out of, or relating to, Products or these Terms. The United Nations Convention on Contracts for the International Sale of Products does not apply to these Terms or any Products I-CON shall sell to customer. The Terms shall not be construed strictly against their drafter.
If a court of competent jurisdiction shall declare a provision of these Terms (other than the terms and conditions set out in Section 1 and Section 2 of these Terms) to be invalid, unenforceable, or void, such provision will be deleted from these Terms or modified to be valid and enforceable as the court shall determine, but, in either case, the remainder of these Terms (and, in all cases, the terms and conditions set out in Section 1 and Section 2 of these Terms) will remain valid and in full force and effect.
21. Force Majeure
I-CON will have no liability to customer for any delay or failure to perform I-CON's obligations under these Terms (including delivery delays and failures), whether in whole or in part, due to any event, cause, or circumstance beyond I-CON's reasonable control ("Force Majeure Event"), including the following: weather conditions and acts of God; raw material shortages; strikes, lockouts, or other industrial or labor difficulties or disturbances; insurrections, rebellions, or other civil disobediences; wars or terrorist acts; conditions that make I-CON's performance economically or otherwise impractical or impossible; accidents or breakages of equipment or machinery; supplier delays; effects of Laws; or viruses, diseases, epidemics, or pandemics. If I-CON is unable to perform its obligations under these Terms or an Order Confirmation due to a Force Majeure Event, I-CON may terminate the affected Order upon notice and without liability to customer.
By ordering Products from I-CON, customer acknowledges, represents, and warrants to I-CON that customer has read, understood, accepted, and agreed to these Terms.
23. Third Party Beneficiaries
The I-CON Indemnified Parties are third party beneficiaries of these Terms, but no other third party beneficiaries of these Terms exist.
Customer may not assign any of its rights or delegate any of its duties under these Terms without I-CON's prior written consent. Any attempted assignment or delegation will be null, void, and without force or effect. Seller may assign any of its rights or delegate any of its duties under these Terms. These Terms will be binding upon, and inure to the benefit of, I-CON and customer and their respective successors and permitted assigns.
25. Amendment of Terms
Customer may amend these Terms at any time and from time to time without notice; provided, that the version of the Terms in effect on the date customer shall purchase any Product will continue to govern that sale regardless of I-CON's subsequent amendment of these Terms. No course of dealing, use of trade, or course of performance shall amend, modify, or supplement these Terms.
As used in these Terms, the words "include" or "including" mean include or including without limiting the generality of any description or word preceding such terms (regardless of whether the phrase "including without limitation," "including but not limited to," or any similar phrase follows the use of the word "include" or "including"); "shall" and "will" are imperative in meaning and intent; and "may" is permissive in meaning and intent. Any singular word or term defined in these Terms will include the plural form of such word or term, regardless of whether these Terms specifically define the plural form of such word or term; and any plural word or term defined in these Terms will include the singular form of such word or term, regardless of whether these Terms specifically define the singular form of such word or term. The word "breach" means and includes the similar terms "violate" and "default."
27. Entire Agreement / Instrument Precedence
No site usage, click-wrap, click-accept, click-to-sign, click-through, shrink-warp, sign-in-wrap, or other similar agreement will become part of any contract between I-CON and customer with respect to I-CON's sales of Products to customer, and any such agreements will be non-binding upon I-CON with respect to its Product sales to customer, notwithstanding I-CON's electronic consents to such terms including, without limitation, "OK," "Accept," or "Acknowledge" click buttons or any similar consent, acceptance, or acknowledgment. These Terms, any Order Confirmation, and any other I-CON document or instrument referenced in these Terms are the sole and entire understandings and agreements of the Parties regarding I-CON's Product sales to customer and supersede all prior and contemporaneous oral and written understandings and agreements between I-CON and customer regarding I-CON's Product sales to customer, if any. No understandings or agreements exist between I-CON and customer regarding the subject matter of these Terms other than those expressly set out in these Terms or specifically and expressly referenced in these Terms.