PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE
PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT
TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CUSTOMER”) ARE
HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF OBJECTION TO THEM AND
REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING
DEFENDSCAPE LLC IDENTIFIED ON THE INVOICE, STATEMENT OF WORK, OR OTHER
DEFENDSCAPE LLC DOCUMENTATION (“SELLER”) TO PROVIDE PRODUCT OR
PERFORM OR PROCURE ANY SERVICES, THE CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS
THESE TERMS AND CONDITIONS, UNLESS CUSTOMER AND SELLER HAVE SIGNED A SEPARATE
AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES
AND RESULTS THEREOF POSTED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT
CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND CUSTOMER.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract
between Customer and Seller and are referred to herein as either “Terms
and Conditions” or this “Agreement.” Customer accepts these
Terms and Conditions by making a purchase from or placing an order with Seller
or shopping on any Seller Website or Mobile Application (each, a
“Site”) or otherwise requesting products (the “Products”) or engaging
Seller to perform or procure any Services (as this and all capitalized terms
are defined herein). These Terms and Conditions are subject to change without
prior notice, except that the Terms and Conditions posted on a Site at the time
Customer places an order or signs a Statement of Work will govern the order in
question unless otherwise agreed in writing by Seller and Customer.
Customer consents to receiving electronic records, which may
be provided via a Web browser or e-mail application connected to the Internet;
individual consumers may withdraw consent to receiving electronic records or
have the record provided in non-electronic form by contacting Seller. In
addition, Internet connectivity requires access services from an Internet
access provider. Contact your local access provider for details. Electronic
signatures (or copies of signatures sent via electronic means) are the equivalent
of written and signed documents.
Customer may issue a purchase order for administrative
purposes only. Additional or different terms and conditions contained in any
such purchase order will be null and void. No course of prior dealings between
the parties and no usage of trade will be relevant to determine the meaning of
these Terms and Conditions or any purchase order or invoice, or any document in
electronic or written form that is signed and delivered by each of the parties
for the performance of Services other than Third Party Services (each, a
“Statement of Work”). This Agreement contains the entire understanding of the
parties with respect to the matters contained herein and supersedes and
replaces in its entirety any and all prior communications and contemporaneous
agreements and understandings, whether oral, written, electronic, or implied, if
any, between the parties with respect to the subject matter hereof.
Governing Law
THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE
SERVICES HEREUNDER, AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE
LAWS OF THE STATE OF WYOMING, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY
ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT
EXCLUSIVELY IN SHERIDIAN COUNTY, WYOMING, AND CUSTOMER CONSENTS TO THE
JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE
JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER
CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH
RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party
may institute any action in any form arising out of these Terms and Conditions
more than one (1) year after the cause of action has arisen. The rights and
remedies provided by Seller under these Terms and Conditions are cumulative, are
in addition to, and do not limit or prejudice any other right or remedy
available at law or in equity.
Services
Customers may order services (collectively,
“Services”) from or through Seller from time to time. Certain
Services may be provided by third parties, including, but not limited to,
extended warranty service by manufacturers, and are sold by Seller as
distributor or sales agent (“Third Party Services”).
In the case of Third Party Services, Customer shall consider
the third party to be the contracting party, and the third party shall be the
party responsible for providing the services to the Customer, and Customer will
look solely to the third party for any loss, claims or damages arising from or
related to the provision of such Third Party Services. Customer and Customer’s
Affiliates (defined below) hereby release Seller (defined below) from any and
all claims arising from or relating to the purchase or provision of any such
Third Parties Services. Any amounts, including, but not limited to, taxes,
associated with Third Party Services which may be collected by Seller will be
collected solely in the capacity as an independent sales agent. For purposes of
this Agreement, (a) “Affiliate” means, with respect to Customer, entities both
that Control are Controlled by, or are under common Control with Customer, and
(b) “Control” or “Controlled” means the possession, directly or indirectly, of
the power to direct or cause the direction of the affairs of another whether by
ownership of shares, ability to appoint officers, contract or otherwise.
Where Services are ordered in a Statement of Work, each
Statement of Work hereby incorporates these Terms and Conditions and
constitutes a separate agreement with respect to the Services performed.
Seller may execute a Statement of Work. In the event of an addition to or a
conflict between any term or condition of the Statement of Work and these Terms
and Conditions, these Terms and Conditions will control, except as expressly
amended in the applicable Statement of Work by specific reference to this
Agreement. Each such amendment will be applicable only with respect to such
Statement of Work and not to future Statements of Work. Changes to the scope of
the Services described in a Statement of Work will be made only in a writing
executed by authorized representatives of both parties. Seller will have no
obligation to commence work in connection with any such change unless and
until the change is agreed upon in that writing executed by both parties. All
such changes to the scope of the Services will be governed by these Terms and
Conditions and the applicable Statement of Work. Each Statement of Work may be
signed in separate counterparts, each of which shall be deemed an original and
all of which together will be deemed to be one original.
Cooperation
In addition to any specific Customer duties set forth in any
applicable Statement of Work, Customer agrees to cooperate with Seller in
connection with performance of the Services by providing: (i) timely responses
to Seller’s inquiries and requests for approvals and authorizations, (ii)
access to any information or materials reasonably requested by Seller which are
necessary or useful as determined by Seller in connection with providing the
Services, including, but not limited to, physical and computer access to
Customer’s computer systems, and (iii) all Required Consents necessary for
Seller to provide the Services. “Required Consents” means consents or
approvals required to give Seller, its Affiliates, and its and their
subcontractors the right or license to access, use and modify all data and
third-party products. Customer acknowledges and agrees that the Services are
dependent upon the completeness and accuracy of information provided by
Customer and the knowledge and cooperation of the agents, employees, or
subcontractors (“Personnel”) engaged or appointed by Customer who are selected
by Customer to work with Seller.
Seller will follow all reasonable Customer security rules
and procedures, as communicated in writing by Customer to Seller from time to
time.
Access
Seller may perform the Services at Customer’s place of
business, at Seller’s own facilities or such other locations as Seller and
Customer deem appropriate. When the Services are performed at Customer’s
premises, Seller will attempt to perform such Services within Customer’s normal
business hours unless otherwise jointly agreed to by the parties. Customer will
also provide Seller access to Customer’s staff and any other Customer resources
(and when the Services are provided at another location designated by Customer,
the staff and resources at such location) that Seller determines are useful or
necessary for Seller to provide the Services. When the Services are provided on
Customer’s premises or at another location designated by Customer, Customer
agrees to maintain adequate insurance coverage to protect Seller and Customer’s
premises and to indemnify and hold Seller and its and their agents and
employees harmless from any loss, cost, damage or expense (including, but not
limited to, attorneys’ fees and expenses) arising out of any product liability,
death, personal injury or property damage or destruction occurring at such
location in connection with the performance of the Services, other than solely
as a result of Seller’s gross negligence or willful misconduct.
Payment
Orders are not binding upon Seller until accepted by Seller.
Customer agrees to pay the total purchase price for the Products plus shipping
(to the extent shipping is not prepaid by Customer), including shipping charges
that are billed to Seller as a result of using Customer’s carrier account
number. Terms of payment are within Seller’s sole discretion. In connection
with Services being performed pursuant to a Statement of Work, Customer will
pay for the Services in the amounts and in accordance with any payment schedule
set forth in the applicable Statement of Work. If no payment schedule is
provided, Customer will pay for the Services as invoiced by Seller. Invoices
are due and payable within the time period specified on the invoice, measured
from the date of invoice. Customer will pay for and will indemnify and hold
Seller harmless from any applicable sales, use, transaction, excise, or similar
taxes and any federal, state, or local fees or charges (including, but not
limited to, environmental or similar fees), imposed on, in respect of or
otherwise associated with any Statement of Work, the Products or the Services.
Customer must claim any exemption from such taxes, fees, or charges at the time
of purchase and provide Seller with the necessary supporting documentation. In
the event of a payment default, Customer will be responsible for all of
Seller’s costs of collection, including, but not limited to, court costs,
filing fees and attorneys’ fees. In addition, if payments are not received as
described above, Seller reserves the right to suspend Services until payment is
received. Customer hereby grants to Seller a security interest in the Products
to secure payment in full. Customer authorizes Seller to file a financing
statement reflecting such security interest. Except as otherwise specified on
an applicable Statement of Work, Customer will reimburse Seller for all
reasonable out-of-pocket expenses incurred by Seller in connection with the
performance of the Services, including, but not limited to, travel and living
expenses.
Export Sales
If this transaction involves an export of items (including,
but not limited to, commodities, software, or technology) subject to the Export
Administration Regulations, such items were exported from the United States by
Seller in accordance with the Export Administration Regulations. Customer
agrees that it will not divert, use, export or re-export such items contrary to
United States law. Customer expressly acknowledges and agrees that it will not
export, re-export, or provide such items to any entity or person within any
country that is subject to United States economic sanctions imposing
comprehensive embargoes without obtaining prior authorization from the United
States Government. The list of such countries subject to United States economic
sanctions or embargoes may change from time to time but currently includes
Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees
that it will not export, re-export, or provide such items to entities and
persons that are ineligible under United States law to receive such items,
including but not limited to, any person or entity on the United States
Treasury Department’s list of Specially Designated Nationals or on the United
States Commerce Department’s Denied Persons List, Entity List, or Unverified
List. In addition, manufacturers’ warranties for exported Products may vary or
may be null and void for Products exported outside the United States.
Warranties
Customer understands that Seller is not the manufacturer of
the Products purchased by Customer hereunder, and the only warranties offered
are those of the manufacturer, not Seller. In purchasing the Products, Customer
is relying on the manufacturer’s specifications only and is not relying on any
statements, specifications, photographs or other illustrations representing the
Products that may be provided by Seller or its Affiliates. SELLER HEREBY
EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO
PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF
NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE
DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY
MANUFACTURER’S WARRANTY. Customer expressly waives any claim that it may have
against Seller based on any product liability or infringement or alleged
infringement of any patent, copyright, trade secret or other intellectual
property rights (each a “Claim”) with respect to any Product and also waives
any right to indemnification from Seller against any such Claim made against
Customer by a third party. Customer acknowledges that no employee of Seller is
authorized to make any representation or warranty on behalf of Seller that is
not in this Agreement.
Seller makes no warranties to the Customer and the Customer
hereby acknowledges that Seller makes no warranties in regard to the
applicability of all laws and regulations affecting, without limitation the
manufacture, performance, sale, packaging and labelling of the Products which
are in force within the Customer’s territory.
Customer further acknowledges and agrees that Seller makes
no representations, warranties or assurances that the Products are designed for
or suitable for use in any high risk environment, including but not limited to
aircraft or automobile safety devices or navigation, life support systems or
medical devices, nuclear facilities, or weapon systems, and Customer agrees to
indemnify Seller in connection with any such use of the Products. Customer
further agrees to review and comply with the manufacture’s disclaimers and
restrictions regarding the use of the Products in high risk environments.
Seller warrants that the Services will be performed in a
good and workmanlike manner. Customer’s sole and exclusive remedy and Seller’s
entire liability with respect to this warranty will be, at the sole option of
Seller, to either (a) use its reasonable commercial efforts to reperform or
cause to be reperformed any Services not in substantial compliance with this
warranty or (b) refund amounts paid by Customer related to the portion of the
Services not in substantial compliance; provided, in each case, Customer
notifies Seller in writing within five (5) business days after performance of
the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK
THAT EXPRESSLY AMENDS SELLER’S WARRANTY AND SUBJECT TO APPLICABLE LAW, SELLER
MAKES NO OTHER AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES,
CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT
LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR
NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR
NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE
OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY
CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND
EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH
HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO
REPRESENTATIVE OF SELLER IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY
ON BEHALF OF SELLER THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK
EXPRESSLY AMENDING SELLER’S WARRANTY.
Customer shall be solely responsible for daily back-up and
other protection of its data and software against loss, damage or corruption.
Customer shall be solely responsible for reconstructing data (including but not
limited to data located on disk files and memories) and software that may be
lost, damaged or corrupted during the performance of Services. SELLER, AND ITS
AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL
CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE
OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS,
DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING
FROM THE SERVICES.
Seller will not be responsible for, and no liability shall
result to Seller for any delays in delivery or in performance which result from
any circumstances beyond Seller’s reasonable control, including, but not
limited to, Product unavailability, carrier delays, delays due to fire, severe
weather conditions, failure of power, labor problems, acts of war, terrorism,
embargo, acts of God or acts or laws of any government or agency. Any shipping
dates or completion dates provided by Seller or any purported deadlines
contained in a Statement of Work or any other document are estimates only.
Pricing Information; Availability Disclaimer
Seller reserves the right to make adjustments to pricing,
Products and Service offerings for reasons including, but not limited to,
changing market conditions, Product discontinuation, Product unavailability,
manufacturer price changes, supplier price changes and errors in
advertisements. All orders are subject to Product availability and the
availability of Personnel to perform the Services. Therefore, Seller cannot
guarantee that it will be able to fulfill Customer’s orders. If Services are
being performed on a time and materials basis, any estimates provided by Seller
are for planning purposes only.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, OR ITS OR THEIR
SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED
TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SELLER HAS BEEN
ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE
FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED
UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY
OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD
PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S
IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER BASED ON,
RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR
SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED
OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER,
THE ENTIRE LIABILITY OF SELLER FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT
EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S)
GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR
(B) $50,000.00.
Limited License
Customer’s sole rights to the work product, materials and
other deliverables to be provided or created (individually or jointly) in
connection with the Services, including but not limited to, all inventions,
discoveries, methods, processes, formulae, ideas, concepts, techniques,
know-how, data, designs, models, prototypes, works of authorship, computer
programs, proprietary tools, methods of analysis and other information (whether
or not capable of protection by patent, copyright, trade secret, confidentiality,
or other proprietary rights) or discovered in the course of performance of this
Agreement that are embodied in such work or materials (“Work
Product”) will be, upon payment in full, a non-transferable,
non-exclusive, royalty-free license to use such Work Products solely for
Customer’s internal use. Customer will have no ownership or other property
rights thereto and Customer shall have no right to use any such Work Product
for any other purpose whatsoever. Customer acknowledges that Sellers may
incorporate intellectual property created by third parties into the Work
Product (“Third Party Intellectual Property”). Customer agrees that its right
to use the Work Product containing Third Party Intellectual Property may be
subject to the rights of third parties and limited by agreements with such
third parties.
Confidential Information
Each party anticipates that it may be necessary to provide
access to information of a confidential nature of such party, the Affiliates, or
a third party (hereinafter referred to as “Confidential Information”)
to the other party in the performance of this Agreement and any Statement of
Work. “Confidential Information” means any information or data in
oral, electronic, or written form which the receiving party knows or has reason
to know is proprietary or confidential and which is disclosed by a party in
connection with this Agreement or which the receiving party may have access to
in connection with this Agreement, including but not limited to the terms and
conditions of each Statement of Work. Confidential Information will not include
information which: (a) becomes known to the public through no act of the
receiving party; (b) was known to the receiving party, or becomes known to the
receiving party from a third party having the right to disclose it and having
no obligation of confidentiality to the disclosing party with respect to the
applicable information; or (c) is independently developed by agents, employees
or subcontractors of the receiving party who have not had access to such
information. To the extent practicable, Confidential Information should be clearly
identified or labeled as such by the disclosing party at the time of disclosure
or as promptly thereafter as possible, however, failure to so identify or label
such Confidential Information will not be evidence that such information is not
confidential or protectable.
Each party agrees to hold the other party’s Confidential
Information confidential for a period of three (3) years following the date of
disclosure and to do so in a manner at least as protective as it holds its own
Confidential Information of like kind but to use no less than a reasonable
degree of care. Disclosures of the other party’s Confidential Information will
be restricted (i) to those individuals who are participating in the performance
of this Agreement or the applicable Statement of Work and need to know such
Confidential Information for purposes of providing or receiving the Products or
Services or otherwise in connection with this Agreement or the applicable
Statement of Work, or (ii) to its business, legal and financial advisors, each
on a confidential basis. Each party agrees not to use any Confidential
Information of the other party for any purpose other than the business purposes
contemplated by this Agreement and the applicable Statement of Work. Upon the
written request of a party, the other party will either return or certify the
destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation,
or requested in any judicial or administrative proceeding or by any
governmental or regulatory authority, to disclose Confidential Information of
the other party, the receiving party will give the disclosing party prompt
notice of such request so that the disclosing party may seek an appropriate
protective order or similar protective measure and will use reasonable efforts
to obtain confidential treatment of the Confidential Information so disclosed.
Return Privileges
Defendscape LLC allows Customer returns based on the
policies of the original product manufacturer. Software is not returnable if
the packaging has been opened. If software was distributed electronically, it
is not returnable if the licenses were downloaded.
Termination
Either party may terminate performance of a Service or a
Statement of Work for cause if the other party fails to cure a material default
in the time period specified herein. Any material default must be specifically
identified in a written notice of termination. After written notice, the
notified party will, subject to the provision of warranties herein, have thirty
(30) days to remedy its performance except that it will only have ten (10) days
to remedy any monetary default. Failure to remedy any material default within
the applicable time period provided for herein will give cause for immediate
termination, unless such default is incapable of being cured within the time
period in which case the defaulting party will not be in breach (except for
Customer’s payment obligations) if it used its reasonable efforts to cure the
default. In the event of any termination of the Services or a Statement of
Work, Customer will pay Seller for all Services performed and expenses incurred
up to and including the date of termination plus any termination fee if one is
set forth in the applicable Statement of Work. In such event Customer will also
pay Seller for any out-of-pocket demobilization or other direct costs resulting
from termination. Upon termination, all rights and obligations of the parties
under the Service or Statement of Work (as applicable) will automatically
terminate except for any right of action occurring prior to termination,
payment obligations and obligations that expressly or by implication are intended
to survive termination (including, but not limited to, limitation of liability,
indemnity, confidentiality, or licensing of Work Product and this survival
provision).
Arbitration
Any claim, dispute, or controversy (whether in contract,
tort or otherwise, whether preexisting, present or future, and including, but
not limited to, statutory, common law, intentional tort and equitable claims)
arising from or relating to the Products, the Services, the interpretation or
application of these Terms and Conditions or any Statement of Work or the
breach, termination or validity thereof, the relationships which result from
these Terms and Conditions or any Statement of Work (including, to the full
extent permitted by applicable law, relationships with third parties who are
not signatories hereto), or Seller’s advertising
or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF
ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY
BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant
to the Rules of the American Arbitration Association. If arbitration is chosen
by any party with respect to a Claim, neither Seller nor Customer will have the
right to litigate that Claim in court or to have a jury trial on that Claim or
to engage in pre-arbitration discovery, except as provided for in the
applicable arbitration rules or by agreement of the parties involved. Further,
Customer will not have the right to participate as a representative or member
of any class of claimants pertaining to any Claim. Notwithstanding any choice
of law provision included in these Terms and Conditions, this arbitration
agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The
arbitration will take place exclusively in Sheridan, Wyoming. Any court having
jurisdiction may enter judgment on the award rendered by the arbitrator(s).
Each party involved will bear its own cost of any legal representation,
discovery or research required to complete arbitration. The existence or
results of any arbitration will be treated as confidential. Notwithstanding
anything to the contrary contained herein, all matters pertaining to the
collection of amounts due to Seller arising out of the Products or Services
will be exclusively litigated in court rather than through arbitration.
Miscellaneous
Seller may assign or subcontract all or any portion of its
rights or obligations with respect to the sale of Products or the performance
of Services or assign the right to receive payments, without Customer’s
consent. Customer may not assign these
Terms and Conditions, or any of its rights or obligations herein without the
prior written consent of Seller. Subject
to the restrictions in assignment contained herein, these Terms and Conditions
will be binding on and inure to the benefit of the parties hereto and their
successors and assigns. No provision of
this Agreement or any Statement of Work will be deemed waived, amended or
modified by either party unless such waiver, amendment or modification is in
writing and signed by both parties. The
relationship between Seller and Customer is that of independent contractors and
not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or
a Statement of Work is found by a court of competent jurisdiction to be
invalid, illegal or otherwise unenforceable, the same shall not affect the
other terms or conditions hereof or thereof or the whole of this Agreement or
the applicable Statement of Work. Notices provided under this Agreement will be
given in writing and deemed received upon the earlier of actual receipt or
three (3) days after mailing if mailed postage prepaid by regular mail or
airmail or one (1) day after such notice is sent by courier or facsimile
transmission. Any delay or failure by
either party to exercise any right or remedy will not constitute a waiver of
that party to thereafter enforce such rights.
International Services
If and to the extent that any Statement of Work involves the
provision of Services remotely by Seller to a Customer location outside of the
United States, the following additional terms shall apply with respect to those
Services only.
Customer will pay for, and will indemnify, defend and hold
Seller and each of their respective directors, officers, employees and agents
harmless from loss (of any kind), cost, damage or expense (including, but not
limited to, attorney’s fees and expenses) arising out of any Taxes. Customer
must claim any exemption from such taxes, fees or charges at the time of
purchase and provide Seller with the necessary supporting documentation. Any
taxes, charges, fees, penalties and interests in respect thereof that are the
responsibility of Customer hereunder may be invoiced by Seller in the Product
or Services invoices or separately. For purposes of this Section, “Taxes” means
any applicable sales, use, transaction, value added, goods and services tax,
harmonized sales tax, withholding tax, excise or similar taxes, and any
foreign, provincial, federal, state or local fees or charges (including but not
limited to, environmental or similar fees) and any income or business tax
liability, including any penalties and interest in respect thereof, imposed on,
in respect of or otherwise associated with any transaction hereunder, or the
Purchased Items (except taxes on or measured by the net income of Seller).
If the Laws or a governmental authority imposes or adopts
regulation, or there is a change in the Laws, which requires Seller to register
and/or obtain a governmental license, permit, or consent to make the Services
available within a jurisdiction, Seller has the right not to make available or
terminate the Service to the Customer’s Affiliate(s) in such jurisdiction
without any liability whatsoever to the Customer or its Affiliates. For
purposes of this Agreement, “Laws” means any applicable federal, state,
provincial, local, municipal, regional, foreign, international, multinational
or other constitution, law, statute, treaty, rule, regulation, regulatory or
legislative requirement, ordinance, license, restriction, judicial or
administrative order, code, common law or other pronouncement having the effect
of law.
Customer and Seller are solely obligated to address and
resolve all claims, controversies or disputes associated with provision of
Services (including any damages or injuries to a party’s foreign Affiliates) in
the United States as provided in the Arbitration clause above. In the event a
party’s foreign Affiliate brings suit or makes a claim or demand against the
other party or an Affiliate of the other party located outside of the United
States, such party will work with its foreign Affiliate to dismiss the suit,
claim, or demand, and such party will bring such suit, claim or demand against
the other party directly in the United States instead. In addition, such party
will reimburse the other party or the other party’s Affiliates for any of the
costs or expenses that the other party or the other party’s Affiliates
reasonably incurred while responding to the suit, claim or demand brought by
such party’s foreign Affiliate.