TERMS AND CONDITIONS OF SALE/LICENSE I agree to the terms below for Iron Solutions products and services.
1. Applicable Terms. These terms and conditions govern the purchase and sale or license, as applicable, of the products and/or services (collectively, “Products”) referred to in Seller’s order form, purchase order, quotation, proposal or acknowledgment, as the case may be (including these terms and conditions, “Seller’s Documentation”). Whether these terms and conditions are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer’s assent to these terms and conditions.Seller rejects all additional or different terms and conditions in any of Buyer’s forms or documents. Orders for Products will not be binding on Seller until accepted by electronically agreeing to terms set forth here. Seller offers products as License Term Renewals that automatically renew at the end of the 12-month Term and are not returnable or refundable. Unless Buyer specifically requests Seller to act otherwise at least 30 days prior to end of Renewal Term, all License Term Renewal products are sold and renewed as Subscriptions from year to year. For purposes of these terms and conditions of sale, “Seller” means Iron Solutions, Inc, a Delaware Corporation, and “Buyer” means the person or company submitting Seller’s Documentation to Seller for acceptance.
2. Payment. Buyer shall pay Seller the full purchase price and/or license fee for the Products as set forth in Seller’s Documentation. Unless Seller’s Documentation provides otherwise, freight charges, storage charges, insurance premiums and/or other costs and all taxes, duties or other governmental charges relating to the Products will be paid by Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller. Unless otherwise provided in Seller’s Documentation, all payments are due at the time the order is accepted by Seller. Buyer will be charged the lower of 1.5 % interest per month or the maximum legal rate on all amounts not received by the due date and shall pay all of Seller’s reasonable costs (including attorneys’ fees, court costs and expenses) of collecting amounts due but unpaid. All orders are subject to credit approval. If any check or other similar instrument provided by Buyer to Seller is refused by a bank or other financial institution for any reason, an additional charge equal to the fee charged by the applicable financial institution to Seller plus a handling fee of $30 will be added to the purchase price and/or license fee for the Products and will be due and payable immediately upon demand by Seller. 3. Ownership of Products; Terms of License; Indemnity. With respect to Products consisting of website hosting and development, domain name registration, email services, software and any other electronic products and services, including products and services accessible via the Internet such as the Real-Time Guides (collectively, the “Electronic Products”), all devices, designs (including drawings, plans and specifications), estimates, prices, notes, source code, object code, programmer comments and documentation, electronic data and other documents or information developed, prepared or disclosed by Seller or at the direction of Seller, and all related copyrights, trademarks, trade names, service marks or other intellectual property rights, including any goodwill associated therewith, will remain Seller’s property. Upon acceptance of an order from Buyer for one or more of the Electronic Products and receipt of full payment therefor, Seller grants Buyer a revocable, non-exclusive, non-transferable (including transfers by operation of law or transfers resulting from a merger or change in control of the ownership of Buyer), non-sublicensable license to use the Electronic Products. A license granted herein will be for a term of one year, unless otherwise specifically indicated in Seller’s Documentation. Buyer shall not disclose Electronic Products to any third party, or make copies of the Electronic Products, without Seller’s prior written consent. Buyer shall not attempt to reverse engineer, decompile, alter or manipulate the Electronic Products. Seller is under no obligation to provide to Buyer any additions, modifications, updates or bug-fixes with respect to the Electronic Products unless otherwise specifically agreed to by Seller in writing. Buyer does not have any right to access, review, modify or add to any source code or object code for the Electronic Products. Buyer will not permit the Electronic Products to become subject to any mortgage, pledge, lien, security interest or any other encumbrance. Buyer will indemnify, defend and hold harmless Seller from and against any and all causes of action, claims, costs, damages, losses and expenses, including but not limited to, reasonable attorneys’ fees, arising from or as a result of (a) any content provided by Buyer for any website hosted or developed by Seller for Buyer; (b) the failure of Buyer to timely notify Seller to remove any content from any website hosted or developed by Seller for Buyer which Buyer is no longer authorized to use on such website; (c) any claim against Buyer for infringement, misuse or misappropriation of any valid copyright, trademark, trade name or service mark of a third party; or (d) any breach of Seller’s Documentation by Buyer. Buyer’s indemnification obligations will survive any termination of the Agreement. Upon acceptance of an order from Buyer for one or more of the books or hard copy publications (collectively, the “Books”) Buyer acknowledges that the information contained in the Books expires on the “valid until date” specified by each Book. Buyer also acknowledges that the Books are protected by copyright laws and agrees not to make copies of the Books, or otherwise violate any applicable copyright laws. 4. Disclaimer of Warranties. WITH RESPECT TO WEBSITE DEVELOPMENT AND HOSTING SERVICES THAT MAY BE PROVIDED TO BUYER BY SELLER, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS THAT THE OPERATION OF THE APPLICABLE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE AND SELLER WILL NOT HAVE ANY LIABILITY AS A RESULT OF SUCH INTERRUPTIONS OR ERRORS. ALL PRODUCTS AND ALL DATA CONTAINED IN ANY OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION, THE ELECTRONIC PRODUCTS AND THE BOOKS, ARE PROVIDED TO BUYER “AS IS”. SELLER HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE ACCURACY OF ANY DATA CONTAINED IN THE PRODUCTS AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT AND THOSE WARRANTIES ARISING OUT OF USAGE OF TRADE OR COURSE OF DEALING. 5. Force Majeure. Neither Seller nor Buyer will have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control. 6. LIMITATION OF LIABILITY. SELLER WILL NOT BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST SAVINGS OR LOST DATA. IN NO EVENT SHALL SELLER’S TOTAL AGGREGATE LIABILITY TO BUYER OR ANY OTHER PARTY RELATING TO OR RESULTING FROM THE SALE, LICENSE OR USE OF A PRODUCT SUBJECT TO THESE TERMS AND CONDITIONS OF SALE/LICENSE EXCEED THE PURCHASE PRICE OR LICENSE FEE PAID FOR SUCH PRODUCT. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY. Miscellaneous. These terms and conditions, together with Seller’s Documentation, comprise the complete and exclusive statement of the agreement between the parties and supersede any terms contained in Buyer’s documents, unless separately signed by Seller. Seller’s Documentation may not be changed, cancelled or waived except by a written document signed by Seller and Buyer. No waiver by either party of a breach or default hereunder will be deemed a waiver by such party of a subsequent breach or default of a like or similar nature. No course of dealing or performance, usage of trade or failure to enforce any term or condition will be used to modify the Agreement. If any of these terms or conditions is unenforceable, such term or condition will be limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain in full force and effect. Buyer may not assign or permit any other transfer of Seller’s Documentation without Seller’s prior written consent. Seller’s documentation is deemed to have been entered into in the State of Missouri and will be governed by the laws of the State of Missouri without regard to its conflict of laws provisions. Any cause of action or other resolution of any dispute hereunder shall be subject to the exclusive jurisdiction of any state or federal court located in St. Louis County, Missouri. If Seller prevails in any action against Buyer to enforce the terms of Seller’s Documentation, Buyer will reimburse Seller for all of Seller’s reasonable attorneys’ fees and other costs and expenses incurred in connection with such action. The remedies expressly provided for in these conditions will be in addition to any other remedies that Seller may have under the Uniform Commercial Code or other applicable law. These terms and conditions are for the exclusive benefit of Seller and Buyer. These terms and conditions are not intended for the benefit of any other person and no other person will have any rights hereunder.