Terms and Conditions of Service
PLEASE READ THIS LICENSE AND SERVICE AGREEMENT IN ITS ENTIRETY BEFORE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE LICENSE AND SERVICE TERMS AND CONDITIONS YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICES OF THIS SITE OR THIS SITE IN ANY WAY.
Upon acceptance, this Terms and Conditions of Service Agreement (this “Agreement”) is a legally binding agreement between you (“Customer”) and Odeka, LLC, a Texas limited liability company (“Service Vendor” and together with “Customer”, the “Parties”, and each a “Party”) and dated as of date of purchase (the “Effective Date”).
WHEREAS, Service Vendor has the capability and capacity to provide certain software development, software implementation, software as a service, and consulting services; and
WHEREAS, Customer desires to retain Service Vendor to provide the said services, and Service Vendor is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Vendor and Customer agree as follows:
1-Services
Service Vendor shall provide to Customer the services (the “Services”) listed on odeka.io (the “Website”) as named services, or set out in one or more statements of work to be issued by Service Vendor and accepted by Customer (each, a “Statement of Work”). Supplemental Statements of Work shall be deemed issued and accepted only if signed by the Service Vendor Contract Manager and the Customer Contract Manager, appointed pursuant to Section 2.1 and Section 3.1, respectively.
2-Customer Obligations
Customer shall:
Respond promptly to any reasonable requests from Service Vendor for instructions, information or approvals required by Service Vendor to provide the Services.
Cooperate with Service Vendor in its performance of the Services and provide access to Customer’s premises, employees and equipment as required to enable Service Vendor to provide the Services.
Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Vendor’s provision of the Services.
3-Fees and Expenses
In consideration of the provision of the Services by the Service Vendor and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the Website or applicable Statement of Work for any Services that have been properly rendered and not subject to dispute by Customer pursuant to Section 22. Payment to Service Vendor of such fees and the reimbursement of expenses pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fee will be payable upon receipt by the Customer of an invoice from Service Vendor but in no event more than 7 days after completion of the Services performed pursuant to the applicable Statement of Work.
Customer shall reimburse Service Vendor for all reasonable expenses incurred in accordance with the Statement of Work that were pre-approved in writing by Customer within 7 days of receipt by the Customer of an invoice from Service Vendor.
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Service Vendor’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Vendor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, postage, services and general and administrative costs allocable to the late account. In addition to all other remedies available under this Agreement or at law (which Service Vendor does not waive by the exercise of any rights hereunder), Service Vendor shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder.
4-Warranties
THE SERVICES PROVIDED THROUGH THE WEBSITE AND ANY INFORMATION CONTAINED IS PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NON-INFRINGEMENT, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT.
SERVICE VENDOR MAKES NO WARRANTY THAT:
YOUR USE OF THE SERVICES INCLUDING THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR WEBSITE WILL BE ACCURATE OR RELIABLE, OR
THE QUALITY OF ANY INFORMATION, SERVICES, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE AND THE ASSOCIATED SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICE VENDOR OR THROUGH THIS WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SERVICE VENDOR PERIODICALLY ADDS CHANGES, IMPROVES OR UPDATES THE SERVICES AND INFORMATION AND DOCUMENTS ON THE WEBSITE WITHOUT NOTICE. SERVICE VENDOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE WEBSITE OR SERVICES. YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL SERVICE VENDOR, ITS SUPPLIERS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WEBSITE’S CONTENTS AND SERVICES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY CHARACTER (EVEN IF SERVICE VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM:
THE USE OR THE INABILITY TO USE THE WEBSITE OR THE SERVICES;
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR SERVICES; OR
ANY OTHER MATTER RELATING TO THE WEBSITE OR SERVICES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. THE WEBSITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICE VENDOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT. THERE IS NO WARRANTY THAT INFORMATION PROVIDED ON THE WEBSITE OR THROUGH THE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.
SERVICE VENDOR MAKES NO WARRANTY THAT:
YOUR USE OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, OR
THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE WEBSITE OR THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICE VENDOR OR THROUGH THIS WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVICE VENDOR SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SERVICE VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
THE USE OR THE INABILITY TO USE THE WEBSITE OR THE SERVICES;
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR
ANY OTHER MATTER RELATING TO THE WEBSITE OR THE SERVICES.
IF YOU ARE DISSATISFIED WITH THE WEBSITE OR THE SERVICES, OR ANY OF THE INFORMATION CONTAINED THEREON, OR REFUSE TO ABIDE BY THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE. NOTWITHSTANDING THE FOREGOING, SERVICE VENDOR’S LIABILITY TO YOU SHALL IN NO CASE EXCEED $100. YOU FURTHER AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST SERVICE VENDOR ARISING OUT OF THE USE OF THE WEBSITE OR THE SERVICES.
SERVICE VENDOR SHALL NOT BE HELD LIABLE FOR ANY REPRESENTATIONS ON THIRD PARTY SITES IN RELATION TO THE INFORMATION PROVIDED IN THIS WEBSITE OR THROUGH THE SERVICES.
5-Confidentiality
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party not subject to Section 6 that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 10 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”);
FURTHERMORE “Confidential Information” explicitly includes information, knowledge or data stored in or transmitted from, Customer and Customer's customer technology systems, including but not limited to, email, databases, instant messaging applications, and APIs that was disclosed to or known by Service Vendor through Service Vendor’s business relationship with the Customer whether before or after the Effective Date, including but not limited to, information about:
Personal identity information, trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, digital images, videos, or other content assets not subject to Section 6 or Section 5.6;
The Customer’s customers and vendors and their activities, plans, products, processes and services; and
Information which Service Vendor has a reasonable basis to know was created, modified or used and held in confidence by the Customer or that was accepted by the Customer from any third party under an obligation of confidentiality such as an NDA.
The parties agree that Confidential Information shall not include any information to the extent that the information:
Was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder;
Or is, or at any time becomes, available to the public, other than through the wrongful act or omission of the Party;
Is known, discovered or developed by the Party, or Party’s employees, agents or contractors, outside the course and scope of Party’s business relationship with the other Party, whether before or after the Effective Date.
The Receiving Party shall:
Protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
Not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
Not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
No Disclosure. During and for a period of 6 months after the termination of Service Vendor’s services to the Company, Service Vendor will not disclose Confidential Information to any person or entity other than as necessary in carrying out its duties, without first obtaining the Company’s consent, and will take all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. If Service Vendor becomes legally obligated to disclose any Confidential Information, Service Vendor shall notify the Company in writing immediately, shall cooperate with the Company in seeking a protective order or other appropriate remedy, and shall use its best efforts to protect the confidential or proprietary status of any disclosed Confidential Information.
Defend Trade Secrets Act Notice. Service Vendor is hereby notified in accordance with the Defend Trade Secrets Act of 2016 that Service Vendor will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Service Vendor files a lawsuit for retaliation against the Customer for reporting a suspected violation of law, Service Vendor may disclose the Customer's trade secrets to the Service Vendor’s attorney and use the trade secret information in the court proceeding if the Service Vendor files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order.
Exception and Release for Marketing and Promotional Uses. Customer hereby gives Service Vendor the absolute right and permission to use my business logo, business name, website domain name, personal first name and last initial, quotes, likeness in image or video, which may be included in whole or part, for news release, art, testimonials, advertising, trade, or any other lawful purpose whatsoever. I hereby waive any right to inspect and/or approve the finished product or the advertising copy that may be used in connection therewith, or the use to which it may be applied. I hereby release, discharge, and agree to save Service Vendor from any liability by virtue of any blurring, distortion, alteration, optical illusion, paraphrasing, or use in composite form, whether intentional or otherwise, that may occur or be produced in the making of said materials, or in any processing tending towards the completion of the finished product.
Service Vendor hereby gives Customer the absolute right and permission to use Service Vendor business logo, business name, website domain name, personal first name and last initial, quotes, likeness in image or video, which may be included in whole or part, for news release, art, testimonials, advertising, trade, or any other lawful purpose whatsoever. I hereby waive any right to inspect and/or approve the finished product or the advertising copy that may be used in connection therewith, or the use to which it may be applied. I hereby release, discharge, and agree to save Customer from any liability by virtue of any blurring, distortion, alteration, optical illusion, paraphrasing, or use in composite form, whether intentional or otherwise, that may occur or be produced in the making of said materials, or in any processing tending towards the completion of the finished product.
6-Intellectual Property
Definitions:
“Deliverables” means all documents, work product and other materials that are delivered to Customer that are the product of the Services, including any items identified as such in the Statement of Work.
“Intellectual Property Rights” means all intellectual property rights, including data, copyrights, patents, patent disclosures and inventions (whether patentable or not), together with all of the goodwill associated therewith, derivative works and all other rights, and distinct from Confidential Information as described in Section 5.
“Service Vendor IP” means Intellectual Property Rights that are not Customer IP or Open-Source IP that are used by Service Vendor in the course of performing the Services or that are incorporated into Deliverables. Service Vendor IP includes Intellectual Property Rights that are licensed by Service Vendor; developed by Service Vendor independently of the Services or Customer IP; owned or licensed by Service Vendor prior to the Effective Date.
“Customer IP” means Intellectual Property Rights owned by Customer or that are the subject of licenses held by Customer prior to Effective Date and used by Service Vendor in the course of performing the Services or incorporated into the Deliverables.
“Open-Source IP” means Intellectual Property Rights that are subject to open-source licenses.
Service Vendor shall retain all right, title and license in and to all Service Vendor IP not expressly granted pursuant to this Agreement. Service Vendor hereby grants Customer a license to use all Service Vendor IP free of additional charge and on a non-exclusive, worldwide, transferable, sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make use of the Deliverables and the Services for the purposes intended for the Deliverables and Services.
Customer shall retain all right, title and license in and to all Customer IP. Customer hereby grants to Service Vendor a license to use all Customer IP free of charge and on a fully paid-up, royalty-free basis to the extent necessary to enable Service Vendor to perform the Services and produce the Deliverable.
Service Vendor shall provide to Customer the terms and conditions of Open-Source IP affecting the Deliverables.
7-Term, Termination and Survival
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work, unless sooner terminated pursuant to Section 7.2 or Section 7.3.
Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
Becomes insolvent or admits its inability to pay its debts generally as they become due.
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
Is dissolved or liquidated or takes any corporate action for such purpose.
Makes a general assignment for the benefit of creditors.
Has 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.
Notwithstanding anything to the contrary in Section 7.2.1, Service Vendor may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder, provided that such failure to pay is not due to Service Vendor’s breach of this Agreement.
The rights and obligations of the parties set forth in this Section 7.4 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
8-Limitation of Liability
IN NO EVENT SHALL THE FIRST PARTY BE LIABLE TO THE SECOND PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE SERVICE VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE SERVICE VENDOR PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9-Entire Agreement
This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
10-Notices
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by electronic mail with confirmation of transmission.
To Service Vendor: info@odeka.io
To Customer: email used for all purchases/account log in
11-Severability
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. [Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12-Amendments
No amendment to, or modification of, this Agreement is effective unless it is in writing and signed by each Party.
13-Waiver
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14-Assignment
Neither Party shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation shall relieve a Party of any of its obligations under this Agreement. Notwithstanding contractual relationships of either Party with independent contract workers or service providers for performance of business services. Notwithstanding the above, Service Vendor may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Vendor’s assets without Customer’s consent.
15-Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
16-No Third-Party Beneficiaries
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
17-Choice of Law
This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Texas, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
18-Choice of Forum
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than a state or Federal court with jurisdiction of Denton County, Texas, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such court.
19-Waiver Of Jury Trial
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20-Counterparts
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
21-Force Majeure
Neither Party shall be liable or responsible to the other, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 7 days, either Party shall be entitled to give notice in writing to the other Party to terminate this Agreement.
22-Deliverable Disputation Provision
In the event that Customer deems Deliverables deficient with respect to applicable Statements of Work, Customer will Notify Service Vendor of dispute within 7 days of invoice receipt, pursuant to Section 10. Customer will reasonably demonstrate in the Notice the deficiency by noting the specific Statement of Work items in dispute, and describing the deficiency using screenshots, written descriptions, or any other means to demonstrate deficiency. If Service Vendor fails to reasonably demonstrate using screenshots, written descriptions, or any other means that the Deliverables conform to the specific Statement of Work items within 7 days of receiving Notice of dispute, the dispute will be deemed successful.
23-User Conduct
Your use of the Website and the Services is at the sole discretion of Service Vendor, who may deny you further use of the Website or Services at any time, for any reason, with or without cause. Your use of the Website or Services does not entitle you to continued use of the Website or Services. You agree that you will not use the Website or Services for any illegal purpose. In addition, you agree that:
You will not harvest, collect or otherwise use contact information made available on the Website for the purpose of sending unsolicited improper communications, including without limitation, unsolicited bulk email (collectively, spam) and that you will not use any Service Vendor communications facility to deliver or attempt to deliver spam
You will not attempt to gain unauthorized access to the Website or Services or the servers and network associated with the Website or Services
You will not circumvent or attempt to circumvent any security or access control technology implemented on the Website or Services, or the servers and network associated with the Website or Services
You will not use the Website or Services in any manner designed to degrade the performance or functioning of the Website, including, without limitation, launching Denial-of-Service (DoS) attacks against the Website or Services and you will not upload, post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, network, hardware or telecommunications equipment
You will not use the Website or Services to impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity
You will not upload, post, e-mail, speak to Service Vendor representatives, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable
You will not upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person or entity.