UPDATEPROMISE.COM® WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY USER, INCLUDING LOSS OF DATA RESULTING FROM DELAYS OR NON-DELIVERIES.
IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UPDATEPROMISE.COM®’S TOTAL LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS ACTUALLY MADE TO UPDATEPROMISE.COM® UNDER THIS AGREEMENT FOR ALL SERVICE OR SERVICES OR SUPPORT OR MAINTENANCE RESULTING IN LIABILITY OR OBLIGATIONS ON UPDATEPROMISE.COM®’S PART DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
UPDATEPROMISE.COM® DOES NOT WARRANT, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SERVICES.
Indemnity. User agrees to indemnify UpdatePromise.com® and its affiliates, directors, officers, agents and employees (collectively the * UpdatePromise.com® Indemnified Parties”), and hold them harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content User submits, posts, transmits or make available through the Service, User’s use of the Service, User’s violation or breach of this Agreement (including but not limited to breach of any representations and warranties), User’s violation of any rights of another or any other person’s violation of the rights of or injury to another arising out of or relating to any direct or indirect use of the Service through User’s account, whether permitted or not permitted by User, or known or unknown by User. If User has agreed to use PromisePaySM or any other third Party Services, User also agrees to indemnify the UpdatePromise.com® Indemnified Parties from all such losses, claims and demands (including reasonable attorneys’ fees) with respect to any transaction submitted by You through PromisePaySM or such Third Party Services, if applicable, including with respect
to the accuracy of any product information that You provide Your customer and/or any dispute arising out of the products or services offered by You. User agrees to defend, indemnify, and hold the UpdatePromise.com® Indemnified Parties harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against the UpdatePromise.com® Indemnified Parties that may arise or result from any Service provided or performed or agreed to be performed or any product sold by User, User’s agents, employees, or assigns. User further agrees to defend, indemnify, and hold harmless the UpdatePromise.com® Indemnified Parties against liabilities arising out of:
(a) Any liability to UpdatePromise.com® arising by virtue of any use of UpdatePromise.com®’s Service by User for any unlawful purpose, of in violation of any valid federal, state, or local law or regulation governing use of e-mail, the Internet, cellular telephone service, text messaging, specialized mobile radio service, or other radio common carrier service, including but not limited to violations of the TCPA or any successor statutes;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with the Service provided to User;
(c) Any material supplied by User infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by User, or violation by User of intellectual property rights of any other party; and
(¢) Any defective product which User sold or distributed by means of the Service.
Notice. Notices to You may be made via either email or regular mail. Notices to UpdatePromise.com® should be addressed to 15342 El Prado Road, Chino, California 91710, by email to:
[email protected]. User agrees to keep Company informed of all current contact information for User’s account. Changes in User’s account information may be reported to Company by e-mail at
[email protected] or on
Company’s website located at www.UpdatePromise.com®. Failure to maintain or keep current all contact information shall be a ground for Company to terminate User’s account for cause.
Without limiting the foregoing, UpdatePromise.com® may provide disclosures and notices required by law and other information about your account to you electronically, by posting it on our website, pushing notifications through the Service, or by emailing it to the email address listed in your account. Electronic disclosures and notices have the same meaning and effect as if UpdatePromise.com® had provided you with paper copies. Such disclosures and notices are considered received by You within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless UpdatePromise.com® receives notice that the email was not delivered.
Assignment of Contract. User shall not assign or otherwise transfer its rights under this Agreement, including the Service granted hereunder, or the Service obtained pursuant to this Agreement or this Agreement or its rights hereunder without the prior written consent of UpdatePromise.com®. Any attempt to make such an assignment without UpdatePromise.com@’s consent shall be void.
Non-Waiver. UpdatePromise.com® and User agree that no failure to exercise and no delay in exercising any right, power, or privilege hereunder on the part of either party shall operate as a waiver of any right, power, or privilege. UpdatePromise.com® and User further agree that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise.
Limitations of Actions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Dispute Resolution. Any dispute arising from or related to this Agreement shall be resolved by binding arbitration conducted by the American Arbitraion Association (“AAA”) in Los Angeles County, California before a single neutral arbitrator selected in accordance with the Commercial Rules of the AAA. This arbitration clause shall survive the termination of this Agreement.
Severability. If any part of this Agreement is adjudged by an arbitrator or any court of competent jurisdiction to be invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and that judgment shall not affect or nullify the remainder of this Agreement, and the effect shall be confined to the part immediately involved in the controversy adjudged.
Governing Law, Venue and Jurisdiction. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California, without regard to conflicts of law. Without limiting the arbitration provision above, User agrees that this Agreement is entered into in Los Angeles County, California and the venue and jurisdiction of any non-arbitrable claim or dispute related to this Agreement will be Los Angeles County, California and User consents to such venue and jurisdiction.
Section Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Entire Agreement. User acknowledges and agrees that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
Amendment of Agreement. UpdatePromise.com® may amend this Agreement at any time with notice that We deem to be reasonable under the circumstances by posting the revised version on UpdatePromise.com®’s website or communicating it to You through other authorized means (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Service after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute that arose before the changes will be governed by the terms in place when the dispute arose.
Third Party Beneficiaries. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
Effect of Purchase Order. In the event of any conflict between this Agreement and the terms and conditions of any purchase order or similar document pursuant to which User acquired the Service granted by this Agreement, the terms and conditions of this Agreement shall control.
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