GENERAL TERMS AND CONDITIONS

 

THE MASTER SERVICE AGREEMENT (THE “AGREEMENT”) BY AND BETWEEN THE ENTITY OR PERSON NAMED AS THE “CUSTOMER” IN THE AGREEMENT AND ACCELLIS TECHNOLOGY GROUP, INC., AN OHIO CORPORATION, TOGETHER WITH ITS AFFILIATED ENTITIES (COLLECTIVELY, “ACCELLIS” OR “COMPANY”), (WHICH AGREEMENT IS INCORPORATED INTO AND MADE A PART OF THESE TERMS AND CONDITIONS) IS SUBJECT TO THE FOLLOWING GENERAL TERMS AND CONDITIONS (“TERMS AND CONDITIONS”).  THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE CUSTOMER.  EXECUTION OF THE AGREEMENT BY CUSTOMER AND/OR ANY ACCEPTANCE BY CUSTOMER OF SERVICES SHALL CONSTITUTE ASSENT BY THE CUSTOMER TO THESE TERMS AND CONDITIONS. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.  IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE AGREEMENT (OR ANY DOCUMENT ANCILLARY TO THE AGREEMENT) AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL CONTROL.

 

  • DEFINITIONS. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Agreement.

 

  • Affiliate: Affiliate means, with respect to either Accellis or Customer, any other entity which controls, is controlled by, or is under common control with Accellis or Customer. The term “control” means the power, directly or indirectly, to direct or cause the direction of Accellis’ or Customer’s management and/or policies, whether through the ownership of voting securities, by contract, or otherwise.

 

  • Accellis: Accellis Technology Group, Inc., an Ohio corporation, together with its Affiliates.

 

  • Customer: The person, firm, corporation or other entity named as Customer in the Agreement, together, jointly and severally, with its Affiliates.

 

  • Service or Services: Services and/or systems, as set forth in the Agreement, offered and provided to Customer by Accellis.

 

  • LIMITATIONS ON SERVICE

 

  • Provision and Availability of Services: Accellis shall provide Customer with the Services for the prices or fees set forth in the Agreement.  In the event a delay is caused by Customer’s failure to furnish necessary information to Accellis, Accellis may extend the date of delivery of Services for a reasonable time in proportion to the period of Customer’s delay.

 

  • Accellis’ Right to Suspend or Discontinue Services without Notice to Customer

 

  • Degradation: Accellis may suspend or discontinue furnishing Services if the Customer uses or misuses Services in a manner that results, or could result, in degradations that adversely affect the Services furnished to Customer or to other existing or prospective customers of Accellis.

 

  • Violation of Terms and Conditions or Agreement or Law: Accellis may suspend or discontinue the furnishing of Services if Customer uses, or threatens to use, Services for any unlawful purpose or otherwise violates the terms of the Agreement or these Terms and Conditions.

 

  • Unlawful or Unauthorized Use: Accellis may suspend or discontinue the furnishing of Services when it deems it necessary to take such action to prevent the unlawful or unauthorized use of Services.

 

  • Nonpayment for Services: Accellis may suspend or discontinue the furnishing of Services if the Customer fails or refuses to pay for Services in accordance with its obligations under the Agreement or any other agreement between Accellis and the Customer.

 

  • Hardware; Software. Any and all hardware and/or software used in and/or necessary for the provision of Services shall be selected and acquired by Accellis on the account and at the sole cost and expense of the Customer. 

 

  • Third Party Software. The Services may include features that operate in conjunction with certain third-party software, hardware, applications, and/or websites (“Third Party Features”). While the use of the Services is governed by the Agreement and these Terms and Conditions, User’s access and use of Third-Party Features is governed by their respective terms of service and other agreements. Accellis shall not be responsible for and is hereby released from any responsibility and/or liability related to determining whether the Customer’s use of the Services would cause the Customer to violate or breach the Third-Party Features’ terms of service and/or other agreements. THE CUSTOMER HEREBY AGREES THAT THE CUSTOMER IS SOLELY RESPONSIBLE FOR THE CUSTOMER’S USE OF THE SERVICES AND THAT ACCELLIS WILL NOT BE LIABLE TO THE CUSTOMER OR ANYONE ELSE FOR THE CUSTOMER’S VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM THE CUSTOMER’S USE OF THE SERVICES.

 

  • WARRANTIES AND STANDARDS FOR SERVICES

 

  • DISCLAIMER OF WARRANTIES: THE SERVICES AND ANY AND ALL RELATED SOFTWARE, APPLICATIONS, PLATFORMS, AND/OR SERVER AND NETWORK COMPONENTS (TO THE EXTENT APPLICABLE), ARE PROVIDED TO THE CUSTOMER ON AN “AS-IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ACCELLIS (ON BEHALF OF ITSELF AND ITS AFFILIATES) EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT ACCELLIS DOES NOT WARRANT THAT ACCESS TO THE INTERNET, ANY SOFTWARE, APPLICATIONS, PLATFORMS, AND/OR SERVER AND NETWORK COMPONENTS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE. THE FOREGOING IS AN ESSENTIAL PART OF THE AGREEMENT AND THESE TERMS AND CONDITIONS AND FORMS THE BASIS FOR DETERMINING THE PRICES SET FORTH IN THE AGREEMENT.  CLIENT UNDERSTANDS ACCELLIS IS ABLE TO PROVIDE THE SERVICES AT THE PRICES SET FORTH IN THE AGREEMENT BECAUSE ACCELLIS HAS DISCLAIMED ALL WARRANTIES AND ACCELLIS’ LIABILITY IS LIMITED HEREUNDER AND THEREUNDER.

 

  • LIMITATIONS ON LIABILITY: ACCELLIS SHALL NOT BE LIABLE FOR AND DISCLAIMS ANY AND ALL LOST PROFITS AND ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF THE SERVICES OR THE PERFORMANCE BY ACCELLIS UNDER THE AGREEMENT AND/OR THESE TERMS AND CONDITIONS.  ACCELLIS SHALL NOT BE LIABLE FOR ANY DOWNTIME, INABILITY TO ACCESS THE INTERNET, ANY SOFTWARE, APPLICATIONS, PLATFORMS, AND/OR SERVER AND NETWORK COMPONENTS.  IN THE EVENT OF TERMINATION FOR ANY REASON, ACCELLIS SHALL NOT BE LIABLE TO CUSTOMER FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES, LICENSES OR COMMITMENTS MADE IN CONNECTION WITH THE AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE THEREUNDER.  NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION DETERMINES ACCELLIS IS IN BREACH OF ANY PROVISION OF THE AGREEMENT OR THESE TERMS AND CONDITIONS OR IS LIABLE TO CUSTOMER, DIRECTLY OR INDIRECTLY, IN ANY OTHER WAY UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, OR PURSUANT TO ANY OTHER CAUSE OF ACTION, THE MAXIMUM AGGREGATE LIABILITY AND AMOUNT OF RECOVERABLE DAMAGES SHALL BE LIMITED TO THE AMOUNTS PAID BY THE CUSTOMER TO ACCELLIS PURSUANT TO THE AGREEMENT.  ACCELLIS DOES NOT HAVE, AND EXPRESSLY DISCLAIMS, ANY DUTY TO VERIFY THIRD PARTY INFORMATION PROVIDED BY ACCELLIS TO CUSTOMER AND CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY CUSTOMER ON ANY CONSULTATION INCLUDED IN OR WITH ACCELLIS’ SERVICES, WHICH MAY OR MAY NOT INCLUDE THIRD PARTY INFORMATION, SHALL BE AT CUSTOMER’S SOLE RISK AND LIABILITY.

 

  • Force Majeure Events: In no event shall Customer have any claim or right against Accellis for any failure of performance due to causes beyond Accellis’ control, including, but not limited to: acts of God, fire, explosion, vandalism, cable cut, storm, flood or other similar occurrences; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over Accellis or of any department, agency, commission, bureau, corporation, or other instrumentality of any federal, state, or local government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; or supplier failures, shortages, breaches, or delays.

 

  • Customer’s Failure to Fulfill Obligations: Accellis shall not be liable to Customer or to any third party for Customer’s failure to fulfill its obligations under the Agreement and/or these Terms and Conditions, including, without limitation:

 

  • Obtaining, installing and maintaining all necessary equipment, materials, and supplies for connecting Customer and its facilities, services, equipment or systems to Services;

 

  • Ensuring that Customer and its facilities, services, equipment or systems interface properly with Services; and that the Services delivered to Customer are fully compliant with industry standards.

 

  • Misuse of Service: Accellis shall neither provide credit allowances nor otherwise be liable for the use, misuse or abuse of Services by Customer, its agents, employees or any third parties including, without limitation, members of the public.

 

  • Billing Errors: Accellis’ obligation with respect to any errors resulting in Customer overpayments for Services is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstance will any billing error affect the Customer’s obligation to pay for Services rendered and used.

 

  • Customer Acknowledgements, Representations, and Warranties: Customer represents and warrants, by entering into the Agreement and accepting the Services from Accellis, that: (i) If Customer is an entity, Customer is a legal entity duly organized and existing, and is in good standing, under the laws of jurisdiction of its organization; (ii) Customer’s execution, delivery, and performance of the Agreement has been duly authorized by all appropriate corporate action on the part of Customer, and the Agreement, together with these Terms and Conditions, constitutes a valid and binding obligation of Customer enforceable against it in accordance with its terms and these Terms and Conditions; (iii) there is no outstanding or threatened order, writ, injunction, or decree of any court, governmental agency, or arbitration tribunal against Customer that affects, involves, or relates to its performance under the Agreement and these Terms and Conditions; (iv) Customer will use the Services solely as authorized in the Agreement or these Terms and Conditions and in accordance with all applicable laws, including, without limitation, all laws relating to communications, intellectual property, and data privacy; and (v) Customer remains solely responsible for all content created by Customer and any acts or omissions by Customer. Customer understands that, to the extent applicable, all or a portion of any third-party content aggregated by the Services may be copyrighted or subject to other intellectual property protections.

 

  • INDEMNIFICATION

 

  • Indemnification: The Customer shall indemnify, defend and hold harmless Accellis and its affiliates, partners, directors, officers, employees, representatives, and their successors in interest and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of (i) any act or omission of the Customer; (ii) a breach by Customer of any representation, warranty, and/or agreement with any Indemnified Party; (iii) failure by Customer to pay any and all applicable taxes, customs, duties, tariffs, and the like arising from the transactions set forth in these Terms and Conditions and/or the Agreement; (iv) any and all corrupt data, viruses, malware, or security breaches directly introduced by the Customer; (v) a violation by Customer (any of its officers, directors, employees or agents) of any applicable law, regulation, or order of the United States or any other applicable government or quasi-governmental authority; and/or (vi) any claim that Customer property or any portion thereof infringes or misappropriates any third party patents, copyrights, trademark, and/or intellectual property or other proprietary rights.

 

  •  CUSTOMER OBLIGATIONS

 

  • Commencement of Relationship and Provision of Services: The execution of an Agreement by Customer and acceptance thereof by Accellis establishes the respective rights and obligations of the parties. If there is no executed Agreement but Customer nevertheless uses Services, Customer is deemed to have consented to all terms of the Agreement, including these Terms and Conditions and any documents incorporated therein by reference. To the extent necessary, Customer shall allow Accellis, its agents, and/or contractors reasonable access to Customer’s premises to facilitate provision of Services, maintenance, testing, repair and termination of Services, including the retrieval of Accellis property used to provide Services.

 

  • Conditional Use of Services: Without the prior written consent of Accellis, Customer may not: (a) use any service mark or trademark of Accellis or its Affiliates, including those licensed to Accellis or its Affiliates, or (b) refer to Accellis or any of its Affiliates in connection with any service or product, promotional offering, or publication of the Customer.

 

  • Notice of Claims and Problems: Customer shall immediately notify Accellis in writing upon its receipt of any information that might adversely affect Accellis, including, but not limited to, notices of any claims or proceedings that involve Service, and Customer promptly shall notify Accellis of any problem relating to Services or Service performance and reasonably cooperate with Accellis in repairing the problem with the Services.

 

  • Additional Services: Customer may request additional Service(s) from Accellis, which Accellis, in its sole discretion, may agree to provide pursuant to a separate instrument, a rider or addendum to the Agreement, or an amended and restated Agreement.

 

  • Access: The Customer shall provide to Accellis, free of charge, such computer facilities and resources, computer consumables, remote access and office and administrative resources as are reasonably necessary to enable Accellis to carry out its obligations under the Agreement.  The Customer shall promptly furnish Accellis with such information and documents as it may reasonably request for the proper performance of its obligations under the Agreement.  The Customer shall use best efforts to co-operate with and assist Accellis to such extent as Accellis may reasonably require to perform Accellis’ obligations under the Agreement. The Customer shall provide Accellis with access to any and all usernames, passwords, and other pertinent security credentials.

 

  • Confidentiality: A party (the “Disclosing Party”) may provide to the other party (the “Recipient”) from time to time or the Recipient may have access to the Disclosing Party’s Confidential Information.  “Confidential Information” shall mean trade secrets, know‑how, inventions, ideas, discoveries, developments, processes, formulas, diagrams, drawings, designs, software, applications, source and object codes, data, programs, improvements, techniques, product data and specifications, test results, and other technical information, the Disclosing Party’s products and services and the products and services of its customers and prospective customers; information concerning the Disclosing Party’s business and/or the business of its customers and prospective customers, including plans for research, development, and new products, cost information, profits, sales information, accounting and financial information, business plans, markets and marketing methods, advertising strategies, customer lists and customer information, purchasing techniques, supplier lists and supplier information; and information concerning the Disclosing Party’s employees, including their compensation and skills.  Except as expressly permitted herein, the Recipient shall not disclose any Confidential Information to any third party or use any of the Confidential Information for any purpose, except as is necessary to perform its obligations or exercise its rights as set forth herein or in the Agreement.  Confidential Information shall not include any information that:  (i) corresponds in substance to information developed by the Recipient without reference to the Confidential Information or can be demonstrated by the Recipient to be in the Recipient’s possession prior to receipt of the same from the Disclosing Party; (ii) now is or hereafter becomes publicly known through no fault of the Recipient; or (iii) otherwise lawfully becomes available to the Recipient from a third party not known by the Recipient to be under an obligation of confidentiality to the Disclosing Party.  Upon termination of the Agreement, all Confidential Information and other information shall be returned or destroyed promptly upon request, no copies thereof shall be retained by the Recipient, and the Recipient shall not thereafter utilize such information in any respect or for any purpose whatsoever.

 

  • Intellectual Property: Other than the limited license expressly granted by the Agreement, Customer shall have no rights with respect to any of Accellis’ existing or subsequently-acquired or developed Intellectual Property, as defined below, rights or trade secrets or Confidential Information of Accellis, and Customer hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and Confidential Information are and shall remain vested in or controlled by Accellis.  “Intellectual Property” for purposes of these Terms and Conditions means (i) patents, patent applications, provisional applications, patent disclosures, including all ideas, inventions and improvements disclosed therein, and all reissues, continuations, continuations in part, divisions and reexaminations thereof; (ii) trademarks, service marks, trade names, trade dress, logos, slogans, domain names, including all goodwill appurtenant thereto, and all registrations and applications for registrations thereof and all renewals and extensions thereof; (iii) copyrights and mask works and all registrations and applications for registration thereof; (iv) computer software, software applications and platforms, websites, disks, disk drives, data, data bases and user documentation and audio visuals, domain names, and text materials; (v) all trade secrets, research and development materials, processes, procedures, know how, ideas discoveries, inventions, customer lists, supplier lists, formulas, drawings and designs, technical data, marketing, financial and business plans; (vi) advertising materials currently or in the future utilized by the Accellis; and (vii) copies and tangible embodiments thereof (in whatever form or medium), and related documentation and goodwill.  Customer acknowledges and agrees that Accellis owns the exclusive right, title and interest and into all of Accellis’ Intellectual Property.  Customer shall not at any time during the Term and any time thereafter do or permit to be done any act or thing which impairs or may impair the rights of Accellis with respect to Accellis’ Intellectual Property. Customer will never represent that it has any ownership in any of Accellis’ Intellectual Property.  Customer expressly agrees that all of the use and goodwill of the Intellectual Property shall inure to the sole benefit of Accellis.

 

  • Non-Solicitation. Neither party shall, during the term of the Agreement and for a period of twenty-four (24) months following the termination of the Agreement, without the prior written consent of the other party, solicit, hire, or enter into a contract with any employee, consultant, agent, or representative of such other party, or, directly or indirectly, induce, or attempt to induce, or otherwise counsel, discuss, advise, or encourage any such employee, consultant, agent or representative of the other party to leave the employ or engagement of such other party or otherwise terminate such person’s relationship with the other party, or recommend to others the employment or retention of such person. The parties acknowledge and agree that the non-breaching party shall suffer irreparable harm in the event that a party breach this Section and, in such event, the breaching party shall immediately pay to the non-breaching party an amount equal to Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) as liquidated damages. Notwithstanding the foregoing, this non-solicitation provision will not prohibit either party from entering into an employment, consulting, or similar arrangement with any individual who responds to a general advertisement for employment, consulting, or other similar type of service.

 

  • Injunctive Relief: The parties hereby acknowledge and agree that the extent of damages in the event of a breach of the restrictive covenants contained in these Terms and Conditions may be difficult or impossible to ascertain and that there may be no adequate remedy at law in the event of any such breach. Consequently, in the event of such breach, the non-breaching party shall be entitled, in addition to any other remedies it may have at law, to seek an injunction or other equitable relief to enforce any or all of the covenants contained in these Terms and Conditions. The breaching party expressly waives (i) the defense that a remedy in damages will be adequate and (ii) any requirement in an action for specific performance or injunction for the posting of a bond.

 

  • Reservation of Remedies: The rights, powers and remedies that may be given or reserved to the parties by these Terms and Conditions and the Agreement shall be cumulative and in addition to all other and further remedies provided by law.  These Terms and Conditions and the Agreement shall not be construed to deprive the parties of any other rights, powers and other remedies otherwise given by law or at equity.  No delay or failure by a party in exercising any right or remedy and no partial or single exercise of such right or remedy shall constitute a waiver by such party of such right or any other rights in these Terms and Conditions and/or the Agreement.  No consent by a party to a breach of any express or implied term of these Terms and Conditions and/or the Agreement shall constitute a consent to any prior or subsequent breach of the same or any other term.

 

  • BILLING AND PAYMENT ARRANGEMENTS

 

  • Customer Responsibility for Payment: Customer shall pay Accellis for Services at the rates and frequencies set forth in the Agreement.

 

  • Service Start Date: Accellis will notify Customer when Services are available for use.

 

  • Taxes: Service rates and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges. Customer shall promptly pay any and all applicable sales and use taxes, customs, duties, and tariffs on the Services provided by Accellis to Customer.

 

  • Late Payment Fee on Past Due Amounts: Except as expressly provided otherwise, invoices not paid in full by the due date will be past due and subject to an additional charge equal to the lesser of a one- and one-half percent (1.5%) per month late payment fee or the maximum monthly rate permitted by law on past­ due balances.

 

  • Invoice Acceptance: Payment of an invoice shall be deemed irrevocable acceptance by Customer of such invoice.  Failure to dispute an invoice within forty-five (45) days from the date of such invoice shall be deemed irrevocable acceptance by Customer of such invoice.

 

  • Recovery of Collection Costs: Unless otherwise prohibited by law, Customer shall reimburse Accellis for any costs incurred by Accellis in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys’ fees.

 

  • TERMINATION/DEFAULT

 

  • Consequences of Termination. Termination of the Agreement in accordance with the foregoing provisions will not affect (i) the rights and obligations of the parties with respect to invoices issued by Accellis prior to the effective date of the termination, (ii) the rights and obligations of the parties with respect to intellectual property rights, confidentiality, indemnification, non-solicitation, and governing law of the parties as set forth herein, or (iii) terminate liabilities arising out of conduct prior to the actual date of termination.  Otherwise, all rights and obligations of the parties shall cease to exist upon termination of the Agreement.

 

  • Termination Not Exclusive Remedy: Any remedy provided to Accellis shall not be construed to be an exclusive remedy and shall not deprive Accellis of its ability to pursue other available remedies. The parties agree that Accellis’ damages in the event of Service cancellation or termination would be difficult or impossible to ascertain and, therefore, any early cancellation or termination charges invoiced to Customer by Accellis are intended to serve as liquidated damages rather than penalties.

 

  • Return of Equipment: In the event that the Agreement is terminated for any reason, Customer shall return any and all Accellis equipment to Accellis in good operating condition within thirty (30) days from the date of such termination. In the event that Accellis does not receive said equipment in good working condition, within thirty (30) days from the date of such termination, Customer agrees to immediately pay Accellis Two Thousand Four Hundred and 00/100 Dollars ($2,400.00) as liquidated damages for failure to timely return Accellis equipment in good working condition. In the event that Accellis has to engage an outside third-party collection service or attorney to recover the equipment, the Customer agrees that the Customer shall be responsible for payment of any such collection fees.

 

  • MISCELLANEOUS PROVISIONS

 

  • Relationship among Accellis, Customer and Third Parties: Neither party nor any other agents or employees, officers, directors, managers,  shareholders or members of such party shall be deemed a representative or agent of the other, nor shall either party hold itself out as a representative or agent of the other beyond the scope of the Agreement and/or these Terms and Conditions, and, neither party shall have any right or authority to conduct any business in the name of, or for the account of or on behalf of the other party.  The parties hereto agree and understand that, solely with respect to the Agreement and/or these Terms and Conditions, Accellis will be and act as an independent contractor of Customer, Customer and Accellis are separate entities and that there is no master/servant, partnership, joint venture, principal/agent, or employer/employee relationship between the parties.

 

  • Severability: Should any part, portion, or provision of these Terms and Conditions and/or the Agreement be held invalid, illegal, void or unenforceable, the remainder of these Terms and Conditions and/or the Agreement or the application of such provision shall not be affected thereby and each provision of these Terms and Conditions and/or the Agreement shall be valid and enforced to the fullest extent permitted by law.

 

  • Choice of Law and Venue: The Agreement and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made and wholly performed in such state without regard to choice or conflicts of law principles.  The Agreement and these Terms and Conditions shall be deemed to have been entered into at Cleveland, Ohio, U.S.A., regardless of the place or places of signing by the parties hereto or the order of their signing.  Customer hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Ohio State Court or Federal Court sitting in Cuyahoga County, Ohio, in any action or proceeding arising out of or relating to the Agreement and/or these Terms and Conditions.  Customer agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

  • Waiver of Jury Trial. TO THE EXTENT ALLOWED BY APPLICABLE LAW, ACCELLIS AND CUSTOMER MUTUALLY, EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY PROCEEDINGS, WHETHER IN LAW OR IN EQUITY, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THESE TERMS AND CONDITIONS, OR ANY CONDUCT OR COURSE OF DEALING OF THE PARTIES, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON.  THIS WAIVER IS A MATERIAL INDUCEMENT TO ACCELLIS TO PERFORM UNDER THE AGREEMENT.

 

  • Non-exclusive Dealing: The Agreement is non-exclusive. Nothing shall prevent Accellis from entering into similar arrangements with, or otherwise providing Services to, any other person or entity.

 

  • No Waiver: No waiver of any of the provisions of these Terms and Conditions and/or the Agreement shall be binding unless made in writing and signed by the waiving party. The failure of either party to insist on the strict enforcement of any provision of these Terms and Conditions and/or the Agreement shall not be deemed to constitute a waiver of the provision, and all terms and conditions herein and/or therein shall remain in full force and effect.

 

  • Amendments. Unless otherwise set forth in the Agreement or in these Terms and Conditions, no modifications, additions, or amendments to the Agreement shall be effective unless made in writing as an addendum to the Agreement and signed by duly authorized representatives of both parties.

 

  • Assignment. Customer shall not assign or transfer the Agreement, in whole or in part, whether by means of merger, reorganization, combination, sale of assets, change of control, operation of law or otherwise, without Accellis’ prior written consent (which may be withheld in Accellis’ sole and absolute discretion), and any assignment or attempt to do so without such consent will be void and of no effect.  The Agreement, together with these Terms and Conditions will only inure to the benefit of the parties to the Agreement and their respective permitted successors and assigns, and, except as expressly set forth in the Agreement and/or these Terms and Conditions, there are no third-party beneficiaries to the Agreement or these Terms and Conditions.

 

  • Notices. All notices, requests, directions, approvals or other communications to be provided in the Agreement or these Terms and Conditions will be in writing and will be deemed to have been sufficiently given (i) upon receipt if delivered in person; (ii) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (iii) on the date transmitted if by email; provided that the original will promptly follow by internationally-recognized mail service or overnight courier. All notices will be sent to the applicable party at the address(es) on the signature page of the Agreement (or as otherwise instructed in writing by such party).
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