General Terms and Conditions
1sourcevend, Inc.
Last updated July, 2023
1. Terms and Conditions.
(a) These terms and conditions (“Terms and Conditions”) shall govern the purchase, delivery and use of any products, software and related services (collectively “Company Deliverables”) provided by 1sourcevend, Inc. (the “Company”) to you (the “Customer”). Please carefully read and review the notices, disclaimers, limitations, terms, provisions and the conditions set forth herein. Any purchase or request for an estimate, quote or inquiry concerning the Company Deliverables shall constitute your acceptance of these Terms and Conditions. Any prior agreements, terms or conditions are hereby superseded by these Terms and Conditions unless such agreements, terms or conditions are signed by an authorized representative of both the Company and Customer (“Additional Terms”). If Additional Terms conflict or are otherwise incompatible with these Terms and Conditions, you agree that the Company, in its sole discretion, shall decide whether these Terms and Conditions or the Additional Terms shall control.
(b) The Company reserves the right to make changes to these Terms and Conditions, in its sole discretion, at any time and without notice. Company also reserves the right to make product information and pricing changes without notice. Your continued use of the Company Deliverables, will constitute your acceptance of the changes and you agree to comply with these Terms and Conditions and all applicable laws and regulations.
(c) The Company assumes no liability for the use of any information or content provided by Customer. The Company reserves the right to refuse service, deny access, terminate accounts, and/or cancel orders for any reason in its sole discretion, including without limitation, if Company believes that the Customer or the Customer’s employees, agents, independent contractors, subcontractors (“Representatives”) or Customer’s consumers conduct violates these Terms and Conditions, any applicable law or is harmful to the interests of the Company. The materials provided in relation to the Company Deliverables are protected by law, including, without limitation, United States copyright laws and international treaties. If you do not agree to the foregoing or the Terms and Conditions contained herein, please do not use the Company Deliverables.
2. Subscriptions and Use.
(a) The Company shall not be bound by any offer, quote, estimate or statement issued by the Company except where specified otherwise in writing by the Company. The Customer guarantees the accuracy and completeness of the information submitted to the Company and on which Company bases its offer, quote or estimate for any “Subscription”. A Subscription shall mean any written Customer purchase request for Company Deliverables accepted by Company or Customer’s written acceptance of the Company’s offer, quote or estimate, without any conflicting or additional terms or conditions, for Company Deliverables. For the avoidance of doubt, the applicability of any of the Customer’s terms or conditions relating to the Company’s offers, quotes or estimates for Company Deliverables are expressly rejected. Within 30 days of acceptance of a Subscription, the Company reserves the right to terminate any Subscription containing inaccurate information. The Client shall at all times exercise the greatest possible care to ensure that the requirements that the Company must meet according to the Subscription are accurate and comprehensive. Measurements and information stated in drawings, pictures, catalogues, websites, quotations, advertising material, standard sheets etc, shall not have a binding effect on Company, except where explicitly specified otherwise in writing by an authorized Company Representative.
(b) The Company has the right to audit the use of the Company Deliverables by Customer during regular business hours. If the audit reveals that the Customer underpaid any costs or if the Customer is using the Company Deliverables in a manner deemed to be inconsistent with the permitted use, of the Company Deliverables, the Company may terminate the Subscription in the Company’s sole discretion and Customer will be responsible for audit costs in addition to any amounts due to Company as a result of the audit.
(c) Except as specifically provided elsewhere in these Terms and Conditions, the Customer shall not permit anyone other than the Customer, Customer Affiliate, as defined below, or Customer Representative to access and use the Company Deliverables on behalf of the Customer. The Customer agrees to assume full responsibility for access and use of the Company Deliverables by Customer Affiliate or Customer Representative and Customer shall notify Company in writing of the identity of any Customer Affiliate or Customer Representative authorized to use the Company Deliverables on behalf of the Customer. “Affiliate(s)” means an entity, directly or indirectly, in control of or controlled by such party.
3. Price of Company Deliverables; Payment.
(a) Prices are subject to change at any time prior to Company’s acceptance of Customer’s Subscription.
(b) Subscriptions and any Company Deliverables included in the Subscriptions, may only be cancelled prior to shipment. Customer will be immediately charged the full amount of the Subscription and payment will be due upon receipt of the invoice for the cancelled Subscription.
(c) Company may elect the credit card processor or (b) allow Customer to elect a credit card processor from a pre-authorized list of processors as determined by Company, in either case only if credit card processing is applicable to the Subscription purchased by Customer. Customer agrees to notify its bank of the approval allowing Company access to deposit funds into their account. Company retains the right and the authority to deduct, or to direct credit card processor to deduct, Expenses, as defined herein, for direct deposit services, excessive dispute charges, and for Expenses owed to Company by Customer that may be deemed delinquent.
(d) The Customer agrees and acknowledges that the Customer is required to pay the full amount for any returns of Company Deliverables to the Company. The Customer is responsible for all shipping costs incurred for any returned Company Deliverables. After the returned Company Deliverables have been inspected and returned to inventory, the Customer will be issued a credit equal to 60% of the machinery cost. Returned Company Deliverables will not be inspected prior to the Customers payment of the full Subscription amount.
4. Company Deliverables.
(a) All Company Deliverables will be shipped in accordance with the Company’s customary shipping practices and procedures. The Company will provide set up and installation of the Company Deliverables at the location or locations designated in the Subscription (“Project Site(s)”) at agreed upon dates and times (“Delivery Date”). Company will perform its standard diagnostic tests, which will be provided at no additional cost to Customer. The Company shall not be bound by a Delivery Date, final or otherwise, that can no longer be achieved as a result of circumstances outside of Company’s control that occurred after the date of the Subscription. The Company shall also not be bound by a Delivery Date, final or otherwise, if the parties have agreed on a change to the content or scope of the Subscription (additional Company Deliverables, change in specifications etc.) or a change in the approach to the execution of the Subscription. Without limiting the foregoing, in the event that the parties have agreed to a Delivery Date in the Subscription, explicitly in writing, the Company shall not be in default as a result of the fact the Delivery Date has been exceeded until such time as the Client has given written notice of default. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that Company has the opportunity to respond adequately.
(b) The Customer is granted a nonexclusive, nontransferable license, without the right to sublicense, during the Subscription Term, as defined in Section 9, to use and operate the Software in connection with the Hardware and Cyber Services solely for its internal use at the Project Site(s) in accordance with these Terms and Conditions and the specifications, handbooks, guides, supplements, or other documents relating to the use or operation of the Company Deliverables (“Manuals”) provided by the Company. “Software” means the object module or code version of any software ordered by Customer and provided by Company that is used with the Company Deliverables. “Cyber Services” refers to commercial internet-based services.
(c) The Customer may not access or use the Cyber Services other than in connection with the use of Software and Hardware pursuant to these Terms and Conditions. Customer Affiliates’ and Customer Representatives’ use of and access to Cyber Services are permitted only by the number of Customer Affiliate and Customer Representative users identified by the Customer in the purchase of a Subscription. Cyber Services shall be available to Customer on a continuous basis, subject to full payment of Subscriptions, and scheduled maintenance and occurrences outside of the Company’s control. “Cyber Services” means the internet-based information and processing feature ordered by the Customer in a Subscription. Customer, Customer Affiliate and Customer Representative’s will keep use identification and password information strictly confidential. Customer is responsible for Customer’s accounts and passwords
(d) Technical Assistance will include, as applicable, upgrades and servicing of the Software and Cyber Services with current software, improvements of functionality or to revise errors in the object module or code version of the Software and Cyber Services provided to Customer by the Company. Technical Assistance is available for the Software and Cyber Services by telephone or by email. Contact information is posted on the Company website and available with the exception of Company holidays. Technical Assistance as described herein shall be subject to the discretion of the Company and occur when the Company makes such Technical Assistance commercially available. “Technical Assistance” means the servicing and maintenance of the Software and Cyber Services available to the Customer.
(e) The Customer may purchase Company Services through requesting the desired services in the Subscription or the Customer and the Company may execute a separate written agreement to be attached as an exhibit to the Subscription (“Subscription Exhibit”) to define the scope of the Company Services. The Subscription or the Subscription Exhibit will set forth all of the terms and conditions related to the Company Services including, but not limited to, pricing, deliverables, and any related specifications. If Customer decides to modify Company Services, the Customer must make a written request to the Company. Notwithstanding any prior agreements, requests, or offers, the Company will retain all rights, title, interest and ownership in any products created in the execution of the Company Services. The Customer must provide reasonable access to and all materials for the completion of the Company Services and shall timely reimburse the Company for all expenses which shall be allowable in accordance with Company standards.[9] “Company Services” means the training, installation, design, or other professional services ordered by the Customer and performed by the Company.
5. No Modifications. Except where agreed to in writing or otherwise permitted in these Terms, the Customer will not, or allow any third-party to, be permitted to modify the Company Deliverables or Manuals, in whole or in part, without the prior written consent of the Company. The Company shall at all times be entitled to refuse, in its sole discretion, its consent or to attach conditions to its consent, including conditions in relation to the method and quality of implementation of the modifications required by the Customer. The Customer will not provide access to the Company Deliverables or Manuals to any third-party or transfer or sublicense to a third-party any Company Deliverables or Manuals. The Customer will not reverse engineer, disassemble, decompile, or obtain or use the source code or non-public application programming interfaces (“API”) to any Company Deliverables. For the avoidance of doubt, the Customer will not allow any third-party to commit the foregoing acts and the Customer shall bear all risks and liabilities and indemnify the Company for any injuries, associated with any modifications carried out by or on behalf of the Customer by third parties.
6. Intellectual Property. The Customer shall only acquire rights in the Company Deliverables as expressly granted by these Terms and Conditions. All property, tangible or intangible, provided to the Customer by the Company is the sole property of Company or certain vendors utilized by the Company. The Company Deliverables, products, software and services described in these Terms and Conditions are owned and operated by the Company. Unless otherwise specified, all rights, materials and items, customarily considered intellectually property relating to the Company Deliverables, including, but not limited to, copyrights, text, software, source code, site design, brands, logos, graphics, icons, trademarks, tradenames, trade secrets, know-how, layouts, service marks, artwork, illustrations, patents, depictions and images, selections, assembly and arrangements (‘Intellectual Property”) are the sole property of the Company. All rights not expressly granted herein are reserved. Customer is only gaining a limited right to use the Software and the Cyber Services. The Company retains all title and interest in the Company Deliverables and any other products in the Subscription, including Subscription Data. “Subscription Data” means the consumer, Customer, or information, data, analysis or statistics resulting from or relating to the Company Deliverables in connection with the consummation of consumer transactions including, but not limited to, purchases, returns or sales or data from management of accounts by a consumer, Customer Affiliate or Customer Representative.
7. Customer Information; Security.
(a) By purchasing a Subscription, the Customer accepts these terms relating to the use, sharing, transfer, mining and accessing of any consumer, Customer, business, employee, information or personal data of any kind that is provided by Customer to the Company, or Customer Affiliates or Customer Representatives in connection with the Company Deliverables or under these Terms (“Customer Information”). Further, the Customer authorizes the Company to access, use, and process the Customer Information as necessary to provide the Cyber Services in connection with the Company Deliverables. Customer will provide Customer Information to the Company in such form as provided by the Company for the Cyber Services, or else the Company will reconfigure or reorganize the Customer Information at the Customer’s expense.
(b) The Customer hereby represents and warrants to the Company that the content, the use and/or the processing of the Customer Information is not unlawful and does not infringe any rights of any consumers or other third parties and the Customer has sufficient rights to grant the rights granted to the Company herein. The Customer further represents and warrants that the Customer has the authority to provide Customer Information and other data to the Company and the Customer has provided, or will provide or obtain, all required notices and consents regarding the use, sharing, transfer and accessing of Customer Information to enable the Company to perform its obligations in accordance with these Terms and Conditions. The Customer shall ensure that the Company is at all times in compliance with the Customer’s privacy policies and all applicable law, including those regarding, use, and sharing of Customer Information. The Customer shall provide notice and obtain consent as required by any applicable law, statute or governmental regulation for the processing of the Customer Information by the Company Deliverables and upon request, provide evidence to the Company of compliance with the foregoing. The Customer shall indemnify the Company against any legal claims, of whatever nature, in relation to this Customer Information or the execution of the Subscription.
8. Expenses and Payment.
(a) The cost of the Subscription shall include, the price of the Company Deliverables, and other expenses for the Company Deliverables as set forth in the Subscription. The expenses are nonrefundable and include, without limitation, reasonable expenses as defined by the Company’s expense policies as expenses relate to the Customer’s Subscription (“Expenses”). The Company may increase the pricing for the Company Deliverables once annually up to a maximum of five percent (5%) after the Initial Term, as defined below, upon 30 days prior written notice to Customer or at any time in connection with the purchase of an additional Company Deliverables under a new Subscription. All amounts payable under these Terms will be payable in U.S. Dollars, unless otherwise indicated on the Subscription.
(b) Except as expressly written on the Subscription, Expenses will accrue from the date of the Subscription. Customer will be liable for the recurring Expenses for the Initial Term and any Renewal Term. During the Subscription Term, Expenses shall be payable in advance on a monthly basis for all Equipment and Software, unless otherwise indicated on the Subscription. The Company accepts the following methods of payment (i) an ACH account, with an authorization permitting the Company to debit such ACH account in full for each order on or after the due date, (ii) credit card, (iii) company check, or (iv) deduction of expenses from credit card transaction proceeds. Interest shall be charged and paid on past due amounts at the lower of 1.5% per month or the highest rate permitted by applicable law. The Company reserves the right to deduct Expenses owed by Customer from credit card proceeds for the Customer’s failure to cure any monetary breach in connection with the Payment of Expenses under these Terms and Conditions within 60 days of billing the Customer. If the credit card proceeds are less than Expenses owed and the Customer fails to cure any remaining monetary breach, the Company has the rights ascribed in Section (e) below.
(c) The Customer may dispute any amount billed relating to a Subscription by submitting written notice, including reasonable evidence, within 60 days of the date of the initial invoice. Failing to submit the written notice and required evidence will constitute a waiver by the Customer, as to the amount billed, to dispute or file any claim. The parties will cooperate in good faith to resolve any discrepancy in billing within 60 days after receipt by the Company of the Customer’s notice.
(e) If the Customer fails to cure any monetary breach related to the payment of Expenses under these Terms and Conditions within 10 days of when the Company provides notice of such breach, the Company shall have the right to suspend the Cyber Services and Technical Assistance. The Customer may discontinue use of the Company Deliverables at a Project Site, within 180 days of beginning use of such Company Deliverables only if the Customer is not in breach of these Terms and Conditions. The Customer’s right to suspend as provided in this Section (e) shall be available one times and must be communicated to Company the timing of a suspension and not less than 20 days before initiating such suspension.
(f) All taxes in connections with the Company Deliverables, including but not limited to, sales, use or any similar tax in connections with the Company Deliverables, but not any tax based on the income of the Company, shall be the responsibility of the Customer. The Customer shall pay the Company all amounts due under these Terms and Conditions excluding taxes and Customer agrees any sum due hereunder shall be increased by the amount the Customer is required by law to deduct, withhold, or pay for taxes, if any.
9. Term. Each Subscription is valid for term indicated on the Subscription, unless earlier terminated (“Subscription Term”) and Customer is obligated to make full payment in the Subscription Term.
10. Termination.
(a) The parties may terminate use of the Company Deliverables by giving written notice to the other party upon a material breach by the other party of any of its representations, warranties or obligations under these Terms, unless the breaching party cures such material breach within 30 days following receipt of such written notice.
(b) The Company may terminate the use of the Company Deliverables by Customer upon written notice to Customer if the Customer becomes insolvent, a party to any bankruptcy proceeding or any similar petition under any insolvency law or jurisdiction, or the Company reasonably believes the Customer is not capable of meeting its obligations as they become due. Termination of these Terms and Conditions shall not relieve the Customer of the obligation to pay all Expenses (recurring or otherwise) payable for the remaining Subscription Term, except in the case of the Customer’s termination of use of the Company Deliverables for an uncured material breach by the Company. In such case, all services will be terminated, and the Customer will have no responsibility to pay ongoing Subscription related expenses or fees. The Customer will be responsible for all other fees, cost or expenses incurred prior to termination.
(c) The termination or expiration of these Terms and Conditions shall terminate the Customers authorized use of the Company Deliverables including all rights, licenses and services granted by the Company to Customer under these Terms and Conditions, except as expressly set forth in these Terms and Conditions. Failure by the Company to exercise any right under these Terms and Conditions shall not constitute a waiver of such rights or limit the Company’s right or ability to seek other remedies that such party may be entitled to against the breaching party.
(d) The Customer’s transfer or sale of any Hardware and/or discontinuation of the use of the Cyber Services or Software shall not constitute a termination of these Terms and Conditions or relieve Customer of Customer’s obligation to pay all Expenses (recurring and otherwise) payable during the full remaining Subscription Term, except with the prior written consent of the Company which it may withhold or condition for any reason as expressly set forth in these Terms and Conditions. Upon any transfer or sale (“Transfer”) of Hardware by a Customer, at Customer’s sole cost and expense, Customer shall (i) provide to the Company prior written notice of any such Transfer, with details of such Transfer, and (ii) with the assistance of the transferee/purchaser, coordinate the Transfer of the Hardware with the Company.
11. Representations and Warranties.
(a) Each party represents and warrants that it is duly organized, validly existing and may legally enter into and perform under these Terms.
(b) The Company warrants that while the Customer is paying its Expenses, the Software and Cyber Services will operate in substantial conformity with the Manuals. The Company warrants that during such time as Customer is paying its Expenses the Software and Cyber Services will operate in substantial conformity with the Manual. The Company will, at its option, use reasonable efforts to correct the reported non-conformity, to replace any non-conforming Software, or to allow the Customer to terminate the use of the Company Deliverables as to such defective Software or Cyber Service. This is the only remedy available to the customer.
(c) The Company warrants that Hardware will, under normal use, be free from defects in materials and workmanship from the date of its original factory shipment for a period of 12 months (“Hardware Warranty Period”). The Company will, at its option, repair or replace such defective Hardware or its internal components. Customer must return any warranted, repaired or replaced hardware within 15 days or Customer shall be charged full price for the replaced hardware. The Hardware Warranty is no longer in effect after a relocation to a Project Site not included in the Subscription.
(d) The Company disclaims all warranties provided in these Terms and Conditions unless Customer submits a written warranty claim within the applicable warranty period and within 30 days of when the condition giving rise to the claim first appears. The Company will also have no warranty obligations with respect to any breach of warranty related to (i) any modifications or repairs that are not approved by the Company; (ii) any uses beyond the scope of the licenses or rights granted in these Terms and Conditions; (iii) any uses in combination or connection with other software, hardware, services, or equipment not provided by the Company or described in the Manuals; (iv) the Company’s compliance with Customer’s designs, specifications, or instructions; (v) any unauthorized or unapproved re-purposing or re-locating (including, without limitation, the improper or negligent packaging, shipping and/or handling) of the Company Deliverables; (vi) any trial uses; or (vii) any breach by Customer of any representation, warranty or covenant in any Subscription or these Terms and Conditions. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, THE COMPANY MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12 Confidential Information.
(a) The party disclosing the Confidential Information to the other party shall be referred to as the “Disclosing Party” and the party receiving the Confidential Information of the other shall be referred to as the “Receiving Party.” “Confidential Information” for the purposes of these Terms and Conditions, includes these Terms and Conditions and all other information designated by the Disclosing Party to the Receiving Party as “confidential,” “proprietary” or information designated as a “trade secret”.
(b) Except as set forth in these Terms and Conditions, the Receiving Party shall not disclose the Confidential Information to any unauthorized third party and shall take steps to assure that access to such information is granted only to those Affiliates and Representatives who have a need to know such information in order to carry out the purposes of the Subscription and who also agree to be bound by the confidentiality obligations herein. The Receiving Party shall be responsible for any breach of the confidentiality obligations herein by their respective Affiliates and Representatives. The Receiving Party will take reasonable measures to maintain the Confidential Information in strict confidence but in no event less than the measures it uses for its own information of similar type. The Receiving Party will, as legally practicable, give notice to the Disclosing Party of any use or disclosure of the Confidential Information that is not authorized by these Terms and Conditions. The Receiving Party agrees to reasonably assist, as legally practicable, the Disclosing Party in remedying any such unauthorized use or disclosure of the Confidential Information.
(c) Confidential Information does not include information that (a) was part of the public domain at the time of disclosure or became part of the public domain without a breach of the Receiving Party’s obligations hereunder, by publication or otherwise; (b) was in the possession of the Receiving Party at the time of disclosure; (c) was received from a third party without similar restrictions and without breach of these Terms and Conditions; (d) was independently developed by the Receiving Party; or (e) is required to be disclosed by a government agency or by a proper court of competent jurisdiction; provided, however, that Receiving Party will use reasonable efforts to minimize the disclosure of such information and will, as legally practicable, consult with and assist the Disclosing Party in obtaining a protective order, at Disclosing Party’s sole expense, prior to such disclosure. The parties agree that the procedures set forth in clause (e) above shall not apply to disclosures of Confidential Information to their applicable regulatory authorities or internal or external auditors in connection with a routine audit, with respect to which each party shall be permitted to disclose such Confidential Information.
(d) The Receiving Party Acknowledges that the breach of the confidentiality provisions in this Section 12(d)[15] by the Receiving Party may cause the Disclosing Party irreparable damage for which recovery of money damages may be inadequate. The Disclosing Party will, therefore, be entitled to injunctive relief to protect and recover its rights to the Confidential Information in addition to and without impairing any other remedies available at law.
13. No Authority; No Relationship of the Parties. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner. The acceptance of the Subscription or anything else in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.
14. Disclaimer and Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FURTHER, YOU DISCLAIM ALL CAUSES OF ACTION AND WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ARISING FROM ANY WAIVER, A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, OF ANY KIND WITH RESPECT TO THE OPERATION AND CONTENT, INCLUDING THE ACCURACY, COMPLETENESS, TRUTHFULNESS, TIMELINESS, OR USEFULNESS THEREOF OF THE COMPANY DELIVERABLES. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS OR PROCESSES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMPANY DELIVERABLES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF OR DAMAGE TO DATA, LOSS OF USE OF AND/OR DAMAGE TO COMPUTERS OR OTHER SYSTEMS, LOST OR DAMAGED PROGRAMS, COSTS OF REPLACEMENT COMPANY DELIVERABLES AND/OR LOST PROFITS OR REVENUES ARISING OUT OF THE USE OR INABILITY TO USE THE COMPANY DELIVERABLES OR ANY SERVICE PROVIDED BY THE COMPANY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER (AND NOT THE COMPANY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR AND/OR CORRECTION. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY INFORMATION ON THIRD PARTY SITES, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, COMPLETENESS, TRUTHFULNESS, TIMELINESS OR USEFULNESS THEREOF.
15. Indemnification. Customer hereby agrees to indemnify and hold harmless the Company, and its Affiliates and assigns, for any claims or damages, and costs, including reasonable attorneys’ fees, incurred or asserted by any party arising from the Customer, the Customer Affiliates, Customer Representatives or the Customer’s consumer’s use of the Company Deliverables along with any claims resulting from the Customers violation of any term or condition set forth herein. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification, in which event the Customer will cooperate as requested by the Company.
16. Assignment. The Company may assign or delegate its obligations under these Terms and Conditions. The Customer may not assign or delegate the use of the Company Deliverables without prior written consent of the Company. The consent of the Company, in addition to any other conditions required by the Company, shall be conditioned upon the assignee agreeing in writing to assume all obligations of Customer under these Terms and Conditions, and the Customer shall remain liable for the performance of all obligations under these Terms and Conditions. These Terms and Conditions will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
17. Severability. Should any provision of these Terms and Conditions be declared unenforceable, then such provision shall be deemed to be severable from these Terms and Conditions and shall not affect the remainder hereof.
18. Survival. The representations, warranties, covenants and obligations herein that shall survive termination or expiration of the use of the Company Deliverables shall survive as required herein.
19. No Waiver. Failure of The Company to enforce any term, provision or condition of these Terms and Conditions, in whole or in part, shall not be deemed a waiver of such terms, provisions, or conditions, nor the right to enforce such terms, provisions or conditions or any other terms, provisions or conditions contained herein.
20. Notices. All notices and other communications required or permitted under these Terms and Conditions shall be in writing and delivered by electronic mail or first-class mail, postage prepaid,to the address(es) noted in the Subscription.
21. Complete Agreement. The Customer acknowledges and confirms that it has read these Terms and Conditions, understands them, and that by using the Company Deliverables, The Customer agrees to be bound by these Terms and Conditions. The Customer further agrees that these Terms and Conditions, along with the related terms in the Subscriptions, if any, are the complete and exclusive statement of the agreement between the Company and the Customer and supersede any proposal or prior agreement, oral or written, and any other communication between The Company and the Customer related to the subject matter of these Terms and Conditions or the Subscription. No variation of the terms provided in these Terms and Conditions or any different terms not included in these Terms and Conditions will be enforceable against the Company unless the Company gives its express consent, including an express waiver of the terms of these Terms and Conditions, in a writing signed by an authorized officer of the Company.
22. Governing Law. The Company Site is controlled by the Company and in the State of Tennessee, USA. The Customer agrees that any legal action brought against the Company shall be governed by the laws of the State of Tennessee without regard to any conflict of law principles. The Customer agrees that the sole jurisdiction and venue for any litigation arising from use of the Company Deliverables shall be the appropriate federal court or state court located in Shelby County, Tennessee.