Sullivan PDR Estimator Subscription Agreement
This Sullivan PDR Estimator Subscription Agreement (“Agreement”) governs your use of our services. You accept this Agreement whether by using the Services, by indicating your acceptance on our website, or by executing an Online Order Form. This Agreement is effective as of the date of your acceptance (the “Effective Date”). This Agreement applies whether you are a casual visitor to the Site or a Subscriber to the Services.
You may not access the Services: (a) if you do not agree to these terms and conditions; (b) if you are our direct competitor; or (c) for purposes of monitoring their availability, performance or functionality. The Site and Services are not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SITE OR SERVICE AT ANY TIME OR IN ANY MANNER.
The Services and the Site are evolving and are continually under development. If you are dissatisfied with the Service in any way, we ask you to tell us by sending an email to support@sullivanpdrestimator.com. We may make changes to this Agreement from time to time. When these changes are made, we will make a new copy of the Agreement available to you through your Account. Your use of the Services after the date on which the updated Agreement is made available to you through your Account constitutes your acceptance of the updated Agreement. If you disagree with changes to the Service or updates to the Agreement, your exclusive remedy is: (i) if you are a casual visitor, to stop visiting the Site; or (ii) if you are a subscribing customer, to provide us notice of your intention not to renew your subscription through the link in your Account.
1.0 Definitions.
1.1. “Account” means the particular instance of the Site authorized for use by you and your Users under your specific login.
1.2. “Documentation” means the specifications and materials located at the Site about the Services.
1.3. “Online Order Form” means the documents for placing orders (located on the Site) hereunder that are entered into between you and us, including any addenda and supplements thereto. Online Order Forms shall be deemed incorporated herein by reference.
1.4. “Services” means all services you order from us and made available by us via the customer login link on the Site and/or other locations designated by us.
1.5. “Site” means https://sullivanpdrestimator.com.
1.6. “Subscription Period” means the subscription time selected in an Online Order Form.
1.7. “We,” “Us” or “Our” means Dixie Dent, Inc., d/b/a Sullivan PDR Estimator.
1.8.”You” or “Your” means yourself individually or the company or other legal entity for which you are accepting this Agreement.
1.9. “User” means an authorized user of the Services, as designated in your Online Order Form.
1.10. “User Data” means all electronic data or information submitted by you and your Users.
2.0 Subscription.
2.1. Subscription Services. Upon your payment for Services and submission of an Online Order Form, we will make the Services available to you through your Account during the Subscription Period.
2.2. Users. Your Account is only authorized for the number of Users specified in the Online Order Form. Each User shall be provided separate login credentials, and User subscriptions cannot be shared or used by more than one person. You may reassign User subscriptions and designate new Users to replace former Users who no longer use the Services. You may add additional Users by paying a prorated subscription fee for the new Users; the subscription for additional Users shall be coterminous with your existing subscription.
2.3. Service Commitment. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (generally during weekend hours between 11:00 p.m. and 2:00 a.m. Central Time or during low traffic times during the week) or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, infrastructure or Internet connectivity provider failures or delays, and denial of service or other malicious attacks. We will provide the Services in accordance with applicable laws and government regulations. We are not responsible for the loss of your records and User Data, and we highly recommend that you back up your records and User Data as needed.
2.4. Updates. The Service may automatically download and install updates from us from time to time. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functionality, or updates. You agree to receive such updates from us as part of your use of the Services.
2.5. Your Duties. You are responsible for all activities that occur under your Account, including, without limitation, for Users’ compliance with this Agreement. You are responsible for the accuracy, quality and legality of User Data, and for ensuring that the Services are used only in accordance with the Documentation and applicable laws and government regulations.. You agree to provide true, accurate, current and complete information about yourself and your Users as requested in any Online Order Form. You also agree to update the information about yourself and your Users promptly, and as necessary, to keep it current and accurate. You agree to use commercially reasonable efforts to prevent unauthorized access to or use of the Services and to notify us promptly of any such unauthorized access or use.
3.0 Restrictions.
3.1. Usage Limitations. You may not use the Services or accept this Agreement if you are not of a legal age to form a binding contract with us. The Services may be subject to other limitations, as specified in the Documentation. As a condition of use, you promise not to use the Service for any purpose that is prohibited by this Agreement. You further promise not to build a product or service that is competitive to the Services.
3.2. Prohibited Activities. You shall not: (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services for any malicious purpose, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3. Examples of Prohibited Activities. By way of example, and not as a limitation, you shall not (and shall not permit any third party to): (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, including without limitation any User Data, that:
3.3.1 infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
3.3.2 modifies, adapts, appropriates, reproduces, distributes, translates, creates derivative works or adaptations of, publicly displays, republishes, repurposes, sells, trades, or in any way exploits the Service, except as expressly authorized by us;
3.3.3 deciphers, decompiles, disassembles, reverse engineers or otherwise attempts to derive any source code or underlying ideas or algorithms from any part of the Service (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction;
3.3.4 you know is false, misleading, untruthful or inaccurate;
3.3.5 is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, promotes bigotry, discrimination or violence, or is otherwise inappropriate as determined by us in our sole discretion;
3.3.6 imposes or may impose (as we determine in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;
3.3.7 constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
3.3.8 interferes with or may interfere with the proper working of the Service or any activities conducted on the Service;
3.3.9 involves commercial activities (whether or not for profit) and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes, without our prior written consent;
3.3.10 bypasses any measures we may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
3.3.11 contains software viruses or any other computer codes, files, worms, logic bombs or programs that are designed or intended to disrupt, disable, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information belonging to us or any third party;
3.3.12 employs manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
3.3.13 harvests or scrapes any data or content from the Service;
3.3.14 impersonates any person or entity, including our employees or representatives;
3.3.15 includes anyone’s identification documents or sensitive financial information;
3.3.16 breaches our privacy policy and/or any of the other policies and rules incorporated herein; or
3.3.17 that otherwise violates our guidelines and policies.
3.4. Image Restrictions. If the User Data includes an image, our image guidelines shall apply. We have a zero-tolerance policy against child pornography, and will terminate and report to the appropriate authorities any User who publishes or distributes child pornography.
4.0 Third Party Services and User Data You Send to Public Forums.
4.1. Additional Third Party Terms. You may access and subscribe to third-party products or services as add-ons or additional modules to provide specific functionality to the Services. All third-party products and services are provided subject to all restrictions required by us at the time of your subscription to such third-party products or services.
4.2. Integration with Third Party Services. The Services may contain features designed to interoperate with third party applications (e.g., Google, Facebook or Twitter applications). To use such features, you must have an account with such applications. If the provider of any such third party application ceases to allow us to integrate on reasonable terms, we may cease providing such Service features without entitling you to any refund, credit, or other compensation.
4.3. Links to Third Party Sites; Third Party Contact Information. As you use the Service, you may notice links and contact information for third parties. These links and this contact information are for your convenience only. If you use these links or contact information, you will be outside of the Service. We are not responsible for the availability, content or services provided by these third parties. In addition, these links and this contact information are not an endorsement or approval of these third parties. The services of these third parties will be provided under terms determined solely between you and them.
5.0 Fees and Payment.
5.1. Fees. You shall pre-pay all fees specified in your Online Order Forms at the beginning of your Subscription Period, and you acknowledge that the fees are not based on your actual usage. All fees paid are non-refundable.
5.2. Payment. In accordance with your Online Order Form, you will provide us with valid and updated credit card or debit card information. You authorize us to charge your credit card or debit card for all Services listed in the Online Order Form for each Subscription Period. You are responsible for providing complete and accurate card and contact information to us and notifying us of any changes to such information.
5.3. Overdue Charges. If any charges are not paid by beginning of the applicable Subscription Period, then at our discretion we may (a) charge late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; (b) suspend or terminate the Services; and/or (c) condition future Subscription Periods and Online Order Forms on earlier payment and in shorter payment intervals.
5.4. Access Charges. You are responsible for all connectivity costs and expenses require to access the Site, including, without limitation, Internet service provider fees.
5.5. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Account. If we are legally obligated to pay or collect your Taxes under this paragraph, the appropriate amount shall be invoiced to and paid by you.
6.0 Ownership of Site and Services.
6.1. Rights in Services. We reserve all rights, title and interest in and to the Site and the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6.2. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Site and the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users.
6.3. Government Use. The Services include “commercial computer software” and related documentation within the meaning of Federal Acquisition Regulation 2.101, 12.212, and 27.405-3 and Defense Federal Acquisition Regulation Supplement 227.7202 and 52.227-7014(a). The Services are highly proprietary to us and our licensors. You shall ensure that all Users, including those that are representatives of the U.S. Government or any other government body, are permitted to use the Services only as expressly authorized under this Agreement. Neither you nor any government body shall receive any ownership, license, or other rights other than those expressly set forth herein, irrespective of: (a) whether you are an agency, agent, or other instrumentality of the U.S. Government or any other government body, (b) whether you are entering into or performing under this Agreement in support of a U.S. Government or any other government agreement or utilizing any U.S. Government or any other government funding of any nature, or (c) anything else.
7.0 Confidentiality.
7.1. Definition. The term “Confidential Information” means the provisions of this Agreement and an Online Order Form, and any and all information, written or oral, provided or made available by or on behalf of one party or its affiliates, contractors, or vendors to the other party or its affiliates, contractors, or vendors in connection with this Agreement or the parties’ relationship hereunder, whether or not designated as confidential. Information of a third party to whom a party owes a duty of confidentiality will be treated as Confidential Information of that party if it meets the description above. However, Confidential Information does not include information that: was or is publicly available other than as a result of breach of this Agreement by Recipient, was or is lawfully received by the Recipient free of any obligation of confidentiality, or is independently developed by or on behalf of the Recipient without use of the Discloser’s Confidential Information.
7.2. Obligations. Each party (“Recipient”) will not access or use Confidential Information of the other (“Discloser”) for any purposes other than performance of its obligations or receipt of benefits hereunder and shall maintain such information in the strictest confidence, except for disclosures expressly authorized hereunder. Recipient may disclose the Discloser’s Confidential Information to Recipient’s employees, attorneys, advisors, and contractors who have a legitimate “need to know,” provided that Recipient ensures that all such entities and persons are obligated to and do comply with confidentiality obligations consistent with (and no less restrictive than) this Section 7 (Confidentiality), but in no event may you disclose any of our Confidential Information to any of our competitors (or any of their affiliates) or any employees or contractors of any such competitors. Recipient may additionally disclose the Discloser’s Confidential Information to the extent such disclosure is necessary in connection with the enforcement of this Agreement.
7.3. Compelled Disclosure. The Recipient may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Recipient gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.4. Privacy and User Information. For information about our data protection practices, please read our privacy policy located at https://sullivanpdrestimator.com/privacy-policy. This policy explains how we treat User Data and protect your privacy when you use the Services. You agree to the use of User Data in accordance with our privacy policy.
7.5. User Data. As described more fully in our privacy policy, you grant us broad rights to use and exploit, de-identified data, including de-identified User Data, collected by us through your use of the Services, which rights continue even after this Agreement ends. Except for our limited rights to use the User Data set forth throughout this Section 7 and in our privacy policy, we acquire no right, title or interest from you or your Users under this Agreement in or to User Data, including any intellectual property rights therein.
8.0 Warranties.
8.1. Our Warranties. We warrant that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the Documentation, and (iii) we will not transmit any malicious software to you, provided it is not a breach of this subpart (iii) if you or a User uploads a file containing malicious software into the Services and later downloads that file again. For any breach of a warranty above, your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.2. Your Warranties. You warrant that you have validly entered into this Agreement and have the legal power to do so, and that you will abide by the restrictions on use of the Services contained herein. If you are acting on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. You represent and warrant that any User Data is truthful, accurate, not misleading, offered in good faith, and that you and your Users have all rights, licenses, permissions and authorizations necessary to upload and transmit such User Data to us and/or through the Service.
8.3. Disclaimer. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO SECTION 8.1 AND SECTION 10.1, ALL SERVICES, INFORMATION AND MATERIALS ARE PROVIDED “AS IS”, AND WE EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, OR HAVE BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY USERS AS A RESULT OF PROVISION OR USE OF THE SERVICES AND MATERIALS PROVIDED HEREUNDER; AND (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY SERVICES. NO ADVICE OR INFORMATION, WHETHER WRITTEN, ORAL OR MULTIMEDIA, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.4. RISK OF INACCURACY OF INFORMATION. YOU ACKNOWLEDGE THAT MANY FEATURES PROVIDED BY THE SITE ARE INTENDED TO AGGREGATE AND MANAGE THIRD PARTY DATA AND INFORMATION FROM NUMEROUS SOURCES. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, OR SAFETY OF SUCH INFORMATION. YOU WAIVE ANY CLAIMS YOU MAY OTHERWISE HAVE, AND YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES OR INCONVENIENCES YOU MAY SUFFER AS A RESULT OF INACCURATE OR INCOMPLETE DATA OR INFORMATION PROVIDED TO YOU OR YOUR USERS BY THE SERVICE.
8.5. Beta Services. From time to time we may invite you to try, at no charge, our products or services that are not generally available to our customers (“Beta Services“). You may accept or decline any such trial in your sole discretion. Any Beta Services will be clearly designated as Beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in our sole discretion.
9.0 Indemnification.
9.1. Indemnification by Us. We shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Services (except for information described in Section 8.4) as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim We Cover“), and we shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of a Claim We Cover; provided that you: (a) promptly give us written notice of the Claim We Cover; (b) give us sole control of the defense and settlement of the Claim We Cover (provided that we may not settle any Claim We Cover unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense. In the event of a Claim We Cover, or if we reasonably believe the Services may infringe or misappropriate, we may in our discretion and at no cost to you (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Services in accordance with this Agreement, or (iii) terminate your Account and User subscriptions for such Services upon 30 days written notice and refund any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
9.2. Indemnification by You. You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that User Data or your use of the Services in violation of this Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim You Cover“), and shall indemnify us for any damages, attorney fees and costs as a result of, or for any amounts paid by us in respect of a Claim You Cover; provided that we: (a) promptly give you written notice of the Claim You Cover; (b) give you sole control of the defense and settlement of the Claim You Cover (provided that you may not settle any Claim You Cover unless the settlement unconditionally releases us of all liability); and (c) provide to you all reasonable assistance, at your expense.
9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
10.0 Limitation of Liability.
10.1. Limitations. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY SERVICES AND/OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: ANY AMOUNTS IN EXCESS OF THE APPLICABLE FEES PAID DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT, ACTION, OR OMISSION GIVING RISE TO THE CLAIM FOR WHICH ANY CREDITS OR DAMAGES ARE PAID OR HELD RECOVERABLE HEREUNDER. FOR CLARIFICATION, ANY SERVICE CREDITS PAID BY US SHALL REDUCE OUR LIABILITY CAP ON A DOLLAR-FOR-DOLLAR BASIS AND SHALL NOT BE DEEMED OR TREATED AS AN ADMISSION OF LIABILITY. ALL OF THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU MAY ONLY BRING A CLAIM AGAINST US WITHIN SIX (6) MONTHS FROM THE DATE THE PARTICULAR CLAIM ACCRUED OR THE APPLICABLE CAUSE OF ACTION IS PERMANENTLY BARRED.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY BUSINESS INTERRUPTION, LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. HOWEVER, IN SUCH EVENT, YOU AGREE THAT SUCH LIMITATIONS OF LIABILITY ARE REASONABLE, AND ARE FUNDAMENTAL ELEMENTS FOR THE SCOPE OF THE SERVICE AND THE FEES CHARGED TO YOU. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU WITHOUT THESE LIMITATIONS.
11.0 Term and Termination.
11.1. Term. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of Purchased User Subscriptions. User subscriptions commence on the start date specified in the applicable Online Order Form and continue for the Subscription Period specified therein. User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Online Order Form as promotional or one-time.
11.3. Termination. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for any reason upon thirty (30) days written notice to you.
11.4. Refund or Payment upon Termination. Upon any termination for cause by you or termination without cause by us, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Online Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
11.5. Surviving Provisions. Section 5 (Fees and Payment), 6 (Ownership), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), and 13 (Miscellaneous) shall survive any termination or expiration of this Agreement.
12.0 Copyright and Trademark Policies.
It is our policy to respond to notices of alleged copyright infringement, which comply with applicable law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. Details of our policy can be found at ________________. Trademark infringement complaints can be submitted to us and will be handled by us using the same procedure.
13.0 Miscellaneous.
13.1. Notices. You agree that we may provide you with notice, including changes to this Agreement, by email, regular mail or postings in your Account.
13.2. Governing Law/Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, disregarding any conflict-of-laws rules which may direct the application of the laws of another jurisdiction. Venue shall be exclusively in Davidson County, Tennessee.
13.3. Export Compliance. The Services, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
13.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.6. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.8. Attorney Fees. You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 5.2 (Payment).
13.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Online Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.10. Interpretation. No provision shall be construed against a party by reason of the fact that such party or its legal counsel drafted that provision, notwithstanding any rule of law or any legal decision to the contrary. For purposes of interpreting this Agreement: (a) the terms “herein,” “hereof,” “hereto,” “herewith”, “hereunder,” “hereinafter,” and similar terms shall refer to this Agreement as a whole; (b) the terms “includes” and “including” shall mean “include[ing], without limitation”; (c) references to Sections in any particular Attachment shall refer to Sections in that same Attachment, unless otherwise specified therein; and (d) headings contained herein are for convenience of reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, whenever the context requires, the singular number will include the plural, and vice versa.
13.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Online Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Online Order Form, the terms of such exhibit, addendum or Online Order Form shall prevail.