BY CHECKING THE ACCEPTANCE BOX OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, USER AND, THROUGH THE AUTHORIZATION OF USER BY COMPANY, COMPANY SIMULTANEOUSLY EXPRESSLY AGREES AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST NOT CHECK THE BOX INDICATING ACCEPTANCE, PROVIDER WILL PROMPTLY CANCEL THIS TRANSACTION AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
1. Service Terms and Limitations
a. Description. The Service is proprietary to Provider and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Provider agrees to provide User with a personal, non-transferable and non-exclusive account, which enables User to access and use the Service.
b. Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Provider may undertake from time to time; or (iii) causes beyond the control of Provider or which are not reasonably foreseeable by Provider, and that Provider shall have no liability arising from or related to such inaccessibility or inoperability.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
d. Relationship to Other Agreements. This Agreement governs the use of the Service provided via the Web Sites, and shall supersede any conflicting or additional portions of any of User’s purchase order or other forms or documents, which provisions are objected to and rejected. To the extent of any conflict or inconsistency between this Agreement and any purchase order, purchase order release, confirmation, acceptance or any similar document, the parties agree that this Agreement supersedes all others.
e. Links. The Web Sites may contain links to third party sites that Provider does not own or maintain. With respect to those sites, Provider assumes no liability, and does not endorse or
make any representations about any information, products, or services associated with those sites, or any results that may be obtained from using such sites. User’s access and use of such third party sites, and use of any information obtained as a result of that access, is at User’s sole risk.
f. System. The software, including all files, images, contained in or available through the Web Site and provided as part of the Service, and accompanying data (together, the “System”) is deemed to be licensed to Company by Provider solely for Company’s internal business purposes. Neither title nor intellectual property rights are transferred to Company or User, but remain with Provider, who owns full and complete title. Neither Company nor User may resell, decompile, reverse engineer, disassemble, or otherwise convert the System to a human perceivable form.
g. Terms of Sale. All sales are final and no refunds will be made by Provider. Prices for the Services may change at any time, and Provider does not provide price protection or refunds in the event of a price reduction or promotional offering. Provider is not responsible for collection of sales and use taxes other than in the state of South Carolina.
2. Intellectual Property
a. Copyright and Other Proprietary Rights. Provider owns and retains the copyrights and other proprietary rights in the Service, System and in its name, except for public domain material and such data, electronic mail, and material on Internet message boards as provided specifically by User, if any. All copyrightable material displayed on, or downloaded from, Provider’s Web Site is copyrighted, and may not be copied, performed, displayed, distributed, published, redistributed, transmitted or retransmitted without permission of the copyright owner, except for use for Company’s internal business purposes. No User may remove, alter or cover any copyright or other proprietary notices placed on Provider’s Web Site.
b. Intellectual Property Rights of Third Parties. Users posting material on or through the Service or obtaining material from sources other than Provider on or through the Service, shall not do so in any manner that infringes the copyrights or other intellectual property rights of third parties. Provider has the right to terminate User’s and / or Company’s access to the Service, in whole or part, and to terminate this Agreement if, in the opinion of Provider, User becomes a repeat or flagrant abuser of third parties’ copyrights or other intellectual property rights. Furthermore, if
Provider is subject to liability or incurs costs in defending any allegation of liability resulting from User’s postings, Company shall indemnify and make Provider whole, including paying reasonable attorney’s fees.
c. Use of Name. User agrees to allow Provider to disclose that Company is a customer of Provider and to use Company’s name and logo in demonstrations of the Provider’s Service.
While Provider has made commercially reasonable efforts to make the Service secure, Company shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and User name. Provider shall have no liability arising from or relating to any breach of the security of the Web Site, Service or System, regardless of the cause, means or fault.
4. User Representations
User represents and warrants to Provider that: (a) User is over the age of eighteen and has the power and authority to enter into and perform User’s obligations under this Agreement and to act on Company’s behalf; (b) all information provided by User to Provider is truthful, accurate and complete; and (c) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth at Section 3.
5. Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person, fraudulent use or any other misuse of the Service.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. Provider reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s and / or Company’s access to or use of all or any portion of the Service; and (c) terminate this Agreement.
7. Disclaimer of Warranties
THE SERVICE AND SYSTEM ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE AND SYSTEM ARE AT USER’S SOLE RISK. PROVIDER DOES NOT WARRANT THAT THE SERVICE OR SYSTEM WILL BE SECURE, UNINTERRUPTED OR ERROR FREE, NOR DOES PROVIDER MAKE
ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE OR SYSTEM. PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE OR SYSTEM.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE TO COMPANY, USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY COUPON, TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL PROVIDER’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO PROVIDER HEREUNDER FOR ACCESS TO THE WEB SITE IN THE PRIOR SIX MONTHS. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE.
User and Company agree to indemnify, hold harmless and defend Provider, its members, managers, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service, Web Site or System, including any data or work transmitted or received by User or stored as part of the Service; and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 5.
a. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Amendment. Provider shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. In the event of Provider amending this Agreement, User shall be
notified when accessing the Service upon the amendment being made effective. Notification shall be in the form of the acceptance check box with access to the amended Agreement re-appearing. Acceptance by User shall constitute delivery to and acceptance by Company of the amended version of this Agreement.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing in accordance with article 10.e by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either parties’ last known post office, facsimile or e-mail address, respectively. Company hereby consents to notice by email.
f. Law. This Agreement is made in and shall be governed by and construed and performed in all respects in accordance with the Laws of South Carolina, USA and the parties submit to the exclusive jurisdiction of any federal, national or state Court located in Greenville, South Carolina, USA.
g. Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
h. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
i. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
j. Entire Agreement. Excepted as may be otherwise provided by Section 1.d, this Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.
Effective Date: February 8, 2017