Effective Date: 14th July, 2016
THE TEXTDELIVER JOINT VENTURE CONSISTING OF WILDFIRE CONCEPTS PTY LTD, AND SEARCH CREATIVELY, LLC D/B/A DIGITAL KICKSTART ("TEXTDELIVER") IS WILLING TO GRANT THE SUBSCRIBER (DEFINED BELOW) RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DESCRIBED ON THIS TEXTDELIVER.COM SITE ONLY UPON THE CONDITION THAT YOU (THE “SUBSCRIBER”) ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I AGREE”, YOU AGREE WITH THESE TERMS AND CONDITIONS. YOU MAY ENTER INTO THIS AGREEMENT AS AN INDIVIDUAL PERSON (A “SUBSCRIBER”) OR IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY (A “SUBSCRIBER”), YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND THIS ORGANIZATION OR ENTITY TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ORGANIZATION OR ENTITY, THEN COSMOLEX IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
- Definitions.1.1 “Administrator” means an individual Subscriber or a contractor or employee of a Subscriber who has been delegated the authority to designate Authorized Users (defined below).1.2 “Authorized User” means an individual Subscriber or an organization or entity Subscriber including all of such organization’s or entity’s partners, members, employees, temporary employees, and independent contractors.1.3 “Services” means (i) access our software on this website that serves our mobile messaging and transaction services via short message services (SMS), and (ii) and any updates or upgrades to our Services which may be generally released by us to all subscribers from time to time.
1.4 “Subscriber” means the individual, organization, or entity purchaser of the subscription for the Services as indicated above.
- Parties.The parties to this legal Agreement are the TextDeliver Joint Venture, the owner of this website business, and the Subscriber which may be referred to as “you”, “your”, and/or “yourself”. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean this cosmolex.com website business and CosmoLex.
- Modification of Services.We reserve the right to modify the Services from time to time; however, future modifications will not result in a diminution of the functionality or quality of the Services. Certain other new functionality may be offered in the future for an additional fee, and if you elect to purchase any of this new functionality it will be deemed to be part of the Services.
- Provision of Online Services.Subject to the terms and conditions hereof, we shall provide, and we hereby grant a non-exclusive, non-transferable license, to you to access and use the Services during the term of this Agreement only to the extent of authorized use as specified in your signup page for the Services ("Authorized Use"). This Agreement provides for your use of the Services generated by our software, but it is not otherwise an agreement for the sale or license of any software. You may use the Services only for your internal business purposes of processing, storing and maintaining your data, and not for purposes of resale. You are solely responsible for providing your Internet access and all other technology for your access to the Services, including your Internet connection.
- Acceptable Use.6.1 You may only use our Services: (i) in accordance with this Agreement; (ii) in accordance with all relevant legislation and regulations applicable to this Agreement and in the jurisdiction of all persons to whom you direct communications when using our services; (iii) for the purposes for which the Services are designed; and (iv) in a manner which does not interfere with or diminish others' rights.6.2 You must: (i) have a commercial relationship with all intended recipients of any commercial electronic communications that you send using our Services and that all intended recipients would reasonably expect to receive commercial electronic communications from you, or that recipients have either requested the receipt of messages from you or consented thereto; (ii) offer a convenient method for recipients to opt-out of receiving further commercial electronic communications from you or from a subscription service; (iii) obtain express consent from intended recipients if required by law or a relevant industry code of conduct and specifically for any subscriptions for which a recipient may be charged repeatedly; (iv) obtain express consent from intended recipients if required by law or a relevant industry code of conduct and specifically for any subscriptions for which a recipient may be charged repeatedly; and (v) include contact details and identifying information in your electronic communications sent via our systems to ensure that recipients can identify you as the sender and that complaints are directed to you and not to us or to a mobile network.
- Restrictions on Use.You agree that you will not: (i) send junk electronic communications, spam or any unsolicited messages (commercial or otherwise); (ii) make any misrepresentation, including without limitation to: deceive, mislead, defraud or otherwise make misrepresentations to any person regarding any fact or circumstance, impersonate or attempt to impersonate someone else or otherwise misrepresent your identity to any person, create a false identity, mobile phone address or header, change the content of communications received by you and thereafter forwarding same to others without indicating the nature of the changes, and/or forge or otherwise manipulate origination details and data on any electronic communications to disguise or delete the origin of anything transmitted using our Service; (iii) commit fraud or solicit or induce any person to participate in any commercial or non-commercial activities such as a financial scam, "pyramid schemes" or "chain letters"; (iv) violate or infringe anybody's intellectual property rights; (v) violate any applicable third party policies or requirements, including without limitation, relevant guidelines or best practices of any relevant regulatory body or mobile network, or any other industry standards; (vi) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (vii) allow access to the Services other than the extent of Authorized Use specified in your signup page; (ix) permit any third party that is not an affiliated entity to use or access the Services; (x) process or permit to be processed the data of any third party that is not an affiliated entity; or (xi) attempt to copy, archive, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of our technology. In addition, you are not authorized to use the Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way abusive, harmful, discriminatory, defamatory, lewd, obscene, or pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely in our sole discretion.
- Your Access to the Services and Your Confidential Information.8.1 Individual Subscribers are required to register as an initial Administrator and an Authorized User.8.2 The initial Administrator shall register and designate himself/herself as the initial administrator. The initial Administrator shall be the overall administrator of the subscription to the Services and is authorized to appoint additional Administrators and Authorized Users. Any Administrator is authorized to manage the subscription, including the authority to appoint Authorized Users. If an Administrator deems it necessary to terminate access to the Services for any Authorized User, the Administrator shall follow the designated procedures to deactivate the person’s Username (defined below).8.3 Administrators shall provide each Authorized User with a login ID and password (“Username”) which is not transferable to any other user, including Authorized Users.
8.4 Administrators shall manage the subscription and assume the responsibility for the appointment of, and use of the Services by, Authorized Users. Administrators are responsible for maintaining the confidentiality of Usernames and any additional information that we may provide regarding accessing your account. If any Administrator or Authorized User knowingly shares a Username with another person who is not authorized to use the Services, this Agreement is subject to termination for cause.
8.5 Use of the Services by Authorized Users via an Application Program Interface (“API”) is authorized, subject to the following conditions:
8.5.1 The terms and conditions of this Subscription Agreement shall apply to all use of the Services via an API or third party product, including without limitation all limitations of liability provided herein.
8.5.2 Excessive use of the Services via an API or third party product may result in a diminution of the Services. We reserve the right in our sole discretion to suspend or terminate use of the Services via an API or third party product.
8.6 We reserve the right to temporarily suspend access to the Service for operational and maintenance purposes. Regular suspensions may occur during the hours of midnight to 4:00 am Eastern time on Saturdays or Sundays without prior notice. We will provide email notice for other suspensions at least two business days prior to the suspension.
8.7 We will utilize redundant storage servers to minimize the risk of interruptions of our Services. Our backup services will facilitate the restoration of your Confidential Information (defined below). We will recover your lost or corrected Confidential Information without charge.
8.8 You agree (i) to provide certain current, complete, and accurate information regarding your Usernames and any additional login information we may provide, and (ii) to maintain and update your Usernames as required to keep such information current, complete and accurate. You warrant that your Usernames are and will continue to be accurate and current, and that you are authorized to provide your Usernames to us. You authorize us to verify your Usernames at any time. If any Username that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to convert such information into digital format and to use it for purposes of operating the Services.
- Security.You will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Services, we will (i) publish to our site for your review any third party audit reports regarding data security, and (ii) implement reasonable and adequate security procedures, to protect your data in our server(s) from unauthorized access using illicit means, including without limitation, administrative and technical protocols, intrusion detection, vulnerability and patch management, firewalls, virus detection and anti-virus software that is patched to a current status, authentication techniques, such as user names and passwords, or authorization formats which limit access to particular users (the "Data Security Standard"). Provided that we are in compliance with the Data Security Standard, the parties agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your information on our site promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such information is required, you will be solely responsible for any and all such notifications at your expense.
10.4 The provisions of this Section are subject to the limitation on our liability set forth in Section 9 (Security), but only to the extent that a breach of this Section results from an unauthorized third party using illicit means to access the Services or our technology. A breach of this Section that results from access to the Services or our technology by our current or former personnel or any of our subcontractors or providers, shall not be subject to the limitation on our liability set forth in Section 9.
- Your Postings And Content.11.1 We will not treat Content that you post or upload to public areas as private. We have no obligation to monitor posts to this site or to exercise any editorial control over such posts; however, we reserve the right to review such posts and to remove any material that, in our judgment, is not appropriate. Posting, transmitting, promoting, using, distributing or storing Content that could subject us to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards, is prohibited, including without limitation information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws.11.2 You retain all rights and ownership to your Content. We make no claim of ownership to your Content; however, we do need certain rights (a license) to use your Content to enable our Services. If you upload or submit your Content, you grant to us and any of our affiliated entities a worldwide, non-exclusive, irrevocable, and perpetual right and license (i) to use, reproduce, modify, and create derivative works based on your Content, and (ii) to host, publish, distribute, publicly display, publicly perform your Content and derivative works in all methods and means of distribution and publication, now known or hereafter developed. This license granted by you is only for purposes of marketing, promoting, or improving our Services.
- Continuity Billing For Service Fees; Taxes.12.1 You will pay fees for Services in accordance with your signup page ("Service Fees"). You agree that at the beginning of each billing term, we will automatically charge your credit card or debit your Bank Account via ACH information, as provided by you, for the Service fees. You may change your credit card or ACH information on file at any time. Service Fees are non-refundable. You also agree to pay, at our then current rates, for all goods or services that you request from us and that are not included in the Services. Fees are exclusive of sales, use, or other transaction-based taxes, and you agree to pay all such charges either as levied by taxing authorities or invoiced by us. Subsequent to the initial term of your subscription, we may increase Service Fees to be effective for the subsequent renewal term of your subscription.12.2 We may offer at our discretion from time to time promotion that may include reduced fees for Services conditioned upon your membership in a particular organization (“Partner”). You agree that we are entitled to request from you or the Partner reasonable proof of your membership in the Partner organization as a prerequisite of providing you any Services at promotional rates, and to request from time to time proof of your continued membership in order to continue such promotional rates. Failure to provide proof of membership in a Partner organization upon our request will result in the imposition of regular fees for Services retroactive to the last date as to which proof of membership was provided.
- Initial Term; Renewal Terms.The initial term of this Agreement will be determined by your signup page. THE INITIAL TERM HEREOF SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE TERMS UNTIL YOU CANCEL YOUR SUBSCRIPTION. EITHER OF US MAY CHOOSE NOT TO RENEW WITHOUT CAUSE OR FOR ANY REASON.
- Termination; CANCELLATION.14.1 We may terminate this Agreement for cause without prior notice if in our sole discretion you violate or breach this Agreement, including without limitation any failure to pay fees as they become due or any violation of Restrictions on Use provided in Section 6 above. We may investigate complaints about your use of our Services and may disclose any information we deem fit to any complainant or the authorities, in our sole discretion. You will have no claim of any nature against us for any actions we may take due to your non-compliance (including claims for re-imbursement, refund, compensation or damages). If we notify you of any fine imposed against us due to your use of our services in violation of our Terms or these Rules of Use, you will immediately pay the amount of such fine or damages to us. Any amount not paid to us within 24 hours of notification shall accrue interest at the maximum rate allowed by law.14.2 YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME. THERE WILL BE NO REFUNDS OF PREPAID SERVICES FEES.14.3 If we terminate this Agreement or do not offer renewal, we will provide you at least thirty (30) days after termination of this Agreement to retrieve any and all of your Confidential Information and data in the form and format provided by our software. If you cancel your subscription, it is your sole responsibility to retrieve your Confidential Information prior to your cancellation of the Agreement. In any event, we reserve the right to irrevocably delete all of your Confidential Information and data beginning with thirty (30) days after termination or cancellation.
- Technical Support, Training, and Consulting Services.During the term hereof, we will provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, we will provide such services on a time and materials ("T&M") basis; that is, (i) you will pay us for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be our then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for your budgeting and our resource scheduling purposes. If the limit is exceeded, we will cooperate with you to provide continuing services on a T&M basis. We will invoice you monthly for T&M services. Charges shall be payable upon receipt of invoice. We reserve the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order.
16.4 You represent and warrant that all electronic communications initiated by you will be in strict compliance with all applicable laws and regulations, including the Telephone Consumer Protection Act (TCPA), as amended effective October 10, 2013 and supplemented by the FCC Declaratory Ruling effective July 10, 2015, and any and all subsequent amendments and regulations.
- Limited Warranty; Disclaimers.We warrant that (i) we will undertake reasonable efforts to maximize uptime for the Services, except for routine maintenance, and (ii) the Services will be free of material defects and will conform to the descriptions provided on this site ("Limited Warranty"). Your sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of material defects and non-conforming Services at our expense.
- WE PROVIDE THE SERVICES "AS-IS" AND WITH ALL FAULTS. WE DO NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. WE, ON BEHALF OF OUR SUPPLIERS AND VENDORS, SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, COMPATIBILITY WITH SUBSCRIBER COMPUTER AND/OR TECHNOLOGY INFRASTRUCTURE, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THIS SITE AND/OR SERVICES PROVIDED BY THIS SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THIS SITE, WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT WE HAVE NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THIS SITE AND ITS SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. PARTICIPATION IN THE AFFILIATE PLATFORM IS NOT AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
- Our Intellectual Property Indemnity.We will indemnify, defend and hold you harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against you that any Services infringes on any U.S. intellectual property right of a third party that is known to us prior to providing the Services to you; provided, however, that we are notified in writing of such claim promptly after such claim is made upon you. We will have the right to control any defense of any claim. In no event shall you settle any such claim without our prior written approval. We will have no liability or obligation if the claim arises from (i) any alteration or modification to the Services other than by us, (ii) any combination of the Services with other programs or data not furnished by us, or (iii) any use of the Services prohibited by this Agreement or otherwise outside the scope of use for which the Services is intended. If you are enjoined from using the Services, or if we believe that the Services may become the subject of a claim of intellectual property infringement, we, at our option and expense, may: (i) procure the right for you to continue to use the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) terminate this Agreement, in which case we will refund to you any and all subscription fees paid in advance by you for those Services not provided by us and provide, at your request and free of charge, your data in a database document format. These remedies are your sole remedies for claims of infringement.
- Subscriber’s Indemnity.Subscriber will indemnify, defend and hold us harmless from including our affiliates and each of our and their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including without limitation consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by us in our sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, or regulatory agency investigation or enforcement action based upon or arising out of: (i) any breach by Subscriber or any Authorized User of any representation, warranty, or obligation provided in this Agreement, and (ii) any negligent act or omission by any Authorized User arising out of the use of our Services. We will notify you in writing of any such claim promptly after the claim is made upon us. you will promptly undertake at your own cost and expense the defense of any claim, suit, or undertaking with counsel reasonably acceptable to us. You will have the right to control any defense of any such claim. In no event shall you settle any such claim without our prior written approval.
- Consequential Damages Waiver.EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap.Except for our indemnity expressly provided herein and our confidentiality obligations, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of Service Fees paid by you for the three (3) months immediately preceding the claim for such liability.
- Onward Transfer of Personal Information Outside Your Country of Residence.Any personal information which we may collect on this site will be stored and processed in our servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information outside your country of residence to the United States.
- Export Control.This site provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site and Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
- Intellectual Property Ownership.We retain sole and exclusive ownership of all intellectual property rights embodied in our Services, website, content, promotional materials, and all software and technology we use to provide the Services. You retain all sole and exclusive ownership of all intellectual property rights embodied in your promotional materials.
- Independent Contractors.The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. You shall have no authority to enter into agreements of any kind on behalf of us, and you shall not have the power or authority to bind or obligate us in any manner to any third party.
- Non-Solicitation.During the term hereof and continuing through the first anniversary of the expiration or termination of this Agreement, you agree that you will not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by us or contracted by us to provide Services under this Agreement.
- Notices.We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your registration data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: ______________________, in either case, addressed to the attention of "Managing Member". Notices will not be effective unless sent in accordance with the above requirements.
- Assignment.This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, you shall not assign this Agreement or any right or interest under this Agreement, without our prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
- Force Majeure.Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God.
- Arbitration.Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in ___________ County, North Carolina, USA, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of North Carolina, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
- Jurisdiction and Venue; Applicable Law.The courts of Middlesex County in the State of North Carolina, USA and U.S. District Court for the ______ District of North Carolina shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the State of North Carolina, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
- Survival.The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability, and indemnities, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the intellectual property rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money due to either party.
- U.S. Government End-Users.We provide the Web Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Web Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Unpublished-rights reserved under the copyright laws of the United States.
- Miscellaneous.This Agreement shall be construed under the laws of the State of North Carolina, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Agreement is written in English, and English is its controlling language. If you are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: “The parties confirm that this Agreement and all related documentation is and will be in the English language.”); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use this site, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this agreement enforceable.
— Material Modifications Since 14th July, 2016: none