Terms and Conditions
TERMS AND CONDITIONS
This is a legally binding agreement. Please read these terms and conditions carefully. By accessing or using the website available at www.bigvisualgroup.com, including any subpages or subdomains (collectively, the “Site”), or by placing an order for Goods or Services from this Site, you represent that you have the full legal authority to enter this agreement, and in that capacity you acknowledge your agreement to be bound by the terms and conditions set forth or referenced below.
This agreement (the “Agreement”) for use of the Platform (as defined below) is between Snoyer Signs, LLC a Tennessee limited liability company (“Snoyer”), and the party (the “User”) accessing or using the Platform. If you are accessing the Site on behalf of, or as an agent for another person or entity, Snoyer considers that person or entity as the User that will also be bound by this Agreement. User represents that User is of the age of majority and has the capacity necessary to enter and be bound by the terms of this Agreement. User’s visitation of the Site constitutes acceptance of this Agreement, which becomes effective immediately (the “Effective Date”). The information entered by or on behalf of User is incorporated herein and made a part of this Agreement.
1. Certain Definitions.
“Affiliate” means, as to a party, any other entity that directly or indirectly controls, is under common control with, or is controlled by, such party; as used in this definition, “control” and its derivatives mean possession, directly or indirectly, of power to direct the management or policies of an entity.
“Confidential Information” means any information of any type in any form that (i) is disclosed to or observed or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) in the course of, or by virtue of, this Agreement and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the Platform, User Data, and content of this Agreement (other than the fact of its existence and the identities of the parties hereto) shall be deemed conclusively to be Confidential Information. For purposes of this Agreement, however, the term “Confidential Information” specifically shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. A selection or combination of information will not meet any of the foregoing exceptions solely because some or all of its individual component parts are so excepted and will meet such exception(s) only if the selection or combination itself is so excepted. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.
“Documentation” means all documentation (whether printed or in an electronic retrieval format) supplied or made available to User by Snoyer for use with or in support of the Platform or its implementation, including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by Snoyer to User during the Term of this Agreement and all copies thereof made by or on behalf of User.
“Goods” means all signs, wraps, graphics, designs, print materials, and other goods for which the Site or Platform generates or causes to be generated a quote and an order is placed by User in the course of using the Site or Platform.
“Hosting Services” means the provision, administration, and maintenance of servers and related equipment, the provision of bandwidth at the hosting facility, and the operation of the Platform for access and use by User pursuant to this Agreement.
“Licensed Materials” means the Platform and the Documentation.
“Loss” means all losses, liabilities, damages, awards, settlements, claims, suits, proceedings, costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).
“Platform” means the online service and applications offered by Snoyer, including the Site, catalog, shop, and client portal center, together with any associated software applications, database structures and queries, interfaces, tools, and the like, together with any and all revisions, modifications, and updates thereof, as made available by Snoyer to User pursuant to this Agreement.
“Services” means any consultation, design, installation, or other services that may be provided by Snoyer in connection with a User’s order of Goods through the Platform.
“User Data” means all data entered into the Platform (i) by User or (ii) by or on behalf of User pursuant to a conversion or migration of data from another system, in each case as such data is maintained in the Platform from time to time.
2. Term. This Agreement shall commence as of the Effective Date and shall expire when terminated as provided in this Agreement (the “Term”).
3. Sale of Goods. Snoyer shall sell to User and User shall purchase from Snoyer the Goods in the quantities and at the prices and upon the terms and conditions set forth in this Agreement.
(a) Order Acceptance. The Platform only solicits offers to buy Goods and Services and is not an offer to sell. An order placed through the Platform by User is User’s offer to buy, under this Agreement, all Goods and Services listed in the order. Snoyer will not be obligated to sell the Goods or Services to User unless and until Snoyer accepts the order. Snoyer may choose not to accept any orders in its sole discretion. Snoyer will send User a confirmation email with the details of the items ordered after Snoyer’s acceptance. Acceptance of User’s order and the formation of the contract of sale between Snoyer and User will not take place unless and until Snoyer transmits and User receives the order confirmation email.
(b) Delivery. Snoyer shall deliver the Goods to the address specified by User on the Platform (the “Delivery Point”) using Snoyer’s standard methods for packaging and shipping such Goods. If for any reason User fails to accept delivery of any of the Goods at the Delivery Point, or if Snoyer is unable to deliver the Goods at the Delivery Point because User has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to User, (ii) the Goods shall be deemed to have been delivered; and (iii) Snoyer, at its option, may store the Goods until User picks them up, whereupon User shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(c) Title and Risk of Loss. Title and risk of loss passes to User upon delivery of the Goods at the Delivery Point. Shipping and delivery dates are estimates only and cannot be guaranteed.
(d) Price. Snoyer will sell and User will purchase the Goods from Snoyer at the price set forth on the Site or Platform, or at the price as otherwise may be provided by Snoyer in response to a request for a quote (the “Price”). All Prices 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 User. User shall be responsible for all such charges, costs and taxes; provided, that, User shall not be responsible for any taxes imposed on, or with respect to, Snoyer’s income, revenues, gross receipts, personnel or real or personal property or other assets. All Prices posted on the Site are subject to change without notice. The Price charged for a Good or Service will be the Price in effect at the time the order is accepted and set out in the order confirmation email. Price increases may apply to orders placed after such changes. IN THE EVENT OF A TYPOGRAPHICAL ERROR RELATING TO PRICE, CHARACTERISTICS OR QUANTITY OF AN ITEM FEATURED OR DESCRIBED ON THE PLATFORM, SNOYER RESERVES THE RIGHT TO REFUSE TO FILL ALL OR ANY PART OF ORDER(S) THAT RELY ON SUCH TYPOGRAPHICAL ERROR. ALL GOOD PRICES AND SERVICES LISTED ON THE PLATFORM ARE SUBJECT TO AVAILABILITY, PRIOR SALE, AND QUANTITY LIMITATIONS.
(e) Payment Terms. Terms of payment are within Snoyer’s sole discretion and, unless otherwise agreed by Snoyer in writing, payment must be received by Snoyer before its acceptance of an order. Snoyer will refund payments made for orders not accepted. Snoyer accepts payment on the Platform via credit card or debit card. Snoyer also accepts payment via purchase order for Users pre-qualified by Snoyer. Invoices may be paid by check or credit or debit card and shall be paid within 15 days of delivery of the Goods to the Delivery Point. Snoyer reserves the right to require cash at acceptance or in advance of delivery. User shall pay late fees on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law.
(f) Returns. Snoyer accepts returns and will refund payment if a User is disappointed by Goods for one of the following reasons: (i) the blank stock items are materially flawed; (ii) the quality of the decorating (i.e., the printing) is below a reasonable range of expectations; or (iii) the design of the final product is materially different from the final design submitted by the User.
(g) Specifications. Snoyer is responsible for acting only on those instructions actually received by Snoyer and does not assume responsibility for communications malfunctions or misdirected instructions that may affect the accuracy or timeliness of any orders User submits. Although Snoyer has made reasonable efforts to display its products and their colors, textures and appearance as accurately as possible, the displayed attributes of the Products depend upon the monitor of the user, and Snoyer cannot guarantee that the User’s monitor will accurately portray the actual attributes of the products. Snoyer does not warrant the accuracy or completeness of customer product ratings, comments or feedback.
4. License to User. Subject to terms and conditions of this Agreement, Snoyer grants to User a non-exclusive, non-transferable (except as otherwise provided herein) license during the Term of this Agreement for User to access and use the Platform and relevant Documentation in accordance with the terms of this Agreement solely for User’s internal business purposes.
5. Platform Services. Subject to terms and conditions of this Agreement and provided User is not in material breach of its obligations hereunder, Snoyer shall provide the following services during the Term:
(a) Hosting. Snoyer shall provide the Hosting Services; provided, however, that the Hosting Services may be interrupted and the Platform unavailable for use for reasonable periods from time to time for Snoyer to perform scheduled or unscheduled system maintenance, for Snoyer to address security threats or security incidents, or due to the acts or omissions of third parties or the fault of Snoyer.
(b) Support. Snoyer shall provide to User consultation and assistance with operational and technical support issues arising from use of the Platform during Snoyer’s then-current normal business hours pursuant to requests for support services submitted by telephone or e-mail at such numbers and e-mail addresses as Snoyer shall provide to User from time to time.
(c) Maintenance. In response to a reported error, Snoyer shall use commercially reasonable efforts to correct the error or to provide a reasonable workaround sufficient to alleviate any substantial adverse effect of the problem on the utility of the Platform, provided that User assists Snoyer in its efforts as reasonably requested by Snoyer.
(d) Enhancements. From time to time at its discretion, Snoyer may implement releases of the Platform that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. Snoyer in its sole discretion will determine whether to include in the Platform, as part of the maintenance services hereunder, features or functionality not originally specified for the Platform, and Snoyer shall have no obligation to disclose or offer to User any such features or functionality.
(e) Supported Use and Environment. Snoyer’s support and maintenance obligations pursuant to this Agreement are conditioned upon access to and use of the Platform by User in accordance with the Documentation and using browsers and other information technology meeting the criteria set forth in the Documentation, published on Snoyer’s website, or otherwise provided or made available to User by Snoyer from time to time. Upon reasonable notice to User from time to time, Snoyer may revise the specifications described in this paragraph or implement new such specifications to address the evolution of such technology.
6. User Responsibilities and Restrictions.
(a) User Connection to Platform. User shall be responsible for selecting, obtaining, and maintaining any equipment, items, communications, and ancillary services needed to access the Platform, in each case meeting any criteria described in the Documentation, published on Snoyer’s web site, or otherwise provided or made available to User by Snoyer from time to time.
(b) Account Passwords and Data Security. User shall maintain the confidentiality of all user IDs and passwords of User, including implementing and enforcing policies and procedures as reasonable and appropriate thereto, and User at all times shall maintain adequate technical, physical, and administrative safeguards, including access controls and system security requirements and devices, to ensure that access to the Platform by or through User is limited to User. User shall be solely responsible for all use or misuse of the user IDs of User, and except as otherwise required by applicable law Snoyer shall have no obligation to monitor for or report any use or attempted use of the user IDs of User. All such user IDs and passwords are deemed to be Confidential Information of both User and Snoyer. User shall take reasonable steps to ensure that no person working for or on behalf of User shares user IDs or passwords.
(c) Use Restrictions. Except as may be expressly authorized in this Agreement, User shall not do, nor shall it authorize any person to do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by this Agreement; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic format; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials; (iv) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble any Licensed Materials that is computer software; (v) modify, adapt, translate, or create derivative works from or based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, document, or work; (vi) refer to or otherwise use any part of the Licensed Materials as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of Licensed Materials; (vii) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice printed or stamped on, affixed to, or encoded or recorded in the Licensed Materials, or use a proxy, reverse proxy, or any other such mechanism that is intended to, or has the effect of, obscuring any of the foregoing or confusing another User as to Snoyer’s rights in the Platform, (viii) fail to preserve all copyright and other proprietary notices in any copy of any portion of the Licensed Materials made by or on behalf of User; (ix) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess or utilize any portion of the Licensed Materials without the express prior written consent of Snoyer (which may be withheld by Snoyer for any reason or conditioned upon execution by such party of a confidentiality and non-use agreement and/or other such other covenants and warranties as Snoyer in its sole discretion deems desirable); (x) use the Licensed Materials to gain or attempt to gain access to any software applications, computer systems, or data not expressly authorized under this Agreement; (xi) knowingly use the Platform to store, receive, or distribute any information that violates any applicable law; or (xii) attempt to do or assist any party in attempting to do any of the foregoing.
(d) Additional Restricted Activities. With respect to User’s use of the Licensed Materials and access to and use of the Platform, User shall not do, nor shall it authorize any person to do, any of the following: (i) impersonate any person or entity (ii) interfere with or disrupt the Platform or the servers or networks connected to the Platform; (iii) submit information or interact on the Platform in a manner that is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal; (iv) use the Licensed Materials in any way that infringes any third party’s rights, including intellectual property rights or other proprietary rights or rights of publicity or privacy; (v) transfer or sell User’s license in the Licensed Materials, password and/or identification, or any other User’s information to any other party; or (vi) attempt to do or assist any party in attempting to do any of the foregoing. There shall be no cure period for User’s breach of this Section 5(d).
(e) Linking. User must first obtain Snoyer’s prior written consent, which may be withheld or conditioned in Snoyer’s sole discretion, if User wishes to publish, frame, refer to or provide information about the Site, Snoyer’s copyrighted materials or any Goods or Services on any website, web page, e-mail address or the like operated by User or User’s affiliates, or any legal entity in which User has an ownership or investment interest for commercial purposes.
(f) Disclaimer. Snoyer shall not be liable to User for any Loss arising out of or relating to User’s failure to comply with its obligations set forth in this Section 6.
(a) User Data. As between Snoyer and User, User has and retains exclusive ownership of all User Data and all intellectual property and proprietary rights therein.
(b) Licensed Materials. As between Snoyer and User, Snoyer has and retains exclusive ownership of the Licensed Materials and all intellectual property, moral and proprietary rights therein. User acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of Snoyer or its licensors.
(c) Suggestions, Joint Efforts, and Statistical Information. User may suggest, and the parties may discover or create jointly, findings, inventions, improvements, discoveries, or ideas that Snoyer, at its sole option, may incorporate in the Licensed Materials or in other products or services that may or may not be made available to User. Any such finding, invention, improvement, discovery, or idea, whether or not patentable, that is conceived or reduced to practice during the Term of this Agreement, whether by a party alone or by the parties jointly, arising from or related to this Agreement or the Licensed Materials shall be and remain solely property of Snoyer and may be used, sold, licensed, or otherwise provided by Snoyer to third parties, or published or otherwise publicly disclosed, or not used, in Snoyer’s sole discretion without notice, attribution, payment of royalties, or liability to User. User acknowledges and agrees that Snoyer has and retains exclusive and valid ownership of all anonymized statistical information regarding User’s use of the Platform. User hereby assigns to Snoyer any and all right, title, and interest in and to any such findings, inventions, improvements, discoveries, ideas, and statistical information. Unless otherwise expressly agreed in writing, User shall not obtain any right, title, or interest (other than the license expressly set forth herein) in or to anything created or developed by Snoyer in connection with or incident to this Agreement.
(d) Submissions. User acknowledges and agrees that any suggestions, ideas, opinions (including without limitation, reviews) or other information submitted or otherwise communicated by User to Snoyer through the Platform (collectively, the “Submissions”) become Snoyer’s property, including all copyrights and other intellectual property rights therein, and User assigns to Snoyer, and waives in favor of Snoyer, any and all present and future rights, including but not limited to, moral rights, in such Submissions; provided, however, that nothing in this Agreement shall constitute an assignment or transfer of rights to Snoyer in any files, graphics, logos, designs or copy which User submits to the Platform, either in person or through the Platform, specifically for the purposes of procuring a quote for or purchasing Snoyer’s sign design and graphic design Services or related Goods (collectively, “Client Materials”). Snoyer will be entitled to use each Submission, except Client Materials, for any commercial or other purpose whatsoever without compensation or other accounting to User or any other person sending the Submissions and will not incur any liability as a result of any similarities that may appear in our future operations. User will continue to be responsible for the substance of the Submissions including, without limitation, any indemnification obligations related to such Submissions. Snoyer will not be required to treat any Submissions as confidential. User acknowledges and agrees that all or any portion of the Submissions, except Client Materials, may be used, edited, reproduced, published, translated, sublicensed, copied and distributed and/or incorporated into other works in any form, media, or technology now known or hereafter developed, without compensation or accounting of any kind. By submitting any Submissions or Client Materials, User represents and warrants that User has the full right and authority to submit such Submissions or Client Materials, and that no such Submissions or Client Materials are subject to any copyright or other proprietary right of a third party. In addition, User agrees not to post e-mails or submit to or publish through the Platform (including any Submission), or act in a way, which violates this Agreement or in Snoyer’s opinion:
(i) Seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
(ii) Advocates or promotes illegal activity;
(iii) Impersonates or misrepresents User’s connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
(iv) Solicits funds, advertisers or sponsors;
(v) Copies any other pages or images on the Site except with appropriate authority; or
(vi) Amounts to “data warehousing” (i.e. using any web space made available to User as storage for large files which are only linked from other sites).
Snoyer reserves the right to review, edit, or remove any Submission that it deems, it its sole discretion, to be inappropriate for, illegal or offensive to Snoyer, the Site, the Platform, or any third parties, for any reason whatsoever.
8. License to Use User Data. User grants to Snoyer a non-exclusive, transferrable, worldwide, royalty-free license to use and disclose User Data as follows:
(a) during the Term, to provide, monitor, correct, and improve the Application and to perform services related thereto, including without limitation, to the extent permitted by applicable law, (A) de-identifying Customer Data such that there is no reasonable basis to believe that the information can be used, alone or in combination with other reasonably available information, to identify any individual or to identify Customer as the source of such data; and (B) aggregating Customer Data with other data; and
(b) in perpetuity to use, reproduce, prepare derivative works of, and distribute such aggregated data for any lawful purpose and to grant sublicenses for the foregoing.
User represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to Snoyer during the Term the license set forth herein. User further represents and warrants that it has provided all necessary notices to process the User Data and to transfer the User Data to Snoyer. User shall indemnify, defend, and hold harmless Snoyer, its Affiliates, and their respective directors, officers, employees, and agents from and against any Loss arising from or related to a claim of a third party with respect to a breach of the foregoing representations and warranties of User.
(a) Security of Confidential Information. Each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using reasonable security measures and in any event not less than the same security procedures used by such party for the protection of its own Confidential Information of a similar kind.
(b) Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any third party without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party’s exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
(c) Compelled Disclosure. If either party is served with a subpoena, civil investigative demand, request for production of documents, or is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise reasonable efforts to obtain appropriate assurance that confidential treatment will be accorded the Confidential Information so disclosed from the opposing or adverse parties.
(d) Non-Use Obligation. Except as expressly authorized in this Agreement, during the Term of this Agreement and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
(e) Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be solely the property of the first party and fully subject to the obligations of confidence set forth herein.
(f) Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party’s rights.
(g) Reports of Misappropriation. Each party shall report to the other party without unreasonable delay any act or attempt by any person of which such party has knowledge or reasonably suspects (i) to use, disclose, or copy Confidential Information without authorization from the other party or (ii) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information.
(h) Post-Termination Procedures. Except with respect to User Data as provided in Section 11(c) or as otherwise expressly provided in this Agreement, promptly upon the expiration or any termination of this Agreement or other expiration or termination of a party’s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing, if agreed in writing by the other party) any embodiments of any Confidential Information of the other party.
10. Representations and Warranties; Disclaimers.
(a) REPRESENTATION AND WARRANTY DISCLAIMERS. THE LICENSED MATERIALS AND ALL GOODS AND SERVICES PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND USER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS. SNOYER DISCLAIMS, ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF OR THE GOODS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SNOYER KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. SNOYER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN USER.
(b) Other Disclaimers. User will be exclusively responsible as between User and Snoyer, for, and Snoyer makes no representation or warranty with respect to, determining whether the Licensed Materials will achieve the results desired by User, ensuring the accuracy of any User Data, and selecting, procuring, installing, operating, and maintaining the technical infrastructure for User’s access to and use of the Licensed Materials (other than with respect to the Hosting Services). Snoyer shall not be liable for, and shall have no obligations with respect to, any aspect of the Licensed Materials that is modified by any person other than Snoyer or its contractors, use of the Licensed Materials other than in accordance with the most current operating instructions provided by Snoyer, errors or other effects of problems, defects, or failures of software or hardware not provided by Snoyer or of acts or omissions of User or any third party. User acknowledges that the operation of the Licensed Materials will not be error free in all circumstances and that all defects in the Licensed Materials may not be corrected. User will be exclusively responsible as between the parties for, and Snoyer makes no representation or warranty with respect to, ensuring User’s Submissions and Client Materials do not violate the rights of a third party, including the intellectual property rights of any third party. Snoyer shall have no duty to investigate or confirm, and shall not be liable for, and shall have no obligations with respect to, any Submission or Client Materials, or any Goods or Services produced as a result thereof, that violates the rights of a third party.
11. Breach; Termination; Disposition of Data.
(a) Notice of Breach; Cure Period. In the event of a breach of a provision of this Agreement, the notice and cure procedures set forth in this paragraph shall apply. The non-breaching party shall give the breaching party notice describing the breach and stating the time, as provided herein, within which the breach must be cured. If a provision of this Agreement sets forth a cure period for the breach in question, then that provision shall take precedence over any cure period set forth in this paragraph. No cure period shall be required, except as may be provided otherwise in this Agreement, if this Agreement sets forth specific deadline dates for the obligation allegedly breached. If the breach is of an obligation to pay money, the breaching party shall have five business days to cure the breach after the non-breaching party transmits notice of the breach. If the breach is a material breach of an obligation relating to the other party’s Confidential Information, including User’s use or disclosure of the Platform other than in compliance with the license granted in this Agreement, then the non-breaching party, in its sole discretion, may specify in the notice of breach that no cure period will be permitted. If the breach is other than a breach of the kind described above in this paragraph, then the cure period will be 30 days after the notice of the breach by the non-breaching party.
(b) Termination. If a breach of any provision of this Agreement has not been cured at the end of the applicable cure period, if any (or upon such breach if no cure period is permitted), then the non-breaching party thereupon may terminate this Agreement by notice to the other party. Termination of this Agreement by Snoyer for breach by User shall terminate all licenses granted to User herein. This Agreement and the licenses granted to User herein shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if User makes an assignment for the benefit of its creditors, files a petition for bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within 60 days after the effective filing date thereof), or admits of a general inability to pay its debts as they become due. Any termination of this Agreement shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.
(c) Disposition of User Data. Upon User’s written request within 30 days following the expiration or any termination of this Agreement, Snoyer shall destroy the User Data; provided, however, that to the extent Snoyer is required by applicable law or legal process to retain any portion of the User Data, or to the extent that destruction of any User Data is infeasible or is inconsistent with Snoyer’s operations or needs, Snoyer shall retain such User Data as though it were Confidential Information for such time as is required by such law or process or until destruction is no longer infeasible, after which Snoyer promptly shall destroy the User Data. The sole and exclusive remedy for User if Snoyer fails to destroy the User Data as required in this paragraph is an action to compel Snoyer to destroy the User Data.
12. Risk Allocation.
(a) EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL SNOYER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SNOYER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) MAXIMUM AGGREGATE LIABILITY. IN NO EVENT WILL SNOYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $250, OR THE AMOUNT PAID BY USER TO SNOYER FOR THE GOODS OR SERVICES AFFECTED BY THE BREACH, WHICHEVER IS LESS.
(c) Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement were negotiated, as a material part of the agreement memorialized herein, to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.
13. Indemnification. User agrees to indemnify, defend, and hold harmless Snoyer and its successors and assigns and all of their respective officers, directors, agents, employees, and affiliates from and against any claims, liabilities, damages, judgments, awards, losses, obligations, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to (i) User’s use of the Platform or Services or Goods obtained through User’s use of the Platform; (ii) User’s breach or violation of any of these terms; or (iii) User’s violation of the rights of any third party, including any third party’s intellectual property rights.
14. Certain Data Activities.
15. Other Provisions.
(a) Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement in writing in the English language, signed by the party giving the same, and shall be given (i) personally (in which case such notices shall be deemed given when so delivered), (ii) by certified or registered U.S. Mail, properly addressed and postage pre-paid, from within the United States (in which case such notices shall be deemed given on the third business day after deposit), (iii) by generally recognized overnight courier, properly addressed and pre-paid, with next business day instruction (in which case such notices shall be deemed given on the next business day after deposit), or (iv) if to User, at Snoyer’s election, by e-mail (in which case such notice shall be deemed given upon transmission unless Snoyer receives a non-delivery email message within a reasonable time thereafter). Such notices shall be sent to Snoyer at Snoyer Signs, LLC, Attention: Webmaster, 5764 Crossings Blvd., Antioch, Tennessee 37013, and to User at the address for notices or email address designated by User. Either party may change its address for purposes of notice by written notice thereof to the other party.
(b) Force Majeure. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party and not due to such party’s own fault or negligence or that of its contractors or representatives or other persons acting on its behalf, and which cannot be overcome by the exercise of due diligence and which could not have been prevented through commercially reasonable measures, including acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, fires, floods, explosions, epidemics, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies.
(c) Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Tennessee (other than its conflicts of law provisions) and venue shall be exclusively in the federal or state courts sitting in Davidson County, Tennessee.
(d) Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF WHICH ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
(e) Injunctive Relief. Each party acknowledges that any violation of its covenants in this Agreement relating to the other party’s Confidential Information and intellectual property would result in damage to such party that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give such party the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants without bond and without prejudice to any other rights or remedies to which such party may be entitled as a result of a breach of this Agreement.
(f) Assignment. User may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement only with the express prior written consent of Snoyer, which may be granted or withheld in Snoyer’s sole discretion. Any purported transfer or assignment by User of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement. This Agreement shall be fully assignable by Snoyer in its sole discretion.
(g) Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
(h) No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
(i) Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
(j) Survival. The covenants herein concerning Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
(k) Amendment and Waiver. Snoyer reserves the right, at any time and from time to time, to update, revise, supplement and to otherwise modify this Agreement, and to impose new or additional rules, policies, terms or conditions on User’s use of the Platform, with or without prior notice and for any reason. Such updates, revisions, supplements, modifications and additional rules, policies, terms and conditions (collectively referred to in this Agreement as “Revised Terms”) will be effective immediately and incorporated into this Agreement upon Snoyer’s publishing them on the Site, which may be given by any means Snoyer designates, including by posting to the Site. User acknowledges and agrees that User’s continued use of the Site will be deemed to conclusively indicates User’s acceptance of any and all such Revised Terms. All Revised Terms are incorporated into, and made a part of, this Agreement by this reference.
(l) Severability. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling; (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
(m) Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.