TERMS AND CONDITIONS OF SALE AND WEBSITE USE
This Agreement Regarding Terms and Conditions of Sale and Website Use ("Agreement") is made and entered into by and between Protect and Control Inc., DBA eDist Security a Delaware Corporation ("eDist") and the Person (as defined in Section 1) identified in the New Account Form of which this Agreement is a part ("Buyer") and constitutes a binding agreement between eDist and Buyer governing all transactions between eDist and Buyer. Unless otherwise agreed to in a writing signed by an eDist Authorized Representative (as defined in Section 1), this Agreement specifically applies to and governs: (A) all purchases of Products and/or Services (as defined in Section 1) by Buyer from eDist; and (B) use by Buyer of the Website (as defined in Section 1).
Certain capitalized terms used in this Agreement are defined in Section 1 below. Other capitalized terms used herein shall have the meaning set forth in the Section or Paragraph in which defined.
BY PLACING AN ORDER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES FROM EDIST, BUYER IS AGREEING TO ALL TERMS AND CONDITIONS SET FORTH HEREIN.
1. Definitions. As used in this Agreement:
- "eDist Authorized Representative" means the President, Chief Executive Officer, Chief Financial Officer, Controller or a Vice President of eDist.
- "eDist Indemnified Parties" shall have the meaning set forth in Section 17.
- "eDist Suppliers" means all Persons providing goods or services to eDist in connection with, or to facilitate, eDist's sale of Products and Services, including but not limited to, manufacturers and software and/or hardware licensors.
- "Governmental Entity" means any: (i) state, county, city, town, village, district, or other jurisdiction of any nature; (ii) federal, state, local, municipal or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); or (iv) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
- "Laws" means federal, state, local, municipal and other laws, constitutions, ordinances, principles of common law, regulations, statutes or administrative orders.
- "New Account Form" means the New Account Form document completed and signed by Buyer and submitted to and accepted by eDist.
- "Parties" means eDist and Buyer (each, a "Party").
- "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, Limited Liability Company, joint venture, estate, trust, association, organization, labor union, Governmental Entity or any other entity.
- "Products" means equipment, accessories, other goods and software licenses sold by eDist.
- "Services" means "Tiered Support" (as described on the Website), repairs (both warranty and non-warranty), technical support, "Certified eSupport", marketing and other services sold by eDist.
- "Support Orders" means orders for Services placed by Buyer and accepted by eDist.
- "Website" means collectively, the websites at http://security.edist.com and all associated websites controlled by eDist.
2. Entire Agreement; No Modification.
- This Agreement, together with the New Account Form and, if applicable, Support Orders, constitute the sole and entire agreement of the Parties regardless of the timing, form or content of other communications between the Parties. No additional or conflicting provisions contained in any communications (including but not limited to Buyer forms of purchase orders) from or with Buyer will be considered to be part of this Agreement. Receipt of a purchase order or other communication from Buyer will be considered an unconditional acceptance of this Agreement, without regard to any additional or conflicting terms proposed by Buyer. None of the provisions of this Agreement may be varied, amended, or modified by Buyer except by a written agreement signed by an eDist Authorized Representative. eDist reserves the right to change, amend, or modify any and all of terms and conditions contained in this Agreement, with or without notice, by posting such changes on the Website. In the event of any conflict between the provisions of this Agreement, the New Account Form and any Support Orders, the provisions of this Agreement shall be controlling.
3. Prices; Taxes, Insurance & Other Charges.
- The prices charged for Products and Services purchased by Buyer from eDist shall be the amounts set forth on the Website or other quotation or as provided by the applicable invoice relating to such Products and Services. Quoted prices will remain in effect only until the expiration date of the quote or eDist's acceptance of Buyer's order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors. All prices, Products and Services are subject to change and availability without notice.
- Prices are exclusive of all Taxes (as hereinafter defined). Buyer shall pay all applicable taxes, including sales, use, income, personal property, value-added, excise or stamp taxes and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from eDist, including penalties and interest, but specifically excluding taxes based upon eDist's income (collectively, "Taxes"). Sales tax and other applicable Taxes will be charged by eDist, where applicable, unless a certificate of exemption is on file with eDist, however, except as required by law, eDist shall have no obligation, responsibility or liability for collection of sale, use, excise, income or other taxes. In the event Taxes are imposed for transactions in a location where Buyer is not authorized to transact business, authorization has expired or due to other causes, then Buyer is responsible for all Taxes. If required by Laws, Buyer shall provide to eDist, promptly and without cost, all documentation requested or required by any Governmental Entity from eDist in connection with purchases made by Buyer. eDist may suspend delivery of Products and Services to Buyer and Buyer's use of the Website until Buyer has provided such documentation. Promptly upon request by eDist, Buyer will provide eDist with proof of payment of all Taxes.
- Unless otherwise agreed in writing by eDist, Buyer shall pay all freight, insurance and other charges associated with Buyer's purchase of Products and/or Services. Shipping and handling charges and insurance are not included in the prices for Products or Services unless expressly agreed to by eDist at the time of sale.
4. Controlling Provisions.
- The terms and conditions appearing on the instrument constitute the sole and entire Agreement of the parties regardless of the timing, for or content of other communications between the parties, if any, all of which are merged herein. If Buyer has previously made an offer to Seller, such offer is hereby rejected and the terms of this Agreement shall be deemed a counteroffer. This offer/counteroffer is expressly limited to the terms hereof. Seller objects to the inclusion of any different or additional terms, and no additional or conflicting provisions contained in any other communications from or with the Buyer will be considered to be part of this Agreement. Receipt of a purchase order or other appropriate communication from the Buyer will be considered an unconditional acceptance of the terms and conditions appearing hereon, without regard to any additional or conflicting terms proposed by Buyer. None of the provisions of this Agreement may be varied, amended or modified except by a written agreement signed by all of the parties.
5. Payment Terms.
- Net amount in full within terms of invoice to those accounts with previously established credit lines. Purchases may be paid for with VISA, Discover or MasterCard. Other purchases are paid for by C.O.D. Past due accounts may have their credit lines suspended. Orders shipped to past due accounts will be shipped C.O.D. All overdue amounts will be added to the C.O.D. amount. Products not listed in eDist's catalog are available on special order. A one third (1/3) deposit may be required on all special ordered items. Special orders cannot be canceled or returned. A returned check charge to recover bank and handling fees will be assessed each and every time a check is returned for any reason by the financial institution. Payment for sales can be made at the eDist location where the goods were purchased or mailed to eDist, PO Box 52252, Newark, New Jersey 07101-0220.
6. Late Payment.
- Buyer agrees to pay 1.5% per month on all balances which are not paid within terms after invoice date or the maximum rate which is legal and enforceable. Buyer will further pay attorneys or collection company fees of all accounts placed for collection, in addition to all expenses for collection.
- Deliveries will be made within commercially reasonable time unless a specific delivery time is currently undetermined by the manufacturer. All shipments are F.O.B. shipping point, unless otherwise indicated. All shipments are insured at the Buyer's expense.
8. Limitation on Warranties.
- All merchandise sold carries the manufacturer's warranty, which is provided to the customer only. SELLER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OR FITNESS FOR ANY PARTICULAR PURPOSE OF MERCHANTABILITY. No agent, employee or representative of Seller is authorized to bind Seller to any affirmation, representation or warranty, oral or written, unless by separate written instrument designed by Seller, which by its terms states that it is included as part of this agreement.
- Receipt of goods shall be deemed acceptance of these goods received. All claims for defective goods, for revocation of acceptances, for shortages, for delays or failures in shipment or delivery, or for any other cause shall be deemed waived and released by the Buyer unless made in writing within (7) days after receipt of the goods. All claims must state specifically and in reasonable detail the nature of all objections, and must be accompanied by delivery receipt or photocopy of sales order or packing slip. Any delivery not placed in dispute in a timely manner shall be paid for by the Buyer and all uncontested amounts due shall be paid by the Buyer within terms specified. As a condition to making a claim for missing or damaged goods, customer is responsible for initiating and pursuing UPS or other shipping claims for items claimed not received and/or damaged.
10. Limitation on Seller's Liability.
- Seller's liability will be limited to replacement or repair of defective goods upon receipt of timely notice to Seller per paragraph six herein and receipt of goods and documents at Seller's place of business not later than seven (7) days after buyer's receipt of the goods. In no event will Seller be liable for consequential or special damages or for transportation, installation, removal, adjustment or other expenses or losses which may arise in connection with the use of installation of the goods; late delivery, failure to deliver or from any other cause. Notwithstanding the terms of this Agreement, if there should arise any liability of Seller, such liability shall be limited to an amount equal to one-half of the costs of the goods and services provided hereunder or $250.00, whichever is less.
11. Returned Material.
- Seller will accept most goods for exchange or credit, only on Seller's discretion within thirty (30) days of the purchase date. In no case are goods to be returned without first obtaining Seller's permission. Only unused material as currently manufactured, in original unopened packaging and which has been paid for by Buyer in accordance with Seller's payment terms will be considered, along with proof of purchase. Material accepted for credit will be subject to a 15% charge for service and handling. Seller will not be obliged to replace any product that has been abused, improperly installed or otherwise misused. Goods must be securely packed in unmarked, original cartons to reach seller without damage. Credit not used within one year will be forfeited. Returns are for credit or exchange only, no refunds will be issued.
12. Website Use.
- Buyer shall create a user identification ("User I.D.") and a password ("Password") when completing the New Account Form, or by such other procedure adopted by eDist from time to time. Buyer's choice and establishment of a User I.D. and Password is a precondition to use of the Website. Protected areas of the Website cannot be accessed and used without a User I.D. and Password. The Website includes mechanisms which permit Buyer to change Buyer's User I.D. and Password.
- Buyer is entirely responsible for maintaining the confidentiality of Buyer's User I.D. and Password. Buyer is and shall be fully responsible for all activities occurring under Buyer's User I.D. and Password. Buyer shall notify eDist immediately if Buyer suspects, detects or receives notice of any unauthorized use of Buyer's User I.D and Password or any other breach of security with reference to Buyer's use of the Website. In such event, Buyer is obligated to change Buyer's User I.D. and Password immediately pending resolution of the unauthorized use or security breach. Buyer may not use any other Person's User I.D. or Password at any time. Buyer may be held liable for losses incurred by eDist or any other Person arising from any Person other than Buyer using Buyer's User I.D. or Password as a result of Buyer failing to keep that information secure and confidential. eDist cannot and will not be liable for any damage or loss arising from Buyer's failure to meet its obligations under this paragraph, or arising from unauthorized use of Buyer's User I.D. or Password, except in the case of gross negligence or intentional misconduct by eDist. Similarly, eDist shall not be responsible for unauthorized use of any Buyer's Credit Card, Debit Card or other account information (including, but not limited to, Buyer's name, billing address, Credit Card or Debit Card number, related security code number, and Credit Card or Debit Card expiration date) by any Person unless such information was disclosed by eDist to such other Person through eDist's gross negligence or willful misconduct.
- Buyer shall provide all information and execute all documents which eDist may reasonably require for proper use of the Website by Buyer. Buyer represents and agrees that all information and documentation which Buyer provides is true, accurate, current and complete. Buyer shall update and maintain all information and documentation so that it is true, accurate, current and complete at all times during Buyer's use of the Website and the purchase by Buyer of Products and Services from eDist. Buyer shall notify eDist promptly of any and all inaccuracies in or changes to such information and documentation. eDist shall in no event be liable for any claims, damages or liabilities of any kind which result, directly or indirectly, from Buyer's failure to provide eDist with true, accurate, current and complete information and documentation, and shall indemnify and hold eDist harmless from and against any and all damages, losses, costs and expenses arising therefrom.
- Buyer may not use the Website for any illegal purpose or otherwise in violation of Applicable Laws, or in any manner inconsistent with this Agreement.
- Buyer shall comply with this Agreement and all applicable eDist policies and limits concerning use of the Website, as updated by eDist from time to time, including without limitation: (i) eDist's requirements for data security; and (ii) any operating rules and/or policies.
- eDist has the right, in eDist's sole discretion: (i) to change, suspend or discontinue the Website; and (ii) to impose limits on certain features or restrict access to parts or all of the Website, without notice and without liability, whenever deemed necessary by eDist to protect the integrity of the Website or for any other reason. eDist reserves the right to modify the features and functionality of the Website, at any time and from time to time, without notice; provided, however, that eDist will not modify the Website in a manner that would, as determined by eDist in its sole discretion, materially adversely affect the use of the Website, without providing prior notice to Buyer of any such modification (except in case of emergency).
- EDIST DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT BUYER'S USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. EDIST MAKES NO WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE INTERNET OR ANY PORTION THEREOF (INCLUDING, BUT NOT LIMITED TO, THE "WORLD WIDE WEB") OR ANY TELEPHONE SERVICE OR THAT ANY SERVICES ESTABLISHED THEREON WILL BE UNINTERRUPTED OR ERROR FREE. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. EDIST CANNOT ENSURE THAT ANY FILES OR OTHER DATA BUYER IS PERMITTED TO DOWNLOAD FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. EDIST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EDIST DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY OTHER PERSON IN CONNECTION WITH OR RELATED TO BUYER'S USE OF THE WEBSITE AND/OR ANY OTHER EDIST SERVICES. BUYER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE WEBSITE AND ANY LINKED SITES. BUYER'S SOLE REMEDY AGAINST EDIST FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THIS LIMITATION OF RELIEF IS A PART OF THE AGREEMENT BETWEEN THE PARTIES, WITHOUT WHICH, EDIST WOULD NOT PERMIT USE OF THE WEBSITE.
- THE ABOVE DISCLAIMERS APPLY TO ALL DAMAGES, LIABILITY OR INJURIES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE, WHETHER BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
- THE WEBSITE OR THIRD PARTIES MAY PROVIDE LINKS TO OTHER INTERNET RESOURSES, INCLUDING BUT NOT LIMITED TO WORLD WIDE WEB SITES OTHER THAN THE WEBSITE. EDIST HAS NO CONTROL OVER SUCH WEB SITES AND RESOURCES. EDIST IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEB SITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEB SITES OR RESOURCES. EDIST SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
13. Intellectual Property.
- eDist and/or its licensors own and shall retain all proprietary rights in and to the Website and all derivations and enhancements thereof, and all applications, software, documentation, content, and other materials that eDist may use or provide in connection with implementation and operation of the Website. The Website and all site design, including, but not limited to, software, processes, text, content, photographs, video, audio, interfaces, graphics, trademarks, logos, sounds, music, artwork, and computer code and the selection and the arrangement thereof (collectively, "Content"), including, but not limited to, the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website and/or used in connection with the function of the Website and all articles of information, policies and other elements making up the Website are owned, controlled or licensed by or to eDist and are protected by patents, copyrights, trademarks, service marks, international treaties and/or other proprietary rights and Laws of the United States and other countries.
- Buyer does not acquire any right, title, or interest in the Website, except for the limited right to use the Website strictly in accordance with the provisions of this Agreement. Buyer shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Website. Except as expressly provided in this Agreement, no part of the Website may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without eDist's express prior written consent. eDist reserves all rights to eDist's intellectual property, including all intellectual property rights in the Website and materials on the Website.
- Buyer may view, download for caching purposes only, or print pages from the Website, solely for use by Buyer placing orders with eDist and in providing support to Buyer's customers and for no other purpose, and subject to the restrictions below and elsewhere in this Agreement. Buyer shall not (i) republish any material from the Website, (ii) sell, rent, or sub-license material from the Website, (iii) show any material from the Website in public, (iv) reproduce, duplicate, copy, or otherwise exploit material on the Website for a commercial purpose, (v) edit or otherwise modify any material on the Website, (vi) disseminate or redistribute material from the Website, or (vii) use any material from the Website in competition with eDist or for any other purpose except placing orders with eDist and to provide support to Buyer's customers. As an accommodation to Buyer in the course of business, eDist may provide Buyer access to eDist's or eDist's licensor's copyrighted works, trademarks, inventions, and trade secrets, and like information, including information (A) that has commercial value or other utility in the business of eDist, (B) that eDist identifies as confidential, or (C) that would be detrimental to eDist, its suppliers, or its customers, if disclosed. Examples of such information, whether it be from or not from the Website, include certain works of original authorship (including marketing and technical information), service marks, customer lists, supplier lists, price lists, costs, budgets, marketing research, unpublished business and financial information, forecasts and projections, contracts, contract terms, inventions, proprietary techniques, programs and methods, and other intellectual property, portions of which may be patented. Buyer's access to any and all of the foregoing is solely for use by Buyer in placing orders with eDist and in providing support to Buyer's customers and for no other purpose. Upon default or breach by Buyer of this Agreement or any other agreement between Buyer and eDist, cessation of business transactions between eDist and Buyer, or eDist providing written notice of revocation of use for any reason and at any time, upon demand by eDist, Buyer shall immediately cease and desist use of any intellectual property provided by eDist for use by Buyer, including that property referenced above, and returning all documents and media of any and every nature containing or representing eDist's intellectual property. Buyer agrees to and shall comply with such demand. In no event shall Buyer use any of the aforementioned information in competition with eDist or for any other purpose except placing orders with eDist and to provide support to Buyer's customers.
- eDist shall not share end user information with third parties except as required by certain Manufacturer agreements as they relate to point of sale information.
15. Export Laws.
- Buyer agrees to comply with all applicable export laws, assurances, codes and license requirements, and controls of the United States and other applicable jurisdictions in connection with the use and resale of Products including, but not limited to, Buyer's acceptance of responsibility for the payment of any relevant taxes or duties.
16. Anti-Money Laundering.
- eDist is firmly committed to avoid involvement with money laundering, to comply fully with all applicable anti-money laundering and currency reporting and record keeping requirements and to taking affirmative steps to prevent, detect and report to appropriate authorities suspected violations. eDist will request information from its customers to sufficiently determine that distributor to be legitimate, trustworthy and credit worthy.
- Buyer shall defend, indemnify and hold harmless eDist, eDist's parents, subsidiaries and affiliates, all eDist Suppliers, and the respective shareholders, directors, officers, members, employees, agents and other representatives of eDist, eDist's parents, subsidiaries and affiliates and all eDist Suppliers (collectively, "eDist Indemnified Parties") from and against any and all claims, debts, demands, suits, causes of action, damages, losses, liabilities and costs, including but not limited to reasonable attorneys' fees, arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to: (a) disputes between Buyer and any manufacturer of any Products purchased by Buyer from eDist; (b) Buyer's use of the Website; (c) any breach of or non-compliance by Buyer with this Agreement or Buyer's obligations under any other agreement with eDist; (d) Buyer's violation of any Law or rights of any Person; or (e) the actions or inactions of Buyer in connection with this Agreement and/or the Products and/or Services to be provided by eDist. This indemnification obligation shall survive termination, cancellation or completion of this Agreement.
- Marketing Communications. Buyer shall not use eDist's name, trademark or service mark, or the names, trademarks or service marks of any brands owned by eDist, or the existence of the contractual relationship between the Parties in any press release, marketing, promotional, advertising or any other materials without eDist's prior written consent, which may be granted or withheld in eDist's sole discretion.
- Buyer Representations and Warranties. Buyer represents and warrants that: (i) this Agreement constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms; (ii) Buyer has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to perform Buyer's obligations under this Agreement; (iii) Buyer has obtained any and all required consents necessary to enter into and perform this Agreement; (iv) Buyer's entry into to this Agreement and use of the Website does not violate any Laws or any agreement to which Buyer or its parents, subsidiaries or affiliates are subject or by which any of them are bound; and (v) Buyer shall comply with all applicable Laws in connection with Buyer's use of the Web Site.
- Modification; Amendment or Waiver. This Agreement may not be changed, amended, supplemented, or otherwise altered by Buyer except by a statement in writing signed by an eDist Authorized Representative. No Person is authorized to execute or make any agreements binding on eDist except an eDist Authorized Representative. eDist shall have the right, in its sole discretion, to change, modify, or amend any of terms and conditions contained in this Agreement at any time by posting notification on the Website or otherwise communicating the notification to Buyer. The changes will become effective thirty (30) days after such posting or delivery of such other communication, as applicable; provided, however, Buyer may terminate all pending orders and this Agreement with eDist upon written notice to eDist delivered prior to the end of such thirty (30) day period.
- Entire Agreement. The New Account Form, this Agreement and any Support Orders contains the entire understanding and agreement between the Parties with respect to its subject matter, superseding all prior or contemporaneous representations, understandings, and any other oral or written agreements between the Parties with respect to such subject matter.
- Notices. Except as otherwise provided in this Agreement, notices and other communications required or permitted under this Agreement will be in writing and will be deemed effectively delivered upon personal delivery, one (1) business day after deposit for overnight delivery, fees prepaid, with a nationally recognized overnight courier service, upon receipt by facsimile as confirmed by transmission receipt, or upon receipt or rejection if mailed, postage prepaid, by certified or registered mail, addressed to such Party at their addressees set forth (i) for eDist, on the Website and (ii) for Buyer, on the New Account Form. Any Party may change its address for such communications by giving an appropriate notice to the other Party as provided in this paragraph.
- Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. eDist is permitted to assign this Agreement and its rights and obligations hereunder. Neither this Agreement nor any right, license, privilege or obligation provided herein may be assigned or transferred by Buyer without eDist's prior written consent; any such attempted assignment or transfer without such consent shall be void.
- Governing Law; Consent to Jurisdiction. This Agreement shall be construed, performed and enforced in accordance with the internal laws of the State of New Jersey. Each Party to this Agreement hereby irrevocably and unconditionally consents to submit to the jurisdiction of the United States District Court for the District of New Jersey or the Superior Court of New Jersey, Bergen County, New Jersey for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and each Party agrees not to commence any action, suit or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document in accordance with the Notice provisions herein shall be effective service of process for any action, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives to the fullest extent permitted by applicable Laws (i) any and all rights to trial by jury and (ii) any objections such Party may now or hereafter have to the laying of venue or convenience of a forum designated by this paragraph.
- Headings. The Section and Paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement.
- No Third Party Beneficiaries. Except as otherwise specifically set forth herein, nothing in this Agreement will be construed as giving any Person, other than the Parties and their successors and permitted assigns, any right, remedy or claim under, or in respect of, this Agreement or any provision hereof.
- Interpretation. Except as otherwise provided or if the context otherwise requires, whenever used in this Agreement, (a) any noun or pronoun shall be deemed to include the plural and the singular, (b) the terms "include" and "including" shall be deemed to be followed by the phrase "without limitation," (c) the word "or" shall be inclusive and not exclusive, (d) unless the context otherwise requires, all references to Sections and Paragraphs refer to Sections and Paragraphs of this Agreement, all references to particular Exhibits, Schedules or links refer to the Exhibits, Schedules and links attached to or embedded in this Agreement, (e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement this Agreement as a whole and not to any particular Section, Paragraph or other subdivision, (f) any definition of or reference to any law, agreement, instrument or other document herein will be construed as referring to such law, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, and (g) any definition of or reference to any statute will be construed as referring also to any rules and regulations promulgated thereunder.
- No Waiver. The waiver by either Party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other right hereunder or of any other breach or failure, whether of a similar nature or otherwise.
- Clerical Errors. Typographical and clerical errors and omissions in eDist invoices are subject to correction.
- Survival. All provisions of this Agreement (i) necessary to achieve the fundamental purposes of this Agreement, (ii) relating to privacy and data gathering and use, (iii) authorizing and/or requiring payment to eDist and/or the recovery of returns, reversals, refunds, chargebacks or other adjustments of payments and (iv) containing indemnifications, disclaimers, liability limitations and other limitations and provisions affording protection to eDist and eDist Indemnified Parties, shall survive the for the expiration or sooner termination of this Agreement without limitation.
- SMS Text Message Marketing Program. The subscriptions text service is a recurring alert SMS program that when you subscribe will send you marketing text messages such as special offers, event notifications, product information or other promotional content. Once you submit your phone number you will have an opportunity to confirm or decline the service via a reply to an initial text message you receive from eDist Security. By participating, you consent to receive text messages sent by automated technology. Consent is not a required condition of purchasing goods or services from eDist Security. We do not have a separate charge for these services; however, message and data rates may apply from your mobile carrier. For customer care of help, text HELP. To stop receiving text messages, text STOP to end or cancel.
By entering into this Agreement, Buyer is agreeing to conduct transactions by electronic means.