Internet Sales Terms and Conditions
Annular Dietary and Nutritional Supplement Products
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A USER AND CUSTOMER AT AND THROUGH THIS INTERNET SITE AND RELATED INTERNET SITES, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to the review and access of information and materials regarding, and to the ordering, purchase and receipt of certain products, including without limitation certain wellness-promoting vitamins, dietary supplements and nutritional supplements (collectively, the “Products”), by those persons (each, a “Customer”) accessing and ordering Products at and through the Internet website https://annular.com, and related websites and social media pages and sites (collectively, the “Site(s)”), as provided by the Site(s)’ proprietor, Annular LLC, an Arizona limited liability company (“ALLC”). By clicking “I accept” and also by placing an order at or through the Site(s), or any of them, by accessing, ordering, paying for and receiving any Products, and by utilizing the Site(s) in connection therewith, Customer, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you, as a Customer, do not agree to be bound by all of these Terms, please do not order or purchase any Products or use or utilize the Site(s) in connection therewith. ALLC reserves the right to cancel your Customer Account, and to discontinue making the Products, the Site(s) and all features thereat and therethrough available to you, as Customer, should you, as Customer, violate any of these Terms.
In agreeing to these Terms, you acknowledge that prior to doing so, you have received, read and understood these Terms, as well as the ALLC Shipping, Return and Refund Policy, Disclaimer Policy and Privacy Policy (collectively, the “ALLC Policies”), each of which is incorporated into and integrated with these Terms and made part hereof as if restated in full, as posted at the Site(s), and that you have read, understand and agree to all provisions and conditions set forth in these Terms. In the event of any conflict or inconsistency between these Terms and any of the ALLC Policies or any other document or policy referenced herein, these Terms shall govern and take precedence, with the sole exception of ALLC’s Privacy Policy, which shall govern and take precedence over all.
1. Becoming an ALLC Customer
To become an ALLC Customer, establish a below-defined Customer Account, and be eligible to order, purchase and receive Products through the Site(s), a person or entity must register directly at the Site(s). Unless pursuant to a White Label Order, Customer is not authorized to market or resell the Products, or any of them, in any event or under any circumstances.
2. Sale and Purchase of Products.
a) Basic Description of Products. Generally, the Products ALLC shall make available for purchase by Customer shall consist of certain wellness-promoting vitamins, dietary supplements and natural supplements, and packages thereof, specifically as listed at the Site(s). Through the Site(s), ALLC will also make available to Customer certain information and materials (collectively, “ALLC Materials”) regarding the Products; provided that Customer hereby understands, acknowledges and agrees that the ALLC Materials are based solely upon information provided by the manufacturers of the corresponding Products, that such manufacturers are therefore solely and exclusively responsible for the content of such ALLC Materials, that ALLC therefore shall not in any event or under any circumstances be held liable or responsible for such content, and that Customer’s recourse in relation to the ALLC Materials provided at or through the Site(s) solely and exclusively shall be as to the corresponding manufacturer(s) that provided the content in question regarding such ALLC Materials. To the extent not prohibited in the corresponding agreement between ALLC and such manufacturer(s), ALLC hereby assigns to Customer any rights, remedies and claims ALLC may have against such manufacturer(s), or any of them, in relation to the same.
b) Categories of Product Sales. Customers may purchase Products as follows, each subject to Customer’s application through the Site(s) and Customer Account for eligibility to participate in each such category and ALLC’s acceptance of such application, in ALLC’s sole and absolute discretion:
i) White Label. In its sole and absolute discretion, ALLC may permit certain Customers to purchase in bulk certain Products to be resold by Customer under Customer’s own brand, subject to the remaining conditions, qualifications, requirements and limitations set forth under these Terms; provided that Customer shall be solely and exclusively responsible for any and all acts and omissions of Seller regarding any resold Products, including without limitation any representations made by Customer to any end purchaser of such Products, any further shipping and handling of such Products subsequent to delivery by ALLC, any loss of or of damage to such Products, or any of them, after such delivery, and any complaints made by any end purchaser of such Products; provided, further, that Customer shall not promote or market any such Products in any manner that is misleading, is inconsistent with any ALLC Materials, or adversely affects the reputation of the Products and ALLC; and provided, finally, that Customer shall not attribute to ALLC any statement, representation or warranty that is not expressly provided in these Terms.
ii) Drop Ship. In its sole and absolute discretion, ALLC may permit certain Customers to purchase in bulk and for regular periodic delivery to Customer certain Products, whereby ALLC shall arrange for one or more third-party suppliers to ship such Products directly to Customer on a weekly basis or on such other periodic basis as set forth in an Order.
iii) Wholesale. In its sole and absolute discretion, ALLC may permit certain corporate entity customers to purchase certain Products for discounted wholesale prices.
iv) Retail. All purchases that are not White Label, Drop Ship or Wholesale shall be direct-to-customer and at retail prices.
c) Orders. ALLC hereby agrees to provide to Customer the Products as set forth in greater detail in each purchase order (each, an “Order”, and collectively, the “Orders”) provided by Customer to ALLC through the Customer Account and accepted by ALLC in writing (including without limitation through written verification at the Site(s) or by verifiable electronic mail) in connection with these Terms. The Orders, solely upon ALLC’s acceptance and confirmation of each such Order at and through the Site(s), automatically shall be incorporated herein and integrated herewith by this reference without the need for any amendment of these Terms. In the event of any conflict or inconsistency between these Terms and the terms of any Order, these Terms shall govern and take precedence. ALLC shall be obligated to provide to Customer, and Customer shall be obligated to purchase, solely those Products as expressly referenced in an Order provided by Customer to ALLC through the Customer Account and accepted by ALLC as set forth in this Section 2(c). Each Order shall identify the category of Product sales as described in Section 2(b), above.
d) Subcontractors and Sub-Consultants. ALLC shall have full control over the means and methods of provision of the Products, and in connection therewith, ALLC shall have the right, but not the obligation, in its sole discretion, to enter into written subcontract agreements and sub-consulting agreements with persons or entities of ALLC’s choice (collectively, the “ALLC Subs”, and each an “ALLC Sub”), any of which may or may not be affiliated or commonly controlled with ALLC. Nothing contained in these Terms will be construed in and of itself to permit ALLC or any ALLC Sub to engage in any regulated professional practice or activity for which a license, certification or registration is required under the laws of the jurisdiction in which Customer orders or receives any Products, including without limitation by any applicable regulatory agency concerning nutrition and dietetics, such as the Commission on Dietetic Registration or the Academy of Nutrition and Dietetics. Upon request by Customer, ALLC shall within a reasonable time inform and update Customer as to which of the Products, or components thereof, are provided by ALLC Subs, as well as the identity of the corresponding ALLC Subs, including without limitation manufacturers, shippers, handlers and storage facilities. ALLC shall not be responsible for any acts or omissions of the ALLC Subs, or any of them, except to the extent such acts or omissions result from the recklessness or intentional misconduct of ALLC. With the exception of such recklessness or intentional misconduct of ALLC, Customer may not under any circumstances hold ALLC responsible or liable for any act or omission of any ALLC Sub, Customer’s sole recourse therefor shall be limited exclusively to the appropriate ALLC Sub, and Customer shall indemnify and hold harmless ALLC in relation to the same as set forth under Section 10, below. To the extent not prohibited under any applicable agreement between ALLC and an ALLC Sub, ALLC hereby assigns to Customer ALLC’s rights, benefits, claims and remedies under ALLC’s agreement with such ALLC Sub and in relation to such ALLC Sub for such purpose.
e) Products Non-Exclusive. Customer acknowledges and agrees these Terms are non-exclusive, and that ALLC may provide similar Products for or on behalf of other parties, including without limitation those engaged in the same or other businesses and endeavors.
f) No Purchase Required. Customer acknowledges and agrees that there are no minimum purchases or inventory requirements for ALLC Customers, and all Product and Service purchases are optional, subject to the terms of each Order. Once an Order is fully executed and accepted by ALLC, Customer shall be responsible for purchase of Products as set forth in such Order, subject to Customer’s limited right to cancel such Order as set forth in such Order and to return Products as set forth in ALLC’s Shipping, Return and Refund Policy.
g) Application of ALLC Policies. All Products are subject to the applicable ALLC Policies, including without limitation the ALLC Shipping, Return and Refund Policy and the ALLC Disclaimer Policy, and as a condition precedent to placing any Order for any Products, Customer understands, acknowledges and agrees that such ALLC Policies govern Customer’s purchase, receipt, and where applicable return, of any Products; provided that except as otherwise set forth in the ALLC Shipping, Return and Refund Policy, payment for White Label, Drop Ship and Wholesale Orders made by Customer and accepted by ALLC by shall be non-refundable in any event and under any circumstances.
h) Product Recalls; Return of Defective, Damaged or Non-Conforming Products. ALLC shall provide to Customer prompt written notice of any Product recall, in which event Section 3 of the ALLC Shipping, Return and Refund Policy shall take effect. Subject to the applicable provisions of the ALLC Shipping, Return and Refund Policy, and further subject to Section 2(g), above, as to payment for White Label, Drop Ship and Wholesale Orders, within thirty (30) calendar days after delivery of Products to Customer, and with an accompanying written Return Notice to ALLC, Customer may return for a full and prompt refund from ALLC any Products, which (i) are damaged or defective; (ii) breach any warranty or representation set forth in these Terms; (iii) do not conform to agreed specifications or to ALLC Materials; (iv) are subject to recall; or (v) were not identified in an Order. ALLC shall have a maximum of fourteen (14) calendar days from the date Customer provides a Return Notice to present a written challenge the right to return some or all of the returned Product(s) or to challenge the amount of the refund owed to Customer under this Section 2(h). In the event ALLC fails to present such a written challenge within such time period, or in the event ALLC only challenges in part, any refund or replacement Product, which is not subject to written challenge, shall be due and owing to Customer, subject to any offset, credit or recoupment ALLC may claim under applicable law, and in such event ALLC shall arrange for Customer to ship such Product(s) back to ALLC at no further cost to Customer; provided that it shall be Customer’s responsibility to return ship such Product(s) back to ALLC as instructed by ALLC. Title to any Product(s) returned to ALLC, and responsibility for any further loss of or damage to such Product(s), shall remain with Customer until Customer has returned such Product(s) and ALLC has received such returned Product(s), which shall be a condition precedent to ALLC’s obligation to provide any corresponding replacement Product(s) or refund under this Section 2(h). Refund checks that remain uncashed for more than one hundred eighty (180) calendar days will not be honored, and in the case another refund check therefore needs to be issued, the value of that check less a processing fee of USD $15.00 and a bank cancellation/stop payment fee of USD $10.00 will be applied.
i) Restrictions Regarding Sales Outside the United States and its Territories. Any sales of Products to persons outside the United States, its territories and Puerto Rico are limited to personal use quantities and may not be resold. Customer is personally responsible for complying with all applicable import, customs and licensing laws and regulations and for all customs duties, assessments, taxes, licensing fees, declarations and any other costs, fees and expenses associated with Customer’s importation of Products into Customer’s country or market. Certain Products or quantities of certain Products may be prohibited from importation into some countries. Customer agrees to indemnify and hold harmless the Company and all Company Parties for all losses, damages, claims, costs, fees and expenses of whatever kind or nature arising from or in connection with Customer’s importation of Products into Customer’s country. ALLC will not reimburse any loss or accept any responsibility for any Products confiscated by customs officials, which may not comply with import and export restrictions.
j) High Risk Products. Certain of the Products, which shall be made available only to White Label and Wholesale Customers, including without limitation certain peptide products, have been deemed to be “high risk” by certain insurers, banks, payment processors, logistics providers and other risk management and payment related entities (collectively, “Payment Partners”). ALLC will identify such Products prior to acceptance and verification of an Order for such Products, whereupon Customer, in completing and submitting such Order hereby knowingly, voluntarily and without any undue influence of any kind, hereby assumes full risks associated with the ordering, purchase and delivery of such Products as concerns any business relationship between Customer and its Payment Partners, or any of them. Customer shall indemnify and hold harmless ALLC and the ALLC Parties in relation to the same, as set forth in Section 10, below.
3. Terms Subject to Change.
a) General Terms Subject to Change. These Terms may change without prior notice at any time, in ALLC’s sole discretion, including without limitation the protocols for use of the Site(s), access to the Products at and through the Site(s), pricing of the Products, availability of the Products, availability of the Site(s), materials made available at or through the Site(s) in connection with or in relation to the Products, features and components of the Products, and other e-commerce related information and/or functionality. ALLC reserves the right, its sole discretion, to discontinue the Site(s), or any of them (including Products, or any of them, available thereat and therethrough), and/or modify the contents of the Site(s). Customer agrees ALLC will not be liable to Customer for any such discontinuance or modification of the Site(s), or any of them (including without limitation features of Products, or any of them, or any ALLC Materials); provided that once an Order is made, processed, confirmed, accepted by ALLC and paid for by Customer, ALLC shall provide the Products that are the subject of such Order under the terms set forth in such Order, and ALLC shall continue to make the Site(s) and Products available as provided in such Order and as otherwise provided in these Terms at the time of ALLC’s acceptance of and receipt of payment for such Order; but provided, further, that ALLC still may update the Site(s) and Products from time to time in ALLC’s sole and absolute discretion, and any future Order shall be subject to such updating.
b) Price and Payment Terms Subject to Change. ALLC reserves the right, in its sole discretion, to change the price of the Products, and each of them, at any time, such price being subject to change each time Customer accesses the order page for Products at the Site(s). In addition, all payment terms are similarly subject to change by ALLC. Unless and until Customer places an Order at the Site(s) for Products, or any of them, through the Customer Account (as defined under Section 4(c)(i), below), and such Order is accepted and confirmed as provided under Section 2(c), above, and Section 5(a), below, Customer shall have no expectations as to price or payment terms based on previous access to and receipt of information at the Site(s).
4. Use, Operation and Maintenance of Site(s), System(s) and Platform(s).
a) Operating and Maintenance Responsibilities of ALLC. ALLC shall exercise reasonable efforts to maintain the Site(s) in condition and operating order, or with respect to third-party tools and applications to cause the appropriate third party(s) to so maintain. ALLC shall not be responsible for any inaccessibility of Customer due to scheduled maintenance and upgrades of the Site(s) or any corresponding Internet servers or software. ALLC shall use reasonable efforts to ensure, or to cause an ALLC Sub to ensure, that any period of inaccessibility shall not exceed forty eight (48) hours. In the event that the Site(s) become inaccessible, or their operation deviates materially from that provided in these Terms, and such deviation can be replicated by Customer, then Customer shall give written notification of the inaccessibility or the deviation, and in the case of deviation, sufficient information to permit replication and analysis. Upon receipt of notice from Customer of any inaccessibility or deviation, ALLC shall use reasonable efforts to diagnose, or cause an ALLC Sub to diagnose, the cause of the inaccessibility or deviation. Upon completion of the diagnosis, ALLC shall advise Customer of the cause of the inaccessibility or deviation and shall use efforts, or cause an ALLC Sub to use efforts, which ALLC considers to be reasonable in its sole discretion, without charge, to restore access to and use of the Site(s) or avoid the deviation. Notwithstanding the foregoing, ALLC shall have no obligation to resolve, or to cause any ALLC Sub to resolve, any inaccessibility or deviation, or any functionality issues, caused by or attributable to: (i) modification of the Site(s) by anyone other than ALLC or an actually authorized ALLC Sub; (ii) use of the Site(s), Products or ALLC Materials for any purpose other than intended; (iii) misuse or incorrect use of the Site(s), Products or ALLC Materials; or (iv) malfunction or incompatibility of any Customer computer or any telecommunications services or equipment, or software or Internet features, not under the control of ALLC. ALLC shall provide Customer reasonable technical support, or cause an ALLC Sub to do the same, during ALLC’s business hours. ALLC shall implement, or with respect to third-party tools and applications ALLC shall cause the appropriate third party(s) to implement, the data archive procedures resident in the Site(s) at regular intervals, and Customer acknowledges that the liability for loss, destruction or damage to any data Customer may store at any such Site(s) is limited pursuant to these Terms. As between ALLC and Customer, ALLC has the sole right and responsibility to maintain and update the logical and physical organization and structure of the databases and associated files within the Site(s). In connection therewith, ALLC, in its sole discretion, shall have authority and access at all times these Terms are in effect to set up, utilize and administer third-party tools and applications for and on behalf of Customer and all Authorized End Users, as well as to make administrative setting changes in all technology platforms and services used and operated by or on behalf of Customer, each as they relate to the Site(s), Products and ALLC Materials.
b) Security. ALLC shall, or shall cause an ALLC Sub to, establish and maintain commercially reasonable security measures designed to protect Customer from any security breaches at or through the Site(s). However, ALLC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than ALLC’s recklessness or intentional misconduct. Specifically, among other things, ALLC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any causes set forth in Section 4(a)(i) through Section 4(a)(iv), above, or any features employed by any third party hosting company, it being understood and agreed that Customer may not under any circumstances hold ALLC responsible or liable therefor, and that Customer’s recourse therefor shall be limited to the appropriate third party hosting company or companies. To the extent not prohibited under any applicable agreement between ALLC and such a third-party host, ALLC hereby assigns to Customer ALLC’s rights, benefits, claims and remedies under ALLC’s agreement with such third-party host and in relation to such third-party host for such purpose.
c) Responsibilities of Customer.
i) Customer Account. Customer shall access and use the Site(s) through an account designated for Customer, which shall be tied to a username and password provided by Customer (the “Customer Account”). Customer have the opportunity to change the username and/or password for the Customer Account from time to time in accordance with ALLC’s security policies and protocols, which ALLC shall make known to Customer with reasonable updates, which policies and protocols are incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict or inconsistency between these Terms and any such policies or protocols, these Terms shall govern and take precedence. Customer acknowledges and agrees that Customer shall be responsible for maintaining the confidentiality of the password associated with the Customer Account, and Customer shall be liable for any consequences that may result from its disclosure, including but not limited to any resulting access to, use of, or modification of the Site(s) and access to, integrity of and loss of Customer’s data and/or Authorized End Users’ data or of Customer Content defined in Section 4(c)(ii), below. Customer agrees to accept full responsibility for all activities that occur under the Customer Account, specifically under Customer’s designated username and/or password. ALLC reserves the right to refuse service, terminate accounts, or remove or edit content, including without limitation Customer Content, in ALLC’s reasonable discretion, in the event any such activities are harmful. The Customer Account, and the corresponding username and password, are non-shareable, non-transferable and non-assignable, except upon written agreement by ALLC, in ALLC’s sole and absolute discretion, whereupon any transferee or assignee shall become an “Authorized End User”, and Customer Account and username and password information may not under any circumstances be shared except with Authorized End Users as expressly set forth in this Section 4(c)(i). Customer agrees to: (A) maintain all equipment necessary for Customer and any Authorized End Users’ access to and use of the Site(s), Products and ALLC Materials at and through the Customer Account; (B) maintain the security of Customer’s account identification, designated username, designated password, Customer Content and any other confidential information relating to the Customer Account; and (C) take responsibility for all charges resulting from use of the Customer Account, including without limitation those pertaining to any unauthorized use prior to Customer notifying ALLC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting ALLC to change Customer’s assigned e-mail address and/or password.
ii) Customer Content. Customer and each Authorized End User, as the case may be, shall have the sole responsibility to input and maintain personal data, portfolio data, customer data and other data required for Customer’s activities, affairs and operations at the Site(s), in order for ALLC to provide the Products and ALLC Materials to Customer or any Authorized End User, which data may include identifying information and credit card and bank account information necessary to process Orders and pay for Wholesale and Retail Products, as well as wire and automated clearing house (ACH) information for White Label and Drop Ship Products. Customer shall maintain Customer’s own proprietary content and that of each of the Authorized End Users provided in connection with the utilization of the Site(s) (collectively, “Customer Content”), and test to ensure that Customer Content is processed as expected. ALLC shall exercise, or cause one or more ALLC Subs to exercise, reasonable efforts to secure Customer Content, and Customer Content shall be maintained and managed at or through the Site(s) in accordance with ALLC’s Privacy Policy. Except as otherwise expressly provided in these Terms and ALLC’s Privacy Policy, ALLC shall not secure, maintain, test or alter Customer Content in any way. Except as otherwise expressly provided in these Terms and ALLC’s Privacy Policy, ALLC does not warrant that any Customer Content will be maintained or up to date in any manner, and ALLC shall not have any responsibility or liability for any failure to provide Products to Customer or any Authorized End User as a result of Customer’s failure to maintain and update Customer Content as appropriate. Specifically, Customer shall remain solely responsible for all errors or problems in Customer Content impacting the Site(s) and/or the functionality thereof with respect to any Products or Orders. Except as otherwise expressly provided in these Terms and ALLC’s applicable Privacy Policy, ALLC does not warrant that any Customer Content shall be made available after the time period set forth in Section 4(c)(iii), below.
iii) Maintenance of Customer Content; Termination of Customer Account. Customer shall maintain a copy of all Customer Content in an accessible way prior to termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Products and ALLC Materials through such Customer Account. Any Customer Content uploaded to the Site(s) shall be for the sole use by Customer, each applicable Authorized End User and ALLC; provided that ALLC will not share any such Customer Content with any other customer or any third party except as authorized under these Terms (which authorization hereby automatically includes sharing the same with all ALLC Parties and ALLC Subs as reasonably necessary to provide the Products and ALLC Materials under these Terms, as well as any licenses of Customer Content granted to ALLC under these Terms), or as reasonably necessary to operate and maintain the Site(s) as required under these Terms; and provided, further, that upon termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Products and ALLC Materials therethrough, Customer and Authorized End Users shall have no further ability to access or use the Site(s) through the Customer Account or any data Customer may have stored at or through the Customer Account. ALLC shall retain all Customer Content stored at the Site(s) under the Customer Account for a period of ninety (90) calendar days after termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Products and ALLC Materials through the Customer Account, and so long as Customer has paid all amounts due in accordance with Section 5, below, ALLC shall during such ninety (90) day period work with Customer to transfer such Customer Content to other site(s), system(s) and platform(s), as requested and designated by Customer. Upon the expiration of such ninety (90) day period, Customer agrees that ALLC may at its sole option purge all Customer Content from the Site(s); provided that if reasonably necessary to complete the transfer requested and designated by Customer, ALLC and Customer may mutually agree to extend such ninety (90) day period; provided, further, that the transfer has commenced and proceeds diligently to completion.
iv) Third Party Hosts. Customer acknowledges that certain aspects, features and functions of the Site(s) shall reside in one or more third-party hosting companies’ computing environment(s), which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by the Site(s) may render the Site(s) inaccessible or may impair the performance of the computing environment(s) for Customer, Authorized End Users and/or ALLC’s other customers. In the event of any such use by Customer, ALLC shall so notify Customer, whereupon Customer and Authorized End Users shall be obligated to put an immediate stop to such use, and Customer will notify ALLC in writing that such use has ceased. In the event of Customer’s failure to put an immediate stop to such use, ALLC reserves the right to suspend or terminate the Customer Account and access by Customer and any of the Authorized End Users to the Site(s), Products and ALLC Materials therethrough. In the meantime, in the event of any damage or delay suffered by Customer, which is caused by, arises from, results from or is attributable to any acts or omissions of any third-party hosting company, as opposed to ALLC, Customer agrees that ALLC shall not be liable or responsible for such damage or delay, and Customer agrees that Customer’s sole recourse in connection with such damage or delay shall be such third-party hosting company and/or said hosting company’s insurers or sureties. To the extent not prohibited under the applicable agreement between ALLC and such third-party hosting company, ALLC’s rights, benefits, claims and remedies under ALLC’s agreement with such third-party hosting company and in relation to such third-party hosting company for such purpose.
v) Limited License. ALLC grants to Customer and each of the Authorized End Users a limited license to access and make personal use of the Site(s) and ALLC Materials solely as needed to consider, order, pay for and receive the Products as set forth in these Terms and the accepted and confirmed Orders incorporated in and integrated with these Terms, and to enforce any rights, duties or obligations under these Terms or any such Order. This license does not include any of the following: (A) resale or commercial use of the Site(s) or any contents thereof or of the Products and ALLC Materials, or any of them, provided that in the event of an Order for one or more White Label Products, but in no other event and under no other circumstance, Customer freely may resell such Products under Customer’s own brand, and provided, further, that in the event of an Order for one or more Drop Ship and Wholesale Products, Customer may resell such Products solely as provided under such Order, each subject to the remaining conditions, qualifications, requirements and limitations set forth under these Terms; (B) any collection and use of any content posted by ALLC at any of the Site(s), or any listings, descriptions, features, qualifications or related information of ALLC at the Site(s); (C) any derivative use of the Site(s) or contents thereof or of the Products or ALLC Materials; (D) any downloading or copying of account information for the benefit of another; or (E) any use of data mining, robots, cookies or similar data gathering and extraction tools. Except as otherwise provided in this Section 4(c)(v) with respect to White Label, Drop Ship and Wholesale Orders, neither Customer nor any of Customer’s Authorized End Users may resell, sublicense, assign or otherwise allow the use of the Site(s), Products or ALLC Materials by or for the benefit of any other person, entity or group without the express written approval of ALLC, in ALLC’s sole and absolute discretion.
vi) Impact of Customer Content and Computing Environment. Customer shall remain solely responsible for all errors or problems in Customer Content impacting the Site(s), Orders, Products and ALLC Materials, or any of them, or the performance or effectiveness thereof, maintaining and providing any necessary operating environments in which Customer and any of Customer’s Authorized End Users utilize the Site(s), Products and ALLC Materials, or any of them, errors caused by third party software or hardware or the configuration of such items as they relate to such access, utilization or application, and interruptions in access to the Site(s), Orders, Products and ALLC Materials, or other downtime attributable to any Internet provider of Customer or any of Customer’s Authorized End Users.
vii) No Unauthorized Non-ALLC Links. Other than page caching, neither Customer nor any of the Authorized End Users is authorized to download or modify the Site(s), or any portion thereof. Unless otherwise authorized in writing by ALLC, in ALLC’s sole and absolute discretion, neither Customer, nor any of Customer’s Authorized End Users, nor any other third-party, is authorized to deep link to any web page contained at the Site(s) (i.e., no links are permitted under any circumstances from third-party websites to any page of the Site(s) other than a Site’s home page). Such links are expressly prohibited. In addition, neither Customer, nor any of Customer’s Authorized End Users, nor any third party, may link any Site’s home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of a third party website as to the true ownership or sponsorship of any Site(s) and/or as to the existence or lack thereof of some affiliation or other relationship between ALLC and the third party and/or its website.
viii) Other ALLC Rules of Use. ALLC may enact, implement and enforce reasonable rules of use as promulgated and amended from-to-time by ALLC in its reasonable discretion regulating the use of the Site(s) by Customer and Authorized End Users, and Customer agrees to be bound by and to bind each of Customer’s Authorized End Users to such rules. In the event of any conflict or inconsistency between these Terms and such rules, these Terms shall govern and take precedence. Breach of such rules or this section may result in the offending information being removed by ALLC, or ALLC’s termination of the Customer Account and/or access by Customer and/or any Authorized End Users to the Site(s), Products and ALLC Materials.
d) Materials Posted by Others.
i) Limits to ALLC Actions; Discretionary Removal of Offensive Material. Customer understands and acknowledges that ALLC cannot, does not and will not monitor all material posted or transmitted by third-party information providers at the Site(s). Although ALLC has no obligation to review or remove any such content in general, ALLC reserves the right to remove any content posted at the Site(s) at any time for any reason in its reasonable discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by ALLC in its reasonable discretion after actual notice of such posting and in no event or circumstance shall be construed as giving rise to any duty or obligation to review or remove in the future.
ii) Site Content. The Site(s) contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively, “Site Content”). ALLC does not control the Site Content supplied by parties other than ALLC or any actually authorized ALLC Subs. Any opinions, advice, statements, services, offers, and/or other information, which constitute part of Site Content expressed or made available by third parties and not by ALLC or any ALLC Subs, are those of the respective authors or distributors and not of ALLC or any actually authorized ALLC Sub. In many instances, the Site Content available through the Site(s) represents the opinions and judgments of the respective party or user not under contract with ALLC. Unless clearly, expressly and unequivocally indicated elsewhere, ALLC does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than ALLC anywhere at the Site(s) or elsewhere in connection with the Products. Neither ALLC nor any ALLC Party makes any warranties with respect to any of the data featured or mentioned on or at the Site(s) or with respect to any Products unless provided expressly in these Terms or in an Order that is accepted and fulfilled by ALLC. Any information or material placed online by parties other than ALLC, including without limitation advice and opinions, are the views and responsibility of those who post the materials, and do not necessarily represent the views of ALLC or any ALLC Party. Under no circumstances shall ALLC or any ALLC Party be liable for any loss, damage or harm caused by Customer’s or any Authorized End User’s reliance on information obtained through the Site(s) unless provided directly by ALLC or by an ALLC Sub with ALLC’s actual authorization. It is the responsibility of Customer to evaluate the information, opinion, advice or other Site Content available through the Site(s) and not provided directly by ALLC or an actually authorized ALLC Sub. Customer agrees that ALLC is not responsible, and shall have no liability or responsibility to Customer or any Authorized End Users, or any third party, with respect to any information or materials posted by any party other than ALLC or an ALLC Sub with ALLC’s actual authorization, including without limitation defamatory, offensive or illicit material, or material that violates these Terms. Customer, for himself/herself/itself and for all Authorized End Users, accordingly unconditionally releases ALLC and all ALLC Parties from any and all liabilities and claims related to such information and materials posted by third parties that are not ALLC Subs actually authorized by ALLC, and Customer shall indemnify and hold harmless ALLC and the ALLC Parties in relation to the same, as set forth in Section 10, below.
5. Compensation
a) Payment in Accordance With Orders. For each of the Products, payment shall be made to ALLC in the amount and manner set forth in the corresponding Order, subject to ALLC’s Shipping, Return and Cancellation Policy. Except as set forth in ALLC’s Shipping, Return and Cancellation Policy, all sales are final and not subject to any refunds or replacements. Without limiting the foregoing: (i) Each White Label Order will require a deposit in such amount as set forth in such Order as a condition precedent to ALLC’s acceptance of such Order and commencement of processing the fulfillment of such Order, with final payment of all remaining amounts due under such Order to be made by Customer as a condition precedent to ALLC shipping the Products that are the subject of such Order; (ii) Drop Ship Orders will be invoiced regularly on a weekly basis, with payment in full due upon delivery of the subject Products in such Order, and in the event such payment in full is not made in any given week, ALLC shall be entitled to suspend delivery of any and all further Products under such Order, or any other Order of Customer, until all amounts invoiced to date are paid in full; and (iii) Each Wholesale and Retail Order will require a deposit of fifty percent (50%) of the total amount of payment owed under such Order, as a condition precedent to ALLC’s acceptance of such Order and commencement of processing the fulfillment of such Order, with final payment of the remaining fifty percent (50%) owed under such Order to be made by Customer as a condition precedent to ALLC shipping the Products that are the subject of such Order.
b) Effect of Payment. Except as provided in these Terms and ALLC’s Shipping, Return and Cancellation Policy, any payment by Customer to ALLC under these Terms and a corresponding Order shall operate as a release of any claims, which Customer may be entitled to make in relation to Products that are covered by such payment.
6. Independent Contractor
No relationship of employment is created by these Terms, it being understood that in agreeing to these Terms and providing Products hereunder, ALLC is at all times acting and performing solely as an independent contractor. Neither ALLC nor Customer is authorized to be the agent or legal representative of the other for any purpose whatsoever. Neither ALLC nor Customer shall have the authority or power to make any commitments of any responsibility expressed or implied in the name of the other or to assume or create any obligation or shall be liable for any acts or omissions of the other. All employment, insurance and tax matters and filings shall be handled accordingly.
7. Confidentiality and Intellectual Property
In connection with these Terms and each of the Orders, and Customer and Authorized End Users’ access to and use and utilization of the Site(s), and order of and purchase, use and utilization of the Products as set forth in these Terms and in each Order, ALLC might provide, and Customer and/or Authorized End Users might receive, certain confidential and proprietary information concerning one or more personal wellness businesses, projects, products, materials, undertakings and/or services of ALLC (collectively, the “ALLC Proprietary Items”), which ALLC deems to be highly proprietary and valuable.
a) Scope of Confidentiality Protection. For the purpose of this Section 7, “ALLC Confidential Information” shall include all information, whether written or oral, which is prepared, uniquely known and/or provided by ALLC, any member of ALLC (including without limitation Geoffrey Lang), and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative (including without limitation the ALLC Subs, and each of them, subject to the remaining requirements of these Terms as pertains to such ALLC Subs and the limitation of ALLC’s responsibility and liability therefor), predecessor, successor or assign of any of them, in each event excluding Customer or any Customer Party defined below (collectively, the “ALLC Parties”, and each an “ALLC Party”), including without limitation any of the following, each as relates to the ALLC Proprietary Items, or any of them: (i) prospective development; (ii) descriptions, compositions, components and features; (iii) operational, logistical, financial, physical, legal and other practical requirements; (iv) expected financial gains to be realized; (v) identities of parties potentially involved, including without limitation actual and prospective manufacturers, compounders, suppliers, vendors, contractors, consultants, distributors, and other business partners of ALLC; (vi) prospective impacts and effects; and (vii) other information, which is not readily available to the public. For the purpose of this Section 7, “ALLC Confidential Information” also shall mean the following: (I) the contents of these Terms and the ALLC Policies and other documents incorporated herein and integrated herewith by reference, with the understanding that the existence of these Terms and Customer’s general obligation of confidentiality under this Section 7 may and should be disclosed to all third parties who seek or might receive any ALLC Confidential Information; (II) all terms, conditions and features related to Customer’s purchase, payment for and acquisition of the Products, or any of them, as set forth in these Terms and in any Order; (III) all ALLC Intellectual Property, as defined in Section 7(b), below; (IV) non-public information related to any and all ALLC Proprietary Items developed, performed or generated by or for the benefit of ALLC or any of the ALLC Parties; and (V) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of ALLC or any of the ALLC Parties, which is not generally known to the public, and which under all of the circumstances reasonably ought to be treated as confidential and/or proprietary. ALLC Confidential Information shall include any information, whether or not labeled “confidential”, which by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of ALLC or any of the ALLC Parties. Customer shall disclose ALLC Confidential Information solely as necessary to consider, order, purchase, pay for, receive, use and receive the benefit of the Products, each as set forth in these Terms and in any applicable Order, and Customer shall consider and utilize ALLC Confidential Information solely for such purposes. ALLC Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).
b) ALLC Intellectual Property. All intellectual property rights in any way related to any ALLC Confidential Information provided by or through ALLC or any of the ALLC Parties to Customer are hereby acknowledged to remain in the exclusive possession of ALLC, the applicable ALLC Party, or the applicable licensor thereof (each, an “ALLC Licensor”), as appropriate. Any rights to or interests in ALLC Intellectual Property, or any permutation or derivation thereof, or any improvement thereto, are hereby fully disclaimed, waived and renounced by Customer in favor of ALLC, the applicable ALLC Party, or the applicable ALLC Licensor, as appropriate. For the purposes of this Section 7(b), “ALLC Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by ALLC and/or any of the ALLC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority, each as pertains to the Products, ALLC Materials, Site Content and ALLC Proprietary Items, or any of them: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”); (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”); (iii) all copyrights and registrations and applications therefor, works of authorship (including without limitation the ALLC Materials, and each of them) and mask work rights (collectively, “Copyrights”); (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, including without that contained in the ALLC Materials, as well as identification of manufacturers, compounders, distributors, equipment, vendors, products, customers or suppliers, software and hardware information, pricing and cost information, and business and marketing plans and proposals of ALLC and/or any of the ALLC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents; (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with ALLC’s websites, or any websites of any of the ALLC Parties, or otherwise used in connection with ALLC or any ALLC Proprietary Items; and (vii) all other technology and know-how uniquely in the possession of ALLC and/or any of the ALLC Parties.
c) Restrictions Regarding ALLC Intellectual Property. Neither Customer, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign (including without limitation Customer’s Authorized End Users, and each of them), legal or financial advisor, contractor or consultant of Customer, in any event excluding ALLC, an applicable ALLC Party or an applicable ALLC Licensor (collectively, the “Customer Parties”, and each a “Customer Party”), may apply for a right in any ALLC Intellectual Property, or use or utilize any ALLC Intellectual Property for any purpose other than that provided under Section 4(c)(v) and Section 7(a), above, except upon the express written consent of an actually authorized representative of ALLC, in ALLC’s sole and absolute discretion, whether or not any ALLC Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, the World Intellectual Property Organization, or any other similar administrative agency. To the extent Customer or any Customer Party may claim any rights, direct, derivative or otherwise, related to any ALLC Intellectual Property, Customer hereby disclaims, and shall cause each Customer Party to disclaim, such rights, and Customer hereby assigns, and shall cause each Customer Party to assign, such rights to ALLC. Customer agrees to execute and to cause each Customer Party to execute, and in the alternative hereby grants to ALLC, and shall cause each Customer Party to grant to ALLC, power of attorney to execute and record in Customer’s stead, and in each Customer Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of ALLC Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all ALLC Intellectual Property by ALLC, the applicable ALLC Party, or the applicable ALLC Licensor, as appropriate. Subject to Section 4(c)(v) and Section 7(a), above, neither Customer nor any third party may market, utilize, reuse or redistribute any ALLC Intellectual Property except as authorized hereunder or except as approved in writing by an actually authorized representative of ALLC. Except as expressly provided in Section 4(c)(v) and Section 7(a), above, no license or other right of any kind in any ALLC Intellectual Property is granted or otherwise provided to Customer, to any Customer Party or to any third-party in relation to these Terms or Customer’s purchase, payment for or acquisition of the Products, or any of them. Neither Customer nor any Customer Party may frame or utilize any framing techniques to enclose any ALLC Intellectual Property or ALLC Confidential Information. Neither Customer nor any Customer Party may use any metatags or other hidden text utilizing ALLC Intellectual Property.
d) Restrictions Regarding Disclosure of ALLC Confidential Information to Third Parties. Customer shall, and shall cause each Customer Party to, hold ALLC Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each Customer Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available any ALLC Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of ALLC, in ALLC’s sole discretion; and (ii) removing or permitting to be removed from such ALLC Confidential Information any notice indicating the confidential nature of, or ALLC’s proprietary right in and to the ALLC Confidential Information. Customer shall, and shall cause each Customer Party to, exercise at least the same degree of care and protection with respect to ALLC Confidential Information that Customer or such Customer Party, as applicable, would exercise with respect to Customer’s (or such Customer Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Customer shall, and shall cause each Customer Party to, take all precautions necessary to ensure that ALLC Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 7. In the event of written consent to disclose ALLC Confidential Information to any other party, including without limitation Customer Personnel, Customer shall, and shall cause each Customer Party to, advise that other party of his/her/its obligations with respect to the ALLC Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 7 may be directly enforced by ALLC against him/her/it as a condition to such disclosure. Customer or the Customer Party, as applicable, shall provide an original of such written acknowledgment to ALLC, if so requested by ALLC. In any event, Customer or such Customer Party, as applicable, shall disclose the ALLC Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of ALLC. In addition, Customer or such Customer Party, as applicable, shall ensure that confidentiality notices are included on copies of ALLC Confidential Information so provided and shall account for the return or destruction of the ALLC Confidential Information and all reproductions thereof, if so requested by ALLC. ALLC hereby consents to the disclosure of ALLC Confidential Information by Customer to any Customer Party solely for the purposes set forth in Section 4(c)(v) and Section 7(a), above, and expressly subject to the remaining requirements of this Section 7.
e) Exception for Customer Content. Any proprietary Customer Content, which is collected or generated through use or utilization of the Site(s) and Products, or any of them, shall be deemed confidential information of Customer, which Customer may freely use and disclose as Customer sees fit. Customer shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the Customer Content, and Customer shall have indemnity obligations to ALLC in relation thereto as provided in Section 10, below. Customer represents and warrants that (i) Customer has the appropriate authority, license or other rights to use and disclose all such Customer Content and to provide such Customer Content as contemplated in these Terms; (ii) Customer has and will maintain all rights, consents and approvals required to grant to ALLC the rights to access, use, adapt, display and modify Customer Content in accordance with this Section 7(e) and will upon ALLC’s request provide proof of the same; and (iii) Customer shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. Customer hereby grants to ALLC a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all Customer Content that is collected or generated through use and utilization of the Site(s) and Products, or any of them, for any legal purpose, including without limitation to provide ALLC’s Products and perform ALLC’s other obligations under these Terms, to enforce these Terms, to analyze, transfer and use such Customer Content in an aggregated form, from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Site(s) and Products and ALLC’s other products, services and endeavors, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for ALLC to do so or as may be reasonably necessary or appropriate in connection with the operation, maintenance, repair, updating, development, improvement or other activities of and through the Site(s), marketing, manufacturing, distribution and sales of products and performance of services, functions and endeavors by ALLC.
f) Ownership of ALLC Confidential Information. Subject to the licenses set forth in Section 4(c)(v) and Section 7(a), above, all ALLC Confidential Information, including without limitation reproductions thereof, shall be deemed to be and remain the exclusive property of ALLC (or the applicable ALLC Party or ALLC Licensor, as appropriate), and no ownership rights of any kind in and to any all ALLC Confidential Information are transferred hereby, hereunder or in connection herewith to Customer, any Customer Party or any third party. Customer acknowledges that Customer does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using the Site(s) or Products, or any of them. All rights are reserved.
g) Other Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any ALLC Confidential Information, which: (i) is or becomes available to the public through no act or omission of Customer, any Customer Party or any party in violation of the terms and conditions of this Section 7 or any other confidentiality or non-disclosure agreement; (ii) was already known by Customer at the time of the disclosure by ALLC, as evidenced by Customer’s written records existing prior to the date of ALLC’s disclosure, but subject to any non-disclosure or confidentiality requirements pertaining to such prior knowledge; (iii) is lawfully obtained from a person or entity other than ALLC or Customer without any obligation of confidentiality or non-disclosure; (iv) is approved for release by ALLC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Section 7(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving ALLC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Customer first promptly notifies ALLC of the order and permits ALLC to seek an appropriate protective order; or (vii) is developed independently by or for Customer by personnel not having access to any ALLC Confidential Information.
h) Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 7 or these Terms, Customer shall not (and Customer shall not use any third party to), and Customer shall cause each Customer Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any ALLC Confidential Information.
i) Restrictive Covenant. In consideration of any ALLC Confidential Information, which Customer or any Customer Party will receive or have access to, in connection with the Site(s), Products, ALLC Materials and ALLC Proprietary Items, Customer shall not, and Customer shall cause each Customer Party not to, use or utilize any ALLC Confidential Information to: (i) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of ALLC for the purpose of or with the result of (A) competing with ALLC with respect to the Site(s), Products, ALLC Materials and ALLC Proprietary Items, or any of them, (B) altering, modifying, diverting or precluding the development of any ALLC business relationship involving the Site(s), Products, ALLC Materials and ALLC Proprietary Items, or any of them, or (C) otherwise interfering with business transacted with ALLC with respect to the Site(s), Products, ALLC Materials and ALLC Proprietary Items, or any of them; or (ii) directly or indirectly solicit or attempt to solicit, encourage, induce or entice ALLC’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with ALLC with respect to the Site(s), Products, ALLC Materials and ALLC Proprietary Items, or any of them.
j) Obligation to Notify and Assist. Customer agrees to immediately notify ALLC of any unauthorized use or disclosure of any ALLC Confidential Information related to Customer or any Customer Party’s possession of such ALLC Confidential Information or any other breach of this Section 7 and these Terms, and Customer agrees to cooperate in every reasonable way to help ALLC regain possession of any misused or mis-disclosed ALLC Confidential Information and prevent (or limit to the extent possible) its further unauthorized use or disclosure.
k) No Warranty. Except as clearly and expressly provided in this Section 7(k) and in Section 8, below, all ALLC Confidential Information is provided “as-is, where-is”. ALLC makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any ALLC Confidential Information, except to the extent ALLC actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event ALLC hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.
l) Non-Circumvention. In consideration of receipt of ALLC Confidential Information, Customer hereby legally, wholly and irrevocably binds himself/herself/itself, and shall cause each Customer Party to do the same, and guarantees to ALLC that neither Customer nor any such Customer Party shall directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, bypass or obviate ALLC’s interest, or the interest or relation between ALLC and any third party, by any means. Such agreement not to circumvent shall at all relevant times include without limitation the duty and obligation to refrain from any and all actions, transactions, undertakings or efforts by Customer or any Customer Party, or by any person or entity acting or purporting to act for or on behalf of Customer or any Customer Party, to bypass ALLC or any ALLC Party in order to contract or do business directly with any client, customer, advisor, provider, contractor, subcontractor, consultant, sub-consultant, vendor, supplier, manufacturer, distributor, licensee or other business relation of ALLC or any such ALLC Party with respect to any business, transactions, undertakings or other matters in which ALLC or any such ALLC Party acts and serves, or is at any time these Terms are in effect intended to act and serve, as an intermediary, conduit or liaison between any two parties, all such efforts being categorically prohibited under this Section 7(l).
m) Injunctive Relief. Customer recognizes and agrees that a breach of any of the provisions of this Sections 7 will constitute immediate and irreparable harm to ALLC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event that Customer or any Customer Party attempts or threatens to violate any obligations under this Section 7, ALLC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches by Customer or such Customer Party, as the case may be, and notwithstanding the provisions of Section 12 and Section 13, below, ALLC shall be entitled to seek such relief in any court of competent jurisdiction in Maricopa County, Arizona, without the need to prove damages. Customer hereby consents to the personal jurisdiction of such courts for such purposes and agrees that in the event such relief is granted, Customer shall also pay ALLC’s reasonable attorney’s fees in connection with the same.
8. Limited Warranty and Disclaimers.
a) Limited Warranty – Site(s). ALLC warrants that while these Terms are in effect, and while the Customer Account is active, ALLC will use reasonable efforts to operate and maintain, or cause one or more ALLC Subs to operate and maintain, the Site(s) in good working order to the extent reasonably practicable, and all information provided directly by ALLC or the ALLC Subs through the Site(s) will be accurate to the best of ALLC’s actual knowledge.
b) Limited Warranty – Products. THE PRODUCTS, AND EACH OF THEM, MIGHT BUT ARE NOT OTHERWISE REQUIRED TO BE SUBJECT TO CERTAIN LIMITED WARRANTIES PROVIDED BY THE APPLICABLE MANUFACTURER(S) OF SUCH PRODUCTS. UPON ALLC’S ACCEPTANCE AND CONFIRMATION OF AN ORDER, ALLC SHALL ASSIGN SUCH LIMITED WARRANTIES TO CUSTOMER AS APPLICABLE TO CUSTOMER AND THE CORRESPONDING PRODUCTS, in accordance with and as set forth in these Terms and each ORDER. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IF ANY EVENTS OR CIRCUMSTANCES GIVE RISE TO ANY CLAIMS IN RELATION TO ANY SUCH LIMITED WARRANTIES, CUSTOMER’S SOLE RECOURSE SHALL BE AGAINST THE THIRD PARTY MANUFACTURER PROVIDING SUCH WARRANTIES, WITH CUSTOMER BEING AN ASSIGNEE OF ALLC TO THE EXTENT NOT PROHIBITED UNDER THE APPLICABLE AGREEMENT BETWEEN ALLC AND SUCH MANUFACTURER, AND THAT IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL ALLC BE HELD LIABLE OR RESPONSIBLE FOR ANY SUCH WARRANTIES. ALLC’S RESPONSIBILITY AND LIABILITY SHALL BE LIMITED TO THE REQUIREMENTS IN THESE TERMS (including without limitation Section 2(h), above) AND IN ALLC’S SHIPPING, RETURN AND REFUND POLICY.
c) Exceptions to Limited Warranties. Notwithstanding any other provision of these Terms, the foregoing warranties shall not apply to the following: (i) any errors or problems caused by any breach of any obligations of Customer or any of the Authorized End Users under these Terms; (ii) any application, modification of the Site(s) or Products in any way other than as expressly provided in these Terms; (iii) any improper use of the Site(s) and Products, or any of them; (iv) any use of the Site(s) and Products, or any of them, except as expressly provided for in these Terms and the accepted and confirmed Orders; (v) any errors or problems in Customer data, including without limitation Customer Content, impacting the Site(s) and Products, or any of them, or performance, condition or effectiveness thereof; (vi) any failure by Customer or any of Customer’s Authorized End Users to maintain and provide any necessary operating environment or equipment in which Customer and/or any Authorized End Users use, access, apply or utilize the Site(s) and Products, or any of them; (vii) any errors caused by third-party software or hardware (other than that originated by an ALLC Sub, for which ALLC assigns any warranties provided by the ALLC Sub in connection therewith as Customer’s sole and exclusive remedy, and for which Customer’s sole recourse shall be against such ALLC Sub and not in any event or under any circumstance against ALLC) or the configuration of such items as they relate to such access, utilization or application; (viii) any interruptions in access to the Site(s) or other downtime attributable to any Internet provider of Customer or any Authorized End Users; or (ix) any matters for which Customer is expressly declared to be responsible and liable, or for which ALLC is expressly declared not to be responsible or liable, under these Terms or any ALLC Policy incorporated herein and integrated herewith by reference.
d) Disclaimers. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7(k), SECTION 8(a) AND SECTION 8(b), ABOVE, AND SUBJECT TO SECTION 8(c), ABOVE, ALLC DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, OR ANY OF THEM, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH ALLC. THE LIMITED WARRANTIES SET FORTH HEREIN IN SECTION 7(k), SECTION 8(a) AND SECTION 8(b) ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY DISCLAIMS AND WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES OF ALLC AND ALL ALLC PARTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS OR ANY RIGHTS OF CUSTOMER. THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, AND EACH OF THEM, AND ALL OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES AND DATA PROVIDED BY OR THROUGH ALLC, ARE OTHERWISE DONE SO BY AND THROUGH ALLC AND TO CUSTOMER STRICTLY ON AN “AS IS, WHERE IS” BASIS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY WARRANTED BY ALLC IN SECTION 7(k), SECTION 8(a) AND SECTION 8(b), ABOVE, AND SUBJECT TO SECTION 8(c), ABOVE, ALLC AND ITS LICENSORS DO NOT WARRANT THAT THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, OR ANY OF THEM, OR ANY OTHER MATERIAL OR ITEMS OBTAINED BY CUSTOMER OR ANY AUTHORIZED END USERS THROUGH THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, OR ANY OF THEM, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH ALLC, OR ANY USE OR OPERATION THEREOF: (i) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER, ANY AUTHORIZED END USERS OR ANY END PURCHASERS, AS APPLICABLE; (ii) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (iii) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, EQUIPMENT OR DATA; (iv) WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER OR ANY AUTHORIZED END USERS MAY SELECT FOR USE, OR THAT ALL ERRORS THEREIN WILL BE CORRECTED; (v) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (vi) WILL GENERATE DATA OR OTHER RESULTS THAT ARE COMPLETE OR USEFUL FOR CUSTOMER’S PURPOSES. IT IS THE RESPONSIBILITY OF CUSTOMER TO EVALUATE THE COMPLETENESS OR USEFULNESS OF ALL PRODUCTS AND ALL DATA AND MATERIALS GENERATED THROUGH THE USE OF THE SITE(S) FOR CUSTOMER’S PURPOSES. CUSTOMER AGREES THAT NO INCONSISTENT STATEMENT MADE BY A REPRESENTATIVE, EMPLOYEE OR AGENT OF ALLC OR ANY ALLC SUB WITH RESPECT TO A REPRESENTATION, WARRANTY OR OTHER PROVISION OF THESE TERMS OR WITH RESPECT TO THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, OR ANY OF THEM, OR ANY OTHER SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH ALLC, SHALL SUPERCEDE THESE TERMS, AND SPECIFICALLY THE DISCLAIMERS PROVIDED IN THIS SECTION 8(d), WHICH SHALL GOVERN AND TAKE PRECEDENCE IN THE EVENT OF ANY CONFLICT, AMBIGUITY OR QUESTION OF INTERPRETATION. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ALLC EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR THOSE AUTHORIZED BY CUSTOMER TO USE, UTILIZE OR DISPOSE OF THE SITE(S) AND PRODUCTS, OR ANY OF THEM.
9. Limitation of Liability
a) Limitations and Exclusions. IN NO EVENT SHALL ALLC BE LIABLE TO CUSTOMER, ANY AUTHORIZED END USER, OR ANY OTHER PARTY FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION OR LOSS OF PRODUCTION) FOR ANY CLAIM IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH OR IN ANY MANNER RELATED TO THESE TERMS OR THE SUBJECT MATTER HEREOF, WHETHER BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHERE ALLC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR ANY ACCEPTED AND CONFIRMED ORDERS, IN NO EVENT SHALL ALLC BE RESPONSIBLE OR LIABLE FOR (i) ANY CORRUPTION, DAMAGE, LOSS OR MISTRANSMISSION OF DATA; (ii) THE SECURITY OF DATA DURING TRANSMISSION VIA ANY INTERNAL NETWORKS OR EQUIPMENT OF CUSTOMER OR ANY OF THE AUTHORIZED END USERS OR VIA PUBLIC TELECOMMUNICATIONS MEDIA OR FACILITIES; (iii) HARDWARE, SOFTWARE, OR OTHER ITEMS OWNED BY CUSTOMER OR ANY AUTHORIZED END USERS OR THAT ARE THE PROPERTY OF A THIRD PARTY THAT IS NOT AN ALLC SUB; OR (iv) ANY OTHER MATTERS OR ITEMS FOR WHICH CUSTOMER IS EXPRESSLY MADE RESPONSIBLE, OR FOR WHICH ALLC IS EXPRESSLY DECLARED NOT TO BE RESPONSIBLE, UNDER THESE TERMS. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER THE SITE(S), PRODUCTS AND ALLC MATERIALS ARE SUITABLE FOR THE INTENDED USES OF CUSTOMER AND CUSTOMER’S AUTHORIZED END USERS AND END PURCHASERS, AS APPLICABLE. CUSTOMER UNDERSTANDS THAT USAGE OF THE SITE(S) MAY NOT BE UNINTERRUPTED AND ERROR-FREE. IF CUSTOMER OR ANY OF THE AUTHORIZED END USERS IS A CALIFORNIA RESIDENT, THEN BY ACCEPTING THESE TERMS CUSTOMER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.
b) Maximum Aggregate Liability. EXCEPT WHERE ALLC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING, THE TOTAL AGGREGATE LIABILITY OF ALLC UNDER OR IN RELATION TO THESE TERMS, AND THE SITE(S), SITE CONTENT, PRODUCTS AND ALLC MATERIALS, OR ANY OF THEM, OR ANY OTHER PRODUCTS, ITEMS AND FEATURES PROVIDED BY OR THROUGH ALLC, OR ANY OTHER MATTER COVERED BY THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO DATE BY CUSTOMER UNDER AND IN RELATION TO THESE TERMS AND THE APPLICABLE ORDER(S), EACH AS THEY RELATE SOLELY TO THE PRODUCTS AT ISSUE. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 9 SHALL APPLY IN ALL EVENTS AND UNDER ALL CIRCUMSTANCES, WITH THE ONLY EXCEPTION BEING TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF ALLC SHALL NOT EXCEED THE STATUTORY LIMIT.
c) Acknowledgment. Customer and ALLC acknowledge that they have reached agreement on base compensation and other charges set forth in these Terms in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in these Terms and that the same form an essential basis of the bargain between the Customer and ALLC. Section 8 and Section 9 of these Terms allocate the risks under these Terms between ALLC, on one hand, and Customer, on the other, and are viewed by such parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of these Terms reflect this allocation of risk and the limitations specified herein. Each of Customer and ALLC has a duty to mitigate the damages and losses that would otherwise be recoverable from the other pursuant to these Terms (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or losses.
10. Indemnity
Subject to the limitations set forth in Section 8 and Section 9, above, Customer shall indemnify, defend, protect and hold ALLC and each of the ALLC Parties harmless from and against any and all actions, causes of action, demands, liabilities, losses, damages, injuries, costs, or expenses, of whatever kind in nature, including attorney’s fees and reasonable expenses incurred in connection with these Terms, to the extent arising or resulting from, caused by or pertaining to: (a) Customer’s breach or violation of any duties, obligations or responsibilities under these Terms or under any Order or ALLC Policies, or any failures by Customer to perform as required (t)hereunder; (b) the negligence, willful misconduct or otherwise wrongful conduct of Customer, any Customer Party, or any third party for whom Customer is legally responsible, in relation to these Terms and the Site(s) and Products and Customer’s order, purchase, payment for and acquisition thereof; and (c) any receipt, use, utilization or subsequent disposition of the Products, or any of them; each except to the extent otherwise required under these Terms (including without limitation Section 2(h), above) or the ALLC Shipping, Return and Refund Policy, or to the extent the damage or liability is caused by: (A) ALLC’s breach or violation of any duties, obligations or responsibilities under these Terms; or (B) ALLC’s negligence, willful misconduct or otherwise wrongful conduct. The Parties agree to notify each other immediately upon the making of any claim or institution of litigation or dispute resolution proceedings giving rise to any obligation of indemnity under these Terms. Notwithstanding the provisions of this Section 10, no claim or litigation which is based in whole or in part upon allegations arising from activities undertaken pursuant to these Terms shall be settled by Customer without the advance written approval of ALLC, which approval shall not unreasonably withheld, conditioned or delayed.
11. Termination
ALLC or Customer may terminate the Customer Account and any pending Orders for cause upon written notice if the other breaches or defaults in any of his/her/its material obligations, duties or responsibilities under these Terms or any applicable Order, and such breach is not cured within thirty (30) calendar days following receipt of written notice thereof, or in the event such breach cannot reasonably be cured within such time period, if such cure is not commenced within such thirty (30) calendar day period and diligently continued to completion. In the event the Customer Account and any pending Orders are terminated, Customer shall issue to ALLC payment for all Products shipped and/or delivered to Customer as of the date of the termination. In addition, in the event of such termination, Customer shall provide payment in full for all Products for which an Order has been executed and accepted, where Customer has not cancelled the purchase as set forth under these Terms (including without limitation Section 2(h), above) or the ALLC Shipping, Return and Refund Policy, and ALLC shall produce and provide the corresponding Products to Customer. For such purposes, the requirements of the corresponding Order(s) and these Terms as applicable thereto shall survive such termination, and ALLC and Customer shall owe no further duties or obligations under or in relation to these Terms or the Products except those that expressly survive expiration or termination of these Terms. Customer’s and each of the Authorized End Users’ access to the Site(s), Products and ALLC Materials through the Customer Account shall be terminated immediately upon termination of the Customer Account, subject to the requirements of Section 4(c)(iii), above, and Customer and each of Customer’s Authorized End Users shall thereupon have no further ability to access or use the Site(s) or order further Products through such Customer Account. Upon such termination, all Customer data, including the Customer Content, stored within the Site(s) shall be preserved for a limited time and transferred as set forth in Section 4(c)(iii), above.
12. Applicable Law
All claims and disputes related to these Terms, the Products and the transactions contemplated hereunder shall be settled in accordance with the Dispute Resolution provisions set forth in Section 13 of these Terms. Interpretation and performance of these Terms shall be in accordance with and pursuant to the substantive laws of the State of Arizona, without regard to principles of conflicts of laws.
13. Dispute Resolution
Any dispute, controversy or claim that may arise under or in relation to these Terms, or any Orders, or any ALLC Policies, or any other documents or terms incorporated herein or integrated herewith by reference, or any interpretation or enforcement (t)hereof, or any transactions contemplated hereunder, or any of the Products, or any other matters contemplated under these Terms (each, a “Dispute”, and collectively, “Disputes”) shall be submitted to a mediator located in the Phoenix, Arizona metropolitan area prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by the parties, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. The mediation shall conclude when all parties thereto sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by the parties informally or through mediation, the Dispute shall be submitted to binding arbitration before a mutually agreeable arbitrator in the Phoenix, Arizona metropolitan area. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona. Customer hereby consents to the personal jurisdiction of such courts located in Maricopa County, Arizona, for such purposes. CUSTOMER ALSO HEREBY WAIVES RIGHT TO A JURY TRIAL. Should any arbitration or other legal proceeding concerning any provision of these Terms or the rights and duties of any person or entity in relation hereto be commenced among the parties, or should any party institute any proceeding in a bankruptcy or similar court which has jurisdiction over any party or any or all of such other party’s property, the party or parties prevailing in such arbitration or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for their attorney’s fees and court costs in such arbitration or proceeding which fees and costs shall be determined by the arbitrator or court, as the case may be, in such proceeding or in a separate action brought for that purpose.
14. Miscellaneous Provisions
a) Assignment. None of Customer’s rights, obligations or claims under or with respect to these Terms or the Products may be assigned, in whole or in part, by such party without the prior written consent of ALLC, which consent shall not be unreasonably withheld, conditioned or delayed, and which consent automatically shall include that which is reasonably necessary in connection with White Label, Drop Ship and Wholesale Products as set forth in Section 4(c)(v), above. ALLC may freely assign its rights, obligations or claims under or with respect to these Terms or any of the Site(s), Site Content, Products and ALLC Materials.
b) Invalid Provisions / Severability. If any provision of these Terms is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable; these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
c) Inconsistency Among Terms. Except as expressly otherwise provided in these Terms, where any provision or term, in whole or in part, of any contract documents related to these Terms conflicts with or is inconsistent with the express provisions of these Terms, then the provisions of these Terms shall control, and the provisions or terms of the related contract documents shall be deemed to be inapplicable and void.
d) Entire Agreement. These Terms, together with all accepted and confirmed Orders, all ALLC Policies referenced herein, and all other documents, agreements and undertakings incorporated herein and integrated herewith by reference, represent the entire agreement between ALLC and Customer and modify and supersede any prior agreements executed by ALLC and Customer with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between Customer and ALLC other than those contained or otherwise referenced (t)herein.
e) Modification. Except as otherwise expressly provided herein, these Terms may not be changed, modified, or amended without the written consent of an actually authorized representative of both ALLC and Customer.
f) No Waiver. Failure on the part of ALLC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by ALLC of its rights hereunder. Any waiver by ALLC of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit ALLC’s remedies and rights under and pursuant to these Terms.
g) Interpretation; Construction. The headings set forth in these Terms are for convenience only and shall not be used in interpreting these Terms. They are not to be construed as a part of these Terms, and they in no way define, limit or amplify the provisions of these Terms. These Terms have been drafted by legal counsel representing ALLC, but Customer has had an opportunity to review these Terms and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.
h) Force Majeure. ALLC shall not under any circumstances be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give Customer prior notice thereof when such delay or failure is due to the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, strikes, internet disruption, disease, viruses, bacteria, epidemics, pandemics or health threats as declared by a government or health care agency, insurrections, attacks or politically destabilizing events or circumstances as declared by a government agency or authority, or other causes beyond ALLC’s control.
i) Notices. Any notice to be given under these Terms shall be in writing and shall be deemed to have been given when personally served, when mailed by certified or registered mail, or when submitted by verifiable electronic mail, addressed to the Customer’s address and to ALLC’s address as designated on the most recent accepted and confirmed Order or as set forth in connection with the Customer Account, to the attention of those designated therein. The addresses and/or contact points may be changed from time to time by either Customer or ALLC by serving notice as provided in this Section 14(i).
j) Survival. The respective rights and obligations of the parties under, Section 4(c)(iii), Section 5(b), Section 7 through Section 10, and Section 12 through Section 14 of these Terms, as well as the indemnity provisions in Section 2(d), Section 2(i), Section 2(j) and Section 4(d)(ii), and the expressly surviving provisions of Section 11, plus the applicable provisions of the ALLC Policies, shall survive the termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Products and ALLC Materials through such Customer Account.
BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), CUSTOMER AND EACH OF CUSTOMER’S AUTHORIZED END USERS UNDERSTAND, ACKNOWLEDGE AND CONFIRM THAT CUSTOMER AND EACH SUCH AUTHORIZED END USER HAVE READ THESE TERMS TO COMPLETION, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT CUSTOMER AND EACH SUCH AUTHORIZED END USER HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY, WITH FULL KNOWLEDGE OF THE IMPLICATIONS OF THE SAME, AND WITHOUT ANY UNDUE INFLUENCE. CUSTOMER AND EACH SUCH AUTHORIZED END USER ACKNOWLEDGE THAT SUCH PARTIES HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO THEIR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH CUSTOMER AND EACH SUCH AUTHORIZED END USER UNDERSTAND TO BE A PREREQUISITE TO THEIR ABILITY TO ORDER, PURCHASE, RECEIVE, UTILIZE AND DISPOSE OF ANY OF THE PRODUCTS AND ALLC MATERIALS, AND TO USE AND UTILIZE THE SITE(S). FINALLY, CUSTOMER AND EACH SUCH AUTHORIZED END USER UNDERSTAND THAT THESE TERMS, TOGETHER WITH THE PROVISIONS AND CONDITIONS OF EACH CORRESPONDING ORDER, THE ALLC POLICIES AND ANY DOCUMENTS INCORPORATED (T)HEREIN AND INTEGRATED (T)HEREWITH BY REFERENCE, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH ACTIVITIES, WITHOUT REGARD TO THE DATE OR TIMING OF ANY SUCH ACCESS, PARTICIPATION, PURCHASE, USE, UTILIZATION OR DISPOSITION. CUSTOMER CERTIFIES THAT CUSTOMER AND EACH OF CUSTOMER’S AUTHORIZED END USERS ARE AT LEAST 18 YEARS OF AGE AND OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS, AND DO SO KNOWINGLY, VOLUNTARILY AND WITHOUT ANY UNDUE INFLUENCE.
BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), AND BY CONTINUING TO USE AND NAVIGATE THE SITE(S), CUSTOMER HEREBY UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT At all relevant and applicable times, all representations, warranties and covenants of CUSTOMER PROVIDED in these Terms are accurate and complete, AND ALLC shall have the right to rely on the same in full.