Diesel Laptops Solutions-as-a-Service Subscription Agreement
General Terms and Conditions
LAST UPDATED: October 1st, 2024
Please review these General Terms and Conditions carefully as they apply to Customer’s subscription to the Company’s Solution selected by Customer in the foregoing Subscription Agreement entered into between Customer and the Company. Updates to these Terms and Conditions can be found on the Company’s website located at https://www.diesellaptops.com/pages/diesel-laptops-subscription-agreement and all subdomains thereof and any mobile applications offered as part of the Company’s platform. Customer’s subscription to and use of the Services is governed by the Agreement regardless of how Customer subscribes to or uses the Services.
1. Scope. These Terms and Conditions shall apply to the Subscription Agreement (“Subscription Agreement,” and together with these Terms and Conditions, collectively, this “Agreement”) entered into by Diesel Laptops, LLC, a South Carolina limited liability company (the “Company”), and the applicable subscriber, as set forth on the Subscription Agreement (the “Customer”), for access to and the use of the applicable solution (the “Solution”) selected by Customer in the Subscription Agreement, which consists of an offering of various hardware, software, training, support, and other services provided or made available by the Company.
2. Definitions. For purposes of this Agreement, the following terms shall have the following definitions:
(a) “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
(b) “Hardware” means all hardware or other tangible information technology (IT) equipment, including any physical computing devices, such as computers or laptops, all cables, all networking and other communications-related equipment, and all other devices, tools, equipment, or other tangible personal property provided or made available by or on behalf of the Company to Customer as part of the applicable Solution.
(c) “Materials” means the Company’s proprietary programs, data, documents, databases, materials, information, content, catalogs, digital products, applications, software, systems, communications, and services, as well as any and all online modules, posters, webinars, webcasts, videos, social media posts, tutorials, graphics, presentations, downloadable presentation materials, blogs, podcasts, assessments, sheets, messages, training materials, course outlines, manuals and other communications and training tools provided or made available by or behalf of the Company to Customer as part of the applicable Solution.
(d) “Party” means either the Company or the Customer, as applicable, and their respective successors and assigns.
(e) “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
(f) “Products” means all Hardware, Software, Materials, and Tools provided or made available by or behalf of the Company to Customer as part of the applicable Solution.
(g) “Services” means the provision by the Company of the suite of applicable Hardware, Software, Materials, Training, Support Services, Tools, and other services or products licensed to, provided or made available by the Company to Customer as part of the applicable Solution.
(h) “Software” means any software or other set of instructions that control the operation of a computer, laptop, or similar electronic device provided or made available by or behalf of the Company to Customer as part of the applicable Solution.
(i) “Solution” means the applicable solution or services made available by or behalf of the Company to Customer pursuant to the Subscription Agreement, as described in the Sales Order on Exhibit A to the Subscription Agreement.
(j) “Support Services” means any support services provided or made available by or on behalf of the Company to Customer as part of the applicable Solution.
(k) “Tools” means any services, tools, or technology made provided or made available by or on behalf of the Company to Customer, such as the Company’s proprietary Diesel Repair services or the Diesel Care coverage services, as part of the applicable Solution.
(l) “Training” means any training, whether it be online, in-person, or over-the-phone, provided or made available by or on behalf of the Company to Customer as part of the applicable Solution.
3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial minimum period of thirty-six months (36) months, as selected in the Subscription Agreement (the “Initial Term”). The Initial Term shall automatically renew for additional and successive periods of twelve (12) months each (each, a “Renewal Term”, and collectively, the “Renewal Terms”) commencing on the next day following the expiration of the Initial Term or of the immediately preceding Renewal Term, as applicable, unless either Party provides written notice to the other Party of its intention not to renew the Agreement at least sixty (60) days prior to the expiration of the Initial Term or of the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to herein as the “Term.”
4. Fees.
(a) Weekly Fees. For the Initial Term, Customer shall pay to the Company the weekly fees set forth in the Subscription Agreement (the “Fees”). The Customer shall pay the Fees in equal weekly installments at the beginning of each week during the Initial Term. The Company reserves the right to raise or change its subscription pricing in any manner and at any time as it may determine in its sole discretion, provided that any price changes to the Fees will not take effect until the commencement of a subsequent Renewal Term. With respect to any proposed increase in Fees over 5.00%, the Company shall provide Customer with written notice of such price change at least ninety (90) days prior to the expiration of the then current Term. All Fees shall be paid to the Company without any abatement, offset, setoff, deduction, recoupment, defense, or counterclaim.
(b) Payment Terms. The Company may accept and process payment of Fees by either credit card (i.e., Visa, Mastercard, or any other issuer acceptable to the Company), wire transfer, or ACH payment, as determined by the Company. Customer acknowledges and agrees to allow the Company to process payment (including renewals) of Fees periodically due from Customer based on any credit card information the Company is provided by Customer. By providing the Company with credit card information, Customer agrees that the Company is authorized to invoice and charge Customer’s credit card for all Fees and charges due and payable to the Company in accordance with this Agreement until the earlier termination or expiration of the Term and that no additional notice to or consent from Customer is required. Customer shall be responsible for all related credit card charges or fees. Customer agrees that the Company may request that Customer’s credit card payment issuer pre-authorize and hold an amount equal to the next recurring Fees in advance of the due date for such payment. If Customer’s credit card issuer rejects any amount charged on Customer’s credit card, then the Company will notify Customer thereof and Customer will timely pay the fees and expenses by wire transfer. Customer is responsible for paying for all Fees, whether or not applicable licenses/subscriptions are actively used by Customer’s Authorized Users. Customer agrees to provide the Company with complete and accurate billing and contact information. Customer agrees to provide written notice to the Company of any changes to Customer’s billing and/or contact information within 7 days of any change to it. All Fees shall be paid in U.S. Dollars.
(c) No Refunds. All Fees and other amounts paid by Customer under this Agreement are non-refundable.
(d) Late Payments. If Customer does not pay any amount payable to the Company under this Agreement by the due date, Customer shall pay to the Company a late charge equal to the greater of (i) five percent (5%) of the late payment amount or (ii) $5.00 for each day payment is overdue, not to exceed the maximum amount allowed by law. Payment of any late charge does not excuse Customer from any default under this Agreement.
(e) Suspension. In the event that Customer’s account is more than 7 days overdue on any payment for any reason, the Company shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Services and Products, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due thereon.
(f) Payment Breach. In the event that Customer’s account is more than 14 days overdue on any payment for any reason (or in the event that, prior to the end of such 14-day period, Customer indicates that it is unwilling or unable to pay or is otherwise unresponsive to any communication efforts by the Company, as determined in the Company’s reasonable judgment), Customer shall be in breach of this Agreement. Such breach shall immediately take effect and shall not require the Company to provide any notice or cure period, notwithstanding Section 10 herein. In the event of such breach of this Agreement by Customer, upon demand by the Company, Customer shall be obligated to pay, and shall pay to the Company, (i) all accrued and unpaid Fees, plus any interest due thereon, and (ii) all weekly payments of Fees that would have been owed or would be payable for the remainder of the current Term, all of which shall be immediately due and payable in full to the Company. The Company may exercise the foregoing remedy, without prejudice to any of its rights in law, equity, or otherwise. Customer’s obligation to make the foregoing payments shall survive any termination of this Agreement.
(g) Default Interest. If any Customer payment is more than 30 days past due, interest at a rate of 12% per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue.
(h) Taxes. The Fees payable by Customer to the Company do not include any taxes, charges, or fees of any jurisdiction that may be assessed or imposed arising out of or in connection with this Agreement, the Services or Products contemplated herein, or the shipment, possession, ownership, use, delivery, or operation of any Service or Product, including any sales, use, excise, value added, personal property, export, import, and withholding taxes, excluding only taxes based on the Company’s net income. Customer shall pay any such taxes, charges, or fees assessed or imposed. Customer shall promptly reimburse the Company for any taxes payable or collectible by the Company (other than taxes based upon the Company’s net income).
(i) Freight Charges. The Fees payable by Customer to the Company do not include any freight charges, shipping costs or insurance costs associated with transporting the Products. At the Company’s discretion, any such costs may be added to applicable invoices issued to Customer, and Customer shall be responsible for paying same.
3. License. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, the Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15(e)) right to access and use the Services and Products during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.
4. Authorized Users. To the extent applicable, as may be referenced in the Sales Order on Exhibit A to the Subscription Agreement or as otherwise determined by the Company in its reasonable judgment and communicated to Customer:
(a) Customer Restrictions. Customer shall strictly limit access to and use of the Services and Products to those users who are employed by Customer (each, an “Authorized User”). Customer is solely responsible for each Authorized User’s compliance with this Agreement. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services and Products. Any breach of this Agreement by an Authorized User shall be deemed a breach by Customer. The rights of any one Authorized User may not be shared by more than one individual.
(b) Additional or Reassigned Authorized Users. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Upon request by Customer, and subject to the prior written approval of the Company in each instance, during the Term additional Authorized User(s) may be added at the then prevailing Authorized User rate as that for the pre-existing subscriptions, prorated for the remainder of the applicable Initial Term or Renewal Term in effect at the time the additional Authorized User subscription(s) are added. Added Authorized User subscriptions shall terminate on the same date as the pre-existing subscriptions at the end of the applicable Initial Term or Renewal Term. Upon request by Customer, and subject to the prior written approval of the Company in each instance, during the Term subscriptions may be reassigned to new Authorized Users replacing former Authorized Users who are on leave or no longer employed by Customer. Customer shall pay any processing fees charged by the Company in connection with adding any approved additional Authorized Users or reassigned Authorized Users.
(c) Usernames and Passwords. Subject to any user limitations set forth in this Agreement, Customer may register Authorized Users on the Company’s platform with e-mail addresses and passwords to enable Authorized Users to access the Services and Products pursuant to this Agreement. Each e-mail address and password may only be used to access the Services and Products during the Term. Customer will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. Customer is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts. Customer agrees to (i) not allow a third party to use Customer’s accounts at any time; and (ii) notify the Company promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. The Company reserves the right to terminate any accounts that the Company reasonably determines may have been used by an unauthorized third party. Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Services or Products. Notwithstanding the foregoing, any reduction in the number of Authorized Users shall not reduce the total Fees paid or payable by Customer for the then current Term. Customer shall be solely responsible for all access to and use of the Services and Products by its Authorized Users and all access to and use of the Services and Products through any Authorized User’s account.
5. Ownership; Delivery; Return of Property.
(a) Notwithstanding anything in this Agreement to the contrary, the Company shall remain the exclusive owner of the Products and shall retain title to the Products at all times. Customer acquires no ownership, title, property, right, equity, or interest in the Products other than its license interest solely as licensee subject to all the terms and conditions of this Agreement. The Parties intend and agree that, if this Agreement is recharacterized under applicable law as a secured financing or a lease intended for security, this Agreement shall be deemed a security agreement and the Customer shall be deemed to have granted the Company a lien on and first priority security interest in the Products and all proceeds thereof, to secure the payment of Customer’s obligations under this Agreement.
(b) The Company shall use reasonable efforts to meet any estimated delivery date, but the Company shall have no responsibility or liability for delays in delivery of the Products. Customer shall be solely responsible for compliance with any and all applicable importation and local market requirements as related to the Products, including but not limited to tariff and importation restrictions, custom controls, product description and labeling, and related local market laws, both with respect to the delivery of the Products to Customer and the return of the Products to the Company.
(c) Customer, at its sole expense, shall maintain the applicable Products in serviceable and operable condition, free of broken, damaged, or missing parts, suitable for the commercial use originally intended, ordinary wear and tear excepted. If during the Term hereof any part of any Product is lost, stolen, damaged beyond repair, or otherwise permanently rendered unfit for use, Customer, at its sole expense, shall promptly replace or cause to be replaced such part with one or more replacement parts. Customer shall cause such Product after the replacement to be in as good an operating condition as, and have a value, remaining useful life, and utility at least equal to the value, remaining useful life, and utility of the Product before the replacement (assuming such Product to have been in the condition required by the terms of this Agreement).
(d) From the Effective Date through the Term and until such time as Customer has fulfilled and satisfied all of its obligations under or related to this Agreement in accordance with the terms hereof, Customer shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to the Product or its use, however caused or occasioned ("Loss"). Customer shall notify the Company in writing within ten (10) days of learning of any such Loss.
(e) Upon the expiration or earlier termination of the Term, all of the Products shall be returned to the Company (at a location designated by the Company) within 30 days, at the cost of Customer. All Products shall be returned by Customer in at least as good of a condition as when delivered to Customer, ordinary wear and tear excepted. Failure to do so will result in a charge to be determined in accordance with the Company’s then current schedule of charges for non-returned Products, which amount shall be due immediately. Customer agrees to pay such charge whether the Products are lost (through theft or otherwise), damaged or destroyed. Nothing contained in this Section, including Customer's payment of such charge, shall (a) constitute a waiver of Customer's failure to perform any obligation under this Agreement; or (b) give Customer the right to retain possession of any Product after the expiration or earlier termination of the Term.
6. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Products except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Products;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Products to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) grant a lien, security interest, pledge or other collateral interest in the Products;
(d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Products, in whole or in part;
(e) bypass or breach any security device or protection used by the Services or Products or access or use the Services or Products other than by an Authorized User through the use of his or her own then valid Access Credentials;
(f) input, upload, transmit, or otherwise provide to or through the Services or Products, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
(g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, the Products, or the Company's provision of services to any third party, in whole or in part;
(h) remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Products, including any copy thereof;
(i) access or use the Services or Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable Law; or
(j) access or use the Services or Products for purposes of competitive analysis of the Services or Products, the development, provision, or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
7. Intellectual Property. The Parties acknowledge and agree that the Company owns solely, and shall retain sole ownership of, any and all rights, title and interest in and to the Products, including any and all modifications, alterations, improvements, derivative works, and derivations thereof, and that the Company has the exclusive right to license and manage its Products and its intellectual property rights. The Products are protected by copyright, trademark, patent and/or other intellectual property laws. This Agreement provides Customer with only a limited-use license and no ownership of the Products or its proprietary programming, intellectual property, features, source code, and/or development methodologies. The Products and any customizations created thereto by either Party pursuant to this Agreement or otherwise do not constitute “work made for hire” under applicable copyright laws, even if Customer requests and receives customized changes to Services or Products for the sole benefit of Customer. Customer further acknowledges and agrees that the only rights granted by the Company to Customer with respect to the Services and Products are expressly set forth in this Agreement. Customer acknowledges and agrees that the Services and Products are proprietary material developed exclusively at the Company’s expense and that Customer has only the limited rights relating to the use of Services and Products granted hereunder. Trade names, trademarks, and service marks on or included within the Services and/or Products, are owned by the Company. Such trade names, trademarks, and service marks, whether registered or unregistered, may not be used in connection with any product or service that is not the Company’s, or in any manner that is likely to cause confusion. Nothing contained within or relating to the Services and/or Products should be construed as granting, by implication, estoppel or otherwise, any license or right to use any such trade names, trademarks, or service marks without the prior written consent of the Company.
8. Confidentiality.
(a) Confidential Information. All Products and all software, documents, materials, training materials, videos, files, data, plans, specifications, formulas, drawings, sketches, tools, samples, reports, notes, manuals, instructions, and similar information, whether of a technical, engineering, operating, design, educational or economic nature, that have been or will be obtained by Customer or any of its employees or contractors, at any time, directly or indirectly from the Company, whether in writing, orally, virtually, or by observation or otherwise, including information forming part of the Services or Products, will be considered and treated as “Confidential Information”.
(b) Obligations. During and after the Term of this Agreement, Customer hereby covenants and agrees that it will, and will cause its employees, contractors and all Authorized Users to, treat the Confidential Information as strictly confidential, do all things as are reasonably necessary to preserve the secrecy and confidentiality of the Confidential Information, and to use it only for purposes of exercising its right to access the Services and Products as set forth above as permitted by this Agreement. Customer acknowledges that its access to the Services and Products set forth above does not confer any right to disclose or to make available to others Confidential Information, except as expressly permitted by this Agreement. Without in any way limiting the generality of the foregoing, Customer may disclose Confidential Information only to those employees and contractors of Customer who require access to it, who have a “need to know” same in furtherance of such purposes, and who have agreed, or are otherwise legally obligated, to protect such Confidential Information to the same extent as Customer. Customer is hereby notified in accordance with the federal Defend Trade Secrets Act of 2016 that Customer will not be held liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to any attorney, and (ii) is solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
(c) Exceptions. The obligations of confidentiality referred to in this Section will not extend to any information that:
i. is or becomes part of the public domain other than by unauthorized acts of Customer (or its Authorized Users or agents or contractors);
ii. is disclosed by Customer pursuant to oral questions, interrogatories, requests for information or documents, subpoena or a civil investigative demand of a governmental authority; or
iii. is required to be disclosed by Customer under applicable law or governmental actions or any rule of any stock exchange to which it is subject;
provided that with respect to subsections (c)(ii) and (iii) above, Customer shall notify the Company in writing immediately upon receipt of any demand for questioning pursuant to an action, interrogatories, requests for information or documents, subpoena or a civil investigative demand of governmental authority, or upon becoming aware of such requirement to disclose in order to enable the Company to seek an appropriate protective order or other remedy. If in the absence of a protective order or other remedy, Customer is nonetheless, in the written opinion of its legal counsel, compelled to disclose the contents of any such confidential information, Customer may disclose only that portion of such information that Customer is legally required to disclose in accordance with the written opinion of its counsel; provided however, that Customer shall give the Company written notice of the information to be so disclosed as far in advance of its disclosure as is practicable and shall cooperate with the Company’s efforts to obtain an order or other reliable assurance that confidential treatment shall be afforded to such portion of the contents of any information required to be disclosed.
(d) Ownership of Confidential Information. All Confidential Information disclosed by the Company shall remain the property of the Company. The Company reserves all rights in its Confidential Information. Except as otherwise provided herein, nothing in this Agreement shall operate to transfer or operate as a grant of any right in the Company’s Confidential Information.
(e) Injunctive Relief. Customer agrees that the Company would be materially prejudiced by reason of, and would be irreparably harmed by, any breach by Customer of the provisions of this Section, and Customer further agrees that the Company shall be entitled to injunctive relief to restrain any such breach or anticipated breach hereof and to specifically enforce the provisions hereof. Customer further agrees that the foregoing rights and recourses of the Company are in addition to any other rights and recourses available to the Company.
9. Privacy Policy. Customer’s submission of information through or in connection with the Services and Products is governed by the Company’s Privacy Policy, which is located at the Company’s website, https://www.diesellaptops.com/policies/privacy-policy, incorporated herein. Customer agrees that all information that it or its Authorized Users provide to the Company is true, accurate and complete, and that Customer will maintain and update such information regularly.
10. Termination.
(a) Right to Terminate. Notwithstanding anything in this Agreement to the contrary, neither Party shall have the right to terminate this Agreement prior to the expiration of the Term, except as follows:
i. the Company may terminate this Agreement without prejudice to any of its rights in law, equity, or otherwise, if Customer fails to pay any Fees (plus any accrued interest) more than 14 days on or before the date on which such Fees becomes due and payable;
ii. the Company may immediately terminate this Agreement without prejudice to any of its rights in law, equity, or otherwise, if Customer fails to pay any Fees on or before the date on which such Fees becomes due and payable, in the event that Customer has indicated that it is unwilling or unable to pay or is otherwise unresponsive to any communication efforts by the Company, as determined in the Company’s reasonable judgment;
iii. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
iv. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) Effect of Termination. Notwithstanding anything herein to the contrary, upon termination or expiration of this Agreement: (i) all unpaid Fees, plus any interest due thereon, are immediately due and payable in full to the Company, (ii) all weekly payments of Fees that would have been owed or payable for the remainder of the current Term are immediately due and payable in full to the Company (unless such termination was on account of a material breach by the Company); (iii) the license to access or use the Services granted hereunder shall terminate immediately, and all rights and interests granted hereunder to Customer under such license shall cease immediately; and (iv) Customer shall immediately discontinue use of Services, return all of the Products to the Company and warrant in writing that all Products have been returned and that electronic copies have been removed from the Customer’s system and all printed copies of the Materials have been destroyed. Termination or expiration of this Agreement does not relieve a Party of its obligations which accrued prior to such termination or expiration, including, without limitation, Customer’s obligation to pay the Fees due to the Company.
(c) Cumulative Remedies. The rights and remedies provided in this Section for the Company are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
(d) Survival. Upon termination or expiration of this Agreement, Sections 4(f) and 5 through 15, and any other right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, shall survive and remain in effect.
11. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY PROVIDES THE SERVICES AND PRODUCTS ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE USE, FUNCTIONALITY, CONDITION, AND EFFECTIVENESS OF THE SERVICES OR PRODUCTS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE IS NO WARRANTY OR GUARANTEE THAT THE SERVICES OR PRODUCTS ARE VIRUS-FREE, THAT THEY WILL OPERATE IN A MANNER THAT IS UNINTERRUPTED, ERROR-FREE OR TRANSFERABLE, OR THAT THEY WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. CUSTOMER ASSUMES THE ENTIRE RISK OF SELECTION AND USE OF THE SERVICES AND PRODUCTS AND THE CONTENT AND INFORMATION CONTAINED THEREIN.
12. LIMITATION OF LIABILITY.
(a) A COMPANY PERSON (AS DEFINED HEREIN) SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM: (A) ANY DEFECTS, ERRORS IN OR OMISSIONS FROM THE SERVICES OR PRODUCTS; (B) THE UNAVAILABILITY OR INTERRUPTION OF ANY TRAINING SESSIONS OR ONLINE SERVICES OR ANY FEATURES THEREOF OR ANY SERVICES OR MATERIALS; (C) CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF THE SERVICES OR PRODUCTS; (D) THE LOSS OR CORRUPTION OF ANY DATA OR EQUIPMENT IN CONNECTION WITH THE SERVICES OR PRODUCTS; (E) THE CONTENT, ACCURACY, OR COMPLETENESS OF THE MATERIALS OR OTHER PRODUCTS; (F) ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE REASONABLE CONTROL OF THE COMPANY, INCLUDING A FORCE MAJEURE EVENT (AS DEFINED HEREIN); AND/OR (G) ANY CONTENT RETRIEVED FROM THE INTERNET EVEN IF RETRIEVED OR LINKED TO FROM WITHIN THE MATERIALS OR OTHER PRODUCTS.
(b) IN NO EVENT WILL ANY COMPANY PERSON HAVE ANY OBLIGATION OR LIABILITY (WHETHER ARISING IN TORT, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF OR DAMAGE TO DATA, PROFITS, OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE SERVICES OR PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, AND WITHOUT LIMITATION, THE COMPANY PERSONS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM CUSTOMER’S ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES OR PRODUCTS, OR FROM ANY CONTENT DISSEMINATED OR POSTED ON OR IN CONNECTION WITH THE MATERIALS BY THE COMPANY OR ANY THIRD PARTY OR RESULTING FROM ANY RECORDINGS MADE BY THE COMPANY OR ITS REPRESENTATIVES.
(c) THE LIABILITY OF THE COMPANY PERSONS FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE DATE THAT THE CLAIM AROSE. NO ACTION OR PROCEEDING AGAINST A COMPANY PERSON MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE CLAIM ARISES EXCEPT FOR THE COMPANY’S CLAIMS RELATING TO COLLECTION OF FEES DUE AND PAYABLE BY CUSTOMER. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
(d) FOR PURPOSES OF THIS AGREEMENT, “COMPANY PERSONS” MEANS THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS.
13. Indemnification. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless the Company Persons for any losses, costs, lawsuits, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) any act of negligence, willful misconduct, fraud or bad faith by Customer or its Authorized Users in connection with their use of or access to the Services or Products; (ii) Customer’s or its Authorized Users’ violation or breach of the terms of this Agreement or violation of any rights of a third party; or (iii) Customer’s or its Authorized Users’ violation of any applicable federal, state or local law, regulation or order in connection with their shipment, possession, use of or access to the Services or Products.
14. Representations and Warranties. Each Party hereby represents and warrants to the other Party that (i) it has full power and authority to execute and deliver this Agreement and perform its obligations hereunder; (ii) it has full power and authority to grant the rights herein granted; (iii) it has duly executed and delivered this Agreement; (iv) this Agreement constitutes the legal, valid, and binding obligation of it, enforceable against it in accordance with the terms hereof; and (v) its execution, delivery and performance of this Agreement will not conflict with, result in the breach of, or constitute a default under any arrangement or agreement to which it is a Party or by which it is bound.
15. Miscellaneous.
(a) Relationship of the Parties. Nothing contained in this Agreement is intended or shall be construed to place the Parties in the relationship of partners, joint venturers, agents, or employment. Notwithstanding anything contained herein to contrary, neither Party nor any of its representatives, agents, employees, or officers shall be considered or treated as agents, employees, or officers of the other Party for any purpose whatsoever.
(b) Severability. In the event any portion of any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, (i) such unenforceable portion of the provision will be deemed severed from this Agreement, (ii) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (iii) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
(c) Force Majeure. For purposes of this Agreement, a “Force Majeure Event” shall include: acts of God, extreme weather events, strikes, epidemic, pandemic, viral plague, an act, order, or decree of a government, lock-outs, riots, sabotage, acts of war or piracy, destruction of essential equipment by fire, explosion, storm, tempest, flood, or earthquake, and delay caused by failure of power supplies or transport facilities in each case outside the reasonable control of the Party relying on such event. In the event that any Party hereto is delayed in the performance of its obligations under this Agreement by a Force Majeure Event, this Agreement shall remain in suspense until the cause thereof has ceased; provided that if such suspension continues for a period exceeding two (2) months, either Party shall be entitled to terminate this Agreement. The affected Party shall, as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and the affected Party shall use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations. Notwithstanding the foregoing, a Force Majeure Event shall not relieve Customer from the obligation to pay Fees as they become due and payable.
(d) Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof. This Agreement supersedes and replaces all prior or contemporaneous understandings, negotiations, commitments, writings and agreements between the parties hereto, whether written or oral, express or implied, with respect to its subject matter. Each Party to this Agreement acknowledges that no representations, warranties, inducements, promises or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein. No term or condition contained in any purchase order form submitted by Customer that varies from or conflicts with these Terms and Conditions shall become part of the contract between the Parties unless it is expressly accepted in writing and signing by the Company’s authorized representative. Delivery of these Terms and Conditions to Customer constitutes notification of the Company’s objection to any term or condition that varies from or conflicts with those contained herein. Once the Parties have signed this Agreement, no modification or addition to these Terms and Conditions or to any other provision of the Agreement shall be binding on the Company unless it is in writing and signed by the Company.
(e) Assignment. Customer may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Customer’s rights under this Agreement or delegate performance of its duties hereunder without the Company’s prior written consent, which consent will not be unreasonably withheld. Subject to the foregoing restriction, this Agreement shall be fully binding upon and shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.
(f) Governing Law; Jurisdiction; and WAIVER OF JURY TRIAL. The validity, performance, and enforcement of this Agreement shall be governed by the internal laws of the State of South Carolina without regard to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any manner to this Agreement. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue in the state and federal courts located in Lexington or Richland County, South Carolina for any claim, cause of action or other dispute arising out of, or relating to, this Agreement, the provision of the Services, or other aspects of the transactions, arrangements, or matters contemplated by or incidental to this Agreement. In any action or proceeding relating to or arising in any way from this Agreement or the matters contemplated hereby, the prevailing Party will be entitled to recover reasonable legal fees and related costs. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
(g) Notices. Subject to Section 15(h), all notices, requests, demands, and other communications to any Party or given under this Agreement must be in writing and delivered personally, by overnight delivery or courier, by registered mail, or by electronic transmission (with confirmation of receipt of transmission) to the Parties at the address or electronic mail address specified in the Subscription Agreement. All notices, requests, demands, and other communications shall be deemed delivered when actually received
(h) Amendments. The Company reserves the right to update, amend, or make changes to these Terms and Conditions from time to time and may provide Customer with notice of such changes by any reasonable means, including by email or by posting the revised version of these Terms and Conditions on the Company’s website or in connection with any Company mobile application. Customer can determine when these Terms and Conditions were last revised by referring to the “LAST UPDATED” legend at the top of these Terms and Conditions (as they may be updated from time to time).
(i) Modifications. The contents of certain of the Products shall be determined by the Company in its sole discretion. The Company reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify or discontinue any of the Products (including any component or feature thereof), with or without notice, or offer opportunities to some or all users of any of the Products. If any part of any of the Products is suspended, modified, or discontinued, or if a technical error occurs, information, data, or content created or provided by Customer in connection therewith may be deleted or become inaccessible; accordingly, Customer should not exclusively rely on, and agree not to exclusively rely on, the Products to store or preserve any such information, data, or content. Customer agrees that the Company shall not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Products, including any content, feature, or product, in whole or in part.
(j) No Waiver. No delay, omission or failure of either Party in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right permitted hereunder (except as expressly set forth in Section 12(c)). Failure by either Party to enforce any right under this Agreement will not be deemed a waiver of future enforcement of that or any other right.
(k) Construction. The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and will not be deemed to limit, characterize, or affect in any way the scope or substance of any section of this Agreement. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. Each Party has had the opportunity to consult with its counsel with respect to this Agreement. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against any Party based on draftsmanship of the Agreement or otherwise.
(l) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission or other electronic means shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or other electronic means (including DocuSign) shall be deemed to be their original signatures for all purposes.
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