END USER AGREEMENT REGARDING TERMS AND CONDITIONS OF SALE AND WEBSITE USE
Updated April 21, 2016
This Agreement Regarding Terms and Conditions of Sale and Website Use ("Agreement") is made and entered into by and between CERTIFIED ESUPPORT, CORP. ("CES"), a Texas corporation, 2305 Donley Drive Suite 114, Austin TX 78758, and the Person entering, registering in and using the Website of which this Agreement is a part ("End User") and constitutes a binding agreement between CES and End User governing all transactions entered into by End User with, by or through CES. Unless otherwise agreed to in a writing signed by a CES Authorized Representative, this Agreement specifically applies to and governs: (A) all purchases of or subscriptions to Products and/or Services by End User from or through CES; and (B) use by End User of the Website.
This Agreement is a service agreement between CES and End User. While Products or Services may be purchased through the use of CES's Services, CES in general is not a seller of Products which are not Services. End User's relationships with respect to Product purchases and sales are between End User and its Resellers and/or Suppliers, and not CES. CES IS A SELLER AND PROVIDER OF SERVICES.
Certain capitalized terms used in this Agreement are defined in Section 1 below. Other capitalized terms used herein shall have the meaning set forth in the Section or Paragraph in which defined.
BY PLACING AN ORDER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES WITH, BY OR THROUGH CES, SUBSCRIBER IS AGREEING TO ALL TERMS AND CONDITIONS SET FORTH HEREIN.
- Definitions. As used in this Agreement:
- "CES Authorized Representative" means the President, Chief Executive Officer, Chief Financial Officer, Comptroller or a Vice President of CES.
- "CES Commerce Solution" means the ecommerce website that is utilized by the end user to transact purchases and manage their subscriptions and obtain technical support and services if applicable.
- "CES Indemnified Parties" shall have the meaning set forth in Section 21 of this Agreement.
- "CES Suppliers" or "Suppliers" means manufacturers or distributors of Products and/or Services sold by or through CES and all other Persons providing goods or services to or through CES in connection with, or to facilitate, CES's sale of or subscription to Products and Services, including but not limited to, technology, software and/or hardware manufacturers, vendors and licensors.
- "Governmental Entity" means any: (i) state, county, city, town, village, district, or other jurisdiction of any nature; (ii) federal, state, local, municipal or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); or (iv) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
- "Knowledge Base" means any technical or other information that is provided by CES as part of a subscription service. The Knowledge Base is provided for information and assistance purposes only as an accommodation. CES assumes no responsibility for any errors or omissions in the Knowledge Base. CES MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, OR THE KNOWLEDGE BASE AND THE INFORMATION CONTAINED THEREIN. CES EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE KNOWLEDGE BASE AND THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- "Laws" means federal, state, local, municipal and other laws, constitutions, ordinances, principles of common law, regulations, statutes or administrative orders.
- "Nuance" means Nuance Communications, Inc.
- "Orders" means orders for Products and/or Services placed by an End User and accepted by CES.
- "Parties" means CES and End User (each, a "Party").
- "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, Governmental Entity or any other entity.
- "Products" means equipment, accessories, other goods and software licenses and subscriptions, including but not limited to Nuance's Dragon Medical Direct and other "Software As A Service", sold or subscribed to by or through CES.
- "Services" mean training and technical support with respect to the use of Products, services offered by CES to facilitate Orders, implementation of use of Products, payments for Products, and other services provided by CES in connection therewith.
- "Software As A Service" (or "SaaS") means centrally hosted software which is licensed and/or permitted to be used via a web browser on a subscription basis.
- "Website" means collectively, the websites at https://certifiedesupport.com and https://www.dictation.cloud and all associated websites controlled by CES.
Other capitalized terms defined herein shall have the meaning set forth in the Section or Paragraph in which defined.
- Entire Agreement; No Modification.
This Agreement (including all registration data entered in the Website by End User), together with Orders, if applicable, constitute the sole and entire agreement of the Parties regardless of the timing, form or content of other communications between the Parties. No additional or conflicting provisions contained in any communications (including but not limited to forms or written directions of any kind) received from or engaged in with End User will be considered to be part of this Agreement. Use of this Website by End User shall be considered an unconditional acceptance of this Agreement, without regard to any additional or conflicting terms proposed by End User. None of the provisions of this Agreement may be varied, amended, or modified by End User except by a written agreement signed by a CES Authorized Representative. CES reserves the right to change, amend, or modify any and all of terms and conditions contained in this Agreement, with or without notice, by posting such changes on the Website. SUBSCRIBER SHOULD REVIEW THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT UPON EACH USE OF THIS WEBSITE AND UPON PLACING ANY ORDER. In the event of any conflict between the provisions of this Agreement and any Orders, the provisions of this Agreement shall be controlling.
- HIPAA Compliance.
END USER REPRESENTS AND WARRANTS THAT: (A) NO PROTECTED HEALTH INFORMATION ("PHI"), AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED REGULATIONS ("HIPAA") SHALL BE PLACED OR INPUT BY END USER INTO THE WEBSITE; (B) NO PHI SHALL BE DISCLOSED OR EXPOSED TO CES OR ANY OF ITS AFFILIATED COMPANIES BY END USER; AND (C) END USER HAS COMPLIED WITH HIPPA AND HAS ALL APPROPRIATE AUTHORIZATIONS REGARDING USE OF PATIENT INFORMATION TO THE EXTENT EXPOSED THROUGH USE OF ANY PRODUCT OR SERVICE.
END USER IS RESPONSIBLE FOR KNOWING IF PRODUCTS OR SERVICES WHICH IT ORDERS ARE HIPAA COMPLIANT. IF PRODUCTS FALL UNDER HIPAA, THEN IF REQUIRED BY HIPAA, END USER SHALL SIGN AND DELIVER TO CES A BUSINESS ASSOCIATE ADDENDUM IN FORM AND SUBSTANCE SATISFACTORY TO CES.
END USER SHALL INDEMNIFY, AND HOLD HARMLESS CES, ITS AFFILIATES, AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS (EACH, AN "INDEMNIFIED PARTY") FROM AND AGAINST ALL LIABILITIES, LOSSES, COSTS, DAMAGES, CLAIMS AND EXPENSES ARISING OUT OF ANY CLAIMS OR SUITS BROUGHT OR MADE AGAINST ANY INDEMNIFIED PARTY RESULTING FROM OR RELATED TO: (I) ANY BREACH BY END USER OF ANY REPRESENTATION OR OBLIGATION SET FROTH IN THIS SECTION 4 AND (II) ANY FAILURE BY END USER TO COMPLY WITH HIPAA.
- Prices; Taxes, Insurance & Other Charges. Except as provided in this Agreement, the prices charged for Products and Services purchased by End User from or through CES and all other payment terms shall be as set forth on the Website or other quotation or as provided by the applicable invoice relating to such Products and Services. Quoted prices will remain in effect only until the expiration date of the quote or CES's acceptance of End User's Order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors. All prices, Products and Services are subject to change and availability without notice. END USER UNDERSTANDS THAT CES IS A SERVICE PROVIDER ACTING ON BEHALF OF SUPPLIERS, RESELLERS AND/OR END USERS OR FOR THEIR ACCOUNT.
- Prices are exclusive of all Taxes (as hereinafter defined). Purchaser shall pay all applicable taxes, including sales, use, income, personal property, value-added, excise or stamp taxes and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from CES, including penalties and interest, but specifically excluding taxes based upon CES's income (collectively, "Taxes"). Sales tax and other applicable Taxes may be charged by CES, unless a certificate of exemption is on file with CES, however, except as required by law, CES shall have no obligation, responsibility or liability for collection of sale, use, excise, income or other taxes. In the event Taxes are imposed for transactions in a location where Purchaser is not authorized to transact business or authorization has expired or due to other causes, then Purchaser is responsible for all Taxes. If required by Laws, Purchaser shall provide to CES, promptly and without cost, all documentation requested or required by any Governmental Entity from CES in connection with purchases made by Purchaser. CES may suspend delivery of Products and Services to a Purchaser and such Purchaser's use of the Website until such Purchaser has provided such documentation. Promptly upon request by CES, each Purchaser will provide CES with proof of payment of all Taxes.
- Unless otherwise agreed in writing by CES, End User shall pay all freight, insurance and other charges associated with End User's purchase of Products and/or Services. Shipping and handling charges and insurance are not included in the prices for Products or Services unless expressly agreed to by CES at the time of sale.
- Orders Subject to Acceptance; Order Cancellation. Each End User Order is subject to acceptance or cancellation by the applicable Supplier in its discretion. Terms of payment are within each Supplier's and/or CES's discretion, as applicable. Each accepted Order will be interpreted as a single agreement, independent of any other Orders. Orders are subject to availability of Products and Services and are cancellable by a Supplier or CES. All Orders are subject to End User's acceptance of the applicable Supplier's end user license agreements and/or subscription agreements (each, a "EULA"), as applicable, and other related terms, conditions and agreements appearing on such Supplier's website. Orders are not cancellable by End User. IF END USER TERMINATES AN ORDER WHICH IS A SUBSCRIPTION FOR A PRODUCT, END USER MAY BE CHARGED A PENALTY BY SUPPLIER AS SET FORTH ON A SUPPLIER'S WEBSITE AND/OR IN SUPPLIER'S EULA.
- Payment Methods and Terms.
- CES will process payments via credit card in accordance with each applicable Supplier's or Reseller's pricing. CES may also accept payment by check, ACH or wire transfer in advance of the start of a subscription period, if applicable, and on the same day of each and every month thereafter during the term of any subscription, or quarterly, semi-annually or annually as permitted by Supplier, Reseller and CES.
- CES is not responsible for pricing, typographical or other errors on the Website, any Supplier website, or in any offer, and reserves the right to cancel Orders arising from such errors. End User agrees that all prices and related invoices, if applicable, shall be deemed accurate unless End User advises CES in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. If End User advises CES in writing of a material error, payment of any amounts corrected or modified by CES in writing shall be due within ten (10) days of such correction, and all other amounts shall be paid by End User by the invoice due date. If End User withholds payment of any invoiced amounts based on a claim by End User that such amounts are erroneous, and CES subsequently determines that such invoiced amounts are accurate, End User shall pay interest on such amounts at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less, from the due date for such amounts until CES's receipt of such amounts.
- End User agrees to pay a returned check charge to recover bank and handling fees each and every time an End User check is returned for any reason by a financial institution. End User agrees to pay interest on all amounts past-due to CES at the rate 1.5% per month or the maximum rate permitted by law, whichever is less. In addition, CES, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all shipments of or subscriptions to Products, subject to applicable Supplier terms and conditions, and the provision of any or all Services to End User and to refuse additional orders for Products or Services from End User, until CES's receipt of full payment of all past-due amounts. CES shall have no liability to End User for any such suspension, termination or refusal. By placing the Order: (a) End User promises and represents the it has received written authorization and appropriate authority to place the Order, including inputting of credit card and other confidential information into the Website and any Supplier website, and otherwise as necessary to comply with all Payment Card Industry Date Security Standards as then constituted ("PCI Compliant"); (b) End User shall defend, indemnify and hold CES harmless from and against any and all claims, debts, demands, suits, causes of action, damages, losses, liabilities and costs, including but not limited to reasonable attorneys' fees, court costs, and costs of any administrative proceeding of any nature ("Claims") arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to, any failure of End User to be PCI Compliant, or otherwise in violation of any applicable Law with respect to any Order place by End User.
- License Statement. If an Order includes Dragon Medical Direct (or Dragon Medical One, when rebranded), PowerMic Mobile or another Nuance hosted service, End User is acquiring the number of single-user Subscription Licenses to those Hosted Services that are indicated in the Order. Each Subscription License is a commitment to pay for the Hosted Services identified in the Order for the full duration of the Subscription Term which is 36 months unless a different Subscription Term is stated on this Order. This Order is not cancellable during the Subscription Term except for breach as described in the Hosted Services Subscription Agreement. By executing this Order for Dragon Medical Direct and/or related services or other Nuance Hosted Services, the End User acknowledges End User has read and agrees to be bound by the terms of the Nuance Healthcare Hosted Services Subscription Agreement that is attached to the Order or that is incorporated in the Order by reference to the copy available to the End User at the following URL: https://www.dictation.cloud/NuanceMedicalEULA. If End User is unable to access a copy of the Subscription Agreement at this URL, please contact CES or Reseller for assistance. End User agrees to take immediate delivery of the Hosted Services identified in the Order and to promptly schedule and accept delivery of the End User Training Package or other professional services or training services on the Order. End User acknowledges that Nuance is a third party beneficiary of this Order and has the right to enforce End User's payment obligations under this Order. If authorized by Nuance and the Distributor(s) identified in the exhibits to this Agreement or CES, Reseller may assign this Order and/or Reseller's right to payment under this Order to Nuance, such Distributor or CES or another Nuance authorized Reseller or distributor. End User agrees that if Nuance notifies End User that this Order has been assigned to Nuance or a Reseller selected by Nuance and the Distributor(s) identified in the exhibits to this Agreement, End User will make payments to Nuance or to the party to whom Nuance directs such payments be made. End User agrees that if the Distributor(s) identified in the exhibits to this Agreement or CES notify End User that this Order has been assigned to another party, End User will make payments to that party as directed. Any such assignment will not affect End User's Hosted Services Subscription Agreement with Nuance.
If shipping and delivery dates, or dates of commencement of the availability of a Product for use by End User are provided, such dates are estimates only. Deliveries and/or commencement of the availability for use of all Products, and commencement of provision of any Services, will be made within commercially reasonable time, unless a specific delivery time cannot be provided or has not been determined by Supplier or, if applicable, CES. All shipments are F.O.B. CES's shipping point, unless otherwise agreed in writing by CES. End User bears all risk of loss from and after delivery of the Products by CES to the carrier or delivery service. End User assumes all risk of loss in shipping and all liability for loss or damage, whether direct, indirect, consequential or otherwise, or due to delays once the products have been delivered to the carrier. End User shall pay for any and all insurance necessary to protect End User against any loss in shipping. CES shall not be responsible for loss, damage, delay or failure with respect to the Products due to or arising from shortage of raw materials, fires, labor troubles of any kind, accidents, breakdown of machinery, government acts of any kind, failure of manufacturers, subcontractors or suppliers to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, acts of God, acts of End User or anything reasonably beyond Seller's control, whether or not presently occurring or contemplated by either party. CES shall not be liable for damages, general, consequential or otherwise, or for failure to give notice of any delay. CES shall have the right to deliver Products in installments.
- Except as provided in this Section 10, End User's commencement of use of Products or Services shall be deemed acceptance of the Products or Services by End User.
- All claims for defective Products or Services, for revocation of acceptances, for shortages, for delays or failures in shipment or delivery, or for any other cause shall be deemed waived and released by the End User unless made in writing within seven (7) days after commencement of use of the Products or Services in question. All claims must state specifically and in reasonable detail the bases for the claims and must be supplemented by such additional information as CES may request pertaining to the Products or Services in issue, as applicable, and the basis for the claims. All Products and Services as to which End User has not made a timely claim as provided above shall be paid for by the End User within the time required under the applicable payment terms reference in Section 5 above.
- As a condition to making a claim for missing or damaged Products, End User is responsible for initiating and pursuing claims against UPS, FedEx or such other shipping company(ies) as applicable for items claimed not received and/or damaged.
- In addition to the foregoing, all Claims relating to Products or Services and resolution thereof are governed by the EULA, which in the event of conflict with the provisions of this Agreement, shall be controlling.
- Compliance with CES and Supplier Policies. End User has agreed to comply with all policies promulgated by CES and its Suppliers. If End User fails to do so, then in addition to any other rights and remedies which CES may have under this Agreement or applicable Law, and without prejudice to any rights or remedies of any Supplier, CES reserves the right and option to end the End User's relationship with CES, terminate End User's access to the Website and all training and support, as necessary and applicable, in CES's sole discretion.
- Incorporation of End User Terms and Conditions.
For the avoidance of doubt, all terms and conditions of a Supplier relating to prices for Products and Services purchased by or through CES, Taxes, delivery, freight, insurance and other charges, payment methods and terms, Claims, returned or rejected Products and advance returns, service agreements, agreement or subscription terminations, and all other matters set forth in a Supplier's terms and conditions, shall be adhered to by End User. To the extent such terms and conditions provide rights and remedies to a Supplier, such rights and remedies shall be available to CES, unless prohibited by applicable Laws.
- Limitation of Liability.
CES's liability shall be limited to replacement, substitution or repair of defective Products or Services, and only to the extent such replacement, substitution or repair is commercially reasonable and practicable, upon receipt of written notice within seven (7) days after commencement of use of the Products or Services in question.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL CES OR ANY CES INDEMNIFIED PARTY BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF CES OR A CES INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR TRANSPORTATION, INSTALLATION, REMOVAL, ADJUSTMENT OR OTHER EXPENSES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM CES, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, CES OR A CES INDEMNIFIED PARTY IS FOUND TO BE LIABLE TO SUBSCRIBER FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM OR THROUGH CES, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, FAILURE OF ACCESS, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, CES'S LIABILITY SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE-HALF OF THE COSTS OF THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE LIABILITY (AS OPPOSED TO THE COST OF ALL PRODUCTS AND/OR SERVICES PURCHASED BY SUBSCRIBER FROM OR THROUGH CES) OR $1,000.00, WHICHEVER IS LESS.
- Additional Limitations.
IN NO EVENT SHALL CES HAVE ANY LIABILITY OR RESPONSIBILITY OF ANY TYPE WITH RESPECT TO ANY CLAIM WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM OR THROUGH CES, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, UNLESS SUCH CLAIM IS MADE BY RESELLER WITHIN FOURTEEN DAYS AFTER THE EARLIER OF THE DATE OF RESELLER'S RECEIPT OF THE PRODUCT OR SERVICE OR THE DATE OF THE END USER'S PLACEMENT OF THE ORDER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, AS THE CASE MAY BE, TIME BEING OF THE ESSENCE. ANY AND ALL CLAIMS NOT MADE WITHIN SUCH FOURTEEN (14) DAY PERIOD SHALL BE TIME BARRED, WAIVED AND RELEASED FOREVER.
- Limitation on Warranties. All Products and Services sold by or through CES carry only the warranty(ies), if any, of the manufacturer(s) or providers of such Products and Services. CES MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. CES EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES SOLD TO SUBSCRIBER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, or representative of CES is authorized to bind CES to any affirmation, contract, representation or warranty, oral or written, unless by separate written instrument written and signed by a CES Authorized Representative which by its terms states that it modifies this Agreement.
- Service Agreements.
Payment for all Orders and any other technical support and service agreements to be fulfilled by CES may be required in advance, in CES's sole discretion, and cannot be cancelled without 30 days advance written notice.
- Website Use.
- End User shall create a user identification ("User I.D.") and a password ("Password") when completing End User's registration on the Website, or by such other procedure adopted by CES from time to time. End User's choice and establishment of a User I.D. and Password is a precondition to use of the Website. Protected areas of the Website cannot be accessed and used without a User I.D. and Password. The Website includes mechanisms which permit End User to change End User's User I.D. and Password.
- End User is entirely responsible for maintaining the confidentiality of End User's User I.D. and Password. End User is and shall be fully responsible for all activities occurring under End User's User I.D. and Password. End User shall notify CES immediately if End User suspects, detects or receives notice of any unauthorized use of End User's User I.D and Password or any other breach of security with reference to End User's use of the Website. In such event, End User is obligated to change End User's User I.D. and Password immediately pending resolution of the unauthorized use or security breach. End User may not use any other Person's User I.D. or Password at any time. End User may be held liable for losses incurred by CES or any other Person arising from any Person other than End User using End User's User I.D. or Password as a result of End User failing to keep that information secure and confidential. CES cannot and will not be liable for any damage or loss arising from End User's failure to meet its obligations under this Paragraph 17(b), or arising from unauthorized use of End User's User I.D. or Password, except in the case of gross negligence or intentional misconduct by CES. Similarly, CES shall not be responsible for unauthorized use of any End User's credit card, debit card or other account information (including, but not limited to, End User's name, billing address, credit card or debit card number, related security code number, and Credit Card or Debit Card expiration date) by any Person unless such information was disclosed by CES to such other Person through CES's gross negligence or willful misconduct.
- End User shall provide all information and execute all documents which CES may reasonably require for proper use of the Website by End User. End User represents and agrees that all information and documentation which End User provides is true, accurate, current and complete. End User shall update and maintain all information and documentation so that it is true, accurate, current and complete at all times during End User's use of the Website. End User shall notify CES promptly of any and all inaccuracies in or changes to such information and documentation. CES shall in no event be liable for any claims, damages or liabilities of any kind which result, directly or indirectly, from End User's failure to provide CES with true, accurate, current and complete information and documentation, and shall indemnify and hold CES harmless from and against any and all damages, losses, costs and expenses arising therefrom.
- End User may not use the Website for any illegal purpose or otherwise in violation of applicable Laws, or in any manner inconsistent with this Agreement.
- End User shall comply with this Agreement and all applicable CES policies and limits concerning use of the Website, as updated by CES from time to time, including without limitation: (i) CES's requirements for data security; and (ii) any operating rules and/or policies.
- CES has the right, in CES's sole discretion: (i) to change, suspend or discontinue the Website; and (ii) to impose limits on certain features or restrict access to parts or all of the Website, without notice and without liability, whenever deemed necessary by CES to protect the integrity of the Website or for any other reason. CES reserves the right to modify the features and functionality of the Website, at any time and from time to time, without notice; provided, however, that CES will not modify the Website in a manner that would, as determined by CES in its sole discretion, materially adversely affect the use of the Website, without providing prior notice to End User of any such modification (except in case of emergency).
CES DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT SUBSCRIBER'S USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. CES MAKES NO WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE INTERNET OR ANY PORTION THEREOF (INCLUDING, BUT NOT LIMITED TO, THE "WORLD WIDE WEB") OR ANY TELEPHONE SERVICE OR THAT ANY SERVICES ESTABLISHED THEREON WILL BE UNINTERRUPTED OR ERROR-FREE. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. CES CANNOT ENSURE THAT ANY FILES OR OTHER DATA SUBSCRIBER IS PERMITTED TO DOWNLOAD FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. CES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CES DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY OTHER PERSON IN CONNECTION WITH OR RELATED TO SUBSCRIBER'S USE OF THE WEBSITE AND/OR ANY OTHER CES SERVICES. SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE WEBSITE AND ANY LINKED SITES. SUBSCRIBER'S SOLE REMEDY AGAINST CES FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THIS LIMITATION OF RELIEF IS A PART OF THE AGREEMENT BETWEEN THE PARTIES, WITHOUT WHICH, CES WOULD NOT PERMIT USE OF THE WEBSITE.
THE ABOVE DISCLAIMERS APPLY TO ALL DAMAGES, LIABILITY OR INJURIES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE, WHETHER BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
THE WEBSITE OR THIRD PARTIES MAY PROVIDE LINKS TO OTHER INTERNET RESOURSES, INCLUDING BUT NOT LIMITED TO WORLD WIDE WEBSITES OTHER THAN THE WEBSITE. CES HAS NO CONTROL OVER SUCH WEBSITES AND RESOURCES. CES IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEBSITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES. CES SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
- Intellectual Property.
- CES and/or its licensors and Suppliers own and shall retain all proprietary rights in and to the Website and all derivations and enhancements thereof, and all applications, software, documentation, content, and other materials that CES may use or provide in connection with implementation and operation of the Website and in the provision of Products or Services. The Website and all site design, including, but not limited to, software, processes, text, content, photographs, video, audio, interfaces, graphics, trademarks, logos, sounds, music, artwork, and computer code and the selection and the arrangement thereof (collectively, "Content"), including, but not limited to, the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website and/or used in connection with the function of the Website and all articles of information, policies and other elements making up the Website are owned, controlled or licensed by or to CES or its Suppliers and are protected by patents, copyrights, trademarks, service marks, international treaties and/or other proprietary rights and Laws of the United States and other countries. The Knowledge Base is owned by CES and affiliated Persons and is "Content" as defined and protected above.
- End User does not acquire any right, title, or interest in the Website or any Product or Service, except for the limited right to use the Website strictly in accordance with the provisions of this Agreement. End User shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Website. Except as expressly provided in this Agreement, no part of the Website or any Product or Service may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without CES's express prior written consent. CES reserves all rights of CES and its Suppliers to their respective intellectual property, including all intellectual property rights in the Website and materials on the Website, Products and Services.
- End User may view, download for caching purposes only, or print pages from the Website, solely for use by End User in placing Orders and using the Products and Services in accordance with this Agreement and CES's and its Suppliers policies, and for no other purpose, and subject to the restrictions below and elsewhere in this Agreement. End User shall not: (i) republish any material from the Website; (ii) sell, rent, or sub-license material from the Website; (iii) show any material from the Website in public; (iv) reproduce, duplicate, copy, or otherwise exploit material on the Website for a commercial purpose; (v) edit or otherwise modify any material on the Website; (vi) disseminate or redistribute material from the Website; or (vii) use any material from the Website in competition with CES or for any other purpose except as set forth above. As an accommodation to End User in the course of business, CES may provide End User access to CES's or CES's licensor's copyrighted works, trademarks, inventions, and trade secrets, and like information and other intellectual property, portions of which may be patented. End User's access to any and all of the foregoing is solely for use by End User of the Website, Products and Services in accordance with this Agreement and for no other purpose. Upon default or breach by End User of this Agreement or any other agreement between End User and CES or End User and any Supplier, cessation of business transactions between CES and End User or any Supplier, or CES or any Supplier providing written notice of revocation of use for any reason and at any time, upon demand by CES, End User shall immediately cease and desist use of any intellectual property provided by CES for use by End User, including that property referenced above, and returning all documents and media of any and every nature containing or representing CES's intellectual property. End User agrees to and shall comply with such demand. In no event shall End User use any of the aforementioned information in competition with CES or for any other purpose except placing orders with CES and to provide support to End User's customers.
- Export Laws. End User agrees to comply with all applicable export laws, assurances, codes and license requirements, and controls of the United States and other applicable jurisdictions in connection with the use and resale of Products including, but not limited to, End User's acceptance of responsibility for the payment of any relevant taxes or duties.
- Anti-Money Laundering. CES is firmly committed to avoid involvement with money laundering, to comply fully with all applicable anti-money laundering and currency reporting and record keeping requirements and to taking affirmative steps to prevent, detect and report to appropriate authorities suspected violations. CES will request information from its customers to sufficiently determine that distributor to be legitimate, trustworthy and creditworthy.
- Indemnification. End User shall defend, indemnify and hold harmless CES, CES's parents, subsidiaries and affiliates, all CES Suppliers, and the respective shareholders, directors, officers, members, employees, agents and other representatives of CES, CES's parents, subsidiaries and affiliates and all CES Suppliers (collectively, "CES Indemnified Parties") from and against any and all Claims arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to: (a) disputes between End User and any reseller, Supplier, or manufacturer of any Products purchased by End User from or through CES; (b) End User's use of the Website; (c) any breach of or non-compliance by End User with this Agreement or End User's obligations under any other agreement with CES; (d) End User's violation of any Law or rights of any Person; or (e) the actions or inactions of End User in connection with this Agreement and/or the Products and/or Services to be provided by or through CES. This indemnification obligation shall survive termination, cancellation or completion of this Agreement.
- Marketing Communications. End User shall not use CES's name, trademark or service mark, or the names, trademarks or service marks of any brands owned by CES, or the existence of the contractual relationship between the Parties in any press release, marketing, promotional, advertising or any other materials without CES's prior written consent, which may be granted or withheld in CES's sole discretion.
- End User Representations and Warranties. End User represents and warrants that: (i) this Agreement constitutes the legal, valid, and binding obligation of End User, enforceable against End User in accordance with its terms; (ii) End User has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to perform End User's obligations under this Agreement; (iii) End User has obtained any and all required consents necessary to enter into and perform this Agreement; (iv) End User's entry into to this Agreement and use of the Website does not violate any Laws or any agreement to which End User or its parents, subsidiaries or affiliates are subject or by which any of them are bound; and (v) End User shall comply with all applicable Laws in connection with End User's use of the Website.
- Modification; Amendment or Waiver. This Agreement may not be changed, amended, supplemented, or otherwise altered by End User except by a statement in writing signed by a CES Authorized Representative. No Person is authorized to execute or make any agreements binding on CES except a CES Authorized Representative. CES shall have the right, in its sole discretion, to change, modify, or amend any of terms and conditions contained in this Agreement at any time by posting notification on the Website or otherwise communicating the notification to End User. The changes will become effective thirty (30) days after such posting or delivery of such other communication, as applicable; provided, however, End User may terminate all pending orders and this Agreement with CES upon written notice to CES delivered prior to the end of such thirty (30) day period.
- Entire Agreement. The New Account Form, this Agreement and any Orders contains the entire understanding and agreement between the Parties with respect to its subject matter, superseding all prior or contemporaneous representations, understandings, and any other oral or written agreements between the Parties with respect to such subject matter.
- Notices. Except as otherwise provided in this Agreement, any notice, request, demand or any communication to be given to either Party hereunder, except those required to be delivered at Closing, shall be in writing and shall be hand delivered, sent by overnight courier or by registered or certified mail, return receipt requested, or via confirmed facsimile or confirmed e-mail, or by other electronic means capable of verification, addressed to such Party at their addressees set forth. (i) for CES, on the Website and (ii) for End User, in the registration information supplied by End User on the Website. Any Party may change its address for such communications by giving an appropriate notice to the other Party as provided in this Paragraph 22(e).
- Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. CES is permitted to assign this Agreement and its rights and obligations hereunder. Neither this Agreement nor any right, license, privilege or obligation provided herein may be assigned or transferred by End User without CES's prior written consent; any such attempted assignment or transfer without such consent shall be void.
- Governing Law; Consent to Jurisdiction. This Agreement shall be construed, performed and enforced in accordance with the internal laws of the State of Florida, County of Lee. Each Party to this Agreement hereby irrevocably and unconditionally consents to submit to the jurisdiction of the United States District Court for the District of Florida or the Superior Court of Florida, Lee County, Florida for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and each Party agrees not to commence any action, suit or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document in accordance with the Notice provisions herein shall be effective service of process for any action, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives to the fullest extent permitted by applicable Laws (i) any and all rights to trial by jury and (ii) any objections such Party may now or hereafter have to the laying of venue or convenience of a forum designated by this paragraph.
- Headings. The Section and Paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement.
- No Third Party Beneficiaries. Except as otherwise specifically set forth herein, nothing in this Agreement will be construed as giving any Person, other than the Parties and their successors and permitted assigns, any right, remedy or claim under, or in respect of, this Agreement or any provision hereof.
- Interpretation. Except as otherwise provided or if the context otherwise requires, whenever used in this Agreement: (a) any noun or pronoun shall be deemed to include the plural and the singular; (b) the terms "include" and "including" shall be deemed to be followed by the phrase "without limitation"; (c) the word "or" shall be inclusive and not exclusive; (d) unless the context otherwise requires, all references to Sections and Paragraphs refer to Sections and Paragraphs of this Agreement, all references to particular Exhibits, Schedules or links refer to the Exhibits, Schedules and links attached to or imbedded in this Agreement; (e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement this Agreement as a whole and not to any particular Section, Paragraph or other subdivision; (f) any definition of or reference to any law, agreement, instrument or other document herein will be construed as referring to such law, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified; and (g) any definition of or reference to any statute will be construed as referring also to any rules and regulations promulgated thereunder.
- No Waiver. The waiver by either Party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other right hereunder or of any other breach or failure, whether of a similar nature or otherwise.
- Clerical Errors. Typographical and clerical errors and omissions in CES invoices are subject to correction.
- Survival. All provisions of this Agreement (i) necessary to achieve the fundamental purposes of this Agreement, (ii) relating to privacy and data gathering and use, (iii) authorizing and/or requiring payment to CES and/or the recovery of returns, reversals, refunds, chargebacks or other adjustments of payments and (iv) containing indemnifications, disclaimers, liability limitations and other limitations and provisions affording protection to CES and CES Indemnified Parties, shall survive the for the expiration or sooner termination of this Agreement without limitation.
By entering into this Agreement, End User is agreeing to conduct transactions by electronic means.