Last Modified: June 5, 2023
These Product and Services Usage Terms and Conditions (the “Agreement” or “Terms and Conditions,” which shall include any and all schedules, addendums, or attachments incorporated herein, as well as all amendments or supplements of such documents and the Agreement) is entered into and effective as of the date set forth in any Sales Order (such date, the “Effective Date”) by and between STRATAFOLIO, Inc., a Delaware corporation (“STRATAFOLIO” or “Company”) and you (the “Customer”). STRATAFOLIO and Customer at times are each referred to herein as a “Party” and, collectively, as the “Parties.”
These Terms and Conditions, along with the Company’s “Privacy Policy” (found at: https://STRATAFOLIO.com/privacy-policy/) and “Terms of Use Policy” (found at: https://STRATAFOLIO.com/terms-of-use/), the terms of which are hereby incorporated into these Terms and Conditions, govern the Customer’s use of the Products and Services described herein and the Company’s website at https://STRATAFOLIO.com or https://app.STRATAFOLIO.com (the “Site”), including the Customer’s use of the content found on the Site or publishing its own content on the Site
2.1 Subject to the terms and conditions set forth in this Agreement and any applicable schedule, Customer is hereby granted a restricted, limited, non-transferable, non-exclusive royalty-free license to use the Intellectual Property (as defined in Section 3.1 below) contained in or necessary for the intended use of the Product. Any license granted pursuant to this Section 2.1 is subject always to the following terms: (a) such use shall be limited to the use intended by Customer and Company at the time this Agreement was executed; (b) Customer’s rights are personal, non-transferable, non-sub licensable, non-exclusive, which means, without limitation, that Customer may not sell or otherwise transfer the Intellectual Property or the Product to any other person or organization; (c) repairs, alterations, or modifications done by Customer or third-party that are not in accordance with the terms of this Agreement or otherwise authorized by STRATAFOLIO in writing shall invalidate warranty and performance specifications of any processing service relating to the Products; (d) access to the Product may be terminated and this license revoked by STRATAFOLIO upon any breach by Customer of this Agreement or any Website Policies or additional terms and conditions that may be set forth in separate schedules, statements, or other documents provided to Customer; all uses of the Product may be subject to certain third-party license terms or terms and conditions that are not under the control of STRATAFOLIO; (f) Customer shall, when using the Product, not use software or firmware that materially interferes with Company’s ability to provide the Product to other users.
2.2. Customer shall not: (a) alter, modify or adapt the Product including, but not limited to, translating or creating derivative works of the Product, or (b) distribute, resell, permit access to, publish, commercially exploit, disclose or otherwise transfer or make the Product available to any other person or organization. Customer agrees to use the Product only as expressly permitted by this Agreement and in accordance with all applicable laws, rules and regulations. Customer shall have no rights or license of any kind with respect to the Product other than as set forth in this Agreement. Customer agrees that, upon reasonable notice during the term of this Agreement, STRATAFOLIO may, at its sole discretion, request documentation from Customer to confirm that Customer is in compliance with the terms and conditions of this Agreement. If STRATAFOLIO is required to bring any action or suit to enforce Customer’s obligations hereunder or to pursue any remedies STRATAFOLIO may have for Customer’s violation of this Agreement, STRATAFOLIO shall be entitled to recover from Customer, in addition to any other rights and remedies it may have, all reasonable costs and expenses, including without limitation all attorneys’ fees for such suit and/or enforcement.
2.3 Company Policies. Customer agrees to abide by and accept all policies and terms of use posted on STRATAFOLIO’s website or within the Company’s software applications (which may be posted in publicly available areas or only on certain pages accessible by Customer), including, without limitation, the Company’s (i) Privacy Policy, (ii) Terms of Use Policy, and (iii) all policies regarding the use and any fees related to the Product, and other terms (collectively, the “Website Policies”, each a “Website Policy”). Customer further agrees to abide by and accept all policies and terms posted on the Company’s website relating to Customer’s use of the Product (the “Policy Statements” and together with the Website Policies, the “Policies”). The Policies may change from time to time in STRATAFOLIO’s sole discretion and STRATAFOLIO will post such changes on its website or provide such updated Policies to Customer. It is Customer’s sole obligation to read all Policies and updates, amendments, and supplements thereto. Customer agrees that failure to comply with any Policy shall be a material breach of this Agreement, and may result in the immediate termination of Customer’s right to access and use the Product. Customer is deemed to have consented to any changed terms of any of the Policies if, at the time of such change, the Customer has any outstanding Sales Order with the Company.
3.1 Company’s Ownership of Intellectual Property. Unless specifically provided in Section 2 above, Company retains all of its right, title and interest in all now known or hereafter known or developed tangible and intangible intellectual property, including without limitation, all: (a) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights, moral rights and mask works; (b) trademarks, services marks, trade names and any other indicia of origin; (c) technical and non-technical information (regardless of whether such information is in tangible or intangible form) including source code, object code, computer code, data, ideas, concepts, formulae, methods, techniques, processes, financial business plans and business methods (including any derivatives of any of the foregoing) that derive economic value, actual or potential, from not being generally known to other persons who could obtain economic value from the disclosure or use thereof, and which are the subject of efforts that are reasonable under the circumstances to maintain their secrecy (“Trade Secrets”); (d) patents, pending patent applications, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise; (f) registrations, initial applications, renewals, extensions, continuations, divisions or reissues now or hereafter in force (including any rights in any of the foregoing); and (g) all Proprietary Information (as defined herein) of the Company (collectively, “Intellectual Property”). Customer covenants not to prejudice or impair the interest of Company in any of its Intellectual Property. At no time shall Customer challenge or assist others to challenge any of Company’s Intellectual Property or the registration thereof.
3.2 Proprietary Information. Each Party agrees to hold in confidence all Proprietary Information (defined below) that it receives from the other Party. Each Party shall not disclose any of the other Party’s Proprietary Information to any party or person whatsoever other than to its respective employees or agents who have a need to know such Proprietary Information consistent with the purpose for which it was disclosed. Each Party shall not use, directly or indirectly, any of Company’s Proprietary Information for any purpose other than the purpose for which it was disclosed. Each Party shall not use, directly or indirectly, under any circumstances, any of the other Party’s Proprietary Information for any purpose that is in any way detrimental to the disclosing Party. This includes, but is not limited to, contracting with the other Party’s employees, consultants, contractors, vendors or partners to provide services to such Party similar to those provided to pursuant to this Agreement. Each Party shall take reasonable precautions to protect the confidentiality and value of the other Party’s Proprietary Information, including measures to prevent loss, theft and misuse. Each Party shall immediately give notice to the other Party of any unauthorized use or disclosure of the other Party’s Proprietary Information. Each Party agrees to assist the other Party in remedying any unauthorized use or disclosure of Proprietary Information caused by such Party. Each Party acknowledges expressly that each and every one of its employees, contractors and agents are bound to the terms and conditions of this Section 3.2.
3.3 Definition of Proprietary Information. Proprietary Information means Confidential Information (defined below) and Trade Secrets (defined above), whether in written, oral, electronic or other form, furnished, transmitted to, observed or obtained by one of the parties. The following information, all as reasonably substantiated by documentation, however, is not Proprietary Information and Customer is not restricted as to its use or disclosure: (a) information already in the possession of, or already known to, Customer as of the Effective Date, and not under any other obligations of confidentiality due to any other agreements between the Parties; (b) information that enters the public domain after the Effective Date, or which, after such disclosure, enters the public domain through no fault of Customer; (c) information lawfully furnished or disclosed to Customer by a non-party to this Agreement without any obligation of confidentiality; (d) information independently developed by any Party without use of any Proprietary or Confidential Information; or (e) information that is explicitly approved for release by Company.
3.4 Definition of Confidential Information. Confidential Information means information identified on, in or constituting: all strategic and development plans, financial information, results of the Services and Products, business plans, information about parent, subsidiaries or sister companies, co-developer identities, data, business records, client lists, identity of vendors and partners, policy information, personally identifiable information, personal financial information or personal health information (as those terms are defined by governing law), product designs, test data, project records, market reports, investor information, know-how, discoveries, ideas, concepts, specifications, models, diagrams, methodologies, research, technical and statistical data, drawings, models, flow charts, work-flow, marketing, pricing, selling, distribution, database descriptions, software code, source code, object code, Intellectual Property, and any and all other tangible or intangible information, other than Trade Secrets, encompassed in any medium, which may be disclosed, whether or not in writing, whether or not marked as “Confidential” or “Proprietary” by a Party or to which a Party may be provided access to by the other Party in accordance with this Agreement, or which is generated or learned as a result of or in connection with the Product and is not generally available to the public.
3.5 Return of Proprietary Information. Upon written request of the disclosing Party, the receiving Party shall promptly return or destroy (as directed by Company) all Proprietary Information received from such disclosing Party, including all copies thereof. Upon the request of disclosing Party, the receiving Party shall furnish to Company an affidavit providing assurances as to the return or destruction of such Party’s Proprietary Information.
3.6 Disclosure Required by Law. A disclosure of Proprietary Information in response to a valid order by a court or other governmental body or otherwise required by law is not considered to be a breach of this Agreement or a waiver of confidentiality for other purposes. Before any such disclosure, such Party shall provide prompt written notice to the party that disclosed the Proprietary Information and reasonably cooperate with Company in seeking a protective order or preventing disclosure.
3.7 Ownership. Except as specifically provided otherwise in this Agreement, all materials, including Deliverables or Proprietary Information, transmitted from disclosing Party to the receiving Party, are to remain the sole and exclusive property of the disclosing Party. Except for the licenses or ownership rights granted pursuant to this Agreement, this Agreement and transmission or disclosure of any Proprietary Information from the disclosing Party to the receiving Party does not grant the receiving Party a license or ownership of any type.
3.8 Survival of Obligations. All obligations and restrictions of confidentiality and ownership of Propriety Information under this Agreement are to survive the termination of this Agreement.
3.9 Responsibility for Affiliates and Representatives. The receiving Party of Proprietary Information is solely responsible for any breach of this Agreement by its representatives including, without limitation, any improper use or disclosure by its representatives of the disclosing Party’s Proprietary Information. A receiving Party may disclose Proprietary Information to its representatives who in such Party’s reasonable judgment have the need to know such information in connection with this Agreement. Each Party shall inform its representatives of the confidential nature of such Proprietary Information, shall direct them to hold Proprietary Information in strict confidence, shall take all reasonable precautions to prevent improper use of Proprietary Information by them, and shall be responsible for any breaches by them of the terms found in this Agreement.
3.10 Certain Rights Granted to Company. Upon the Customer’s consent, which shall not be unreasonably withheld, Company shall have the right and license to use Customer’s name and logo on its marketing and promotional material, including on its website and customer lists. Company shall have the right to make certain press releases available to the general public regarding the sales of the Product made by Company to Customer, provided the press release must be provided to Customer in advance and receive Customer’s consent to publish, which consent shall not be unreasonably withheld. Customer acknowledges and agrees that Company may collect and retain aggregate non-identifiable data derived from the Customer in accordance with Company’s privacy policy and terms of use. Customer acknowledges and agrees that, except as specifically provided in this Agreement, Company owns the Product and Services, and shall have a non-exclusive, unrestricted, irrevocable, transferable, worldwide, and perpetual license to all Submitted Content in accordance with the terms of this Agreement, including without limitation Section 6.2 herein.
4.1 Price and Payment Terms. The purchase price for the Product and Services shall be an amount equal to the sum of (i) the price set forth on the Customer’s Sales Order (which shall include the initial Subscription Fee and an Onboarding fee), plus (ii) an amount equal to the Additional Unit Rate times the number of Additional Units added to the Customer’s Subscription Size during the Current Term. (the “Purchase Price”). The Purchase Price shall be billed and due and payable according to the terms of the Sales Order.
Unless specifically provided otherwise on the Sales Order, Company shall invoice Customer for any additional (i.e., not described or provided for in the Sales Order) Products or Services requested by and delivered to Customer (including but not limited to the Purchase of Additional Units by the Customer directly through the Product platform) and Customer shall pay such invoices within seven (7) days of the date of such invoice. To the extent there are any fees not paid to the Company from Customer, for any reason whatsoever, within fifteen (15) days of when such amounts are due, the Company may charge interest at the highest prevailing rate under applicable law and/or suspend the Services or access to the Product until such payments are made by Customer. Customer shall also be responsible for the reasonable costs incurred by the Company in collecting any late payments (including reasonable attorney’s fees).
4.2 Taxes. Customer shall be responsible for all taxes applicable to Customer and arising as a result of this Agreement, other than taxes based on STRATAFOLIO’s income.
4.3 Disputes of Collected Fees of Invoiced Amounts. To the extent Customer disputes any amounts due and owing on any invoice provided to Customer, Customer shall dispute such amounts within fifteen (15) days of the invoice date and to the extent Customer does not meet such deadline date to dispute any charges or fees, Customer shall have waived all rights to contest such fees and charges.
4.4 Annual Rate Changes. The Subscription Fee charged to all customers is set annually by STRATAFOLIO on or around January 1 of each calendar year (each such calendar year period being, a “Rate Period”), and as such, at the beginning of each Rate Period, STRATAFOLIO has the right, in its sole discretion, to make an annual increase to the Subscription Fee (a “Rate Increase”, and any such Rate Increase will create a “New Rate Period”). STRATAFOLIO hereby covenants and agrees that no such Rate Increase to the Subscription Fee shall be effective until the Customer’s Renewal Term commences, provided however, that if the Customer purchases Additional Units during a New Rate Period, Customer hereby acknowledges and agrees that such Rate Increase shall only apply to the Additional Units purchased by the Customer. In the event this Agreement is renewed during a New Rate Period, the Customer hereby acknowledges and agrees that the applicable Rate Increase shall be immediately effective at the beginning of such Renewal Term. For each New Rate Period, STRATAFOLIO hereby agrees that such Rate Increase shall not exceed an amount equal to 5% of the Subscription Fee charged in the immediately preceding Rate Period, provided however, that such Rate Increase may exceed the 5% threshold if STRATAFOLIO provides 30 days prior written notice to the Customer.
5.1 Term. The initial term of this Agreement (the “Initial Term”) shall be as set forth in the Sales Order by and between the Customer and the Company. Following the expiration of the Initial Term, unless otherwise specified in the Sales Order, the Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term”, and the current term, whether the Initial Term or a Renewal Term, shall be referred to herein as the “Current Term”), unless either party provides notice to the other party of its intent not to renew the Agreement at least thirty (30) days prior to the end of the Initial Term or Renewal Term.
5.2 Termination. This Agreement may be terminated in the following manner: (1) Either Party may terminate this Agreement if the other Party breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days prior written notice to such other Party describing the breach; (2) STRATAFOLIO may immediately terminate this Agreement if Customer commits an incurable material breach, which includes abuse of the Product in any manner prohibited in Section 2, 3, and 7; and (3) Either Party may terminate this Agreement, immediately, as a result of the other Party being subject to insolvency, liquidation, winding up, bankruptcy or similar proceedings, or if such other Party is unable to reasonably uphold its monetary obligations to creditors.
5.3 Effect of Termination. Immediately upon any termination or expiration of this Agreement, STRATAFOLIO may terminate the Services and access to the Product provided to Customer and all fees incurred up to the date of termination or expiration and owed to STRATAFOLIO will become immediately due. Customer will return all Proprietary Information (defined above) to STRATAFOLIO. Sections 5.3, 3, 7, 8, 9, 10, and 12, will survive any termination or expiration of this Agreement.
6.1 The Company has no obligation to retain any of Customer’s data that has been provided by Customer to the Company or generated through Customer’s use of the Product or Services (“Customer Data”) after the termination of this Agreement, for whatever reason. Unless specifically provided otherwise in this Agreement, the Website Policies, or as otherwise required by applicable law, Company shall be entitled to irretrievably delete Customer Data at any time after thirty (30) days following the termination of this Agreement, and the Company shall have no obligation to notify Customer of its intention to delete or its deletion of any or all of Customer Data.
6.2 Customer hereby grants and assigns to the Company, a worldwide, royalty-free, irrevocable, perpetual and non-exclusive license, with the right to sublicense and transfer, the rights to use and disclose the Customer Data on an anonymous basis in any manner the Company chooses, and to display, perform, copy, make, have made, use, sell, and otherwise dispose of any of the Company’s products embodying the Customer Data in any manner without obligation to Customer. Customer shall have no rights to any future uses or value derived by Company from the Customer Data.
6.3 Customer specifically acknowledges and agrees that Company has no obligation to retain or collect any Customer Data as part of Customer’s use of the Products and Services.
Customer represents, warrants, and covenants (each as applicable) to Company that: (A) This Agreement and performance by Customer of its obligations hereunder shall not (i) violate any law, rule or regulation applicable to Customer or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which Customer is bound; (B) To the extent Customer or its staff receives any Training, Customer covenants and agrees that it will ensure all staff using the Product or Services are included in such Training, and Customer and its agents shall use the Product or Services as directed by the Company; (C) Customer shall provide Company with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by Company in order to render the Services or to provide the Product or Services; (D) Customer shall carry out all of Customer’s responsibilities set out in this Agreement in a timely and efficient manner, and in the event of any delays in Customer’s provision of such assistance as agreed by the Parties, the Company may make reasonable adjustments to the agreed-upon schedule for the provision of any Product or Services; (E) Customer shall only use the Products or Services described herein with the appropriate hardware, software, or other products that do not materially interfere with Company’s ability to provide the Products or Services; (F) Customer it is duly organized and validly existing under the laws of its state of incorporation or formation, has the necessary authority, licenses and other permissions to conduct the business in which it is currently engaged and is in compliance with all applicable laws; (G) Customer further represents and warrants that it has the legal capacity to agree to the terms of this Agreement, perform its obligations hereunder, has obtained and shall maintain all necessary authorizations or registrations from appropriate authorities to carry out the activities contemplated in this Agreement, and entering into this Agreement will not violate any applicable law or regulation; (H) Customer and its affiliates that they shall promptly notify the Company of any restrictions imposed by law on the use of the Product or Services by Customer or use of the Submitted Content by the Company in accordance with the terms of this Agreement; and (I) Customer further represents, warrants, and covenants thatit shall not rent, sell, license, lease or otherwise commercially exploit or make available the Products, Services, Proprietary Information described herein to any unauthorized third-party or otherwise use, modify, adapt, or combine the Product or Services in an infringing or unauthorized manner
Company represents and warrants to Customer that: (A) This Agreement and performance by Company of its obligations hereunder shall not (i) violate any law, rule or regulation applicable to Company or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which Company is bound; (B) this Agreement, when signed, is valid, binding, and enforceable against Company; (C) the Company will offer Customer an email address to send support inquiries for the Product and Services.
From time to time, the Company may perform scheduled and/or unscheduled maintenance to correct, modify, or enhance the Product or Services. During such maintenance, all or selected portions of the Product or Services may be unavailable. The Company will notify Customer of any scheduled maintenance and work in good faith to ensure the Company Product or Services is/are available. Except as specifically provided for in this Agreement, the Company will not be held liable for any downtime of the Product or Services; and (D) the Product or Services shall be performed and/or provided in a diligent, timely, technically competent and professional manner.
Customer agrees to indemnify and hold harmless Company, its employees, contractors, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Company may sustain or incur as a result of any third-party claim against Company based upon negligence, breach of warranty, strict liability in contract, or any other theory of liability, arising out of, directly or indirectly, Customer’s gross negligence or willful misconduct with respect to use of the Product or Services.
Company agrees to indemnify and hold harmless Customer, its employees, contractors, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Customer may sustain or incur as a result of any third-party claim against Customer based upon negligence, breach of warranty, strict liability in contract, or any other theory of liability, arising out of, directly or indirectly, (i) the proper use of the Product or Services by Customer, (ii) by reason of Company’s failure to perform its obligations contained herein, (iii) Company’s gross negligence or intentional misconduct; or (iv) if Company’s Products or Services to Customer hereunder infringe, misappropriate or violate the intellectual property or other proprietary rights of any third party; PROVIDED HOWEVER, that in no event shall the Company’s indemnification obligations hereunder exceed an amount equal to the Subscription Fee charged during a Term .
10.1 Except as otherwise limited herein, the Company warrants to Customer (which warranty is not transferable), that the Product and Services furnished herein will be provided in a reasonably professional and workmanlike manner in accordance with industry standards. The Company further represents and warrants that it has full right to perform the Services and provide the Product and that such Product or Services will not infringe the intellectual property rights of any third-parties. This warranty shall not apply if Customer uses the Products or Services in violation of this Agreement, in violation with directions or guidance provided by the Company, or if the Product or Services have been subject to accident, negligence, abuse, misuse, or criminal acts. Customer’s sole and exclusive remedy for a breach of this limited warranty by Company shall be for Company to repair or replace (as determined by Company), at no charge to Customer, the Product or Services in breach of such warranty; provided however, in the event of such a breach of warranty Company may, in its sole discretion, elect to terminate this Agreement immediately in which event Company shall return to Customer a portion of the Subscription Fee pro-rated from the date of termination of this Agreement to the end of the Customer’s current Term.
EXCEPT FOR THE REMEDY SPECIFICALLY SET FORTH IN THIS SECTION, CUSTOMER HEREBY WAIVES ANY AND ALL OTHER RIGHTS AND REMEDIES THAT CUSTOMER MAY OTHERWISE BE ENTITLED TO AT LAW OR IN EQUITY UNDER ANY THEORY OF LIABILITY ARISING FROM A BREACH OF SAID LIMITED WARRANTY.
10.2 EXCEPT FOR THE SPECIFIC REPRESENTATIONS OF THE COMPANY CONTAINED HEREIN, THE PRODUCT AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND NEITHER THE COMPANY, NOR ITS AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY OF ANY OTHER KIND EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT AND SERVICES, OR THE ACCURACY OR COMPLETENESS THEREOF, OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF OR ANY OTHER MATTER. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, SECURITY, COMPATIBILITY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE PRODUCT AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE PRODUCT AND SERVICES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR APPLICATIONS.
10.3 IN NO EVENT SHALL COMPANY OR ITS AFFILILATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR REVENUES OR OTHER ECONOMIC LOSS OF CUSTOMER OR ANY THIRD PARTY), WHETHER IN TORT, CONTRACT OR OTHERWISE, AND WHETHER OR NOT THE COMPANY OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO THE COMPANY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN ITS PROVISION OF THE DELIVERABLES COMPANY’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGARD AMOUNT PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE INCIDENT FROM WHICH THE CLAIM(S) AROSE. TO THE EXTENT A CLAIM ARISES OUT OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN COMPANY’S PROVISION OF THE PRODUCT AND SERVICES, THE COMPANY’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGATE AMOUNT PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT FROM WHICH THE CLAIM(S) AROSE.
THE COMPANY DOES NOT GUARANTEE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY, THAT ANY PRODUCT OR SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT THE COMPANY WILL CORRECT ALL ERRORS (UNLESS SPECIFICALLY PROVIDED HEREIN). CUSTOMER ACKNOWLEDGES THAT THE COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
10.4 Equitable Relief. Customer acknowledges and agrees that a breach of this Agreement may cause other irreparable harm on Company without an adequate remedy at law and hereby agrees that Company may seek equitable relief, including without limitation, temporary or permanent injunctions and other relief to limit the effect of any breach.
10.5 Time Limit on Claims. NO ACTION ON THIS AGREEMENT, EXCEPT FOR PAYMENT OWED BY CUSTOMER TO COMPANY, MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE INCIDENT OCCURS.
10.6 Essential Purpose. THE FOREGOING PROVISIONS OF THIS SECTION 10 ARE INTENDED AS A COMPLETE ALLOCATION OF THE RISKS BETWEEN THE PARTIES. BECAUSE THE BARGAIN STRUCK AND THE PRICE PAID REFLECT SUCH ALLOCATION THIS LIMITATION UPON REMEDIES WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.1 Assignment. This Agreement shall not be assigned or transferred by Customer without prior written consent of the Company, and any attempt by Customer to so assign or transfer this Agreement without such written consent shall be null and void. This Agreement shall be valid and binding on the parties hereto and their successors and permitted assigns.
12.2 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Iowa without regard to its conflict or choice of laws principles. Any action brought in connection with this Agreement, its terms or the enforcement thereof shall be brought solely in the Federal or State courts located in Cedar Rapids, Iowa and each Party consents to the personal jurisdiction and venue therein.
12.3 Notices. All notices given under this Agreement must be in writing and sent to the Company contact information provided on the applicable Sales Order.
If to Customer, to the address provided under the Sales Order; or to such other address as a Party may designate in writing to the other Party, by certified mail (return receipt requested), overnight courier, personal delivery, or email to the other parties hereto.
12.4 Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement shall survive any such termination of this Agreement, including, without limitation, Sections 2 through 11.
12.5 Force Majeure. The Company shall not be responsible for any delay or failure in performance of its obligations under this Agreement resulting from acts beyond the control of the Company, including but not limited to, any act of God, act of governmental authority (including without limitation changes in trade policy), act of public enemy, computer or system failure, or due to war, terrorism, riot, fire, flood, civil commotion, pandemic, insurrection, labor difficulty (including, without limitation any strike, or other work stoppage or slowdown), or severe or adverse weather conditions.
12.6 Miscellaneous. This Agreement, together with the Sales Order, or any additional order form, any pricing sheets, and any other documents provided to Customer pursuant to the terms of this Agreement or as part of Company providing the Product or Services, supersedes all prior agreements and understandings, and constitutes the complete agreement and understanding between the Parties with respect to the subject matter hereof. No amendment or other modification to this Agreement shall be valid or binding unless agreed to in writing and signed by a duly authorized officer of both Parties. The Parties are independent contractors, and nothing in this Agreement will be construed to constitute or appoint any party as the agent, partner, joint venturer or representative of the other Party for any purpose whatsoever, or to grant to any party any right or authority to assume or create any obligation, express or implied, for or on behalf of any other, or to bind any other in any way or manner whatsoever. Any forbearance or delay on the part of a Party in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence. No other party is intended, or shall be deemed, to be a beneficiary of any provision of this Agreement. This Agreement may be executed in counterparts, which counterparts, taken together, shall constitute one agreement and each Party hereto may execute this Agreement by signing such counterpart.
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