You must read, agree with, and accept all of the terms and conditions in this Terms of Service Agreement before you become an OBN Customer.
BY PURCHASING A SERVICE FROM OUR COMPANY YOU HEREBY ACKNOWLEDGE THAT YOU ARE ENTERING INTO A CONTRACT TO PURCHASE AND USE THE SOFTWARE AND SERVICES FOR THE TERMS LISTED IN THE DESCRIPTION, YOU HAVE REVIEWED THESE TERMS AND CONDITIONS SET FORTH ABOVE AND AGREE TO THE OBN TERMS OF SERVICE.
TERMS OF SERVICE and STORE FRONT LICENSE AND SERVICES TERMS AND CONDITIONS
By signing up for OBN Electronic Commerce products and services (“Service”) or any of the services of Outdoor Business Network, Inc. (“OBN”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). Any new features, products, services or software which are added to the current Service shall also be subject to the Terms of Service. OBN reserves the right to change the Terms of Service by posting updates and changes to the OBN website. You are advised to check the Terms of Service on a regular basis for any updates or changes that may affect you.
You can review the Terms of Service at any time here.
WHEREAS, Consultant is in the business of developing and providing Internet technology solutions and electronic commerce applications; and
WHEREAS, Customer desires to engage the services of Consultant in order to establish a Retail Internet Store-Front under the terms and conditions set forth hereunder.
NOW, THEREFORE, Consultant and Customer hereby agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01 – Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 – Definitions: The following definitions shall apply:
(1) Authorized Person(s): The term “Authorized Person(s)” shall mean (i) employees and legal counsel of the Receiving Party with a need to know Confidential Information disclosed to Receiving Party by Disclosing Party and (ii) persons or organizations with a need to know Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.
(2) Additional Catalog Modules Fee. The term “Additional Catalog Modules Fee” shall mean the fee for providing Catalog Modules in excess of one.
(3) Additional Domain Names Fee. The term “Additional Domain Names Fee” shall mean the fee for each additional domain name used by the Customer.
(4) Bandwidth Fee: The term “Bandwidth Fee” shall mean the fees for providing telecommunication access and meeting bandwidth and other usage requirements of Customer as set forth in the Agreement. Any increase in Bandwidth usage over and above forty five (45) gigabytes per month shall result in an additional charge.
(5) Catalog Module. The term “Catalog Module” shall mean the catalog module for each Distributor used by the Customer.
(6) Catalog Module Fee. The term “Catalog Module Fee” shall mean the fee for one (1) Distributor Catalog Module.
(8) Confidential Information: The term “Confidential Information” shall mean all information identified in writing as confidential information and which is not: (a) already known to the Receiving Party from a source other than the Disclosing Party; (b) conveyed to the Receiving Party by a third party without any restriction as to confidentiality or use; (c) independently developed without reference to the confidential information or (d) in the public domain.
(9) Consulting Services: The term “Consulting Services” shall mean those certain consulting, programming, conversion, analysis, graphic art, promotion, up-grade, training and ad hoc services provided by Consultant to Customer.
(10) Content: The term "Content" shall mean information uploaded to Consultant’s website, including (without limitation) catalog information, product list in Consultant’s format, and supplier lists provided by Customer to Consultant, transaction histories, user information, chatroom transcripts and any Technology uploaded, posted or submitted by user on the Retail Store-Front.
(11) Customer: The term “Customer” shall mean the individual or entity identified as “Customer” on the signature page of the Agreement.
(12) Customer Materials: The term “Customer Materials” shall mean the Content disclosed or provided to Consultant by Customer for the purposes of developing the Retail Store-Front, including customer name, domain name, logos, design sketch, questionnaires, text and images (if any).
(13) Deposit Materials: The term “Deposit Materials” shall mean only the source code for the Consultant Technology developed in connection with the Retail Store-Front (excluding Tools).
(14) Design Template: The term “Design Template” shall mean a non-functioning template defining the Retail Store-Front, based upon information provided in the form of OBN’s Design Sketch & Sample Sites sheet or other customer provided graphics and text.
(15)Developer: The term “Developer” shall mean the owner, authorized distributor, or licensee of the Tools or Customer Materials (as applicable).
(16) Disclosing Party: The term “Disclosing Party” shall mean a party to the Agreement who reveals Confidential Information to the other party to the Agreement.
(17) Distributor. The term “Distributor” shall mean the distributors of products sold on the Retail Store-Front.
(18) Documentation: The term “Documentation” shall mean the Retail Store-Front guide describing the functions of the Retail Store-Front as provided by Consultant in printed or electronic form as listed in Schedule A, services purchased in Customers Online Account, or in documents linked to on Consultant Web Site.
(19 Domain Registration/Transfer Fee: The term “Domain Registration/Transfer Fee” shall mean the fee for making registering or transferring the Customers domain name to Consultants System or administering a domain name held by a 3rd party.
(20) Domain Name Redirect Fee. The term “Domain Name Redirect Fee” shall mean the fee for linking more than one Customer domain name.
(21) Effective Date: The term “Effective Date” shall mean the date the Agreement is signed by Customer (whichever is later) or entered into by Customer by completing an online transaction requesting Consultant product(s) and/or service(s).
(22) Monthly Fee: The term “Monthly Fee” shall mean the license fees for making certain software modules available to Customer as set forth in the Agreement on Schedule A or as purchased in the Customers Online Account at Consultant Web Site. Monthly Fee may include fees for additional products and/or services as requested by Customer, or purchased via the Customer Online Account at Consultant Web Site. Monthly Fees are non-refundable.
(23) Hosting Reinstatement Fee: The term “Hosting Reinstatement Fee” shall mean the fees for reinstating this contract after a default or breach by the Customer in any of the terms and provisions of this contract, including late payment of fees.
(24) Set-Up Fee: The term “Set-Up Fee” shall mean the amount of money to be paid by the Customer to Consultant for development of the Retail Store-Front as set forth in the Agreement. Set-Up Fee is non-refundable.
(25) Consultant Technology: The term “Consultant Technology” shall mean any and all Technology developed by or for Consultant, including (without limitation) the Retail Store-Front, Consultant Web Site, Consultant System, code, content, databases, hardware, business practices, and other information.
(26) Consultant Web Site: The term “Consultant Web Site” shall mean that certain Consultant Web Site which is located on the Internet at www.outdoorbusinessnetwork.com, or such other websites or domain names, as may be set up by the Consultant from time to time, and as may be relocated by Consultant from time to time, including any and all Consultant Technology used, incorporated, stored or accessible therein, as implemented on the Consultant System and made accessible to users through the Internet. Consultant Web Site may allow Customer access to a Customer Online Account to purchase additional products and services as well as view account information, make payments, and receive notifications from Consultant.
(27) Consultant System. The term “Consultant System” shall mean the Consultant Technology, Consultant Web Sites, domain names, Policy Statements, computer hardware, computer software, and all other aspects of the Consultant’s business.
(28) OBN Hosted Email Fee. The term “OBN Hosted Email Fee” shall mean the fee charged for Outdoor Business Network to host a Customer email address.
(30) Receiving Party: The term “Receiving Party” shall mean a party to the Agreement who receives Confidential Information from the other party to the Agreement.
(31) Retail Store-Front Services: The term “Retail Store-Front Services” shall mean Retail Store-Front features and services provided by Consultant to facilitate the creation, implementation, and maintenance of the Retail Store-Front as selected by Customer and approved by Consultant in the Agreement.
(32) Services: The term “Services” shall mean the Retail Store-Front Services and the Consulting Services (as applicable).
(33) Technology: The term “Technology” shall mean (i) evaluation, technical, scientific, engineering, marketing, catalog, financial and business reports, plans, studies, diagrams, or flow charts; (ii) all forms and types of scientific, technical, economic, or engineering information; and (iii) information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, list server email logs, interface designs, protocols, screen displays, web sites, web pages, links, audiovisual components, Coding, Documentation, patterns, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, machines, articles of manufacture, improvements, hardware, peripherals, components and networks, whether tangible or intangible, and whether stored, compiled, or memorialized (without limitation) physically, electronically, graphically, photographically, or in writing.
(34) Launch: The day the website is launched and is navigable to online via a dedicated IP address.
(35) Tools: The term “Tools” shall mean third party Technology incorporated in whole or in part into the Retail Store-Front.
ARTICLE II. SCOPE OF SERVICES
Section 2.01 – Scope: In the event of any conflict between the terms set forth herein and the terms of the Agreement, the terms set forth herein shall govern.
Section 2.02 – Services: Consultant shall provide Consulting Services and Retail Store Front Services to Customer as requested by Customer on Schedule A or purchased via Customers Online Account at the Consultant Web Site, subject to written approval of Consultant.
Section 2.03 – Personnel: The personnel assigned to perform Services shall be determined solely by Consultant. Customer hereby acknowledges and agrees that Consultant may engage independent contractors to perform the Services on behalf of Consultant.
Section 2.04 – Access: Customer hereby authorizes Consultant to access the Customer Materials and Customer’s information, data, computers, and computer software for purpose of performing the Agreement. Such access shall be subject to the confidentiality provisions hereunder and independent contractors shall sign confidentiality Agreements. Customer hereby grants permission to Consultant to incorporate anonymous statistics into publicly available reports which may be derived from Customer's data as follows:
- Number of transactions, hits, sessions and visitors.
- Gross volume of transaction dollar amounts.
- Number of Retail Store-Front Customers.
- Geographic distribution of Retail Store-Fronts, warehouses and distributions points.
- Number of items stored in the catalog.
- User profiles without attributing information to user identities.
Section 2.05 – Schedule: The Services shall be performed during the hours of 9:00 a.m. through 5:00 p.m., Eastern Standard Time, Monday through Friday (excluding holidays), unless otherwise required (as determined exclusively by Consultant).
Section 2.06 – Facilities: The Services shall be performed at the facilities of Consultant, unless otherwise required (as determined exclusively by Consultant).
ARTICLE III. RETAIL STORE-FRONT DEVELOPMENT
Section 3.01 – Development Scope: Development of the retail storefront includes products, services, and features listed on Schedule A or purchased via Customers Online Account at the Consultant Web Site and those items listed in this article III. The scope does not include set up or connection of third party accounts, supplier accounts, payment gateways, shipping accounts, merchandising, marketing services, or any other action, service, module, or software not specifically listed in Schedule A or purchased via Customers Online Account.
Section 3.02 – Customer Materials: Customer shall disclose and provide to Consultant the Customer Materials within a reasonable time after completion of this agreement and submission of the Design Sketch. Set up time is measured in business days and starts at Consultants receipt of Customer Materials and Design Sketch.
Section 3.03 – Design Template: Consultant shall develop a Design Template which shows the Customer Materials integrated into the Retail Store Front and provide access to it via the Consultant Web Site. At this time the Retail Store Front is considered set up. The Design Template will be based upon the Design Sketch with any changes deemed required by Consultant to perform in accordance with the Documentation.
Section 3.04 – Revisions: The Customer is allowed one (1) round of revisions to the Design Template. The Design Template shall be deemed approved by Customer within forty-eight (48) hours after Customer receipt of the Design Template unless Consultant receives notice from Customer specifying the changes to the Design Template via Consultant Web Site within such forty-eight (48) hour period.
Section 3.05 – Launch: Based upon the Design Template and revisions, Consultant shall design the Retail Store-Front and shall develop Coding and website Technology for the Retail Store-Front which shall enable the Retail Store-Front to perform the functions defined and described in the Documentation.
Section 3.06 – Implementation: Based upon the Design Template Consultant shall implement the Retail Store-Front on the Consultant Web Site and Launch the website.
Section 3.07 – Acceptance: The Retail Store-Front shall be deemed accepted at Implementation. Revisions requested after implementation may be subject to additional hourly charges.
ARTICLE IV. RETAIL STOREFRONT SERVICES
Section 4.01 – Store-Front License: During the Term, Consultant hereby grants Customer a non-exclusive, non-transferable and revocable license to use the Retail Store-Front and to permit users to use the Retail Store-Front, in executable code form only solely for the purposes set forth in the Design Template and according to the Documentation. Customer shall not copy the Retail Store-Front or use the Retail Store-Front on any other system or server other than the Consultant System. Customer shall not use any Technology created or generated during use or access to the Retail Store-Front on any other computer other than the Consultant System.
Section 4.02 - Backup and Usage Information: Consultant shall backup the Retail Store-Front using commercially reasonable backup procedures. Customer shall not have access to such backup.
Section 4.03 – Credit Card Processing: All credit card or debit card processing required for the Retail Store-Front to enable credit or debit card purchases by users, shall be provided by the Customer. Customer shall be responsible for taking any action, providing information, maintaining, updating implementing and executing any Agreements or documentation required third parties, including (without limitation) obtaining a merchant account and all fees, costs and expenses in connection therewith. Consultant shall not be responsible for any aspect of the user financial arrangements required by the Retail Store-Front, or errors or omissions of third parties in connection with fund processing services.
Section 4.04 – Security Certificate: Retail Store-Front Services may include issuance to Customer of an SSL certificate or other equivalent security certificate to enable secure and encrypted communications between users and the Retail Store-Front. Customer hereby acknowledges that all such security certificates are provided by third party certificate authorities. Customer is responsible for taking any action, providing information, maintaining, updating, implementing and executing any Agreements and documentation required by such third parties, including (without limitation) all fees, costs and expenses in connection therewith. Consultant shall not be responsible for any errors or omissions of third parties in connection with security certificates.
Section 4.05 – Domain Name Registration: Retail Store-Front Services may include registration of a domain name for the Retail Store-Front. Upon request by Customer, Consultant shall apply and pay the initial registration fee to register the Domain Name desired by the Customer with a registration company on behalf and in the name of the Customer. In the event such desired domain name is not available, rejected or opposed by a third party, Consultant shall explain the reasons for the unavailability or rejection of such domain name. Such notice shall be given verbally to Customer after Consultant receipt of notice of such unavailability, rejection or opposition. Upon request by Customer, Consultant shall apply to register another domain name subject to the foregoing procedures.
Section 4.06 – Passwords: Customer hereby acknowledges and agrees that access to certain areas of Retail Store-Front (as determined by Consultant) shall be subject to use of a password mutually agreeable to Customer and Consultant ("Customer Password"). Customer acknowledges that Consultant shall not provide full or administrative access to the Retail Store-Front or the hosting equipment. Access to the Retail Store-Front shall be determined in the exclusive discretion of Consultant. Modification of Customer Password shall be subject to approval of Consultant. In the event Customer is enabled to issue passwords to users ("User Passwords") for accessing the Retail Store-Front, Consultant shall have the right to access such User Passwords and Customer shall cooperate with Consultant in providing information to Consultant in connection with such User Passwords for purposes of operating and maintaining the Retail Store-Front. Consultant shall maintain all password information in strict confidence. Customer hereby accepts responsibility for, and shall be liable for, all access to the Retail Store-Front in connection with User Passwords and Customer Passwords. Customer shall be responsible for the confidentiality of the Customer Password. Customer shall be responsible for maintenance of User Passwords.
Section 4.07 – Access: Customer hereby acknowledges and agrees that access to the Retail Store-Front may be affected by local market telecommunication network activity, capacity and compatibility with third party communication equipment, Internet access software and browser. Consultant hereby disclaims and Customer hereby waives any and all Consultant responsibility for any defect or service interruption in connection with local market telecommunication network activity, capacity and compatibility with third party communication equipment, Internet access software and browsers.
Section 4.09 – Exclusivity: Customer hereby acknowledges and agrees that Consultant shall be the exclusive provider of Internet access, hosting, web design services, e-commerce solutions, and advertising management for the Retail Store-Front and related websites. The Consultant System shall be accessed exclusively by Consultant for purposes of performing the Agreement. In no event shall Customer use third parties or permit third parties to access the Retail Store-Front for purposes of performing any services concerning the Retail Store-Front, including (without limitation) third party Internet service providers, web designers, e-commerce solution providers, or third-party advertising management services in connection with the Retail Store-Front.
Section 4.10 - Contact Person: Consultant and Customer shall each designate a principal contact person who shall act as a liaison between Consultant and Customer and who shall have sufficient authority to grant or communicate the granting of all necessary approvals.
ARTICLE V. INTELLECTUAL PROPERTY
Section 5.01 – Consultant Technology: Title to Consultant Technology (excluding the Tools), including all ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Consultant. Customer hereby acknowledges that the Consultant Technology shall not be deemed “works made for hire” under the U.S. Copyright Act [17 U.S.C. § 101 et seq.]. Customer hereby assigns, transfers and conveys any and all rights, title and interests, Customer may have or accrue in connection with development or use of the Consultant Technology, including (without limitation) any and all ownership rights to patents, trademarks, copyrights and trade secrets in connection therewith.
Section 5.02 – Customer Materials: Title to Customer Materials, including all ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Customer.
Section 5.04 – Trade Secrets: Customer hereby acknowledges and agrees that the Consultant Technology (excluding Consultant Technology authorized by Consultant for access through the Internet without a Password) derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Consultant under the circumstances to maintain its secrecy; and is a trade secret as defined under Chapter 688 of the Florida Statutes [§688.002(4)].
Section 5.05 – Authorization: Customer hereby represents and warrants that Customer has obtained all necessary authorizations, permissions or licenses from the Developer to distribute and provide the Customer Materials to Consultant. Customer hereby represents and warrants that Customer has the authority to grant the license granted by Customer to Consultant under the Agreement. Customer hereby represents and warrants that use, reproduction, display and performance of Customer Materials by Consultant shall not infringe upon or violate any patent, copyright, trade secrets or trademark rights of any third party or violate any laws, including (without limitation) the United States export laws (Export Administration Act, 15 CFR 730-774) and import laws.
Section 5.06 – Confidentiality: The Receiving Party shall not disclose Confidential Information except to Authorized Persons. The Receiving Party shall hold Confidential Information in confidence and shall not duplicate, use or disclose Confidential Information except as permitted under the Agreement. Receiving Party shall require Authorized Persons who receive Confidential Information from Receiving Party to hold and maintain such Confidential Information in confidence and not use or reproduce such Confidential Information except as permitted under the Agreement. The Consultant Technology (excluding the Tools and Consultant Technology authorized by Consultant for access through the Internet without a Password) shall be deemed Confidential Information of Consultant.
Section 5.07 – Links: Customer hereby acknowledges and agrees that Consultant shall have the right to use the name of Customer, including the Retail Store-Front, and a mutually agreeable graphic logo and trademarked name for reference as a customer of Consultant services and for referral and marketing purposes. Customer hereby authorizes Consultant to maintain on the Consultant Web Site a link to the Customer Retail Store-Front. Customer hereby acknowledges that the Retail Store-Front may contain links to third party web sites. Any such links are provided solely as a convenience to users and do not constitute an endorsement by Consultant of such web sites and the third party content therein.
Section 5.08 – Consultant Legend: Customer hereby authorizes Consultant to include the Consultant Legend on the primary web page of the Retail Store-Front in location and font type and size mutually agreeable to both parties. Notwithstanding the foregoing, Consultant shall have no duty or obligation to include the Consultant Legend on the Retail Store-Front.
Section 5.09 – Unauthorized Use: Customer shall not (directly or indirectly) copy or download the Retail Store-Front or Consultant Web Site without the prior written consent of Consultant. Customer shall not modify, reverse engineer, reproduce, display, perform or distribute, establish a link to, associate (directly or indirectly) itself with, or cause confusing, including (without limitation) by framing, metatags or similar means, the Retail Store-Front or Consultant Web Site and shall not allow the Retail Store-Front to be reverse engineered.
Section 5.10 - Unauthorized Access: Customer shall prevent any individual to access the Retail Store-Front except for individuals and employees of users authorized to access the Retail Store-Front for the exclusive purpose of accessing the areas of the Retail Store-Front designated by Consultant in the exclusive discretion of Consultant solely for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Retail Store-Front, according to the Documentation during the Term using a Password (as may be required) subject to the Terms and Conditions. Customer shall prevent any access to the Retail Store-Front except for the exclusive purpose of accessing the areas of the Retail Store-Front designated by Consultant in the exclusive discretion of Consultant solely for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Retail Store-Front, according to the Documentation during the Term using a Password (as may be required) subject to the Terms and Conditions.
Section 5.11 -- No Contest: Customer shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Consultant in connection with the Retail Store-Front.
Section 5.12 -- Trademarks: Consultant shall retain all rights, title, and ownership interests in trademarks, trade names, service marks and trade dress of Consultant and goodwill associated therewith. Customer acknowledges that, excepting the trademarks of Consultant, all other product, service and company names mentioned in the Retail Store-Front may be trademarks of their respective owners.
Section 5.13 – Continuation: The terms and provisions of this Article V shall survive termination and cancellation of the Agreement.
ARTICLE VI. PAYMENTS
Section 6.01 – Set-Up Fee: Customer shall pay Consultant the Set-Up fee upon on the Effective Date.
Section 6.02 – Monthly Fees: Customer shall pay, on the 1st day of each month, all of the fees applicable to the Retail Store-Front Services as set forth in the Agreement. Such fees shall apply as of the first month following the Effective Date and shall be subject to an annual review by Consultant. Registered users shall include all users registered to use the Retail Store-Front for any portion of the applicable month. Consultant must give Customer at least thirty (30) days prior written notice of changes in the foregoing fees.
Section 6.03 – Transaction Fees: N/A
Section 6.04 – Expenses: Customer shall pay all reasonable direct costs, including (without limitation) postage, shipping, telephone, communications, fees charged by third parties, insurance, travel, per diem, material and reproduction costs incurred by Consultant in performing Services at rates and in amounts approved by Customer before such costs are incurred.
Section 6.05 – Taxes: Customer shall pay any and all applicable taxes (excluding income taxes assessed against Consultant) assessed by governmental entities on the goods and services provided hereunder.
Section 6.06 – Invoice: Customer shall pay any invoices by Consultant for fees and expenses in connection with the Services. Customer shall pay any such invoice in full on the due date thereof or within thirty (30) days of receiving such invoice (whichever is earlier). A ten (10) percent late fee will be added to any invoice which has become past due.
ARTICLE VII. TEMPORARY SUSPENSION
Section 7.01 Causes for Temporary Suspension: We may suspend Customer’s right to access or use any portion of the Retail Store Front immediately if we determine:
(a) Customer’s use of Retail Store Front; (i) poses a security risk to Outdoor Business Network, our affiliates, or any of our system’s users, (ii) may adversely impact the services provided to any other Outdoor Business Network Customer, (iii) may subject Consultant, our affiliates, or any other third party to liability, or (iv) may be fraudulent;
(b) you are, or any End User is, in breach of this Agreement, including the Terms and Conditions, including if you are delinquent on your payment obligations for more than 30 days.
Section 7.02 Effects of Suspension: If we suspend your right to access or use any portion or all of the Retail Store Front:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any applicable fees and charges for any ongoing Monthly Fees, late payment and interest charges applicable under section 8.06, and any reinstatement fees which may be applicable under section 8.06 until termination of the Agreement at which time Article VIII governs payment responsibility;
(c) you will not be entitled to service credits for any period of suspension;
(d) we will not delete Customer’s Content except (i) if Customer’s Content is the cause of suspension under Section 7.01; or (ii) if the Agreement is Terminated under Article VIII while suspended.
ARTICLE VIII. TERMINATION
Section 8.01 -- Termination Limitation: The Agreement shall only be terminated or canceled as provided under this Article VIII.
Section 8.02 -- Term: The Agreement shall be valid for the Term.
Section 8.03 – Renewal: The Agreement shall automatically renew at the end of the Term unless written and signed notice of non-renewal is given by Customer and received by Consultant thirty (30) days prior to the end of the Term.
Section 8.04 -- Termination: Consultant or customer may terminate the Agreement for convenience upon providing thirty (30) days advance Written and Signed Termination Notice to the other party or by non-payment as described under section 8.06. If Customer terminates the Agreement before the end of the Term, Customer shall be held liable for an early termination fee equal to one half of the remaining Monthly Fees unless terminated within 30 days the Effective Date. Consultant may also terminate this Agreement immediately upon notice to Customer;
(a) if any act or omission by Customer results in suspension described in Section 7.01,
(b) if our relationship with a third party partner who provides software or other technology we use to provide services described on the Schedule A expires, terminates or requires us to change the way we provide services to Customer,
(c) if Customer violates its obligations under the Agreement,
(d) if Consultant believes that providing services described on the Schedule A, or as listed in the Consultant Web Site, could create a substantial economic or technical burden or material risk for the Consultant,
(e) in order to comply with the law,
(f) if Consultant determines the use of services described on the Schedule A, or as listed in the Consultant Web Site, has become impractical or unfeasible for any legal or regulatory reason.
Section 8.05 -- Cancellation: If the Consultant violates its obligations under the Agreement, the Customer may cancel the Agreement by sending signed written Cancellation Notice describing the noncompliance to the non-complying party. Upon receiving Cancellation Notice, the Consultant shall have thirty (30) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required thirty (30) day period, the Customer shall have the right to cancel the Agreement as of the thirty-first (31st) day after the date of such Cancellation Notice.
Section 8.06 – Payment: Termination or Cancellation of the Agreement shall not terminate or cancel any payment obligation of Customer under the Agreement. Outstanding invoices over thirty (30) days past due will be subject to a ten (10) percent late fee. Any outstanding balance is subject to an 18% annual interest rate. If Customer shall become ninety (90) days or more past due Customer is terminating the agreement by non-payment even if Written Termination Notice has not been received by Consultant.
ARTICLE IX. WARRANTY
Section 9.01 – Products and Services Warranty: The Services to be provided by Consultant under the Agreement shall be performed using reasonable commercial efforts, shall conform to the standards generally observed in the industry for similar services and shall be subject to this Article IX. Your use of the Products and Services is at your sole risk. The products and services provided is on an “as is” and “as available” basis without any warranty or condition, expressed, implied, or statutory. Consultant does not warrant that the Services will be uninterrupted, timely, secure, or error free.
Section 9.02 – Third Party Warranty: Consultant provides no warranty of third party data, applications, services, merchantability, or access.
Section 9.03 – Express Warranties: Except for the Consultant express warranties contained in this Article IX, Customer hereby acknowledges and agrees that Consultant (including officers, directors, agents, employees and independent contractors of Consultant) has not made or granted any express warranties concerning the Services, the Retail Store-Front, or any products and services offered through the Retail Store-Front.
SECTION 9.04 -- DISCLAIMER: The warranties set forth in THIS ARTICLE IX are in lieu of all other warranties, express or implied, including but not limited to, implied warranties of merchantability and implied warranties of fitness for a particular purpose. Consultant hereby disclaims and CUSTOMER hereby waives all OTHER warranties, express or implied, including, but not limited to, all implied warranties of merchantability and all implied warranties of fitness for a particular purpose.
Section 9.05 – Limitation of Liability: Consultant shall not be liable for any reason and for any cause of action whatsoever in connection with the Agreement, the Retail Store-Front and the Services, regardless of the form of action, whether in contract or in tort, including negligence.
Section 9.06 – Limitation of Damages: No damages shall exceed the amount on Schedule A, or as purchaed in the Consultant Web Site Customer Online Account, for one (1) Monthly Fee. Consultant shall not be liable to the Customer for any special or consequential damages, including but not limited to, lost profits, loss of use, costs of replacement, or other cause whatsoever.
Section 9.07 – Remedies: The sole remedy of Customers and users for any reason or any cause of action whatsoever in connection with or relating to the Agreement and the Retail Store-Front, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the Retail Store-Front and Consultant's policies and practices, as determined by Consultant.
Section 9.08 -- Indemnification: Customer shall defend, indemnify and hold harmless Consultant and its officers, directors, employees and agents, from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses and reasonable attorney and paralegal fees on account thereof resulting from any claims related to the use and performance of the Retail Store-Front and the Services.
Section 9.09 -- Infringement: If Customer use of the Retail Store-Front is disrupted as a result of a third-party claim, Consultant shall perform one or all of the following actions (at the option of Consultant) within sixty (60) calendar days of the date such third party claim is discovered:
(1) Replacement: Replace the Retail Store-Front with a non-infringing product of substantially equivalent functional and performance capability;
(2) Modification: Modify the Retail Store-Front to avoid the infringement without substantially eliminating the functional and performance capabilities of the Proprietary Information;
(3) Obtain License: Obtain a license for use of the Retail Store-Front from the third party claiming infringement for use of the Retail Store-Front.
The remedies set forth above shall be exclusive and shall be in lieu of any and all remedies available at law or in equity.
Section 9.10 – Continuation: Excepting Sections 9.01 and 9.02, the terms and provisions of this Article IX shall survive termination and cancellation of the Agreement.
ARTICLE X. MISCELLANEOUS
Section 10.01 – Notice: Notices shall be in writing and shall be deemed delivered when delivered by Certified or Registered Mail – Return Receipt Requested – or by hand to the address set forth on Consultant Web Site for Consultant and to the address set forth on the signature page of the Agreement for Customer. Notices shall be deemed given on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt.
Section 10.02 – Assignments: All assignments of rights under the Agreement by Customer without the prior written consent of Consultant shall be void.
Section 10.03 – Amendment and Modifications: Alterations, modifications or amendments of provisions of the Agreement shall not be binding unless such alterations, modifications or amendments are in writing and signed by authorized representatives of Consultant and Customer.
Section 10.04 – Severability: If a provision of the Agreement or a portion thereof is rendered invalid, void, unlawful, or unenforceable, the remaining provisions or portions thereof shall remain in full force and effect.
Section 10.05 – Captions: The headings and captions of the Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of the Agreement or any particular section, paragraph, or provision.
Section 10.06 – Counterparts: The Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.
Section 10.07 – Non-Disparagement: During the term and thereafter, Customer agrees that it will take no action to disparage the Consultant, its products and services, or any of its officers, directors, or employees. Disparage shall mean any negative statement, whether written or oral, about the Consultants products or services, employees, or unprofessional or profane comments directed to employees. The Customer acknowledges that this provision is a material part of the Consultants acceptance of this agreement. Equitable remedy for each breach of this provision is equal to the monetary value of this agreement.
We will treat your company in a professional manner and expect the same from you. We hope to never have to enact this provision. However from time to time we get a real zinger of a client that will go to any length to try to get more than they bargained for by treating our employees, partners, third parties, management, and company in an unprofessional manner, or demanding products and services for free. This hurts all of our clients over time, and this clause gives us the ability to stop such issues before they start. It is intended to prohibit the waste of valuable time, money, and resources which would be better spent investing in our software and services.
Section 10.08 – Non-Disclosure: During the term and thereafter, Customer agrees not to disclose certain details of the working relationship which is not publicly known or generally made publicly available, including but not limited to: prices, internal communications, training materials, support tickets, feature lists, development lists, data schemas, hardware configurations, business plans or any other information not specifically made public by the Consultant. The Customer acknowledges that this provision is a material part of the Consultants acceptance of this agreement. Equitable remedy for each breach of this provision is equal to the monetary value of this agreement.
Section 10.09 – Governing Law: The Agreement shall be governed by the laws of the State of Ohio, without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction, and venue shall be proper in Lucas County, Ohio.
Section 10.10 – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.
Section 10.11 – Waiver: Waiver of breach of the Agreement shall not constitute waiver of another breach. Failing to enforce a provision of the Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of the Agreement shall not be binding unless such waiver is in writing and signed by the party waiving such provision.
Section 10.12 – Relationship of the Parties: Nothing herein shall be construed as creating a partnership relationship, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
Section 10.13 – Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under the Agreement are true, correct and accurate to the best of their knowledge.
Section 10.14 – Litigation Expense: In the event of litigation or arbitration arising out of the Agreement, Customer shall pay all costs and expenses of litigation or arbitration.
Section 10.15 – Entire Agreement: The Agreement contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning the subject matter of the Agreement.
I HEREBY ACKNOWLEDGE THAT I HAVE REVIEWED THESE TERMS AND CONDITIONS SET FORTH ABOVE. I AM ENTERING INTO A CONTRACT FOR SOFTWARE LICENSE AND PROFESSIONAL SERVICES FOR BUSINESS USE. I FURTHER ACKNOWLEDGE THAT THESE TERMS AND CONDITIONS WERE ATTACHED TO THE CONTRACT, AND WERE A PART OF THE CONTRACT AT THE TIME OF SIGNING AND THAT I HAVE RECEIVED A COPY OF SAME.