IF ANY DISCUSSION YOU HAVE HAD WITH A REPRESENTATIVE OR ADVISOR PRIOR TO REVIEWING THIS AGREEMENT DIFFERS FROM THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS DOCUMENT.
Business Credit Agreement
THIS AGREEMENT is entered into, by and between Clear Financial Concepts (“Advisor”) and Business Credit Consulting Client (“Client”) upon the following terms and conditions:
WHEREAS, Client desires to obtain Advisor’s consulting services in conjunction with a business the Client has an interest in.
WHEREAS, Advisor and Client have agreed to enter into this Business Credit Agreement.
NOW THEREFORE, in consideration of the terms and conditions set forth below and other good and valuable consideration, the receipt of which and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. ADVISEMENT SERVICES AND LIMITATIONS
1. Engagement. Client hereby hires Advisor and/or its affiliates to provide the advisement services as set forth in this Agreement. For purposes of this Agreement, the word “affiliate” shall mean any subsidiary, contractual partner or other assignee of Advisor.
2. Services Provided. Advisor agrees to consult Client in Client’s desire to establish business credit for a business the Client has an interest in (the “Client’s Business”). In conducting business credit consulting with Client, Advisor may advise Client on how to complete any one or more of several tasks (“Client Tasks”). Client Tasks shall be any one or more of the following:
(i) Performing a corporate compliance and documentation review of Client and Client’s Business. The scope and purpose of the corporate compliance and documentation review is to help prepare the Client to apply for business credit and attempt to maximize the possibility of success in obtaining business credit and for no other legal or business purpose;
(ii) Establishing a Dun & Bradstreet file and establish a Dun & Bradstreet rating;
(iii) Building a Dun & Bradstreet PAYDEX score;
(iv) Establishing a business credit file with Experian’s corporate department;
(v) Obtaining an Experian Intelliscore number;
(vi) Creating a business credit file with Equifax’s business department;
(vii) Providing Client with a non-comprehensive list of trade accounts that may or may not report to business credit bureaus, including Dun & Bradstreet, Experian’s corporate department and Equifax’s business department;
(viii) Creating a Business Credit AssetTM that can be used for business financing opportunities; or
(ix) Obtaining access to a dedicated funding advisor that is provided by Advisor and/or its affiliates and/or assigns for a five (5) year period beginning as of the date of this Agreement between Advisor and Client.
3. Limitation of Scope of Advisory Services and Modification of this Agreement. The consulting services to be provided by Advisor for Client under this Agreement are limited to any one or more of the Client Tasks identified above in Paragraph 2. Any additional or other services to be performed by Advisor or tasks to be consulted on with Client shall be determined by a separate written agreement only. Any modifications to this Agreement shall not be effective unless they are executed in writing by both a duly authorized representative of Advisor and the Client.
4. Authority and Client Credit Reports. Client authorizes, instructs and empowers Advisor to take all steps in said matter deemed by Advisor to be prudent or necessary in performing the consulting services contemplated under this Agreement. In addition, Client authorizes Advisor to obtain a copy of Client’s credit report for purposes of performing the services outlined in this Agreement and hereby waives any necessary rights Client may have pursuant to the Fair Credit Reporting Act (15 U.S.C. §§ 1681- 1681u), as well as all other Federal/State and local laws and regulations, so as to allow Advisor to obtain the Client’s credit report.
II. ADVISOR COMPENSATION
1. Fees. The Client agrees to pay a fee (the “Fee”) to Advisor for the services provided by Advisor. Client shall pay the Fee pursuant to the financing terms Client just previously accepted prior to reviewing the terms and conditions of this Agreement. The Fee paid by Client shall be non-refundable.
2. Additional Costs. Client may be required to incur additional costs and spend additional monies beyond the Fee described above, including, but not limited to:
(i) Dun & Bradstreet set up costs;
(ii) Trade account set up costs;
(iii) Trade account vendor product purchase costs;
(iv) Various State and Federal filing costs;
(v) Various business license costs;
(vi) Business phone set up or other phone-related costs;
(vii) Personal and/or business credit report costs;
(viii) Bank fees and costs associated with financing, such as, but not limited to closing costs, application fees, or broker fees.
(ix) Other fees and/or costs that are customary to the general practice of business.
III. PARTY RESPONSIBILITIES
1. Client Responsibilities. Client agrees to accept the following responsibilities:
(i) To cooperate thoroughly with Advisor in the handling of all matters contemplated under this Agreement and to do all that is necessary to provide all information Advisor requests from Client;
(ii) To make timely payments on all of Client’s business and personal bills/accounts including but not limited to lines of credit, credit cards, revolving accounts and loans.
(iii) To not apply for any type of personal or business credit without giving at least five (5) days prior notice to Advisor. (iv) Client may be given the opportunity to apply for business credit; some vendors may or may not ask for social security number. Client has the option to apply with them or skip them. Skipping vendors will limit the lenders available to client. ALL cash lenders will REQUIRE the social security of the client to be disclosed, even the lending options that do not require a personal guarantee.
In the event Client fails to fulfill these client responsibilities or breaches this agreement in any way (including failure to make timely Monthly Payments or an Immediate Payment), Advisor shall be entitled to immediately withdraw from any further representation of Client with respect to this matter and may proceed to collect the full Fee owed to Advisor under this Agreement.
2. Advisor Responsibilities. Advisor agrees that it will handle Client’s business hereunder in a strictly professional and ethical manner, utilizing its best efforts and skill on behalf of the Client; Advisor has made no guarantee that client will obtain a particular business credit score or guarantee regarding a specific cash dollar amount of credit a client will obtain. All expressions made by Advisosr relataive to the matters discussed in this Paragraph previous or following the execution of this Agreement by the Client and Advisor are the Advisor’s sincere opinion only. However, if the client has not been extended at least $50,000 in TOTAL credit (any combination of vendor credit, trade credit, equipment lease, vehicle lease, loans, lines of credit, credit cards, real estate pre-approvals, etc.), Client may elect at any time to receive an additional twelve (12) months of advising from the Advisor regarding the Client Tasks referenced in Paragraph 2 above.
Advisor shall not be required to continue to pursue any matter required by this Agreement if at any time during the performance of this Agreement the facts and circumstances which develop or become known to Advisor shall give Advisor, in its sole opinion and discretion, cause to believe that further pursuit of such claim would be futile and/or would result in an unjustified expense of time and resources of either the Advisor or Client.
Although Advisor makes reasonable efforts to ensure that each client receives the maximum amount of business credit funding possible, Advisor does not have control over the amount that a client may obtain. Advisor does not make any guarantee regarding the amount of CASH credit received, the amount of time it takes to receive the business credit or the interest rate(s) on the lines of business credit. It is possible that a client will receive less than desired. Historical outcomes are not a guarantee of future results. Advisor does not take responsibility for either the amount of funds a client may receive or for the use of the funds a client may receive. Pursuant to Section II.1 of this Agreement above, all monies paid by Client to Advisor for Advisor’s consulting services are final, regardless of the outcome and in light of the other statements disclosed by Advisor to Client in this paragraph.
Advisor assumes no liability or responsibility for any errors, omissions or any other acts from 3rd party referrals that Advisor may have recommended.
IV. VENUE, CHOICE OF LAW, AND ARBITRATION
1. Venue. The venue for any litigation regarding this agreement shall be in Clark County, Nevada.
2. Choice of Law. This Agreement, including any arbitration proceedings that may take place between the parties to this Agreement, shall be construed consistent with the laws of the State of Nevada.
3. Arbitration. If there is a dispute between you and Advisor, either party may elect to have it resolved by binding arbitration administered by the National Arbitration Forum, or the American Arbitration Association (the Forum or Association also being chosen by the party who elects to arbitrate the dispute between the parties), under their rules for consumer arbitrations. An election by either party for such relief as stated in the preceding sentence shall preclude the other party from filing any other type of legal action until such time as the relief sought by the electing party has been exhausted or terminated. All disputes in arbitration will be handled just between the named parties, and not on any representative or class basis. YOU ACKNOWLEDGE THAT THIS MEANS THAT YOU MAY NOT HAVE ACCESS TO A COURT OR JURY. The terms of this Section shall survive any termination, cancellation, or expiration of this Agreement.
The materials provided by Advisor to Client are proprietary and protected by copyright. Any distribution by Client to any third-party, in any manner and by any means, whether directly or indirectly, without the express written permission of Advisor is strictly prohibited. Advisor reserves the right to prosecute Client for any and all damages Advisor suffers because of Client’s unauthorized use of copyrighted and/or proprietary materials.
Client hereby indemnifies Advisor as outlined below:
(i) Advisor shall not be held responsible for any action performed by third parties, including any of Advisor’s affiliates, vendors, or assignees, which cause or bring about a detrimental result to Client’s business credit bureau file and/or credit development activities;
(ii) Advisor may recommend third-party providers, however such recommendation is not a guarantee of service or product, and the Client and such 3rd party vendor are responsible for the outcome;
(iii) Advisor is not responsible and cannot control the reporting and updating of the Clients business credit bureau file;
(iv) Advisor shall make every effort to protect any confidential information provided during the coaching program. The Client agrees that Advisor shall not liable for any misuse of such confidential material whatsoever.
VII. MISCELLANEOUS PROVISIONS
1. Entire Agreement. This Agreement sets forth the entire agreement between the parties hereto relating to the transaction reflected herein and supersedes all prior agreements and understandings of the parties in connection therewith.
2. Headings. The Article headings of this Agreement are for convenience of reference only and do not form a part of this Agreement and do not in any way limit, modify, interpret or construe the provisions of this Agreement.
3. Assignment. The rights, duties and obligations of Advisor may be freely assigned to a third party without Advisor providing any future notice to Client. Client may not assign any rights under this Agreement without obtaining the prior express written consent of the Advisor.
4. Binding Effect. This Agreement and any modification, amendment or waiver shall be binding upon each of the parties hereto and their representatives, heirs, successors and permitted assigns.
5. No Waiver of Remedies. No failure on the part of any party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof. No waiver of any breach by any party of the terms and conditions hereof shall operate as a waiver of any other and further breach of any of the terms and conditions hereof. The remedies provided by law.
6. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and which together shall constitute one Agreement.
8. Construction. This Agreement has been reviewed by counsel to all parties hereto and shall be deemed prepared by both counsel. Any ambiguities shall not be deemed to construe against either party hereto.
9. Terminology. All personal pronouns used in the Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.
IF ANY DISCUSSION YOU HAVE HAD WITH A REPRESENTATIVE OR ADVISOR PRIOR TO REVIEWING THIS AGREEMENT DIFFERS FROM THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS DOCUMENT.
Software License Agreement
This license agreement (the “Agreement”) is a legal agreement between you (“Licensee”, “you”, “your”), and. (“we”, “our” or “us”). You must accept the terms of this Agreement before accessing or otherwise using the Software or any of the services that may be provided under this Agreement (“Services”). To access and use the Software and Services, Licensee must have access to the Internet.
If you do not agree to the terms of the Agreement, you are not granted any rights whatsoever in the Software. If you are not willing to be bound by these terms and conditions, you should not click on the “I ACCEPT” button, and may not access or otherwise use the Software or Services.
1. LICENSE GRANT AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, including the payment of any applicable subscription fees, you are granted a personal, limited, non-exclusive, non-transferable license to electronically access and use the Software solely to manage your business credit building data.
In addition to the Online Software Business Credit Building Solutions, the term “Software” includes any other programs, tools, internet-based services, components and any “updates” (for example, Software maintenance, service information, help content, bug fixes, or maintenance releases etc.) of the Software that is provided or made available to you. You are entitled to download updates to the Software that are generally made available to other users of the Software. Certain Software may be accompanied by, and will be subject to, additional terms.
You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following:
(i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the material from the Online site;
(ii) permit any third party to benefit from the use or functionality of the Software or Services via a rental, lease, timesharing, service bureau, or other arrangement;
(iii) transfer any of the rights granted to you under this Agreement;
(iv) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law;
(v) perform or attempt to perform any actions that would interfere with the proper working of the Software or Services, prevent access to or the use of the Software or Services by other licensees or customers, or impose an unreasonable or disproportionately large load on our infrastructure; or
(vi) otherwise use the Software except as expressly allowed under this Section
2. RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed not sold, and we reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. We and our licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of the Software.
3. REGISTRATION DATA. You must register to use the Software and Services and (i) provide true, accurate, current and complete information as prompted by the interview sign-up process (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it accurate, current and complete. If you provide any Registration Data that is inaccurate, not current or incomplete, or we have reasonable grounds to suspect is inaccurate, not current or incomplete, We may, in our sole discretion, suspend or terminate your account and refuse any and all current or future access to and use of the Software or Services (or any portion thereof).
4. LICENSEE ACCESS INFORMATION AND DATA. You are solely responsible for
(i) maintaining the confidentiality and security of your access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you to access the Software, and (collectively, “Licensee Access Information”), and
(ii) preventing unauthorized access to or use of the information, files or data that you store or use in or with the Software and Services (collectively, “Account Data”). You are responsible for providing access and assigning passwords to other users under your account for the Software and Services, and ensuring that such authorized users comply with this Agreement. You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. We assume that any Communications it receives through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify us if Licensee becomes aware of any loss, theft or unauthorized use of any Licensee Access Information. We reserve the right to deny you access to the Software or Services (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform us of, and hereby grants to us permission to use, Licensee Access Information to enable us to provide the Services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future. You also grant us permission to combine your Account Data with that of others in a way that does not identify you or any individual personally, to improve services and to compare spending practices with others with similar spending habits.
5. FINANCIAL INSTITUTION SERVICES.
5.1 General. In connection with your use of the Software and as part of the functionality of the Software, you may have access to certain online services that may be made available by financial institutions (“FI Services”), including business loans, credit cards, and vendor credit lines. The Software is designed to allow you to access FI Services to share information. You acknowledge and agree that we have no control over the provision of FI Services or provision of access to the FI Services by the financial institutions, does not guarantee that you will be able to use the Software with the FI Services, and will have no liability whatsoever for any actions or inactions on the part of the financial institutions resulting in your inability to use the Software.
5.2 Collection of Financial Institution Information. You acknowledge that in accessing the FI Services through the Software. You authorize us, in conjunction with our operation and hosting of the Software, to use certain FI Data to
(i) collect your FI Data,
(ii) reformat and manipulate such FI Data,
(iii) create and provide hypertext links to financial institutions,
(iv) access the financial institutions’ websites using your FI Data, and
(v) take such other actions as are reasonably necessary to perform the actions described in
(iv)You further acknowledge that we do not review your FI Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any financial institution’s website are not made through the Software and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your financial institutions.
5.3 Information from Financial Institutions’ Websites. You acknowledge and agree that
(i) some financial institutions may not allow the Software to access the FI Services, (ii) financial institutions may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (iii) the Software “refreshes” the FI Data by collecting the FI Data, so your most recent information may not be reflected in the Software.
6. SOFTWARE USE, STORAGE AND ACCESS. We shall have the right, in our sole discretion and with reasonable notice posted on the Online site and/or sent to your email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently, including but not limited to (i) the amount of storage space you have on the Software at any time, and (ii) the number of times (and the maximum duration for which) you may access the Software in a given period of time. We reserve the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Software and Services to which such changes relate. Your continued use of the Software or Services will constitute Licensee’s acceptance of and agreement to such changes. We may, from time to time, perform maintenance upon the Software or Services resulting in interrupted service, delays or errors in the Software or Services. We will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.
7. THIRD PARTY SERVICES. In connection with your use of the Software, you may be made aware of services, products, offers and promotions provided by third parties, and not by us (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You agree that the third party, and not us, is responsible for the performance of the Third Party Services.
8. THIRD PARTY WEBSITES. The Software may contain or reference links to websites operated by third parties (“Third Party Websites”). These links are provided as a convenience only. Such Third Party Websites are not under the control of us. We are not responsible for the content of any Third Party Website or any link contained in a Third Party Website. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link in the Software or Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by us of any information contained in any Third Party Website. In no event will we be responsible for the information contained in such Third Party Website or for your use of or inability to use such website. Access to any Third Party Website is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain terms and privacy policies that are different from those of ours. We are not responsible for such provisions, and expressly disclaims any liability for them.
9. FEEDBACK. We may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its online products and services (“Feedback”). You agree that we may, in our sole discretion, use the Feedback you provide to us in any way, including in future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant us a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, modify, create derivative works from, distribute and display any information you provide to us in the Feedback.
10. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SOFTWARE OR SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS, OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS. WE ATTEMPT TO ENSURE THAT THE DATA STORED ON OUR SERVERS IS SAFE AND SECURE BY EMPLOYING REASONABLE, INDUSTRY-RECOGNIZED SECURITY AND VIRUS SAFEGUARDS, AND CONDUCTING ROUTINE SYSTEM MAINTENANCE AND MONITORING. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT WE AND OUR SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. WE EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS.
11. LIMITATION OF LIABILITY AND DAMAGES. THE ENTIRE CUMULATIVE OF OUR LIABILITY AND OUR SUPPLIERS FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICES, AS APPLICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE, OUR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR RECEIPT OF OR PARTICIPATION IN ANY THIRD PARTY SERVICES, THIRD PARTY WEBSITES, OR FI SERVICES. IN NO EVENT DO WE ASSUME ANY LIABILITY TO ANY PARTY OTHER THAN YOU ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE OR THE SERVICES WITHOUT SUCH LIMITATIONS.
12. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY (“CONSENT”).
(a) Consent to Electronic Communications. We may be required by law to send “Communications” to you that may pertain to the Software, the use of information you may submit to us, and the services you choose. Additionally, certain of the Third Party Services you choose may require Communications with the third parties who administer these programs. You agree that we and others who administer such services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting them at one or more of our sponsored websites. You consent to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Software and the Online Services and Third Party Services.
(b) Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Software for as long as you remain a subscriber to the Software.
(c) Hardware and Software Requirements. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an e-mail address. By selecting the “I accept” button, you are confirming to us that you have the means to access, and to print or download, Communications. We do not provide ISP services. You must have your own Internet service provider.
13. LIMITATION ON TIME TO SUE. Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this End User License or by law with respect to the Software or Third Party Services must be commenced within one year after the cause of action accrues.
14. U.S. GOVERNMENT. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire our Software with only those rights set forth herein.
15. MISCELLANEOUS. Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between you and us and sets forth our entire liability and its Suppliers and your exclusive remedy with respect to the Software and Services. Our Suppliers, agents, employees, distributors, and dealers are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on us. Any waiver of the terms herein by us must be in a writing signed by an authorized officer and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by California law as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Orange County, California or federal court for the Southern District of California. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” This Agreement does not limit any rights that we may have under trade secret, copyright, patent or other laws.
16. AMENDMENT. We shall have the right, to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of Software and Services (including but not limited to Internet based services, pricing, technical support options, and other product-related policies) upon notice by any means we determine in our discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in Software or on any our sponsored web sites. Any use of the Software by Licensee after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
17. TERMINATION. Your rights under this Agreement may be terminated or suspended by us immediately and without notice if you fail to comply with any term or condition of this Agreement or you no longer consent to receive Electronic Communications in accordance with Section 14. Additionally, we reserve the right (but has no obligation) to delete all Licensee Access Information and Data stored on our servers if the subscription has been terminated or if you have not renewed a subscription for the Software. Upon termination you must immediately cease using the Software and Services. Any termination of this Agreement shall not affect our rights hereunder. Further, you agree that upon termination of the Agreement as provided in this Section 18. We shall not be liable to you or any third party for any termination of your access to the Software or deletion of the Licensee Access Information and Data. You agree to defend, indemnify and hold us harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from your authorized users’ violation of this Agreement, state or federal laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right or invasion of any privacy rights. This obligation will survive the termination of the Agreement.