Terms of Service
Terms of Service
These Terms of Service (“Terms”) are between the entity or entities specified in Section 10.12, individually and not jointly (“homeandgardenamerica.com”), and the customer, on behalf of itself and its applicable Affiliates (“Customer”). The authorized party signing or electronically submitting the Order or accessing the Services represents that it has the authority to bind the Customer and understands and agrees to the Order, these Terms, and the applicable Service Descriptions (collectively the “Agreement”).
TERMS OF SERVICE: Updated May 24, 2018
This website is operated by Chuck Harmon and homeandgardenamerica.com. Throughout the site, the terms “we”, “us” and “our” refer to Chuck Harmon and homeandgardenamerica.com. Chuck Harmon and homeandgardenamerica.com offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink.
These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.
SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 10 - PERSONAL INFORMATION
SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Chuck Harmon and homeandgardenamerica.com, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 14 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Chuck Harmon and homeandgardenamerica.com and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 15 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 16 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
SECTION 17 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 2457 Merrit Dr., Carson City, NV 89701, United States.
SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 20 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org
We offer full refunds up to 30 days from date of purchase. There may be additional time allowed on a case by case basis. We try to please our customers.
SECTION 1 - DEFINITIONS
As used in the Agreement, the following defined terms shall apply:
1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through majority ownership of voting securities or equity interests.
1.2. homeandgardenamerica.com Marks means any name, logo, or mark belonging to homeandgardenamerica.com or its affiliates.
1.3. Customer Content means any files, documents and other information belonging to Customer or users as uploaded to Customer’s Service account for storage and/or sharing with third parties, and is not related to Homeandgardenamerica.com servicing or accessing Customer’s account.
1.4. Effective Date means the earlier of the date (i) Customer submits the initial Order, or (ii) as stated on the signature block of the Order.
1.5. Order or Services Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to Homeandgardenamerica.com, a Homeandgardenamerica.com authorized reseller and/or through Homeandgardenamerica.com product websites.
1.6. Services means the generally available Homeandgardenamerica.com software-as-a-service offerings (“SaaS Services”), as further described in the Service Descriptions. Homeandgardenamerica.com may update the Services at any time and all Services set forth in the Service Descriptions may not be available to all Customers. The Services are for professional/business use only.
1.7. Service Descriptions means the overview and other terms applicable to the Services, as amended from time to time, and found at Service Descriptions.
1.8. Updates means any corrections, bug fixes, new features or functions added to the Services, but shall not include any new versions that Homeandgardenamerica.com markets and sells separately.
1.9. Use Level means the model by which Homeandgardenamerica.com measures, prices and offers the Service to Customer as set forth on the applicable price list, websites, Order, and/or Service Description.
SECTION 2 - RIGHTS
2.1. Right to Use Service. Subject to these Terms, Homeandgardenamerica.com will provide the Services set forth in the Order for Customer’s use in accordance with the Agreement and applicable Use Levels. Homeandgardenamerica.com hereby grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use any components as may be required to access and use the Services.
Customer agrees to use the Services for professional or business use. Homeandgardenamerica.com reserves the right to Update the Services at its discretion. Updates to the Services are included in the Fees and Customer agrees to use the most current version of the Service.
2.2. Limitations on Use. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to
(i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or Homeandgardenamerica.com technology;
(ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Homeandgardenamerica.com networks, security systems, user accounts, or Services of Homeandgardenamerica.com or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means,
(iii) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful;
(iv) market, offer to sell, and/or resell the Services to any unauthorized third party;
(v) use the Services in violation of Homeandgardenamerica.com policies, applicable laws, ordinances or regulations;
(vi) use the Services to send unsolicited or unauthorized advertising, junk mail, or spam;
(vii) harvest, collect, or gather information or data regarding other users without their consent;
(viii) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, data privacy or right of publicity;
(ix) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs;
(x) use the Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service;
(xi) submit to, or store in the Services, any Protected Health Information (“PHI”) unless Customer has complied with Section 5.1 below; or
(xii) make any representations with respect to Homeandgardenamerica.com or this Agreement (including, without limitation, that Homeandgardenamerica.com is a warrantor or co-seller of any of Customer’s products and/or services). Homeandgardenamerica.com shall have sole and exclusive discretion to determine applicability of the restrictions set forth above and any violations thereof.
2.3. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the Homeandgardenamerica.com Marks or Services or any components provided by Homeandgardenamerica.com in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that Homeandgardenamerica.com or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Homeandgardenamerica.com Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
2.4. Homeandgardenamerica.com Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any Homeandgardenamerica.com Mark, or is otherwise confusingly similar to a Homeandgardenamerica.com Mark.
In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to Homeandgardenamerica.com, including but not limited to executing assignment documentation.
Except as expressly granted herein, no license regarding the use of Homeandgardenamerica.com’s copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the Homeandgardenamerica.com Marks, Customer represents that it has reviewed and will adhere to Homeandgardenamerica.com’s Trademark & Copyright Guidelines, and incorporated herein by reference and as may be periodically updated by Homeandgardenamerica.com.
SECTION 3 - ORDERS, FEES AND PAYMENT
3.1. Orders. Customer may order Services using the Homeandgardenamerica.com then-current ordering processes. All Orders are subject to acceptance by Homeandgardenamerica.com in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by Homeandgardenamerica.com for the purposes of managing Customer’s account.
3.2. Fees and Payment. Customer is responsible for all fees applicable to the Services, including any one-time implementation fees (“Fees”). All Fees are due and payable as set forth on the invoice and, unless otherwise agreed in writing, payments are due thirty (30) days from the invoice date.
Customer agrees to notify Homeandgardenamerica.com of any fee dispute within fifteen (15) days of the invoice date and Customer agrees to work in good faith to promptly resolve any dispute and pay fees within fifteen (15) days following resolution of the dispute. When applicable, Customer authorizes Homeandgardenamerica.com (i) to take steps to determine whether a debit/credit card number provided is valid, and (ii) charge such card in accordance with the billing frequency specified in the Order.
Homeandgardenamerica.com reserves the right to terminate this Agreement immediately in the event any payment information is found at any time to be inaccurate, incomplete and/or not current. Homeandgardenamerica.com shall not be responsible for any overdraft charges or other fees that may be incurred due to Homeandgardenamerica.com use of Customer’s card for payment hereunder.
Homeandgardenamerica.com will not agree to submit invoices via a customer procurement to pay online portal and/or Electronic Data Interchange (EDI) Portals. Homeandgardenamerica.com reserves the right to update the price for Services at any time after the Initial Term. Homeandgardenamerica.com will notify Customers of any price changes by publishing on its website, emailing, quoting or invoicing Customer. Price changes will be effective as of the next billing cycle.
3.3. Additional Services. Customer may order additional Services at any time. Unless otherwise agreed in the applicable Order, any additional Services ordered by Customer following the Effective Date are subject to these Terms, and shall be coterminous with the Term for existing Services.
3.4. Late Payments. Homeandgardenamerica.com reserves the right, in its discretion, to (i) suspend or terminate the Services or any portion thereof for non-payment of undisputed Fees, and (ii) impose a charge to restore archived data from delinquent accounts. Customer agrees to reimburse Homeandgardenamerica.com for all reasonable costs and expenses incurred in collecting delinquent amounts.
3.5. Taxes and Withholding. Customer shall be responsible for all applicable taxes (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, Universal Services Fund (USF) fees (if applicable to the Audio Services only) and/or duties) (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Services, except those Taxes based on Homeandgardenamerica.com net income, and/or those Taxes for which Customer has provided a certificate confirming Customer is otherwise exempt. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse Homeandgardenamerica.com for any Taxes paid on Customer’s behalf and indemnify and hold Homeandgardenamerica.com harmless against any claim, liability and/or penalties resulting therefrom.
SECTION 4 - TERM AND TERMINATION
4.1. Term. These Terms shall apply as long as any Order is in effect. The period that Customer may access and use the Services (“Term”) shall be as specified in the Order and may include an initial period (“Initial Term”) and a renewal period (“Renewal Term”). If no Term is specified in the Order, then the Initial Term shall commence on the Effective Date for a twelve (12) month period, and thereafter shall automatically renew for additional twelve (12) month Renewal Terms on each anniversary thereof, unless either party provides notice of non-renewal thirty (30) days prior to expiration of the then-current term.
4.2. Termination for Convenience. During any Renewal Term, either party may terminate at any time by removing the billing information and such termination shall be effective at the end of (i) thirty (30) days or (ii) Customer’s current billing cycle for all homeandgardenamerica.com purchases, whichever is earlier. Customer must submit written notice of termination to Homeandgardenamerica.com at email@example.com or otherwise in accordance with the applicable Service Description. For any and all installment plans the customer agrees to pay the installments in there entirety before the account can be terminated.
4.3. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, or (iii) immediately for a breach by Customer of Section 2 or Section 5.
4.4. Effect of Termination. Upon termination of the Agreement for any reason, Customer will immediately discontinue all access and use of the Services. Homeandgardenamerica.com has no obligation to maintain Customer Content following termination and, in any event, will destroy or delete Customer Content within thirty (30) days of Customer request, subject to compliance with Homeandgardenamerica.com policies and applicable law. Neither party shall be liable for any damages resulting from termination of the Agreement; provided, however, termination shall not affect any claim arising prior to the effective termination date.
4.5. Survival. The provisions of Sections 3 (Fees), 4.4 (Effect of Termination), 5 (Customer Content and Customer Accounts), 8 (Indemnification), 9 (Limitation of Liability), and 10.9 (Notices) shall survive any termination of the Agreement.
SECTION 5 - CUSTOMER CONTENT AND CUSTOMER ACCOUNTS
5.1. Customer Content. Customer retains all rights to any and all of its Customer Content and Homeandgardenamerica.com shall not own or license any data, content, information or material in such Customer Content. Each party shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards, and Customer shall retain a current copy of Customer Content outside the Services.
Homeandgardenamerica.com will not monitor Customer’s or its user’s use of the Services, and Homeandgardenamerica.com will not view, access or process any Customer Content, except: (i) for the sole purpose of providing the Services, (ii) as directed or instructed by Customer and its users, and/or (iii) for compliance with Homeandgardenamerica.com policies, applicable law, regulation, or governmental request.
Customer shall comply with all intellectual property laws related to the Customer Content and legal duties applicable to Customer as a data controller by virtue of the submission or storage of Customer Content within the Services, including providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required.
5.2. Customer Accounts. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, conference codes, passwords and personal identification numbers used in conjunction with the Services, and (v) all uses of the Services by Customer and its users.
Homeandgardenamerica.com reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login information among users. Customer will notify Homeandgardenamerica.com immediately of any unauthorized use of its account or any other breach of security. Homeandgardenamerica.com will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by Homeandgardenamerica.com and/or another party.
Homeandgardenamerica.com reserves the right to review Customer’s account to confirm compliance with applicable Use Levels, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
SECTION 6 - COMPLIANCE WITH LAWS
In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations.
Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required.
Notwithstanding any other provision in this Agreement, Homeandgardenamerica.com shall have the right to immediately terminate this Agreement for noncompliance with applicable laws.
SECTION 7 - WARRANTIES
Homeandgardenamerica.com WARRANTS THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. Homeandgardenamerica.com DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED.
Homeandgardenamerica.com ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT Homeandgardenamerica.com SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICE OR TO TERMINATE THE NON-CONFORMING SERVICES AND THIS AGREEMENT OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Homeandgardenamerica.com DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.
SECTION 8 - INDEMNIFICATION
8.1. Indemnification by Homeandgardenamerica.com. Subject to Sections 8.2 and 8.3 below, Homeandgardenamerica.com shall indemnify and defend Customer against any third party Infringement Claim brought against Customer, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that:
(i) Customer promptly notifies Homeandgardenamerica.com in writing of an Infringement Claim such that Homeandgardenamerica.com is not prejudiced by any delay of such notification;
(ii) Homeandgardenamerica.com will have sole control over the defense and any settlement of any Infringement Claim; and
(iii) Customer will provide reasonable assistance in the defense of same. Homeandgardenamerica.com will reimburse Customer for reasonable expenses incurred in providing such assistance.
Homeandgardenamerica.com shall not enter into any settlement agreement which imposes any obligation on Customer without Customer’s prior written consent. For the purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, as used by Customer in accordance with this Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party.
8.2. Infringement Cures. If Customer’s use of any of the Services is, or in Homeandgardenamerica.com’s opinion is likely to be, enjoined as a result of an Infringement Claim, Homeandgardenamerica.com shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality.
If options (i) and (ii) above are not reasonably available, Homeandgardenamerica.com may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.
8.3. Limitation. Homeandgardenamerica.com assumes no liability, and shall have no liability, for any Infringement Claim based on
(i) Customer’s access to and/or use of the Services following notice of an Infringement Claim;
(ii) any modification of the Services by Customer or at its direction;
(iii) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or
(iv) any trademark or copyright infringement involving any marking or ing not applied by Homeandgardenamerica.com or involving any marking or branding applied at Customer’s request.
8.4. Exclusive Remedy. THE FOREGOING STATES Homeandgardenamerica.com SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8.5. Indemnification by Customer Customer shall indemnify and defend Homeandgardenamerica.com against any third party claim brought against Homeandgardenamerica.com resulting from a breach of Section 2. or 5.2 or alleging that any Customer Content submitted by Customer infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and shall pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim; provided that:
(i) Homeandgardenamerica.com promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification,
(ii) Customer will have sole control over the defense and any settlement of any such claim, and
(iii) Homeandgardenamerica.com will provide reasonable assistance in the defense of same. Customer will reimburse Homeandgardenamerica.com for reasonable expenses incurred in providing such assistance.
Homeandgardenamerica.com may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, Homeandgardenamerica.com shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
SECTION 9 - LIMITATION ON LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR ACCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (I) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR ACCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS (b) A BREACH BY CUSTOMER OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.
SECTION 10 - ADDITIONAL TERMS
10.1. Services Trial. Homeandgardenamerica.com may make the Services available to Customer on a trial basis or offer promotional versions of the Services for a limited period of time (“Trial Period”), as specified on the applicable Order.
The Trial Period shall terminate (i) at the end of the stated Trial Period, or (ii) if no such date is specified, thirty (30) days from the date of Customer’s initial access to the Services. Following expiration of the Trial Period, the Services may automatically continue unless cancelled by Customer, and Customer is responsible for payment of the applicable Fees set forth in the Order.
During the Trial Period, Homeandgardenamerica.com provides the Services “AS IS” and without warranty or indemnity, to the extent permitted by law, and all other terms of this Agreement otherwise apply. Homeandgardenamerica.com reserves the right to modify or discontinue any trials or promotions at any time without notice.
10.2. Beta or Labs Services. Customer acknowledges that Beta or Labs Services are offered “as-is”, without warranty or indemnity of any kind and Customer’s access to and use of the Beta Services is at Customer’s sole risk. The Beta or Labs Services may contain bugs, errors and other defects. To the extent permitted by applicable law, Homeandgardenamerica.com disclaims any warranties and conditions, whether express, implied, statutory or otherwise, and any liability with respect to the Beta or Labs Services. Customer agrees to receive correspondence and updates from Homeandgardenamerica.com related to the Beta or Labs Services and acknowledges that opting out from such communications may result in cancellation of Customer’s Beta or Labs Services.
Homeandgardenamerica.com does not make any representations, promises or guarantees that the Beta or Labs Services will be publicly announced or made generally available. Homeandgardenamerica.com has no obligation to provide technical support or continued availability of any particular Beta or Labs Service or feature which can be cancelled at any time by Homeandgardenamerica.com in its sole discretion with or without notice to Customer.
Customer may be asked to provide feedback regarding Customer’s experience and use (“Feedback”) of the Beta or Labs Service. Customer grants to Homeandgardenamerica.com an irrevocable, perpetual, royalty-free, worldwide license to use and incorporate any Feedback into any Homeandgardenamerica.com product or service (including the Beta or Labs Services) for any purpose. With respect to the Beta or Labs Services, these terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
10.3. Copyright. In the event Customer believes that the Services have been used in a manner that constitutes copyright infringement, Customer shall notify Homeandgardenamerica.com at firstname.lastname@example.org, and provide all of the following information, as required by the Digital Millennium Copyright Act ("DMCA"):
(i) a statement that Customer has identified content in the Services that infringes a copyright of a third party for whom Customer is authorized to act;
(ii) a description of the copyrighted work Customer claims has been infringed;
(iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content's location;
(iv) Customer’s name, address, telephone number, and e-mail address;
(v) a statement that Customer has a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use);
(vi) a statement that, under penalty of perjury, the information in Customer’s notice is accurate and that Customer is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and
(vii) Customer’s electronic or scanned physical signature. Homeandgardenamerica.com reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
10.5. Suspension of Service. Homeandgardenamerica.com may temporarily suspend the Services if Homeandgardenamerica.com determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and Homeandgardenamerica.com will take action to promptly resolve any such security issues. Homeandgardenamerica.com agrees to notify Customer of any such suspension and subsequent reactivation of the Services.
10.6. High-Risk Use. Customer acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities, including but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Customer understands that the Services do not allow and should not be used for calls to emergency services numbers (e.g., in the United States 911, or in the United Kingdom 999 and 112). Homeandgardenamerica.com expressly disclaims any express or implied warranty of fitness for such purposes.
10.7. Recordings. Certain Services provide functionality that allows a Customer to record audio and data shared during collaboration sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using recording functionality. Homeandgardenamerica.com expressly disclaims all liability with respect to Customer's recording of audio and/or shared data while using the Services, and Customer releases and agrees to hold Homeandgardenamerica.com harmless from and against any damages or liabilities related to the recording of any audio and/or data.
10.8. Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. This Agreement will bind and inure to the benefit of each party’s successors or assigns.
10.9. Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the Homeandgardenamerica.com contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii)five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. Homeandgardenamerica.com may also provide Customer with notice postings on the Homeandgardenamerica.com website.
10.10. Entire Agreement; Order of Precedence. This Agreement sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between an executed Order, these Terms and the Service Descriptions, the conflict shall be resolved in that order, but only for the specific Services described in the applicable Order. For any conflict between these Terms and any BAA, this Agreement shall control.
Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify the Agreement or Homeandgardenamerica.com program terms. The Terms may be updated by Homeandgardenamerica.com from time to time without notice (but will be identified by the last updated date) and may be reviewed at Terms of Service. Customer’s continued access to and use of the Service constitutes acceptance of the then-current Terms.
10.11. General Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between or among the parties. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. Homeandgardenamerica.com authorized resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Homeandgardenamerica.com.
No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by each party. Homeandgardenamerica.com failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts.
No party will be responsible for any delay, interruption or other failure to perform under this Agreement due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities, activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers, labor disputes; and acts of government.
SECTION 11 - Homeandgardenamerica.com BETA PERIOD TERMS
11.1. GRANT OF LICENSE. Homeandgardenamerica.com, Inc grants Customer a temporary, non-exclusive, nontransferable, revocable Homeandgardenamerica.com account to use as Pre-Release Software by Customer at Customer’s primary business location solely for the purpose of evaluating and beta testing the Pre-Release Software as requested or directed by Homeandgardenamerica.com, Inc during the Term (as defined in Section 3, below). For the avoidance of doubt, this Agreement and the license grant in this Section 1 shall have no impact on software separately licensed by Customer from Homeandgardenamerica.com, Inc pursuant to a separate agreement.
11.2. IDEAS. Participant will test and evaluate the Pre-Release software. Customer shall promptly notify Homeandgardenamerica.com, Inc of any problems or defects encountered in the Pre-Release Software or ideas for enhancements or changes to the Pre-Release Software (collectively, “ Ideas”). By providing such Ideas, whether such Ideas are conceived of or provided to Homeandgardenamerica.com, Inc during the Term of after, Customer grants to Homeandgardenamerica.com, Inc a worldwide, royalty-free, irrevocable and exclusive license, with the right to sublicense, to use and disclose the Ideas in any manner Homeandgardenamerica.com, Inc chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Homeandgardenamerica.com, Inc’s and its sublicensee’s products embodying such Ideas in any manner and via any media Homeandgardenamerica.com, Inc or its sublicensees choose, without reference or obligation of any kind to Customer.
Customer warrants that it will not give Homeandgardenamerica.com, Inc any Idea: (i) that Customer has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of a third party; or (ii) subject to license terms that seek to require any Homeandgardenamerica.com, Inc product incorporating or derived from any Idea, or other Homeandgardenamerica.com, Inc intellectual property, to be licensed to or otherwise shared with any third party.
11.3. TERM. This Agreement is effective from the Effective Beta Date and expires on the earlier of the conclusion of the Beta period specified by Homeandgardenamerica.com or the date terminated by either Party as permitted herein (“ Term” ). Homeandgardenamerica.com, Inc may unilaterally extend the Term by email or written notice to Customer. For the avoidance of doubt, the conclusion of the Term or termination of this Agreement for any reason shall not relieve Customer of its obligations related to Ideas, as provided in Section 2, above.
11.4. TERMINATION. Customer may terminate this Agreement by notifying Homeandgardenamerica.com, Inc in writing and complying with its obligations hereunder. Homeandgardenamerica.com, Inc may terminate this Agreement upon email notice to Customer. Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive the termination of this Agreement for any reason or for expiration of the Term.
11.5. OBLIGATIONS UPON TERMINATION. Within one (1) business day following termination of this Agreement for any reason, including the expiration of the Term, Customer shall: (i) cease all usage of the Pre-Release Software; (ii) destroy and erase from computer memory or return to Homeandgardenamerica.com, Inc the Pre-Release Software and any copies thereof; (iii) return to Homeandgardenamerica.com, Inc or destroy all Confidential Information (as set forth in Section 7) and copies thereof; (iv) return to Homeandgardenamerica.com, Inc or destroy all copies of materials relating to the Pre-Release Software, Confidential Information, or Ideas; and (v) provide to Homeandgardenamerica.com, Inc any Ideas conceived of but not provided to Homeandgardenamerica.com, Inc. Customer shall, upon request from Homeandgardenamerica.com, Inc, provide Homeandgardenamerica.com, Inc with written certification that it has complied with these requirements within three (3) business days of such request.
11.6. LICENSE RESTRICTIONS. The license granted herein by Homeandgardenamerica.com, Inc to Customer does not grant Customer the right to, and Customer agrees not to: (i) sublicense, transmit, rent, lease, distribute, disclose, or otherwise transfer or permit use of the Pre-Release Software by any third party; (ii) reverse engineer, decompile, or disassemble the Pre-Release Software; (iii) take any action in an attempt to derive the source code or underling ideas, algorithms, structure, or organization of the Pre-Release Software; (iv) make copies of the Pre-Release Software; (v) create any derivative works of the Pre-Release Software; (vi) use the Pre-Release Software in a production environment or for any external or commercial purpose, (vii) use the Pre-Release Software on behalf of any party other than Customer; (viii) export the Pre-Release Software; or (ix) use the Pre-Release Software or Confidential Information in any manner that violates applicable law.
a. Definition. Homeandgardenamerica.com, Inc may disclose to Customer certain confidential, proprietary, and trade secret information of Homeandgardenamerica.com, Inc (“ Confidential Information”). Confidential Information includes without limitation, information Customer receives or has received from Homeandgardenamerica.com, Inc that is related to the Pre-Release Software or the Program, that is designated as confidential by Homeandgardenamerica.com, Inc, or that, given the nature of the information, should reasonably be assumed to be confidential. Confidential Information also includes without limitation, Ideas, the Pre-Release Software and all copies thereof, as well as computer programs, flowcharts, diagrams, manuals, documentation, development tools, marketing information, financial information, business plans, results of the beta testing, problems identified as a result of the beta testing, and Ideas. Confidential Information does not include those things that Homeandgardenamerica.com, Inc designates or identifies as not being subject to this Agreement or that are: (i) publicly available other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by Customer without access or reference to the Confidential Information, as demonstrated by written records in Customer’s possession ; or (iv) known to Customer at the time of disclosure without breach of this Agreement, as demonstrated by written records in Customer’s possession.
b. Protection of Confidential Information.
Customer agrees to use the Confidential Information only during the Term and solely for the purpose of participation in the Program. Customer agrees to take all steps reasonably necessary to maintain and protect the secrecy of the Confidential Information for the benefit of Homeandgardenamerica.com, Inc. Customer agrees to refrain from disclosing Confidential Information to third parties, including without limitation, consultants, advisors, and contractors, and agrees to only disclose the Confidential Information to its own employees with a need to know the Confidential Information and who are
made aware of and agree to the confidentiality obligations provided by this Agreement. Customer acknowledges that unauthorized disclosure of the Confidential Information could diminish the value to Homeandgardenamerica.com, Inc of proprietary interests that are the subject of this Agreement. If Customer breaches any obligations hereunder, Homeandgardenamerica.com, Inc may be entitled to seek equitable relief to protect its interests therein, including but not limited to injunctive relief, in addition to any and all other rights and remedies, including monetary damages, available at law or equity. Customer waives any requirement that Homeandgardenamerica.com, Inc post security in order to seek injunctive relief related to this Agreement.
11.8. RESTRICTION ON DEVELOPMENT.
This Agreement does not entitle Customer to use the Pre-Release Software, Confidential Information, Ideas, Assets, or any technology or intellectual property contained therein, as reference or inspiration for developing or creating a product or service.
a. Headings and Interpretation. The headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The Parties acknowledge that they
have agreed to this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed consistent with the joint drafting of this Agreement by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
b. Survival and Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make
it valid and enforceable and most closely approximate the intent and economic effect of the invalid provision, and the validity and enforcement of all other provisions in this Agreement shall not be affected thereby.
Sections 1 through 9 shall survive termination of this Agreement.
c. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Homeandgardenamerica.com, Inc and Customer relating to the subject matter hereof, and supersedes all oral or written
communications, proposals, representations, negotiations, commitments, understandings, or agreements not specifically incorporated herein.
d. Payouts. Any and all payouts for any promotions, incentives, or refunds will be made by PayPal.
Customers who don't provide their PayPal email within 30 days of the end of promotion, incentive offer, or refund approval will forgo their claim to a payout.