DIESEL MARKETER TERMS AND CONDITIONS OF SERVICE —PLEASE READ CAREFULLY— THIS IS A BINDING CONTRACT THESE TERMS AND CONDITIONS OF SERVICE (THIS “AGREEMENT”) APPLY TO ALL SERVICES AND PRODUCTS, AND RELATED SUPPORT AND CONSULTING SERVICES AND PRODUCTS (EACH, A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), MADE AVAILABLE BY DIESEL MARKETER (THE “COMPANY”) TO YOU (“CUSTOMER”), PURSUANT TO THE SPECIFICATIONS OF A CUSTOMER PURCHASE ORDER SUBMITTED BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT (“PURCHASE ORDER”) FOR THE TERM SPECIFIED IN SUCH PURCHASE ORDER (THE “INITIAL TERM”) AND ALL RENEWALS OF THE TERM, INCLUDING RENEWALS AS SET FORTH IN THIS AGREEMENT (COLLECTIVELY, THE “TERM”). COMPANY’S ACCEPTANCE OF ANY PURCHASE ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. BY ACCEPTING THE TERMS OF THIS AGREEMENT, ELECTRONICALLY OR IN WRITING, OR BY OTHERWISE USING THE SERVICES, INCLUDING BUT NOT LIMITED TO, BY SUBMITTING MATERIALS, INFORMATION AND/OR CONTENT TO COMPANY FOR COMPANY’S PERFORMANCE OF THE SERVICES OR MAKING PAYMENT AND/OR AUTHORIZING PAYMENT TO COMPANY, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER ALSO AGREES THAT CUSTOMER’S ELECTRONIC ACCEPTANCE OF THIS AGREEMENT SHALL HAVE THE SAME FORCE AND EFFECT AS IF CUSTOMER HAD AGREED TO THE TERMS OF THIS AGREEMENT IN WRITING. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND COMPANY, SHALL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE EXPRESSLY AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER COMPANY’S COMMENCEMENT OF PERFORMANCE NOR COMPLETION OF THE SERVICES SHALL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. COMPANY RESERVES THE RIGHT TO REJECT ANY PURCHASE ORDER OR TO CANCEL ANY PURCHASE ORDER PREVIOUSLY ACCEPTED IF COMPANY DETERMINES THAT CUSTOMER IS IN BREACH OF ANY TERM OR CONDITION HEREIN.
By selecting and submitting “accept” on the electronic copy of this Agreement, or otherwise assenting to this Agreement pursuant to the terms hereof, Customer has consented to the use of this electronic format of this Agreement and such acceptance shall constitute Customer’s electronic signature hereto. PRICES. All prices quoted in the Purchase Order are subject to this Agreement. Unless otherwise stated in writing by Company, all prices quoted in the Purchase Order are exclusive of transportation, insurance, and federal, state, local, excise, value added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter in effect, as applicable. In addition to the prices quoted in the Purchase Order or invoiced, Customer agrees to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Company. In the event that Company is required to collect such taxes, fees, or charges, such amounts will appear as separate items on Company’s invoice and will be paid by Customer.
TERMS OF PAYMENT AND RENEWAL.
Company accepts payment via Paypal and credit card. Upon Customer’s authorization of payment to Company via credit card, Customer hereby authorizes any and all recurring monthly fees for the Services during the Term to be charged to the same method of payment, credit card or EFT account for future charges until such authorization is withdrawn by Customer in writing. Customer may change payment methods including credit card payments with thirty (30) days notice to Company. To change payment methods Customer should contact Company’s billing department at email@example.com. Customer should not email new billing information for security purposes. The setup fee for the Services is due and billed in-full at the time that this Agreement is entered into between Customer and Company. Installment payments may be accepted for the set-up fees only if set forth in the terms of the Purchase Order. For Customers whose Purchase Order sets forth a month-to-month Initial Term, after launch of month-to-month Services, all cancellations must be requested in writing (via fax or email), as further set forth below in this Agreement, at least fifteen (15) days in advance of Company’s next billing date. Should Company not receive adequate written notice, Customer will be billed, and if Customer’s method of payment is via credit card such credit card will be charged in the upcoming month and Customer’s cancellation will be effective the month after such billing. Where customer has purchased using Paypal, Customer may cancel recurring billing agreements in Paypal for immediate cancellation. Cancellation of the Services is subject to terms of cancellation set forth in this Agreement. Unless prior to the expiration of the Initial Term Customer otherwise notifies Company in writing pursuant to the terms of this Agreement, following expiration of the Initial Term, Customer hereby agrees to renew the Term on a month-to-month basis and authorizes Company to bill monthly fees for the Services every thirty (30) days; provided, however, that Customer may cancel the Services by providing Company with written notice of cancellation pursuant to the terms of cancellation set forth in this Agreement.
PAYMENT DUE WITHIN THIRTY DAYS.
Unless otherwise expressly agreed to by Company in writing, all fees owing to Company shall be paid by Customer in full in U.S. dollars within thirty (30) days of the invoice date. Customer shall pay a late fee of 10% per month. If Company believes in good faith that Customer’s ability to make any payment required hereunder is or may be impaired, Company may cancel this Agreement (or any remaining balance thereof), and Customer shall remain liable to pay for the Services previously purchased by Customer.
DEFAULT, CANCELLATION AND REFUNDS.
USE OF CUSTOMER INFORMATION.
THIRD PARTY SERVICES.
From time to time third parties may offer services to Company’s Customers. Use of such third party services will be at Customer’s own risk and subject to the terms and conditions of those third parties. Third party services, including but not limited to, IDX, VOW, and other MLS services, are the responsibility of and shall be paid by Customer to its selected provider. Company does not represent or warrant that use or access to any third party services will be compatible, uninterrupted, error free, without defects or that Customer will be able to access the Services. Customer also agrees that Company is under no obligation to provide Customer with any enhancements, updates, or fixes to make the Services accessible through any third party services or applications.
CONTRACT SERVICE PROVIDERS.
Company may contract with contract service providers to complete a portion, or all, of the Services. Customer agrees not to do business directly with the contract service providers, nor to remit payment to the contract service providers or any Company employee directly for the Services. All payments for the Services rendered must be made directly to Company. Contract service providers are provided with only the information needed to complete the portion of the Services that they have been contracted to complete and do not have access to Customer’s personal information including payment information.
DISCLAIMER OF WARRANTIES.
CUSTOMER’S USE OF COMPANY’S SERVICES IS AT CUSTOMER’S OWN RISK. COMPANY’S SERVICES ARE PROVIDED “AS IS.” COMPANY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPANY DISCLAIMS ANY WARRANTIES REGARDING COMPANY’S SERVICES INCLUDING THAT THEY WILL MEET CUSTOMER’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. COMPANY DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF COMPANY’S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. COMPANY DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CUSTOMER’S PRODUCTS, SERVICES, SALES, OR WEBSITE. COMPANY DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH COMPANY’S SERVICES, OR LINKS PROVIDED BY COMPANY’S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY COMPANY OR OBTAINED THROUGH LINKS PROVIDED THROUGH COMPANY’S SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, AND THEREFORE THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Customer shall indemnify, defend and hold Company harmless from and against any and all claims brought by any third party against Company arising out of or related to Customer’s use or distribution of the Services purchased hereunder, including (i) any claim arising out of or related to any warranty made by or on behalf of Customer to its customers that expands any warranties provided herein or fails to limit any liability as provided herein or (ii) any breach of this Agreement by Customer.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR ANY LOSS OF PROFITS OR LOSS OF USE, INCLUDING LOSS OR DAMAGE TO ANY NETWORKS, SYSTEMS, DATA OR FILES, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST CUSTOMER. COMPANY ASSUMES NO OBLIGATIONS OR LIABILITY OF ANY KIND WITH RESPECT TO INFRINGEMENTS OR ALLEGED INFRINGEMENTS OF UNITED STATES OR FOREIGN PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER PROPRIETARY RIGHTS ARISING OUT OF CUSTOMER’S PURCHASE OR USE OF THE SERVICES, AND CUSTOMER ASSUMES ALL SUCH RISK. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE SERVICES PAID BY CUSTOMER TO COMPANY AND SUBJECT TO THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF COMPANY ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF SERVICES TO CUSTOMER, AND THE PARTIES EXPRESSLY AGREE WITH THE RESULTING ALLOCATION OF RISK.
SUBSTITUTIONS AND MODIFICATIONS.
Company reserves the right to make substitutions and modifications in the specifications of the Services sold by Company, provided that such substitutions or modifications do not materially affect the overall performance of the Services.
Customer acknowledges and agrees that the Services may contain proprietary and confidential information that is protected by intellectual property and proprietary rights laws under common law and applicable statutory law. Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services or proprietary or confidential information. Company does not provide direct access, through File Transfer Protocol or other means, to any proprietary technology. Title shall not pass to Customer as to any Company intellectual property, software or other proprietary rights. Customer is encouraged to copyright and protect all copyrightable information that it provides to Company, if any. Company is not responsible for any Customer’s copyrightable material. Customer acknowledges that the Services contain and embody trade secrets belonging to Company and Customer shall not reverse engineer the Services purchased hereunder. Customer shall have no right to view, access or copy any source code or other proprietary information of Company used in any software or used in the provision of any of the Services. In addition to the foregoing, Company owns all rights, title and interest in and to all other intellectual property rights, including patent and copyrights, embodied by or reflected in the Services. A non-exclusive, nontransferable, revocable license solely for the use of any software contained in the Services, where applicable, is granted hereunder by Company to Customer and Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to the Services.
Notices contemplated by or made pursuant to this Agreement shall be in writing and in English and shall be deemed delivered on the date of delivery if delivered personally, or three (3) days after mailing if placed in the U.S. mail, postage prepaid, registered or certified mail, return receipt requested, addressed to recipient at their designated address pursuant to the Purchase Order, if to Customer, or the address below, if to Company, or such other address as shall be designated by at least ten (10) days prior written notice by a party desiring to designate a new address for notice purposes. Unless otherwise specifically provided by Company, all notices required or permitted by Company shall be sent to the following address: Diesel Marketer, PL 10034 42329 219 Cleveland St, 2016, Redfern, Australia. If Customer elects to send notice to Company by email or facsimile, a copy of the request must also be sent by mail to the address above as confirmation of the request. The effectiveness of any cancellation notices sent to Company are governed by the terms of cancellation set forth above in this Agreement.
APPLICABLE LAW, JURY TRIAL WAIVER, JURISDICTION, AND LIMITATION ON ACTIONS.
This Agreement shall be governed by and construed under the laws of the State of New South Wales, without regard to choice of law provisions, as applied to agreements among residents entered into and to be performed entirely within New South wales. THE PARTIES HEREBY IRREVOCABLY AND KNOWINGLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the Courts of the New South Wales and of Australia and agree that any legal action or proceeding relating to this Agreement may be brought in such courts. In the event the parties’ waiver of a trial by jury is deemed invalid, the parties hereby agree that any action or claim arising out of any dispute in connection with this Agreement, any rights, remedies, obligations, or duties hereunder, or the performance or enforcement hereof or thereof shall be determined by judicial reference. Customer hereby agrees that any cause of action commenced by Customer, arising out of or related to this agreement, must commence within one (1) year after the cause of action accrues, otherwise, such cause of action is permanently barred.
In the event litigation shall be instituted to enforce any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys’ fees and expenses incurred in such litigation, including on appeal, in addition to any other recovery to which such party may be legally entitled.
This Agreement shall bind and inure to the benefit of Company’s successors and assigns, including, without limitation, any entity into which Company shall merge or consolidate or to whom Company shall sell substantially all of Company’s assets. Customer may not assign, directly or indirectly, by operation of law or otherwise, any of Customer’s rights or obligations under this Agreement without Company’s prior written consent. Any attempted assignment, delegation, or transfer by Customer without such consent of Company shall be void.
Customer acknowledges that all technical or business and other documentation, information and materials delivered to or learned by Customer hereunder shall be considered Company’s confidential information (the “Confidential Information”). Customer hereby agrees: (i) to hold and maintain in strict confidence all Confidential Information of Company; and (ii) not to use any Confidential Information of Company except as permitted hereunder. Customer will use at least the same degree of care to protect Company’s Confidential Information as it uses to protect its own confidential information of like importance, and in no event shall such degree of care be less than reasonable care. Customer agrees that it will only provide Confidential Information to those employees who have a need to know for the purposes hereunder. Customer agrees that it shall not disclose Company Confidential Information to any third party, including third party contractors, without written authorization from Company.
SEVERABILITY, ERRORS AND VALIDITY OF AGREEMENT.
In the event any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement will remain in full force and effect. Clerical errors in sales made under this Agreement are subject to correction.
The terms and conditions set forth herein constitute the entire Agreement between Customer and Company and supersede any other agreements or offers, including any purchase order of Customer, prior or contemporaneous oral or written understandings, or communications relating to the subject matter hereof.
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