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ALPHAGRAPHICS E-COMMERCE PROGRAM TERMS AND CONDITIONS
1.Application.These Terms and Conditions apply to every purchase, sale, production, and delivery of Products from Company (or its franchisees or other Subcontractors) to Customer in the contiguous United States (excluding Alaska and Hawaii) via Company’s website (“E-Commerce Program”). By electing to place a Purchase Order, Customer is deemed to have accepted and agreed to these Terms and Conditions in full. These Terms and Conditions may be amended from time to time by Company, at its sole option, and, except as agreed to in writing by Company, such modifications will apply to any Purchase Order. Except as used in Sections 1, 4.2, and 13, the term “Company” will be deemed to include any franchisee of Company providing Products to Customer hereunder.
2.Definitions.Capitalized terms have the meanings given to them in this Section 2 and as otherwise ascribed herein.
Affiliatemeans any Person that Controls, is Controlled by, or is under common Control with another Person, by virtue of equity ownership, by contract, or by other means.
Applicable Lawmeans all federal, state, foreign, community, provincial, and local laws, ordinances, and codes, together with all rules, regulations, policies, and guides promulgated thereunder or pursuant thereto (including the law of the jurisdiction in which the Products are manufactured), applicable to the subject matter of these Terms and Conditions, including, without limitation, recordkeeping, reporting, transportation and environmental laws, intellectual property laws and laws relating to human trafficking, slavery, child labor, labor laws, relating to trade restrictions and embargoes, bribes, kickbacks, or any other unlawful or corrupt payments, laws relating to gifts given or loans made to any Person or to obtain or retain business or to gain an improper advantage, and all safety and remediation standards, together with all rules, regulations, and guides promulgated under any such laws and any directives issued by governmental or intergovernmental authority, including those standards and policies referred to in these Terms and Conditions.
Business Centermeans an AlphaGraphics business center operated by a Company franchisee.
Business Daymeans any calendar day other than Saturdays, Sundays, and national holidays in the United States.
Carriermeans an Entity approved by or acceptable to Company and presented to Customer during the purchasing process that transports goods interstate via land, sea, and/or air on a regular schedule at published rates, whose services are for hire to the general public.
Companymeans AlphaGraphics, Inc.
Confidential Informationmeans all information and data, in any form whatsoever, relating to a Party’s business, trade practices, trade secrets, quality standards, forecasts, methods of operation, sales, marketing, technology, know-how, suppliers, manufacturers, other distributors, financial statements or other financial information, business plans or customers including any copies or versions thereof, which may be communicated to the other Party, its Affiliates or its representatives or of which the other Party, its Affiliates or its representatives may be apprised of by virtue of the other Party’s operation under the terms of these Terms and Conditions, including, without limitation, the Prices. Confidential Information includes any Customer information and data collected from Customers in connection with the sale and use of the Products.
Consequential Damagesmeans damages and injury that result from a Party’s negligent performance of or other breach of these Terms and Conditions for: (a) lost profits; and (b) compensation for damages to reputation and goodwill including costs of or resulting from delays, financing, marketing materials and media time and space, and costs of changing, substituting or replacing the same.
Control, Controls, Controlling, and Controlledmeans the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an Entity, whether through ownership of voting securities, by contract or otherwise.
Customermeans any Person that purchases any Product.
Cybersecurity Incidentmeans any event or occurrence that results in unauthorized access to, or adversely affects the availability or integrity of Confidential Information, which could not have been prevented by reasonable administrative, physical, and technical security measures.
Destination Pointmeans the address to which the ordered Product(s) will be delivered, if Customer chooses to have the ordered Product(s) shipped rather than picking up the Product(s) in-person at a Business Center. The Destination Point, if any, will be as specified by Customer and set forth on the Purchase Order Confirmation.
Entitymeans any corporation, partnership, limited liability company, or other legal entity.
Force Majeure Eventmeans an act of nature, strike, riot, fire, flood, explosion, act of God, war, act of terrorism, pandemic, epidemic, public health emergency, governmental action, Cybersecurity Incident, or any other cause that is beyond the reasonable control of a Party and that materially and adversely prevents the applicable Party from performing its obligations under these Terms and Conditions. Financial inability of a Party hereto will not constitute a Force Majeure Event.
Governmental Authoritymeans any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Applicable Law), or any arbitrator, court, or tribunal of competent jurisdiction.
Intellectual Property Rightsmeans all rights arising under contract, statutes, civil law or common law, whether or not perfected, associated with (a) patents and patent applications; (b) trademarks, service marks, layouts, designs, decor and color schemes; (c) works of authorship, including, without limitation, copyrights, source codes, moral rights, and neighboring rights; (d) the protection of trade and industrial secrets and Confidential Information; (e) any documents, data, and analyses developed specifically for a Party as part of these Terms and Conditions; (f) any rights analogous to those set forth herein and any other proprietary rights relating to intangible or intellectual property now existing or later recognized in any jurisdiction; and (g) divisions, continuations, renewals, re-issuances, re-examinations, applications and registrations, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
Losses and Expensesmeans, without limitation, all losses, compensatory, exemplary or punitive damages, settlement amounts, judgments, arbitral awards, court costs, fines, charges, costs, expenses, including, without limitation, reasonable attorneys’ fees, any and all expenses of recall (including, without limitation, refunds, compensation, public notices and other such amounts incurred in connection with a recall) and Consequential Damages.
Marksmeans Company’s or its Affiliates’ trademarks, service marks, names, identifying symbols, logos, tag lines, domain names, URLs, or any other indicia of origin relating to, owned by, used, or associated with Company, its Affiliates, the AlphaGraphics system, or the goodwill thereof.
Notice has the meaning set forth in Section 21.
Party means Company or Customer.
Person means any natural person or Entity.
Pricemeans the then-current unit price for each Product supplied by Company pursuant to these Terms and Conditions. Prices are in U.S. Dollars, do not include any Taxes or the cost of the shipping as selected by Customer during the ordering process, and will be net of any rebate, discount, or credit.
Productmeans certain customized print and communications products and services for business customers including but not limited to signage, graphics, artwork, designs and related products, which Company makes available through the ECommerce Program.
Product Specificationsmeans any document, instruction, or other guidance, issued by Company, that indicates any applicable particular qualities, standards, characteristics, or specifications of a particular Product.
Purchase Ordermeans an electronic order for a Product (or Products) submitted by Customer through the E-Commerce Program in the format specified by Company, which order will include the details of the Product(s) to be purchased, including the Price, as well as the delivery option and Destination Point, if applicable. A Purchase Order is not accepted by Company until Company sends a Purchase Order Confirmation.
Purchase Order Confirmationmeans the acknowledgment and acceptance of a Purchase Order by Company, which shall be sent to Customer via email. The Purchase Order Confirmation will confirm the Product(s), quantity, and estimated shipping date.
Shipping Costsmeans all costs for Customer’s selected shipping service, including any applicable Taxes and/or insurance, if any.
Shipping Pointmeans, in the situation where Customer chooses to have the ordered Product(s) shipped, the Carrier facility location to which Company or its designee will deliver the Products for shipment by the Carrier to Customer (which, for the avoidance of doubt, may be the fulfilling Business Center).
Subcontractormeans any third party (including Company’s Affiliates or franchisees) that performs all or part of Company’s obligations under these Terms and Conditions.
Taxesmeans all taxes imposed by any federal, state, provincial or local government authority, including, without limitation, sales, use, personal, franchise, gross receipts, withholding, excise, tariff, property, and similar taxes.
- 3.1 Products Supplied.Company will make available Products for Purchase, and Customers may purchase from Company, the Products at Company’s then-current Prices on the terms and conditions set forth in these Terms and Conditions. Other than by placing a Purchase Order, Customer makes no promise, commitment, or guarantee that it will purchase a specific quantity of any Products.
- 3.2 Product Specifications.All Products sold to Customer hereunder will meet Company’s then-current Product Specifications. Company reserves the right to modify or revise the Product Specifications from time to time and to modify or substitute materials (including paper type or substrates) for any reason including but not limited to available supply or supply chain issues.
4. Prices, Fees, and Payment Terms.
- 4.1 Purchase Price.Company will sell the Products to Customer at the then-current Prices under the E-Commerce Program. The Prices are exclusive of any Taxes, Shipping Costs, and other charges or costs incurred by Customer.
- 4.2 Payment to Company.Customer will pay Company for all Products ordered at the time the order is placed, including all Shipping Costs.
5. Purchase Orders.
- 5.1 Purchase Orders.If Customer desires to purchase a Product, Customer shall order the Product(s) through one or more Purchase Orders from time to time through Company’s website or as otherwise presented to the Customer in connection with Company’s E-Commerce Program. The requirements of this Section 5 will apply to any Purchase Order. A Purchase Order is not accepted by Company until Company sends a Purchase Order Confirmation.
- 5.2 Purchase Order Confirmation.If Company accepts a Purchase Order, Company shall send Customer a Purchase Order Confirmation via email. Any lead times or shipping times included on a Purchase Order Confirmation are estimates only.
- 5.3 Changes to and Cancellation of Purchase Orders.Purchase Orders are binding on Customer and cannot be cancelled or modified unless Customer has requested the change in writing and Company has approved the change in writing.
- 5.4 Conflict with Purchase Order.The terms set forth in these Terms and Conditions will apply to each order by a Customer, whether such order is communicated by Purchase Order, electronic data interchange, internet E-Commerce, facsimile, orally, or any other method, and regardless of whether reference is made to these Terms and Conditions. The Parties will use only the form of Purchase Order provided or approved by Company from time to time. These Terms and Conditions replace and supersede any contradictory terms in any Purchase Order or Purchase Order Confirmation. The Parties expressly reject any and all different, conflicting, or additional terms appearing on any Purchase Order or any Purchase Order Confirmation, unless such terms are signed by a representative of each Party having the authority to bind that Party.
6. Shipment and Delivery of Products.
- 6.1 Shipment; Delivery.
- 6.1(a)When placing a Purchase Order, Customer will select whether to (a) pick up the Products in-person from a Business Center, or (b) have the Products delivered to the Destination Point, in which case Customer will select from the shipping rates and services presented by Company, if any, and Customer must pay Company for the Shipping Costs associated therewith. Company assumes all responsibility for proper packaging and labeling of Products for shipment to Customer in accordance with any packaging, marking, labeling, and shipping paper requirements imposed by Applicable Law.
- 6.1(b)If Customer selects to have the Products delivered to the Destination Point, Company or its designee will deliver or arrange the delivery of Products to the Shipping Point.
- 6.2 Title and Risk of Loss.Title and risk of loss to Products will transfer to Customer upon the earlier of receipt of the Products by Customer or its designated Carrier, as evidenced by authorized signature of or acceptance in person by Customer or its authorized representative, or acceptance by its designated Carrier, or as otherwise agreed to in writing by Company and Customer or the Purchase Order. Company will bear all costs and risk to deliver the Products to the Shipping Point. At no time prior to delivery at the Shipping Point will Customer take title to the Products or assume any risk of loss for the Products. Except for late shipment charges pursuant to Section 6.4, Customer will take title and be responsible for all costs of freight, insurance, and transportation of the Products from and after Company delivers the Products to the Shipping Point.
- 6.3 Inspection.Upon receipt or delivery of the Products, Customer will, or will cause its authorized representative to, immediately inspect the Products.
- 6.4 Shortages and Discrepancies.Customer will notify Company of any shortage, or material failure to comply with applicable Product Specifications in the Products received from Company. Except as provided in Section 7.3, such notice must be given no later than five (5) days after receipt of the Product and Company will make commercially reasonable efforts to confirm receipt of such notification within fifteen (15) days of receipt of any such notice from Customer. If Company is unable to correct the matter in a manner and in a time period reasonably acceptable to Customer, Company will provide Customer with replacement Products materially conforming to those which Customer originally ordered. This will be Customer’s sole remedy in such event.
7. Warranties and Quality Assurances.
- 7.1 Warranties.
- 7.1(a)With respect to the sale of any Products to Customer hereunder, Company represents, covenants, and warrants that the Products will: (a) be of high quality and free from material defect; (b) be merchantable, safe, and suitable for their intended purpose; (c) be new and not used, remanufactured, or reconditioned; (d) conform to any Product Specifications; and (e) be delivered with good title, free from any security interest or other claim, lien, or encumbrance of any kind whatsoever against them. All other express or implied representations and warranties including those provided by the Uniform Commercial Code applicable to the Products are specifically disclaimed.
- 7.1(b)Company and Customer each represent, covenant, and warrant that: (i) each is duly organized and validly existing under the laws of the jurisdiction of its formation and is authorized to do business in any other jurisdiction as required in order to provide the Products (where Company is an entity); (ii) each has and will maintain all requisite power, authority, insurance, bonds, licenses, certificates, or approval to execute, manufacture, and deliver the Products pursuant to any Purchase Order and any other document, agreement, certificate, or instrument necessary to consummate the transactions and perform their respective obligations under these Terms and Conditions; and (iii) performance of their respective obligations under these Terms and Conditions will not result in a violation or default of any governing document applicable to either Company or Customer, any other agreement of whatever nature to which Company or Customer is a party or by which it is bound, or any provision of any Applicable Law.
- 7.1(c)Customer represents, covenants, and warrants that all material(s) requested be reproduced by Company are free of liability as either (i) the Customer is the copyright owner and has the authority to make copies, or has the authority as agent of the copyright owner to grant permission, (ii) the Customer has obtained either written or verbal permission from the copyright owner, (iii) the material(s) is (are) not copyrighted or (iv) the Customer has determined the material(s) comply(ies) with Paragraph 107 (the Fair Use Clause) of the Copyright Law.
- 7.2 Compliance with Applicable Law.Company and Customer will comply with all Applicable Law governing the performance of these Terms and Conditions. Company will take all reasonable steps to cause its employees, agents, and Subcontractors (including franchisees) to comply with all Applicable Law.
- 7.3 Defective Product Notifications.Customer will inform Company by prompt written communication of any defects detected in Products supplied to such Customer, with written notice to be sent to Company: (a) in case of obvious or patent defects within twenty-four (24) hours of the receipt of the Products by Customer; or, (b) in case of hidden or latent defects within five (5) days of discovery, undertaken in a diligent and good faith manner by Customer.
- 7.4 Disclaimers.
- 7.4(a)Customer is solely responsible for proofing and verifying the content and layout of Customer’s ordered Products prior to submitting a Purchase Order. Without limiting the foregoing, Company is not responsible for, and has no liability with respect to: (i) spelling, punctuation or grammatical errors; or (ii) design errors introduced by Customer in the document creation process, including but not limited to inferior quality or low resolution files.
- 7.4(b)Customer is solely responsible for ensuring it has full right, power, and authority (by ownership, license, or otherwise) to use all copyrights, trademarks, or other intellectual property. Company is not responsible for, and has no liability with respect to intellectual property rights related to materials provided to Company by Customer.
- 7.4(c)Company will notify Customer when Products, except those shipped to a Destination Point, are available for pick up. Upon notification to Customer, Business Centers will retain the ordered Products for thirty (30) days. If Customer fails to pick up the Products within thirty (30) days from the date of the Company’s notification, Company is unable to make any guarantee the Products will remain available for pick up. No refund will be provided for Customer’s failure to pick up Products timely.
- 7.4(d)Any shipping or delivery timeframe communicated to Customer is an estimate only.
8. Other Products and Customers.These Terms and Conditions do not restrict Company from developing or producing any similar product for other customers as long as such development or production does not contain or use any of Customer’s Confidential Information or otherwise violate the terms of these Terms and Conditions.
9. Freedom of Action.These Terms and Conditions will not limit the right of Company to develop, procure, and/or market any products or services whatsoever through any channel of distribution or to any customer or through any supplier, now or in the future, including any products that are or may be the same as, similar to, or competitive with the Products.
- 10.1 Acknowledgment of Commercial Value.The Confidential Information is valuable and proprietary property of each Party. The disclosure of the Confidential Information by one Party to the other Party was induced by and in reliance on the covenants regarding confidentiality set forth in this Section 10. All Confidential Information will be subject to these Terms and Conditions and will be used by the Parties for the sole and exclusive purpose of fulfilling each Party’s obligations under these Terms and Conditions.
- 10.2 Non-Disclosure.Except as otherwise permitted in these Terms and Conditions, each Party and any franchisee that provides Products to Customer hereunder will keep and maintain the Confidential Information in strict confidence and will not disclose any of the Confidential Information to any Person other than to bona fide employees, agents, or professional advisors. If a Party discloses any Confidential Information to a Subcontractor, an agent, or professional advisor that is not an employee of the Party, such disclosure will not occur until such Subcontractor, agent, or advisor is bound to confidentiality obligations at least as strict as those set forth in this Agreement. If any unauthorized disclosure of the Confidential Information occurs or is suspected by a Party, such Party will immediately notify the other Party whose information is involved of the full particulars of such actual or suspected disclosure, unless otherwise prohibited by Applicable Law or upon the advice of counsel.
- 10.3 Return of Confidential Information.Upon the other Party’s written request, each Party will promptly: (a) return to the other Party all Confidential Information in the possession of the Party, together with all the copies thereof and all documents based thereon; (b) destroy, and confirm to the other Party that it has been destroyed, all Confidential Information stored on any electrical or magnetic storage device; and (c) cease to use, in any manner whatsoever, all of the Confidential Information. Company will take reasonable steps to cause Subcontractors to return or destroy all Confidential Information.
11. Intellectual Property Rights.
- 11.1 Ownership.Each Party retains exclusive ownership of its Intellectual Property Rights. Company does not transfer any of its Intellectual Property Rights to Customer, and Customer may not use any of Company’s Intellectual Property Rights other than in connection with the use of the Products in accordance with these Terms and Conditions. Customer does not transfer any of Customer’s Intellectual Property Rights to Company, except Customer grants to Company and its Subcontractors the right to customize and package Products pursuant to Customer’s requirements and Product Specifications. Each Party will timely notify the other Party in writing if the former becomes aware of any third party infringing the Intellectual Property Rights of the other Party. Neither Party’s Intellectual Property Rights will be impacted by any default under or termination of these Terms and Conditions.
- 11.2 Marks.Neither Party will have any ownership in and will refrain from making any claims or asserting any right or interest in the other Party’s trademarks, including Company’s Marks; provided that Company and its Subcontractors will have the right and authority to use, display, Customer’s trademarks in any manner required for the production and packaging of the Products in accordance with Product Specifications and Customer’s requirements. Otherwise, neither Party may publicize or advertise, using any media sources, the relationship with Company or Customer set forth in this Agreement, as applicable, without the prior written permission of the other Party. Neither Party grants permission for other Party to indicate in any manner whatsoever that either Company or Customer is endorsed or sponsored by other Party. Neither Party will register or file applications to register in any jurisdiction any trademark that consists of, incorporates, is confusingly similar to, or is a variation, derivative, modification, or acronym of, any of the other Party’s trademarks or contest the ownership or validity of any of the other Party’s trademarks, including in any litigation or administrative proceeding.
12. Subcontractors.Company may use Subcontractors to fulfill Company’s obligations under these Terms and Conditions. To the extent Company uses Subcontractors, all of Company’s obligations under these Terms and Conditions will have the same force and effect against such Subcontractor as against Company and Company will be liable for any Losses and Expenses under these Terms and Conditions to the same extent as if Company had performed the obligations.
- 13.1 Termination upon Discontinuance of E Commerce Program.Company may discontinue the E-Commerce Program for any reason at any time, without having to provide prior notice to Customer. Upon discontinuance of the E-Commerce Program, these Terms and Conditions will automatically terminate. If Company terminates these Terms and Conditions as described in this Section 13.1, the Parties agree Company will nevertheless fulfill any pending Purchase Orders.
- 13.2 Termination for Cause.Company may terminate Customer’s participation in the E-Commerce Program if Customer fails to cure any default of Customer’s obligations under these Terms and Conditions within thirty (30) days following Customer’s receipt of written notice of such default.
- 13.3 Termination for Insolvency.A Purchase Order will terminate automatically without notice if Customer becomes insolvent, is adjudicated bankrupt, voluntarily files a petition for liquidation or reorganization under any provision of the United States Bankruptcy Code or other similar bankruptcy law, makes an assignment for the benefit of creditors or takes any other action pursuant to any applicable insolvency statute.
- 13.4 Wind Down Upon Termination.Each Party will fulfill obligations incurred before the effective date of any termination, including, but not limited to, the following: (A) Company or its designee will deliver to the Shipping Point all Products subject to any Purchase Order for which Company transmitted a Purchase Order Confirmation; and (B) Customer will pay all amounts owing to Company in accordance with these Terms and Conditions.
14. Force Majeure.Neither Party will be held responsible for failure to perform its obligations under these Terms and Conditions or any Purchase Order due to a Force Majeure Event to the extent and for the length of time that such Party’s performance is rendered impossible or commercially impractical; provided, however, upon the occurrence of a Force Majeure Event, the Party that is unable to perform its obligations hereunder will promptly notify the other Party in writing of the existence, nature, and expected duration of the Force Majeure Event and use all reasonable efforts to overcome the effects of the Force Majeure Event and resume performance as soon as reasonably practicable. Notwithstanding the foregoing, no Force Majeure Event will operate to excuse or delay the prompt payment of any fees or other amounts due under these Terms and Conditions.
15. Assignment.Customer may not assign its rights and interest in these Terms and Conditions, or in any Purchase Order, to any Person, including an Affiliate, without Company’s prior written consent. Company may assign its rights and interest in these Terms and Conditions or a Purchase Order to any Person as long as such Person is financially and operationally capable of performing under these Terms and Conditions.
16. Dispute Resolution.
- 16.1 Negotiation.Before submitting any claim, controversy, or dispute arising out of these Terms and Conditions to arbitration, litigation, or other legal proceedings (except actions seeking extraordinary relief, i.e., specific performance or an injunction), the complaining party will provide written notice to the other of the claim, controversy, or dispute, and each Party will, as promptly as practical, appoint one or more senior executives with authority to settle such claim, controversy, or dispute who will meet with each other in good faith for the purpose of resolving the claim, controversy, or dispute.
- 16.2 Mediation.Except for actions seeking extraordinary relief, if the parties are unable to resolve any claim, controversy, or dispute by negotiation in accordance with Section 16.1 within thirty (30) days of a party providing written notice of the claim, controversy, or dispute, then either Party may deliver to the other Party written notice of its intention to commence mediation in accordance with this Section 16.2, which it must do before commencing proceedings with respect to the claim, controversy, or dispute. The Parties will endeavor to settle the claim, controversy, or dispute by mediation by first jointly selecting an independent and neutral third party to be the mediator. If the parties fail to select the mediator within fifteen (15) days following delivery of the written notice of intention to commence proceedings with respect to a claim, controversy, or dispute in accordance with this Section 16.2, a mediator will be selected by the American Arbitration Association from its approved panel of mediators. The mediation will be conducted within thirty (30) days of the selection of the mediator in) the Denver, Colorado metropolitan area, or such other location expressly agreed to by the parties to the mediation. Each party will be responsible for its own attorneys’ fees and costs and the parties to the mediation will share equally the fees and costs of the selected mediator.
- 16.3 Arbitration.Except for actions seeking extraordinary relief, if the Parties are unable to resolve any claim, controversy, or dispute as set forth in Section 16.2, the dispute will be finally determined by binding arbitration administered by the American Arbitration Association, in accordance with its then current Commercial Arbitration Rules, except as otherwise provided in these Terms and Conditions. The arbitration will be conducted in the Denver, Colorado metropolitan area. The arbitration will be conducted by a sole arbitrator, jointly selected by the Parties. If the Parties fail to agree upon the arbitrator within thirty (30) days after the commencement of the arbitration, then the American Arbitration Association administrator will appoint the arbitrator. The arbitrator has authority to resolve disputes as to arbitrability and the arbitrator’s jurisdiction. Except as provided herein, and without limiting the noncompliance remedies available herein, the arbitrator will have the authority to award any interim, provisional, or final remedy or relief that any court of competent jurisdiction in the State of Colorado could order or grant, including, without limitation, general damages, specific performance, injunctive or other extraordinary relief, or the imposition of sanctions for abuse or frustration of the arbitration process. Any arbitration award will be final and binding and will be paid within thirty (30) days of the issuance of the arbitrator’s award. Any judgment upon an award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction thereof. Each party will be responsible for its own attorney’s fees and costs and the parties to the arbitration will share equally in the cost of the arbitrator. If a Party fails to comply with the provisions of this Section 16.3, or with an order, award, or determination of the arbitrator, then such noncomplying Party will be liable for all attorney’s fees, costs and expenses, including court administrative costs, incurred by a prevailing Party in its effort to obtain either an order to compel, or recognition or enforcement of an award, from the arbitrator or a court of competent jurisdiction.
- 16.3(a) Injunctive or Provisional Relief or Enforcement.Notwithstanding the above, either Party may elect to apply to a court of competent jurisdiction to seek interim or provisional injunctive, equitable, or other extraordinary relief or its equivalent with respect to any matters contemplated by these Terms and Conditions.
- 16.3(b) Governing Law and Venue.The laws of the State of Colorado (without giving effect to any conflict of laws) will govern the Parties’ relationship, the construction, interpretation, and enforcement of these Terms and Conditions, and any dispute, claim, or controversy arising out of or relating to these Terms and Conditions, except that all matters relating to arbitration will be governed by the United States Federal Arbitration Act. With respect to all suits, actions, or other legal proceedings under these Terms and Conditions, except as provided in Section 16.3, each of the parties submits to the exclusive jurisdiction of the United States District Court for the District of Colorado or the District Court for Jefferson County, Colorado. The Parties agree that such courts are a reasonable venue and each waives and agrees not to assert any challenges to personal jurisdiction and/or venue in such courts.
- 16.3(c) Limitation of Actions.Any claims between the Parties must be commenced within two (2) years from the date on which the Party asserting the claim knew or should have known of the facts giving rise to the claim, or such claim will be barred.
- 16.3(d) Limitation of Liability.No Party will be liable for indirect, incidental, lost profits, business interruption, special, exemplary, punitive, or Consequential Damages, and a Party will be entitled only to recover its direct and general damages, whether arising in contract, tort, or any other legal theory. Notwithstanding the foregoing, Customer’s damages will be limited to the payments for Products paid by Customer and received by Company within the twelve (12) months prior to any termination or claim for damages.
- 16.3(e) JURY TRIAL WAIVER.ANY LEGAL ACTION IN CONNECTION WITH OR ARISING OUT OF ALPHAGRAPHICS’ E-COMMERCE PROGRAM, THESE TERMS AND CONDITIONS, OR THE PARTIES’ RELATIONSHIP WILL BE TRIED TO THE COURT OR ARBITRATOR SITTING WITHOUT A JURY, AND ALL PARTIES WAIVE ANY RIGHT TO HAVE ANY ACTION TRIED BY JURY.
- 16.3(f) Confidentiality of Proceedings.Except as necessary to obtain interim or provisional relief or to enforce any arbitration award, neither Party nor any mediator or arbitrator may disclose the existence, content, or results of any settlement negotiations, mediation, or arbitration hereunder without the prior written consent of both Parties.
- 16.3(g) No Class Action or Consolidation.Any actions related to a dispute will be conducted on an individual basis, and not as part of a common, consolidated, or class action; provided, if multiple claims are brought by Customer, having common claims and interests, Company may, at its option, have the claims consolidated into a single proceeding.
- 16.3(h) Claims Not a Defense; Effect on Performance.The existence of any claims a Party may have against the other Party hereto, whether or not arising from these Terms and Conditions, will not constitute a defense to the enforcement by such Party hereto of any of the rights under these Terms and Conditions. Further, a notice of, request for, or filing of mediation, arbitration, or suit, action, or other legal proceeding will not operate to stay, postpone, or rescind the effectiveness of any demand for performance or notice of termination.
17. Gratuities and Gifts.The Parties will not make or offer a gratuity or gift of any kind to either Parties’ employees or their families that could be viewed as relating to an actual or potential business relationship with either Party. Gifts include entertainment, personal services, favors, discounts, and other preferential treatment of any kind. Either Party will interpret any such action as an improper attempt to influence its employees, which will jeopardize the Parties’ relationship. For the avoidance of doubt, gifts do not include (a) samples of Products in reasonable quantities provided by a Party in furtherance of the Agreement; (b) reasonable food and beverages at a meeting between Customer and Company; or (c) Products sold pursuant to a bona fide discount program, offered to qualified buyers for the purpose of increasing knowledge of such Products.
18. Anti-Terrorism and Anti-Bribery Laws.Company and Customer each represent and warrant that neither Company or Customer or their respective parents, affiliates, representatives, agents or employees: (i) is identified, either by name or an alias, pseudonym or nickname, on the lists of “Specially Designated Nationals” or “Blocked Persons,” or any other list of denied persons, maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (including as listed at https://home.treasury.gov/policy-issues/office-of-foreign-assetscontrol-sanctions-programs-and-info rmation) or any other Governmental Authority; (ii) is directly or indirectly owned or controlled by the government of any country that is subject to a United States sanction or embargo; (iii) acts, and none of them will act, directly or indirectly on behalf of the government of any country that is subject to a United States sanction or embargo; or (iv) has violated, and none of them will violate, any law prohibiting corrupt business practices, money laundering or the aid or support of persons who conspire to commit acts of terror against any person or government, including acts prohibited by the USA Patriot Act (text currently available at https://www.epic.org/privacy/terrorism/hr3162.html), U.S. Executive Order 13224 (text currently at), or any similar law. Each Party further represents and warrants that Company and Customer, as applicable, and their respective Affiliates and Subcontractors, and representatives, agents, and employees are, and during the Term will remain in full compliance with Applicable Law, including but not limited to laws prohibiting unfair, fraudulent, or corrupt business practices in the performance of their obligations under the Agreement and related activities, including but not limited to the making of any expenditures other than for lawful purposes or directly or indirectly offering, giving, promising to give or authorizing the payment or the gift of any money, or anything of value, to any Person, while knowing or having reason to know that all or a portion of such money or thing of value will be given or promised, directly or indirectly, to any government official, official of an international organization, officer or employee of a foreign government or anyone acting in an official capacity for a foreign government, for the purpose of (a) influencing any action, inaction, or decision of such official in a manner contrary to his or her position or creating an improper advantage; or (b) inducing such official to influence any government or instrumentality thereof to effect or influence any act or decision of such government or instrumentality. Each Party represents and warrants that no government official, official of an international organization, political party or official thereof, or candidate has any direct or indirect ownership or investment interest in such Party’s revenues or profits. The Parties acknowledges the importance to the parties’ relationship of its compliance with the requirements of this Section 18, including any applicable auditing or reporting requirements under Applicable Law. The foregoing are continuing representations and warranties, and each Party will immediately notify the other in writing of any event or circumstance that might render any of the foregoing representations and warranties false, inaccurate, or misleading.
19. Survival.All terms that by their nature survive any termination or expiration of these Terms and Conditions will survive any termination or expiration of these Terms and Conditions, including, without limitation: Section 7 (Warranties and Quality Assurances); Section 10 (Confidentiality); Section 11 (Intellectual Property Rights); and Section 16 (Dispute Resolution).
20. Independent Contractor.Each of Company and Customer are independent contractors and not an employee, partner, or agent of the other Party. Neither Party will have authority to commit or create any liability on the part of the other in any manner whatsoever. Customer acknowledges and agree that any franchisee of Company is separate, distinct, and independent from Company, is an independent contractor, and is not an employee, partner, or agent of Company.
21. Notices.All notices, approvals, consents, modifications, requests, and other communication permitted or required under these Terms and Conditions will be in writing and will be deemed given (a) when delivered by hand; or (b) upon confirmed delivery if by certified or registered mail, postage prepaid, or by a nationally-recognized courier or delivery service.
22. Waiver.No single or partial exercise of any right, power, or remedy, or failure or delay in exercising any right, power, or remedy, by either Party will constitute a waiver by that Party of, or impair or preclude any further exercise of, that or any other right, power, or remedy arising under these Terms and Conditions or otherwise.
23. Headings; Pronouns.The headings contained herein are inserted for convenience only and will not be deemed to have any substantive meaning. The terms used in these Terms and Conditions, regardless of the number and gender in which they are used, will be construed to include the other number (singular or plural), and other genders (masculine, feminine or neuter), as the context or sense of these Terms and Conditions or any paragraph or clause may require.
24. Construction.Customer acknowledges and agrees that it has voluntarily elected to purchase Products through Company’s E-Commerce Program with a full understanding of these Terms and Conditions.
25. Third-Party Beneficiaries.These Terms and Conditions are solely for the benefit of the Parties in connection with Company’s E-Commerce Program and will not confer upon third parties any remedy, claims, actions, or other right.
26. Entire Agreement.These Terms and Conditions and any other documents expressly incorporated herein by reference contain the entire agreement and understanding of the Parties as to the subject matter, and supersede all other prior agreements, understandings, and arrangements, written or oral, between the Parties relating to the subject matter hereof.
27. Severability.If any of the terms of these Terms and Conditions are deemed invalid, unlawful, or unenforceable to any extent, such term will be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.