Terms of Service
IMPORTANT – PLEASE READ CAREFULLY: These Terms of Service (the “Agreement”) is a legal agreement between eTail Pet, Inc., a Delaware corporation (“eTail Pet”) and the customer agreeing to these terms (“Customer”) and governs Customer’s use of the eCommerce platform developed, hosted and managed by eTail Pet (the “Service”) for pet store owners (the “Platform”).
BY CLICKING ON THE “I AGREE” BUTTON OR USING THE SERVICES, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND CUSTOMER, AND (3) CONSENTING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT USE THE SERVICES OR THE PLATFORM.
ETAIL PET RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE THIS AGREEMENT AT ANY TIME. IF THE ALTERATIONS CONSTITUTE A MATERIAL CHANGE TO THE AGREEMENT, ETAIL PET WILL NOTIFY CUSTOMER. WHAT CONSTITUTES A “MATERIAL CHANGE” WILL BE DETERMINED AT ETAIL PET’S SOLE DISCRETION, IN GOOD FAITH AND USING COMMON SENSE AND REASONABLE JUDGMENT. CUSTOMER SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. USE OF THE SERVICES BY CUSTOMER FOLLOWING SUCH NOTIFICATION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER’S SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE.
1. “Account” means an account allowing access to the Service dashboard created in Customer’s name.
“Confidential Information” means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party’s financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the eTail Pet Technology, (c) the Customer Information; and (d) the User IDs.
3. “Customer Information” means all data, information or other content entered by or collected from Customer (including a User) while accessing and using the Service, including, without limitation, the product and pricing information provided by Customer.
4. “Customer Marks” shall mean the trademarks, service marks, trade names, domain names, logos and other related intellectual property owned or controlled by Customer.
5. “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
6. “eTail Pet Technology” means proprietary software and other technology used by, or on behalf of, eTail Pet to provide the Service, and all data, information and other content included on or accessible through the Service, except for any Customer Information.
7. “Subscription Form” means the order form prepared by eTail Pet, and accepted by Customer, which describes, among other things, the features of Platform that the Customer is subscribing for, the number of Users, subscription fees and subscription period.
8. “User ID” means unique User identification name and password issued or otherwise assigned by Customer to each User.
9. “User” means an individual who has been authorized by Customer to access and use the Service through the Customer’s Account.
1. Service. Subject to the conditions and during the term of this Agreement, eTail Pet will perform the Service and develop, host and manage the Platform with the features and functions fully described in the Subscription Form. Customer acknowledges that Customer is not receiving any ownership interest with respect to the Service or any eTail Pet Technology or Intellectual Property Rights related thereto.
2. Limited Number of Users. If Subscription Form limits the number of Users allowed to access the Service through Customer’s Account, then the following applies: Customer may only allow that number of Users to access and use the Service as are designated on the Subscription Form. Customer may add Users through a mutual agreement with eTail Pet. Any additional Users are subject to the terms and conditions of this Agreement. Customer will pay the then-current subscription fees for each additional User. All Users added during a billing month will be charged in full for that billing month.
3.User Identification. Customer shall be responsible for Users’ compliance with this Agreement. Customer will issue a User ID to enable each User to access and use the Service. Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify eTail Pet of any unauthorized use of a User ID or any other breach of security known to it.
4. Prohibited Use. Customer agrees not to: (a) access, tamper with, or use any non-public areas of eTail Pet’s systems; (b) attempt to probe, scan, or test the vulnerability of eTail Pet’s systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the eTail Pet Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than Users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing eTail Pet’s systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. eTail Pet will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. eTail Pet may involve and cooperate with law enforcement authorities in prosecuting users who violate these terms. Customer acknowledges that eTail Pet has no obligation to monitor Users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
5. Customer Responsibilities.
- Customer Information. Customer shall provide the updated, complete and accurate Customer Information for use in connection with, and display on, the Platform.
- Customer’s Duties. Except for the duties and responsibilities expressly undertaken by eTail Pet and set forth on the Subscription Form, Customer will perform all the duties and tasks as are reasonably performed by merchants offering and selling goods and services through e-commerce platforms. Without generality the foregoing, Customer will: (a) comply with all the terms, conditions and policies displayed on the Platform and all applicable laws, rules and regulations in connection with selling and offering for sale of Customer’s products through the Platform, (b) source, offer, sell and fulfill each order placed by a buyer for its products through the Platform and be solely responsible for and bear all risk for those activities; (c) package each item of the purchased products in a commercially reasonable manner and ship on or before the expected ship date appearing on the Platform at the time of the applicable order; (d) include an order- specific packing slip, and, if applicable, any tax invoices, within each shipment of Customer’s products; (e) identify itself as the seller of the Customer’s products on all packing slips or other information included or provided in connection with its products and as the person to which a customer may return the applicable product; (f) only cancel the orders permitted under the terms and conditions appearing on the Platform at the time of the applicable order; (g) provide e-Tail Pet information regarding fulfillment and order status and tracking (to the extent available), in each case using the processes designated by eTail Pet, and eTail Pet may make any of this information publicly available.
- Resources. Customer shall obtain and maintain, throughout the term of this Agreement, all computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials necessary for each User to access and use the Service at Customer’s facilities.
- Other Responsibilities. Customer will perform such other duties and tasks as are agreed to be performed by Customer or may be reasonably required in order to enable eTail Pet to perform the Service.
6. License to eTail Pet. Subject to the Agreement, Customer hereby grants eTail Pet a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Information and Customer Marks to provide the Service to Customer.
7. Right to Monitor. eTail Pet will have the right to review and monitor all use of the Service to ensure compliance with all of the terms of the Agreement and evaluate performance of the Service. eTail Pet will also have the right to analyze user behavior to evaluate use of the Service, both on an individual basis and in the aggregate, and otherwise to collect, create and analyze metadata on an anonymized basis about use of the Service.
3. SUPPORT AND SERVICE LEVELS.
eTail Pet will use commercially reasonable efforts to provide the support services and adhere to the service levels generally applicable in the industry.
1. eTail Pet Ownership. eTail Pet retains all right, title and interest in and to, and all Intellectual Property Rights embodied in or related to the Service, eTail Pet Technology, and any other information or technology used or made available in connection with the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as set forth in Section 2, this Agreement does not grant Customer a license to any software or technology forming part of the eTail Pet Technology, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the eTail Pet Technology or the Service. eTail Pet name, logo, and the product and service names associated with the Service are trademarks of eTail Pet or third parties, and no right or license is granted to Customer to use them separate from Customer’s right to access the Service.
2. Customer Ownership. With the exception of data collected pursuant to Section 2.7, Customer retains all right, title and interest in and to all the Customer Information and Customer Marks including all Intellectual Property Rights therein. Except for the limited license granted in Section 2.6, neither eTail Pet nor any third party on its behalf or deriving any rights from eTail Pet shall make any use of the Customer Information or Customer Marks and Customer expressly reserves all rights therein. Any and all use by eTail Pet of the Customer Marks, and any and all goodwill derived therefrom, shall inure solely to the benefit of Customer. Customer hereby represents and warrants to eTail Pet that Customer Information and Customer Marks do not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of publicity and privacy. eTail Pet is not responsible for any public display or use of Customer Information or Customer Marks.
5. SUBSCRIPTION AND PAYMENTS.
1. Paid Subscription. By subscribing for the Service, Customer expressly agrees to pay the subscription fees set forth on the Subscription Form, plus any applicable tax. eTail Pet may increase subscription fees by delivering notice to Customer at least thirty (30) days prior to the end of the then-current subscription period. Except as otherwise specified in this Agreement (i) fees are non-refundable and fully earned upon payment, and (ii) payment obligations are absolute, non-cancelable and not subject to set-off or deduction.
2. Payment. Unless otherwise agreed by Customer and eTail Pet, payment for all fees, shall be by automatic ACH /electronic check (eCheck) or credit card auto-payment as indicated on the Subscription Form. Customer authorizes eTail Pet to debit and/or credit Customer’s bank account for any and all charges incurred without advanced notice via the payment method selected on the Subscription Form, until Customer cancels the subscription. Customer must cancel the subscription before it renews in order to avoid billing of the subscription fees for the renewed period.
3. Billing Disputes. All billing disputes or requests for billing adjustments must be submitted in writing to eTail Pet’s accounting department within ten (10) days of the fees being charged by eTail Pet, accompanied by a reasonably detailed explanation for the basis of such dispute. eTail Pet may request additional information or supporting documentation or reject Customer’s claim, if unverifiable based on eTail Pet’s records. If eTail Pet rejects such claim, eTail Pet will notify Customer, in which case no refund or credit shall be due. If eTail Pet determines that the disputed portion was erroneously charged, eTail Pet will notify Customer of such determination and will credit Customer’s account for such amount in the next appropriate billing cycle.
4. Late Payments. eTail Pet may suspend the Service immediately and without notice if Customer’s account with eTail Pet is or becomes past due. In addition to any rights and remedies available to eTail Pet hereunder, at law, or in equity, if Customer fails to pay any fees due hereunder within ten (10) days from the date due, eTail Pet may impose a late charge equal to the maximum allowable under applicable law. Customer shall be liable for any costs and expenses, including any and all attorneys’ fees, incurred by eTail Pet in collecting any amounts due and payable hereunder.
6. TERM AND TERMINATION.
1. Term. This Agreement will become effective on the Effective Date and shall remain in force for the period set forth in the Subscription Form. Thereafter, the Agreement shall automatically renew for the same period as the initial subscription period set forth in the Subscription Form unless either party gives thirty (30) days’ prior written notice of non-renewal to the other party.
2. Termination. Customer acknowledges and agrees that eTail Pet may stop (permanently or temporarily) providing the Service (or any features within the Service) to Customer at eTail Pet’s sole discretion, without prior notice to Customer, if Customer breaches the terms of this Agreement. In addition, eTail Pet may terminate this Agreement and Customer’s right to access and use the Service for any reason or no reason by giving thirty (30) days’ prior written notice to Customer. If eTail Pet terminates the Service or this Agreement for any reason other than Customer’s breach of this Agreement or of any other contractual obligation to eTail Pet, eTail Pet will provide a refund of any amounts paid for the unused portion of the Service. Customer acknowledges and agrees that, if eTail Pet disables access to Customer’s account, Users will be prevented from using the Service. Termination of this Agreement by either party shall not prejudice eTail Pet’s right to recover or prove damages for amounts incurred or accrued and unpaid prior to the date of termination. No remedy referred to in this Agreement is intended to be exclusive, but each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to eTail Pet at law or in equity and may be exercised concurrently or consecutively.
7. CONFIDENTIAL INFORMATION.
1. Obligations. Customer agrees to disclose to eTail Pet only that portion of Customer’s Confidential Information that is reasonably necessary to enable eTail Pet to provide the Service, and eTail Pet agrees to disclose to Customer only that Confidential Information of eTail Pet that is reasonably necessary to enable Customer to receive the Service. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Service under this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
2. Termination of Obligations. The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
3. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3.
8. REPRESENTATIONS AND WARRANTIES.
1. Representations and Warranties. Each party represents and warrants to the other party that: (a) such party has all requisite corporate or other applicable power and authority to execute, deliver and perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement by such party has been duly authorized; and will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; (c) such party is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the transaction of business of the character transacted by such party; and (d) such party has obtained all applicable permits and licenses required of such party in connection with such party’s obligations under this Agreement and will, in such party’s performance of this Agreement, comply with all applicable laws, rules, treaties, and regulations.
2. Limited Warranty. eTail Pet represents and warrants that it will perform the Service in a good workmanlike and professional manner utilizing personnel who are qualified and professionally capable of performing the Services in accordance with the requirements herein. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, ETAIL PET MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SERVICE. ETAIL PET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. FURTHERMORE, ETAIL PET DOES NOT WARRANT THAT THE SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.
1. Mutual Indemnification. Each party agrees, at its sole cost and expense, to defend, indemnify and hold the other party harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with such party’s gross negligence and/or willful misconduct.
2. eTail Pet Indemnification. eTail Pet shall, at its own expense, defend, indemnify and hold Customer harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising from or based on a claim that the Service, as provided by eTail Pet, infringes the copyright or misappropriates the trade secrets of any third party.
3. Customer Indemnification. Except for claims covered under eTail Pet’s indemnification obligations under Section 9.2 above, Customer shall, at its own expense, defend, indemnify and hold eTail Pet harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising from or based on (i) the Service and the Customer’s use of the Service and the Platform, (ii) eTail Pets use of the Customer Information or Customer Marks.
4. Indemnification Procedures. The indemnification obligations of each party are dependent on the party seeking indemnity (a) giving the indemnifying party prompt written notice of such claim, (b) permitting the indemnifying party to defend or settle the claim, (c) not making any admission of liability in respect of the whole or any part of the claim or entering into any agreement or negotiation to settle or dispose of the claim, (d) providing all reasonable assistance to the indemnifying party in defending or settling the claim, and (e) the claim shall not have arisen due to unauthorized acts or misconduct of the other party or a third party, acting on behalf of such other party.
10. LIMITATION OF LIABILITY.
1. Limitation. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ETAIL PET’S MAXIMUM LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER TO ETAIL PET IN THE SIX (6) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FOR WHICH ANY CLAIM OF LIABILITY IS MADE.
2. Disclaimer. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL ETAIL PET BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
3. Basis of Bargain. THE PARTIES ACKNOWLEDGE THAT (A) ETAIL PET HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, and (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
11. ASSIGNMENT. Customer may not assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of eTail Pet. Subject to the foregoing, this Agreement will inure to the benefit of each party’s successors and assigns. Any assignment in violation of this Section 11 is null and void.
12. RELATIONSHIP. No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever. Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Section 12 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
13. FORCE MAJEURE. eTail Pet will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond eTail Pet’s reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. eTail Pet is not responsible for any delays, failures, or other damage resulting from such problems. Customer acknowledges that the Service may be affected by numerous factors outside of eTail Pet’s control.
14. DISPUTE RESOLUTION. Should it be necessary for eTail Pet to defend or enforce any of its rights under the Agreement in any collection or legal action, Customer agrees to reimburse eTail Pet, or any agent acting on their behalf, as applicable, for all costs and expenses including reasonable attorney’s fees, as a result of such collection or legal action. Customer waives trial by jury with respect to any litigation arising out of, relating to, or in connection with this Agreement. Customer and eTail Pet agree that any and all disputes or controversies of any nature whatsoever (whether in contract, tort or otherwise) arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from this Agreement, or (iii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement, shall be governed by the laws of the State of California, notwithstanding any conflicts of laws rules, and shall be resolved, on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties. Customer and eTail Pet agree that all actions arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement shall only be brought in either the courts of the State of California sitting in Los Angeles County or in the United States District Court for the Central District of California, and hereby irrevocably and unconditionally submit to the personal jurisdiction of those courts in any such action. EACH PARTY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
15. GENERAL TERMS. If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. Each party acknowledges that it has had the opportunity to participate in the drafting of this Agreement, and has participated to the extent such party deems necessary, and any applicable rule of construction requiring that ambiguities are to be resolved against the drafting party shall not be applied in connection with the construction or interpretation of this Agreement. Each party hereby acknowledges that it has read this Agreement, has had an opportunity to consult with its own legal advisers if it so desired, and following such consultation or the opportunity for such consultation agrees to all terms and conditions contained herein. This Agreement, including the Subscription Form, constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied. No amendment to or modification of this Agreement shall be binding unless in writing and accepted by a duly authorized representative of both parties.