THIS SERVICE AND SOFTWARE AGREEMENT (THIS “AGREEMENT”) IS BY BEACONTRENDS.COM an ECOMMERCE SHOPPING SITE REFERRED AS (“THE COMPANY”), AND YOU (THE “CUSTOMER, AFFILIATE AND/OR MEMBER”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A “THE COMPANY” OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH “THE COMPANY” OR ENTITY AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE “THE COMPANY” OR ENTITY. BY USING BEACONTRENDS.COM, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, THE “THE COMPANY” IS UNWILLING TO LICENSE SOFTWARE OR PROVIDE THE SERVICE (AS DEFINED BELOW) TO YOU. THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF THE DATE AND TIME UPON WHICH YOU CREATE AN ACCOUNT ON BEACONTRENDS.COM; COMMENCE USING THE SERVICE; OR ACKNOWLEDGE ACCEPTANCE OF THE AGREEMENT BY ANY OTHER METHOD (THE “EFFECTIVE DATE”).
WHEREAS, “The Company” (BeaconTrends.com) desires to provide the Service to our Affiliates or Customers on the Terms and Conditions set forth in and incorporated into this Agreement, and
WHEREAS, the Affiliates or Customers desires to use the Online Shopping Center and BeaconTrends.com on the Terms and Conditions set forth in and incorporated into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged among the parties, it is agreed as follows:
- RECITALS. The recitals set forth above are true and correct and are by this reference incorporated herein.
- DEFINITIONS. Capitalized terms used in this Agreement have the meanings provided in this Section unless defined elsewhere herein.
2.1. “Customer/Affiliate” Data” means any information input into the BeaconTrends.com shopping web site by the “Customer/Affiliate” and user behavior on the “Customer/Affiliate” website that is captured by BeaconTrends.com and Stripe.com on the “Customer/Affiliate” behalf. “The Company” agrees that the “Customer/Affiliate” owns all “Customer/Affiliate” Data.
2.2. “Service(s)” means account credentials to use a secure website portal provided by “The Company” for the “Customer/Affiliate” which allows the “Customer/Affiliate” to use training and tools provided “The Company”.”
2.3. “Customer/Affiliate” means the proprietary software code owned by “The Company” and “Customer/Affiliate” is allowed access rights only to content provided by “The Company”.
2.5. “Website” means https://www…
- REFUNDS. The “The Company” will NOT provide refunds to the “Customer/Affiliate for purchases of Beacons or any subscription that is necessary to operate a Beacon via the Marketing Platform. Furthermore, any “digital” product that is downloaded from BeaconTrends.com is not refundable. If a “tangible” product is purchased and is defective we will refund the “Customer/Affiliate’s” purchase once we receive the original product in our warehouse at 42751 Mountain Shadow Rd., Murrieta, CA 92562 . The “Customer/Affiliate” is responsible to return the defective product to us at their expense.
- All orders are final and due to the nature of our product we cannot provide refunds. You have a right to rescind your order in 3 business days, after which time we will process your order and complete it. Shipments can take up to 4-6 weeks for delivery.
- LIMITATION ON USE. The “Customer/Affiliate” may not: (a) copy, modify, translate, or create derivative works based on the Service & “Customer/Affiliate” , or permit other individuals to do so on its behalf; (b) rent, lease, transfer or otherwise transfer rights to the Service of “Customer/Affiliate” ; (c) use a single account for multiple business entities, unless specifically authorized by The “The Company” in writing; (d) provide third parties with access to the “Customer/Affiliate” ’s account, except for third parties specifically authorized by “The Company”; (e) reverse engineer, decompile, disassemble any portion of the source code The “The Company” & “The Company”’s technology; or (f) attempt to learn or determine any of “The Company”’s trade secrets.
IMPORTANT: MODIFICATION OF BEACONTRENDS.COM CODE IN ANY WAY IS A VIOLATION OF THIS SECTION AND MAY RESULT IN TERMINATION IN ACCORDANCE WITH SECTION 8.
- INTELLECTUAL PROPERTY. The “Customer/Affiliate” agrees that all rights, title and interests in “The Company” & “Customer/Affiliate” , except for the license provided under this Agreement, are the sole and exclusive property of The “The Company” and that as a result of this Agreement, the “Customer/Affiliate” does not acquire any property or other right, claim or interest, including any patent right or copyright interest in The “The Company” & “Customer/Affiliate”, the Service, any data, information or technology which is proprietary to or has been licensed to The “The Company” which is used to deliver the Services to our “Customers/Affiliates,” any interim data created there from or any of the information, systems, processors, equipment, computer software, derivative works, service marks or trademarks of The “The Company”, whether created before, during or after the performance of this Agreement.
- FEES AND PAYMENT.
6.1. Fees. The “Customer/Affiliate” will pay for all charges for use of “The Companies” web site and the Service according to the Schedule of Fees posted on the Website (“Fees”). Fees may be changed from time to time in accordance with the terms of this Agreement. Fees are due in United States dollars, in accordance with the payment policy in effect at the time they become due. Fees are due on the same day of each month, or the closest day in any month to the day of the month that the account was activated (“Pay Date”). Fees are due for the full month in which any part of the month is included in the term. If the “Customer/Affiliate” has increased its number of members during a month such that the increase causes the Fees to increase, the account will be charged the higher amount for that month.
6.2. Method of Payment. The “Customer/Affiliate” will provide The “The Company” with valid credit card, charge card or debit card (“Card”) information and authorizes “The Company” to charge the Fees due on the “Customer/Affiliate”’s account on the Pay Date. Upon the expiration of the Card, the “Customer/Affiliate” will provide “The Company” with a new Card. Any individual providing a Card to “The Company” represents and warrants that he or she is authorized to use the Card and that any and all Fees billed to the Card will not be rejected. “Customer/Affiliate” will not charge back any of the Fees associated with this account.
6.3. Failure to Make Payment. In the event of any failure by the “Customer/Affiliate” to pay the Fees in full by the Pay Date, including in the case of a “Customer/Affiliate” charge back on a Card, the “Customer/Affiliate” is responsible for all expenses (including reasonable attorneys’ fees) incurred by “The Company” in collecting such amounts plus interest at the lesser of the rate one and one-half percent (1.5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed without payment. Further, in that event, “The Company”, in its sole and absolute discretion, may suspend or terminate the “Customer/Affiliate’s” account and the associated use of Our Service until payments that may be due are received in full.
- TERM. The term of the Agreement shall be one calendar month, and the Agreement shall automatically renew on a month-to-month basis unless terminated.
8.1. By “Customer/Affiliate”. The “Customer/Affiliate” may terminate the Agreement at any time, with or without cause, by providing “The Company” written notice or by using the termination feature on the Website.
8.2. By “The Company”. Except as provided in the Agreement, “The Company” may terminate the Agreement, with or without cause, in advance of any renewal term by providing written notice to the “Customer/Affiliate” no less than fourteen days prior to the beginning of the next term.
8.3. Effect of Termination. Upon termination of the Agreement, access by the “Customer/Affiliate” to Service and license to use BeaconTrends.com will terminate and “Customer/Affiliate” must destroy all copies of “The Company” & “Customer/Affiliate”, including any user documentation. Within sixty days of the date of termination, at the “Customer/Affiliate’s” request and expense, “The Company” shall return any “Customer/Affiliate” Data in its possession in a commercially reasonable manner. In the event that “Customer/Affiliate” does not request the return of its “Customer/Affiliate” Data within such period of time, “The Company” may delete the “Customer/Affiliate” Data from its server. Regardless of how the Agreement is terminated, “Customer/Affiliate” is liable for all charges incurred up to and including the date of termination. If “Customer/Affiliate” terminates the Agreement, payment obligations for the portion of any unused term shall be immediately due in full.
- REPRESENTATIONS AND WARRANTIES. The “Customer/Affiliate” represents and warrants to “The Company”: (a) that it will perform its rights, duties and obligations under the Agreement and at all times be in compliance with all applicable federal, state and local laws, rules and regulations; (b) that it shall not be in violation of any obligation, contract or agreement by entering into this Agreement, by performing its obligations under the Agreement, or by authorizing and permitting “The Company” to provide the Service hereunder; (c) that it shall comply with all of the terms and conditions of the Agreement; (d) that all information provided by the “Customer/Affiliate” to “The Company” is truthful, accurate, and complete, and is not misleading in any material respect; and (e) it owns or otherwise has the right to use “Customer/Affiliate” Data as contemplated by the Agreement; and (f) that all payment, billing or enrollment information provided by “Customer/Affiliate” is accurate, complete, and current.
- COVENANT TO NOT COMPETE. The “Customer/Affiliate” agrees that during the term of the Agreement and for one year thereafter, the “Customer/Affiliate” will not develop, offer, sell or distribute a competing service to the Service provided under Agreement. A competing service is a service that assists website owners with developing and managing customers and members only sections and subscription-based features on its website. “Customer/Affiliate” understands that violation of this clause is grounds for immediate termination of the Agreement by “The Company” with no liability on the part of “The Company” and further “Customer/Affiliate” understands that “The Company” may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
- SERVICE LEVEL POLICY.
12.1. Data Storage. The “Customer/Affiliate” bears the exclusive risk of loss for the “Customer/Affiliate” Data. “The Company” does not warrant that “Customer/Affiliate’s” use of the Service will be without error or disruption. “Customer/Affiliate” agrees that it is solely responsible to determine whether the Service sufficiently meets the “Customer/Affiliate” ’s requirements. Unless specifically set forth elsewhere herein, “The Company” is not responsible for “Customer/Affiliate” Data residing on “The Company”’s server. It should be noted that “The Company” does not store “Customer/Affiliate” data on its servers, however, WooCommerce, a third party provider does not receive purchase information and passes such information through SSL Encryption to Stripe who is the payment processor for the “The Company,” “Customer/Affiliate” . “The Companies” website code is coded to allow the “Customer/Affiliate” to update personal and payment information and pass this to Stripe. The “The Company” does have installed through GoDaddy and “Let’s Encrypt” a secured and encrypted SSL certificate is live at all times on our servers managed by Godaddy.Com and “Let’s Encrypt” for “Customer/Affiliate” protection.
12.2. Use of “Customer/Affiliate” Data. The “Customer/Affiliate” grants “The Company” a license to use the “Customer/Affiliate” Data for any purpose directly in furtherance of the purposes of this Agreement, including, without limitation, the use in an aggregate non-personally identifiable form in order to improve the “The Company” Service & “Customer/Affiliate” . “The Company” may not disclose the “Customer/Affiliate” Data to any third party unless (a) directed by the “Customer/Affiliate”; (b) the disclosure is made in response to a court order; or (c) is in an aggregate non-personally identifiable form.
12.3. Request for “Customer/Affiliate” Data. “The Company” will provide an export of all “Customer/Affiliate” Data in the possession of “The Company” upon the “Customer/Affiliate”’s request and at “Customer/Affiliate” ’s expense.
- “CUSTOMER/AFFILIATE” USE POLICY.
13.1. “The Company” imposes policies on the use of the Service (“Use Policy”). The Use Policy may be modified as the needs of “The Company” and safety and integrity of its business reasonably requires. The “Customer/Affiliate” is solely responsible for compliance with the Use Policy. The Use Policy includes of the following minimum restrictions:
- No pirating or hacking of BeaconTrends.com software or shopping site, services or infrastructure.
- No use of “The Company” URLs in emails.
- You will ensure the email address provided in your account registration is valid at all times and will keep your contact information accurate and up-to-date.
- You will not use BeaconTrends.com or Services for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or insider trading.
- You will not use BeaconTrends.com or Services if you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department’s list of Specially Designated Nationals.
- You will not use BeaconTrends.com or Services to impersonate another person.
- You may not upload, post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of BeaconTrends.com or Services or that may impact the ability of any BeaconTrends.com user to access our Services.
- You will not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account. You will not attempt to or actually access BeaconTrends.com or Services by any means other than through the interfaces provided by BeaconTrends.com. You will not attempt to or actually override any security component included in or underlying BeaconTrends.com Services.
- You will not attempt or engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on BeaconTrends.com or Service’s infrastructure.
- You will not publish Content that is spam, or content to further unlawful acts (such as phishing), or mislead recipients as to the source of the material (such as spoofing).
- You will not publish Content, or links to Content, that is:
- Racial, ethnic, hate-mongering and/or political hate-mongering.
- Sexually violent, unauthorized, or illegal pornography.
- Illegal (including stolen copyrighted material and material that infringes or has the potential to infringe the intellectual property rights of another).
- Reasonably likely to cause harm, or that could be reasonably considered as slanderous or libelous.
- Breaches another’s privacy.
“The Company” may determine in its sole discretion whether or not an account is in violation of any of these policies. Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user. Offending users may be permanently restricted from holding an account or using the Services. If “The Company” reasonably determines that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions.
13.2. A violation of the Use Policy is a material breach of the Agreement. If “The Company”, in its sole and absolute discretion, finds that the “Customer/Affiliate” is in violation of the Use Policy, “The Company” may terminate the Agreement immediately, without any liability to “The Company”.
- MARKETING. The “Customer/Affiliate” grants “The Company” a non-exclusive transferable license to use, reproduce, publish, display, transmit and broadcast “Customer/Affiliate” ’s name, logos, trademarks, trade names, service marks, URLs and slogans to advertise, market, promote and publicize “The Company”, including, without limitation, use in marketing materials and ““Customer/Affiliate” s and testimonial page.”
15.1. Each party hereto (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its members, managers, officers, directors, employees, agents, representatives and permitted successors and assigns (the “Indemnified Party”) harmless from and against all costs, losses, damages, liabilities and expenses, including, without limitation, reasonable attorneys’ fees, attributable to any claim, proceeding or action (“Claim”) made by a third party arising out of any breach of any representation, warranty or covenant contained herein by the Indemnifying Party.
15.2. The conditions for the indemnity set forth in paragraph (15.1) above are that (a) the Indemnified Party must notify the Indemnifying Party in writing promptly upon notice of the Claim; (b) the Indemnifying Party will be permitted, through counsel mutually acceptable to the Indemnified Party and the Indemnifying Party, to answer and defend such Claim; and (c) the Indemnified Party must provide the Indemnifying Party information and reasonable assistance at the Indemnifying Party’s expense to help the Indemnifying Party to defend such Claim.
15.3. The Indemnifying Party may, upon written notice of any Claim on the Indemnified Party, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it also must undertake all other required steps or proceedings to settle or defend any such Claim, including, without limitation, the employment of counsel which must be reasonably satisfactory to the Indemnified Party, and payment of all expenses. The Indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its expense. The Indemnifying Party must reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bonafide compromise or settlement of claims in respect to any damages related to any Claim. The Indemnifying Party may not settle any Claim on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission will not be unreasonably withheld, conditioned or delayed. In the event that the Indemnifying Party and the Indemnified Party agree to settle a Claim, each Party agrees not to publicize the settlement without first obtaining the other Party’s written permission.
15.4. Any provision herein to the contrary notwithstanding, “The Companies” total cumulative liability under this Section 15, regardless of the form of action, will not exceed an amount equal to all amounts actually received by “The Company” from “Customer/Affiliate” during the twelve month period immediately preceding the occurrence of any Claim.
- MODIFICATIONS. “The Company” reserves the right to change the terms of this Agreement by posting a revised Agreement on its Website and sending notice to the “Customer/Affiliate” by email to the last email address provided to us. Unless the term is terminated with ten days, the revised Agreement will be effective immediately with respect to any continued or new use of “The Company” or its Services. Except for as provided in this Section, this Agreement may not be modified unless by a written agreement signed by both parties.
- APPLICABLE LAW. The validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of California, without giving effect to its principles of choice of law or conflicts of law thereunder. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against either of the parties in the courts of the State of California, Riverside County, or, if it has or can acquire jurisdiction, in the United States District Court located in Riverside County, California, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on either party anywhere in the world. In the event it shall become necessary for either party to take action of any type whatsoever to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all attorneys’ fees, costs, and expenses, including all out of pocket expenses that are not taxable as costs, incurred in connection with any such action, including any negotiations, mediation, arbitration, litigation, and appeals.
- NO ASSIGNMENT OR SALE. This Agreement shall be binding upon, and inure to the benefit of “The Company”, its successors and assigns, and the “Customer/Affiliate” and the “Customer/Affiliate”’s heirs, executors, administrators and legal representatives. The duties and covenants of the Referring Party under this Agreement may not be delegated or assigned by the “Customer/Affiliate” without the prior written consent of “The Company”, and any attempted delegation or assignment without such prior written consent shall be null and void and without legal effect.
- BINDING ON RELATED PARTIES. Any references to “you”, “your”, and “Customer/Affiliate” refers to the entity subscribing to the Service and use of “The Company” hereunder. Each party agrees that any of its representatives, employees, or any person or entity acting on its behalf with respect to the provision of or use of the Service, shall be bound by, and shall abide by, these Terms and Conditions. You further agree that you are bound by these Terms and Conditions whether you are acting on your own behalf or on behalf of a third party.
- CONFIDENTIALITY. Each party hereto may have access to confidential, proprietary or trade secret information disclosed by the other party, including, without limitation, its ideas, trade secrets, procedures, methods, systems, and concepts, whether disclosed orally or in writing through any media (“Confidential Information”). No information will be deemed “Confidential Information” of a party to the extent that the other party can show that it: (a) was in the public domain when communicated to such other party; (b) is communicated to such other party by another party free of any confidentiality obligation; or (c) was in such other party’s possession free of any obligation of confidence when first communicated to such other party. Neither party will be in violation of this Section by making a disclosure in response to a valid order by a court or other governmental body, provided that, if permitted by law, such party provides the other party prompt notice of such impending disclosure to permit such other party to seek confidential treatment thereof. “The Companies” Confidential Information includes information related thereto and the underlying software, hardware, and other technology used by “The Company” to provide the Service to our “Customer/Affiliates” . Each party acknowledges that the Confidential Information of the other party contains valuable trade secrets and other proprietary information of such other party and remains the sole and exclusive property of such other party. Each party will restrict disclosure of Confidential Information of the other party to its officers, directors, employees, affiliates and agents with a need to know, will not disclose Confidential Information of the other party to any other party. The “Customer/Affiliate” will not share its account username or security credentials with any person other than its employees for purpose of using the Service and Nu-Rejime & “Customer/Affiliate” , and will otherwise protect Confidential Information of the other party with the same standard of care as it uses to protect its own proprietary information (but will in no case take less than a reasonable standard of care). Any provision herein to the contrary notwithstanding, “The Company”’s total cumulative liability under this Section, regardless of the form of action, will not exceed an amount equal to all amounts actually received by “The Company” from the “Customer/Affiliate” during the twelve month period immediately preceding the any allegation by the “Customer/Affiliate” of disclosure of Confidential Information.
- DUTY TO DISCLOSE CHANGE OF OWNERSHIP. If the “Customer/Affiliate” ’s ownership changes whereby any entity acquires a majority ownership or other controlling interest in “Customer/Affiliate” during the term of this Agreement, the “Customer/Affiliate” shall immediately disclose the name of such entity to “The Company”.
- HEADINGS AND REFERENCES. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in Section 2.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties with respect to such subject matter.
- NOTICES. All notices or other communications required or permitted to be given under this Agreement must, at the election of the party giving notice, be delivered at the physical or electronic address set forth on the Website or the “Customer/Affiliate” online billing form, with receipt confirmed. All other notices and communications will be deemed to have been given on (a) the date of receipt if delivered personally, (b) the date that is five (5) days after posting if transmitted by mail or (c) the date of confirmation receipt if faxed. A party may change its address for purposes of this Section by written notice to the other party in accordance with this Section.
- RELATIONSHIP OF THE PARTIES. Nothing contained herein will be construed to create a partnership relationship between the parties or the relationship of employer and employee between the parties or between a party or any of such party’s employees or agents and any of the other party’s employees or agents. It is the express intent of the parties that no party is an employee of the other party for any purpose, but is an independent contractor for all purposes and in all situations. Each party and its directors, officers, employees and agents may not represent that they are employees of the other party, nor may they in any manner hold themselves out to be employees of the other party.
- SEVERABILITY. If any provision of the Agreement is be determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will, to such extent as it is determined to be invalid or unenforceable, be reformed without further action by the parties to the extent necessary to make the provision valid and enforceable and no other provision will be affected or impaired thereby.
- COUNTERPARTS. This Agreement may be executed in separate counterparts (each of which is an original and all of which will be deemed one and the same instrument) and will be fully effective as of the date executed copies are exchanged between the parties. Counterparts may be executed either in original or faxed form and the parties adopt any signatures received by a receiving fax machine as original signatures of the parties.
- SURVIVAL. The terms of Sections 4, 5, 8.3, 9, 10, 13, 14-20, 22-27, 29, and 30 shall survive the termination or expiration of the Agreement.
- DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE “CUSTOMER/AFFILIATE” EXPRESSLY AGREES THAT ITS USE OF THE SITE, SERVICE AND SOFTWARE IS AT ITS OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SITE, SERVICE, OR SOFTWARE ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF PERFORMANCE, MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF CONDUCT AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE SITE, SERVICE, OR SOFTWARE, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE SAME, OR ANY ECONOMIC BENEFIT THE “CUSTOMER/AFFILIATE” MAY GAIN FROM USE OF THE SAME. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO IN SOME CIRCUMSTANCES.
- LIMITATION ON LIABILITY. “CUSTOMER/AFFILIATE” ACKNOWLEDGES AND AGREES THAT “THE COMPANY” SHALL NOT BE LIABLE HERE UNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF “THE COMPANY” HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY “THE COMPANY”’S TOTAL CUMULATIVE LIABILITY HERE UNDER, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY “THE COMPANY” FROM “CUSTOMER/AFFILIATE” DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCONCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF “THE COMPANY” ARISING OUT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE REASONABLE AND ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH “CUSTOMER/AFFILIATE” ’S USE OF THE SITE, SERVICE OR SOFTWARE PROVIDED BY “THE COMPANY” HERE UNDER, AND THAT, WERE “THE COMPANY” TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.