Terms and Conditions
Last Updated February 5th, 2024
1.SaaS Services and Support
1.1 Subject to the terms and conditions (this “Agreement”) and the Order Form executed by you (“You” or the “Customer”), into which this Agreement is expressly incorporated and made part, Eva Commerce, Inc whose principal place of business is situated at 5770 Aster Meadows Pl, San Diego, CA 92130 (“We” or the “Company”) will use commercially reasonable efforts to provide Customer with the Services (as defined in the Order Form). As part of the registration process, the Customer will identify an administrative username and password for the Customer’s Company account. The Company reserves the right to refuse registration or cancel passwords it deems inappropriate. The Customer and the Company may each be referred to herein as a “Party” and collectively as the “Parties.”
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical and business support services in accordance with the Company’s standard practice.
1.3 Should there be any conflict between this Agreement and the Order Form, the terms of the Order Form shall control.
2. Eva Software Restrictions and Responsibilities
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items,” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement. It will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor the Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of a Customer account or the Equipment with or without the Customer’s knowledge or consent.
2.5 Account Requirements. To set up an account and use the Service, you must:
Be 18, or the age of majority in your province, territory, or country, to become a Member. Individuals under the age of 18, or the applicable age of majority, may utilize the Service only with the involvement of a parent or legal guardian, under such person’s account and otherwise subject to these Terms.
Provide your full legal name, valid email address, phone number, and any other information we request to complete your account signup process.
Provide us with one or more Payment Methods. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.
Personally and manually create your account without using any automated means, except for any auto-complete feature offered by your internet service provider. A third party may not create an account for you, and you must not allow any third party to use your information to create an account.
Duly execute an Order Form memorializing the scope of the Services governed by this Agreement.
Account Ownership: The member who created the account and whose Payment Method is charged (the “Account Owner”) has access to and control over the account and is responsible for any activity that occurs through the account. To maintain control over the account and prevent anyone from accessing the account, the Account Owner should maintain control over access to the Service and not reveal the password or details of the Payment Method associated with the account to anyone. Account owners are not allowed to share their account, log-in, or access-related credentials with any other party unless explicitly stated otherwise in the details related to the specific plan they purchased. The Company may, in its sole an absolute discretion, elect to terminate or suspend your account for any reason if it deems such action in its best interest. You must immediately notify us of any unauthorized use of your account. We will not be liable for any loss or damage from your failure to comply with this security obligation.
2.6 Non-Solicitation of Employees, Consultants, Contractors, and Agents
The Customer understands and acknowledges that the Company has expended and continues to expend significant time and expense in recruiting and training its employees, consultants, contractors and other agents (“Company Agents”) and that the loss of Company Agents would cause significant and irreparable harm to the Company. The Customer agrees and covenants not to directly or indirectly solicit, hire, or recruit for their own benefit or the benefit of any other person, or so attempt to solicit, hire, or recruit, or induce Company Agent to terminate their relationship with the Company during this Agreement and for one (1) year after the termination of this Agreement.
In the event of a breach of this Section by the Customer, the Customer shall pay to the Company an amount equal to the amount paid by the non-breaching Party to the employee, consultant, contractor, or agent in the two (2) years preceding the breach plus any attorney’s fees necessary for the Company to enforce its rights hereunder. The Parties intend that such amount constitutes compensation and not a penalty. The Parties acknowledge and agree that the harm caused by a breach of this Section would be impossible or very difficult to accurately estimate as of the date of this Agreement and that such amount is a reasonable estimate of the anticipated or actual harm that might arise from such breach. The payment of such amount is the Customer’s sole liability and entire obligation in the event of such breach and is the Company’s exclusive remedy for such breach.
2.7 No Poaching of Customer’s Clients: The Company is committed to maintaining the highest standards of integrity and professionalism in its business relationships. To ensure the avoidance of any potential conflicts of interest, we will not provide services to any company or individual that, to our knowledge, is concurrently engaged in a contractual relationship with Customer.
3. Confidentiality; Proprietary Rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding the Service’s features, functionality, and performance. Proprietary Information of Customer includes non-public data provided by Customer to the Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i)to take reasonable precautions to protect such Proprietary Information, and (ii)not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one(1) year following the disclosure thereof or any information that the Receiving Party can document (a)is or becomes generally available to the public, or (b)was in its possession or known by it before receipt from the Disclosing Party, or (c)was rightfully disclosed to it without restriction by a third party, or (d)was independently developed without the use of any Proprietary Information of the Disclosing Party or (e)is required to be disclosed by law.
3.2 Customer shall own all rights, titles, and interests in and to the Customer Data. Company shall own and retain the all right title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived from there). Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business.No rights or licenses are granted except as expressly set forth herein.
4. Payment of Fees
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Should Customer elect to use the Services in a manner that exceeds the scope defined within the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement) Customer shall incur additional Fees at the Company’s then-current rate for such additional Services. Company reserves the right to amend any of the terms (including applicable Fees) for any Renewal Term (as defined herein) with written notice to the Customer. The Customer must dispute any Fees in writing to the Company no later than 60 days after the closing date on the first billing statement to which such dispute pertains. Inquiries should be directed to the Company’s customer support department at firstname.lastname@example.org
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company immediately after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all collection expenses and may result in immediate termination of Service. The Company shall be entitled to recover attorney’s fees and costs incurred to obtain payment under this Section. The customer shall be responsible for all taxes associated with Services other than United States income taxes paid by the Company.
4.3 Payment Methods. To use the Service, you must provide one or more payment methods (the “Authorized Payment Methods”). You authorize us to utilize us to utilize any Authorized Payment Method to obtain the Fees due when payable under this Agreement. Should there be any deficiency of the Fees payable and/or the Company is unable to unilaterally obtain payment of its Fees due in consideration of the Services, You remain responsible for any such deficiency. The Company has the right to terminate or suspend Services rendered under this Agreement should You fail to make payment of any Fees due and payable. For some Payment Methods, the issuer may charge you fees for processing your Payment Method. Check with your Payment Method service provider for details.
4.4 Refunds: No refunds or credits will be provided for partially used periods, and all payments are non-refundable. If you cancel, you will still have access to the Services until your current billing period ends. You agree not to initiate a chargeback of payments through your payment provider. Doing so will be deemed a material breach of this Section and the Company may hold you liable for such action, including recovery of its attorney’s fees and costs.
5.Term and Termination
5.1 The term of this Agreement shall be for the Initial Service Term (as specified in the Order Form) and shall be automatically renewed for additional periods of the same duration (each a “Renewal Term”) as the Initial Service Term (collectively, the “Term”) unless either party requests termination at least sixty (60) days before the end of the Initial Service Term and/or any Renewal Term.
5.2 The Company may terminate this Agreement if the Customer: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than non-payment), the Customer does not cure such breach within five (5) days after receipt of written notice of such breach; (ii) Becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; (iv) is dissolved or liquidated or takes any corporate action for such purpose; (v) makes a general assignment for the benefit of creditors; or (vi) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. In the event of a breach due to non-payment, the Company reserves the right to terminate this Agreement with written notice to the Customer.
5.3 The Customer may terminate this Agreement if the Company materially breaches this Agreement and the Company does not cure such breach within thirty (30) days of written notice of such material breach.
5.4 Effect of Termination
In the event this Agreement is terminated for any reason prior to completion of the Services contemplated herein, then the reasonable amount of fees allocable to the work completed and unpaid (at the Company’s discretion) shall be invoiced to the Customer and such invoice will be due and payable within three (3) days.
6. Warranty and Disclaimer
The company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled Service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL SUCH WARRANTIES OTHER THAN THAT WHICH IS EXPRESSLY STATED HEREIN ARE EXPRESSLY DISCLAIMED.
Customer agrees to indemnify and hold the Company, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims, or expenses (including attorneys’ fees), made against the Company by any third party due to or arising out of or in connection with your use of the Service or Website.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES OF THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF THIS SECTION SHALL NOT APPLY TO LIABILITY RESULTING FROM THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Disclaimer of Warranties. THE COMPANY MAKES NO WARRANTIES EXCEPT FOR THAT WHICH ARE EXPRESSLY PROVIDED HEREIN. ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES, ARE EXPRESSLY DISCLAIMED.
Results Not Guaranteed. THE COMPANY MAKES NO REPRESENTATION REGARDING THE RESULTS AND/OR OUTCOMES OF THE SERVICES DESCRIBED ON THE ORDER FORM, INCLUDING (BUT NOT LIMITED TO) RESULTS FROM SEO-RELATED SERVICES, STATUS OF THIRD PARTY SALES PLATFORM ACCOUNTS, PROFIT MAXIMIZATION, OR SERVICES OTHERWISE LISTED ON ANY ORDER FORM.
Third-Party Resources. The Website and the Service may contain links to third-party websites or other resources. Customer acknowledges and agrees that the Company is not responsible or liable for the availability, accuracy, content, or policies of third-party websites or other resources. Links to such websites or resources are provided only as a convenience to the Customer and do not imply any endorsement by or affiliation with the Company. The customer acknowledges sole responsibility for and assumes all risk arising from their use of any such third-party websites or resources.
9. Conditions for Company warehouse usage by the Customer (3PL Customers)
The following terms shall apply to Customers who have executed an Order Form for the Company’s 3PL Services. For the purposes of this Section, the Company shall be referred to “Warehouse Operator” and the Customer shall be referred to as “Depositor.”
- Tender of Goods for Storage.
- Depositor represents and warrants that it is the owner or has lawful possession of the goods tendered to the Warehouse Operator (the “Goods”) and all right and authority to store them with Warehouse Operator and thereafter direct the release and/or delivery of the Goods. Depositor shall (i) tender any Goods for storage only during Warehouse Operator’s posted business hours for the Warehouse; (ii) tender all Goods to the Warehouse properly marked and packed for storage and handling; (iii) provide Warehouse Operator with information concerning the Goods that is accurate, complete, and sufficient to allow Warehouse Operator to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods; and (iv) furnish at or prior to tender of the Goods for storage a manifest in a form approved by Warehouse Operator listing any categories of Goods, brands or sizes to be separately kept and accounted for, and the types of storage and other Services requested.
- Warehouse Operator may refuse to accept any goods for storage if the goods tendered for storage do not conform to the description provided by Depositor. Before tendering Goods that require specialized handling or which are dangerous or hazardous, Depositor shall identify such goods and special handling requirements to Warehouse Operator in writing and Warehouse Operator may decline to store such goods. Depositor is solely responsible for providing complete and accurate handling and storage instructions for any nonconforming Goods, including any applicable safety procedures. If Warehouse Operator accepts any such nonconforming goods for storage, Depositor agrees to rates and charges as may be assigned and invoiced by Warehouse Operator as well as all terms and conditions of this Agreement.
- For all Goods shipped to the Warehouse, Depositor shall ensure that the bill of lading or other contract of carriage (“Transportation Contract”) as well as all declarations to government regulatory agencies (i) identify Depositor as the named consignee, in care of Warehouse Operator, and (ii) do not identify Warehouse Operator as the consignee. If any Goods are shipped to the Warehouse naming Warehouse Operator as named consignee on the Transportation Contract, Depositor shall promptly notify the carrier in writing that Warehouse Operator is (i) the “in care of party” only and (ii) does not have any beneficial title or interest in the Goods. Warehouse Operator may refuse to accept any Goods tendered for storage in violation of this provision, and shall not be liable for any loss or damage to, or misconsignment of, such Goods. Whether Warehouse Operator accepts or refuses goods shipped in violation of this Section 2, Depositor agrees to indemnify and hold Warehouse Operator harmless from all claims for transportation, storage, handling, and other charges relating to such goods, including surcharges, undercharges, rail demurrage, truck/intermodal detention, and other charges of any nature whatsoever. Depositor further agrees to indemnify, defend, and hold Warehouse Operator harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of Warehouse Operator as consignee.
- Access and Release of Goods.
- Depositor shall provide Warehouse Operator 2 business days advance written instructions (each, a “Release Order”) if it desires to order any Goods released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Warehouse Operator shall release the requested Goods to Depositor or its designee upon delivery of such Release Order issued for the applicable Goods, signed by Depositor.
- Depositor shall give Warehouse Operator a reasonable time after Warehouse Operator’s receipt of Depositor’s written instructions to carry out Depositor’s instructions to release the Goods to Depositor or its designee. Warehouse Operator may without liability rely on any information contained in any Release Order or other written communication from Depositor. Depositor shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods. A Release Order providing instructions to transfer Goods on the books of Warehouse Operator to any other depositor of goods in the Warehouse will not be effective until such Release Order is delivered to and accepted by Warehouse Operator. The Warehouse Operator shall confirm receipt in accordance with the Release Order by providing the Depositor a report confirming the Goods that were received and accepted within a reasonable time after such acceptance. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made.
- Warehouse Operator may, without notice, move any or all of the Goods from one location within the Warehouse or other warehouse in which the Goods are stored to another location within the same facility.
- Warehouse Lien. Warehouse Operator shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Depositor’s payment of all fees, charges and expenses hereunder in connection with the storage, transportation, preservation, and handling of the Goods as well as for like charges and expenses in relation to any other goods whenever deposited with Warehouse Operator by Depositor. Warehouse Operator may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.
- Storage and Handling Charges.
- Depositor shall pay Fees at the rates set forth and/or referenced on the Order Form (the “Rate Sheet”), as amended from time to time in accordance with this Agreement. All charges for storage are per package, or other unit specified in or referenced on the Rate Sheet. The Goods are deemed to be received on the date that the Warehouse Operator accepts care, custody, and control of the Goods, regardless of unloading date. Notwithstanding the above, (i) a full month’s storage charge will apply to all Goods received between the first and the 15th, inclusive, of a calendar month; (ii) one-half month’s storage charge will apply to all Goods received between the 16th and last day, inclusive, of a calendar month; and (iii) a full month’s storage charge will apply to all Goods in storage on the first day of a calendar month.
- Handling charges cover the ordinary labor involved in receiving Goods at the warehouse door, placing Goods in storage, and returning Goods to the warehouse door for pickup. Handling charges are due and payable in accordance with the Company’s regular invoicing schedule. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by Warehouse Operator in receiving and handling damaged Goods, and additional expenses in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the Depositor. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor. When Goods are ordered out in quantities less than in which received, Warehouse Operator may include an additional charge for each order or each item of an order. The Warehouse Operator shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless Warehouse Operator has failed to exercise reasonable care. Additional charges apply to other specified Services at the rates set forth on the Rate Sheet, and will be separately billed as such Services are performed.
- All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor shall be responsible for all such charges, costs, and taxes; provided, that Depositor shall not be responsible for any taxes imposed on, or with respect to, Warehouse Operator’s income, revenues, gross receipts, personnel, or real or personal property.
- In the case of loss or damage to Goods for which Warehouse Operator is not liable, Depositor shall be responsible for all charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.
- Warehouse Operator does not represent or warrant that the Warehouse or the contents of the Warehouse cannot be destroyed by fire or any other cause. Warehouse Operator will not be required to maintain a watchman or a sprinkler system, and Depositor acknowledges that Warehouse Operator’s failure to do so will not constitute negligence under Section 9(a) or otherwise. Goods are not insured by Warehouse Operator for the benefit of Depositor against fire or other casualty.
- During the term of this Agreement, Depositor shall, at its own expense, maintain and carry insurance in full force and effect against fire or other casualty in a sum no less than the value of the Goods stored pursuant to the Services with financially sound and reputable insurers. Upon Warehouse Operator’s request, Depositor shall provide Warehouse Operator with a certificate of insurance from Depositor’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Warehouse Operator as an additional insured. Depositor shall provide Warehouse Operator with five (5) days’ advance written notice in the event of a cancellation or material change in Depositor’s insurance policy. Except where prohibited by law, Depositor shall require its insurer to waive all rights of subrogation against Warehouse Operator’s insurers and Warehouse Operator.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. The company may transfer and assign any of its rights and obligations under this Agreement without consent. T
his Agreement, the Order Form, and any other documents incorporated by reference therein is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind the Company in any respect whatsoever.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; a day after it is sent, if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against any of the parties only in the courts of the State of California, County of San Diego, and each of the parties consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and irrevocably waives any objection to venue laid therein.
No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure by Company to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise by Company of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Depositor to make payments to Warehouse Operator hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 14, the other Party may thereafter terminate this Agreement upon thirty (30) days’ written notice. For avoidance of doubt, (i) any payment obligations shall not be excused pursuant to this Section; and (ii) with regard to the Company’s 3PL Services offered pursuant to Section 9, if Warehouse Operator has been unable to remove or deliver the Goods due to any reason specified in this Section such Goods shall be subject to storage charges until such Goods are actually removed/delivered.
Security. The privacy and protection of the Customer’s data are of the utmost importance to the Company. The Company takes all reasonable technical and organizational precautions to protect the confidentiality, security, and integrity of the Customer’s Personal Data. Although the Company uses multiple and various security measures to help protect the Customer’s Personal Data against loss, misuse, or unauthorized disclosure, Company cannot %100 guarantee the security of information transmitted to the Company over the Internet.
Storage. The Personal Data that the Customer provides to the Company is generally stored on servers located in the United States. If the Customer is located in another jurisdiction, the Customer should be aware that once the Personal Data is submitted through the Company’s Service, it will be transferred to the Company’s servers in the United States and that the United States currently does not have uniform data protection laws in place.
Retention. The company will retain the Customer’s information for as long as needed to provide the Customer with the Service. If the Customer wishes to cancel the account or requests that the Company no longer uses the information to provide the Services, contact the Company at email@example.com. The company will retain only the information necessary to comply with the legal obligations, resolve disputes, and enforce the agreements.
International Users. The Service is controlled, operated, and administered by the Company from the offices within the USA. If the Customer accesses the Service from outside the USA, the Customer is responsible for compliance with all local laws. Customer agrees that they will not use the content accessed through the Website in any country or in any manner prohibited by any applicable laws, restrictions, or regulations.
Electronic Communications. When the Customer uses the Service or sends emails, text messages, and other communications from your desktop or mobile device to us, the Customer is communicating with the Company electronically. You consent to receive communications from the Company. The company will communicate with the Customer in various ways, such as by email, text, or posting notices and messages on this Website. Customer agrees that all agreements, notices, disclosures, and other communications that Company provides to the Customer electronically satisfy any legal requirement that such communications are in writing.