Terms and Conditions
GENERAL TERMS AND CONDITIONS
THE SERVICE AGREEMENT (THE “AGREEMENT”) BY AND BETWEEN THE ENTITY OR PERSON NAMED AS THE “SERVICE CLIENT” IN THE AGREEMENT AND ANEMDL, INC. D/B/A LAULETTA LEGACY PLANNING GROUP, OHIO CORPORATION, TOGETHER WITH ITS AFFILIATED ENTITIES (COLLECTIVELY, “LAULETTA LPG” OR “COMPANY”), (WHICH AGREEMENT IS INCORPORATED INTO AND MADE A PART OF THESE TERMS AND CONDITIONS) IS SUBJECT TO THE FOLLOWING GENERAL TERMS AND CONDITIONS (“TERMS AND CONDITIONS”). THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE SERVICE CLIENT. EXECUTION OF THE AGREEMENT BY SERVICE CLIENT AND/OR ANY ACCEPTANCE BY SERVICE CLIENT OF SERVICES SHALL CONSTITUTE ASSENT BY THE SERVICE CLIENT TO THESE TERMS AND CONDITIONS. SERVICE CLIENT ACKNOWLEDGES THAT SERVICE CLIENT HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE AGREEMENT (OR ANY DOCUMENT ANCILLARY TO THE AGREEMENT) AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL CONTROL. LAULETTA LPG AND SERVICE CLIENT EXPRESSLY AGREE THAT LAULETTA LPG MAY MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE SERVICE CLIENT AS OF THE DATE OF SUCH MODIFICATIONS.A
1.0 DEFINITIONS. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Agreement.
1.1. Affiliate: Affiliate means, with respect to either Lauletta LPG or Service Client, any other entity which controls, is controlled by, or is under common control with Lauletta LPG or Service Client. The term “control” means the power, directly or indirectly, to direct or cause the direction of Lauletta LPG’ or Service Client’s management and/or policies, whether through the ownership of voting securities, by contract, or otherwise.
1.2. Background IP: Background IP means Lauletta LPG’s know-how, regardless of when or how such know-how is obtained or formulated, and any and all Intellectual Property that has been or is created, conceived, or reduced to practice by Lauletta LPG prior to or independently of this Agreement.
1.3. Confidential Information: Confidential Information means information that is of value to its owner and is treated as confidential, including, but not limited to, Trade Secrets, know how, inventions, ideas, discoveries, developments, processes, formulas, diagrams, drawings, designs, software, applications, source and object codes, data, programs, improvements, techniques, product data and specifications, test results, and other technical information, the owner’s products and services and the products and services of its customers and prospective customers; (iii) information concerning the owner’s business and/or the business of its customers and prospective customers, including plans for research, development, and new products, cost information, profits, sales information, accounting and financial information, business plans, markets and marketing methods, advertising strategies, customer lists and customer information, purchasing techniques, supplier lists and supplier information; and (iv) information concerning the owner’s employees, including their compensation and skills.
1.4. Documentation: Documentation means any materials or documents supplied by Lauletta LPG to Service Client pursuant to this Agreement.
1.5. Intellectual Property: Intellectual Property means any and all intellectual property rights and other similar proprietary rights in any jurisdiction, whether registered or unregistered, including all rights and interests pertaining to or deriving from: (a) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, proprietary information, know-how, ideas, technology, technical data and all Documentation relating to any of the foregoing; (c) software, including data files, source code, object code, software-related specifications and Documentation, and any improvements, modifications, and substitutions thereof; (d) copyrights, works of authorship and other copyrightable works, whether registered or unregistered, and whether or not published; (e) Confidential Information, Trade Secrets and other proprietary or confidential processes, formulas, methodologies and technology; (f) trademarks, trade names, service marks, certification marks, corporate names, service names, brands, trade dress and logos and the goodwill associated therewith; (g) domain name registrations and internet addresses; (h) all moral and economic rights of authors and inventors, however denominated; and (i) any similar or equivalent rights to any of the foregoing.
1.6. Owner: Owner refers to the party disclosing Proprietary Information hereunder, whether such party is Lauletta LPG or Service Client and whether such disclosure is directly from Owner or through Owner’s employees, independent contractors, subcontractors, or agents.
1.7. Proprietary Information: Proprietary Information means Trade Secrets, Intellectual Property, Confidential Information and Trademarks.
1.8. Recipient: Recipient refers to the party receiving any Proprietary Information hereunder, whether such party is Lauletta LPG or Service Client and whether such disclosure is received directly or through Recipient’s employees or agents.
1.9. Service Client: The person, firm, corporation or other entity named as Service Client in the Agreement, together, jointly and severally, with its Affiliates.
1.10. Service or Services: Services, as set forth in the Agreement, means the services and/or deliverables offered and provided to Service Client by Lauletta LPG.
1.11. Lauletta LPG: ANEMDL, Inc. D/B/A Lauletta Legacy Planning Group, an Ohio corporation, together with its Affiliates.
1.12. Trademarks: Trademarks means the trademarks and trade names which are proprietary to Lauletta LPG or Service Client, as the case may be.
1.13. Trade Secrets: Trade Secrets means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:
1.13.1. It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
1.13.2. It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
1.0 SERVICES AND LIMITATIONS ON SERVICE
1.1. Provision and Availability of Services: Lauletta LPG shall provide Service Client with the Services for the fees set forth in the Agreement. Service Client shall be responsible for all shipping costs, sales and use taxes, customs, duties, and tariffs associated with the Services. Delivery dates are approximate. Lauletta LPG will not be liable for any delay in performance of the Agreement or delivery of the Services, or for any damages suffered by Service Client by reason of delay. Delay in delivery shall not constitute nor justify Service Client’s cancellation of the Agreement nor shall it affect or alter any other portion or section of these Terms and Conditions. In the event a delay is caused by Service Client’s failure to furnish necessary information to Lauletta LPG, Lauletta LPG may extend the date of delivery of Services for a reasonable time in proportion to the period of Service Client’s delay. Service Client further agrees that the Services will not be exported, directly or indirectly, to any country in violation of any laws, including the U.S. Export Administration Act. Furthermore, the foregoing right is hereby granted to the Service Client only to the extent such Service Client’s indirect or direct use of the Services does not violate these Terms and Conditions. Upon such violation, the foregoing right of access and use shall terminate immediately and without the need for any action on the part of Lauletta LPG. The Service Client shall not modify copy, reverse engineer, decompile, create derivative works, distribute, republish, commercially exploit, or upload any of the Services and/or the material on the Services without prior, written consent from Lauletta LPG. No intellectual property or other rights in and to the Services — other than the limited right to use set forth above — are transferred to the Service Client. Lauletta LPG expressly reserves the right, at any time, to change or discontinue any content or feature of the Services or any services or goods made available through the Services without notice; charge fees in connection with the use of the Services; modify and/or waive any fees charged in connection with the Services; and/or offer opportunities to some or all Service Clients. The Service Client expressly agrees that Lauletta LPG shall not be liable for any such modification, suspension or discontinuance of the Services or of any service, content, feature or goods offered through the Services.
1.2. Lauletta LPG’ Right to Suspend or Discontinue Services without Notice to Service Client
1.2.1. Violation of Terms and Conditions or Agreement or Law: Lauletta LPG may suspend or discontinue the furnishing of Services if Service Client uses, or threatens to use, Services for any unlawful purpose or otherwise violates the terms of the Agreement or these Terms and Conditions.
1.2.2. Unlawful or Unauthorized Use: Lauletta LPG may suspend or discontinue the furnishing of Services when it deems it necessary to take such action to prevent the unlawful or unauthorized use of Services.
1.2.3. Nonpayment for Services: Lauletta LPG may suspend or discontinue the furnishing of Services if the Service Client fails or refuses to pay for Services in accordance with its obligations under the Agreement or any other agreement between Lauletta LPG and the Service Client.
2.0 WARRANTIES AND STANDARDS FOR SERVICES
2.1. DISCLAIMER OF WARRANTIES: THE SERVICES AND ANY AND ALL RELATED SOFTWARE, APPLICATIONS, PLATFORMS, AND/OR SERVER AND NETWORK COMPONENTS (TO THE EXTENT APPLICABLE), ARE PROVIDED TO THE SERVICE CLIENT ON AN “AS-IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND LAULETTA LPG (ON BEHALF OF ITSELF AND ITS AFFILIATES) EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE FOREGOING IS AN ESSENTIAL PART OF THE AGREEMENT AND THESE TERMS AND CONDITIONS AND FORMS THE BASIS FOR DETERMINING THE PRICES SET FORTH IN THE AGREEMENT. CLIENT UNDERSTANDS LAULETTA LPG IS ABLE TO PROVIDE THE SERVICES AT THE PRICES SET FORTH IN THE AGREEMENT BECAUSE LAULETTA LPG HAS DISCLAIMED ALL WARRANTIES AND LAULETTA LPG’S LIABILITY IS LIMITED HEREUNDER AND THEREUNDER. LAULETTA LPG CANNOT AND DOES NOT REPRESENT OR GUARANTEE THAT ANY OF THE INFORMATION AVAILABLE THROUGH THE SERVICES IS ACCURATE, RELIABLE, CURRENT, COMPLETE, VALID, STABLE OR APPROPRIATE FOR ANY SERVICE CLIENT’S NEEDS. SERVICE CLIENT EXPRESSLY ACCEPTS RESPONSIBILITY AND ASSUMES ALL LIABILITY FOR ALL ACTIVITIES AND CONTENTS GENERATED BY SERVICE CLIENT VIA THE SERVICES. THE SERVICES, USE THEREOF, AND/OR ANY COMMUNICATION BY LAULETTA LPG TO SERVICE CLIENT SHALL NOT BE CONSTRUED UNDER ANY CIRCUMSTANCES AS LEGAL, TAX, ACCOUNTING, OR INVESTMENT ADVICE. ANY USE OF OR ACCESS TO THE SERVICES SHALL NOT BE CONSTRUED AS THE FACILITATION OF ANY SALE OR EXCHANGE OF SECURITIES AS AN EXCHANGE.
2.2. LIMITATIONS ON LIABILITY: LAULETTA LPG SHALL NOT BE LIABLE TO SERVICE CLIENT OR ANY OTHER PERSON OR ENTITY, DIRECTLY OR INDIRECTLY, FOR ANY CLAIMS, DEMANDS, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), LOSSES, JUDGMENTS, DAMAGES, LIABILITIES OR OBLIGATIONS, OF ANY KIND OR NATURE, ARISING IN ANY MANNER FROM OR IN CONNECTION WITH THE AGREEMENT, THESE TERMS AND CONDITIONS, AND/OR THE SERVICE CLIENT’S USE OR INABILITY TO USE THE SERVICES. LAULETTA LPG SHALL NOT BE LIABLE FOR AND DISCLAIMS ANY AND ALL LOST PROFITS AND ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF THE SERVICES OR THE PERFORMANCE BY LAULETTA LPG UNDER THE AGREEMENT AND/OR THESE TERMS AND CONDITIONS. IN THE EVENT OF TERMINATION FOR ANY REASON, LAULETTA LPG SHALL NOT BE LIABLE TO SERVICE CLIENT FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES, LICENSES OR COMMITMENTS MADE IN CONNECTION WITH THE AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE THEREUNDER. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION DETERMINES LAULETTA LPG IS IN BREACH OF ANY PROVISION OF THE AGREEMENT OR THESE TERMS AND CONDITIONS OR IS LIABLE TO SERVICE CLIENT, DIRECTLY OR INDIRECTLY, IN ANY OTHER WAY UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, OR PURSUANT TO ANY OTHER CAUSE OF ACTION, THE MAXIMUM AGGREGATE LIABILITY AND AMOUNT OF RECOVERABLE DAMAGES SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1,000.00). LAULETTA LPG DOES NOT HAVE, AND EXPRESSLY DISCLAIMS, ANY DUTY TO VERIFY THIRD PARTY INFORMATION PROVIDED BY LAULETTA LPG TO SERVICE CLIENT AND SERVICE CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY SERVICE CLIENT ON ANY CONSULTATION INCLUDED IN OR WITH LAULETTA LPG’S SERVICES, WHICH MAY OR MAY NOT INCLUDE THIRD PARTY INFORMATION, SHALL BE AT SERVICE CLIENT’S SOLE RISK AND LIABILITY. NOTWITHSTANDING THE LIMITATION OF LIABILITY HEREIN, THE FOREGOING SHALL NOT BE CONSTRUED AS A WAIVER OF ANY RIGHT OF ACTION BY EITHER PARTY UNDER ANY STATE OR FEDERAL SECURITIES LAWS.
2.3. Force Majeure Events: In no event shall Service Client have any claim or right against Lauletta LPG for any failure of performance due to causes beyond Lauletta LPG’ control, including, but not limited to: acts of God, fire, explosion, vandalism, cable cut, storm, flood or other similar occurrences; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over Lauletta LPG or of any department, agency, commission, bureau, corporation, or other instrumentality of any federal, state, or local government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; pandemics, epidemics; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; or supplier failures, shortages, breaches, or delays.
2.4. Service Client’s Failure to Fulfill Obligations: Lauletta LPG shall not be liable to Service Client or to any third party for Service Client’s failure to fulfill its obligations under the Agreement and/or these Terms and Conditions.
2.5. Misuse of Service: Lauletta LPG shall neither provide credit allowances nor otherwise be liable for the use, misuse or abuse of Services by Service Client, its agents, employees or any third parties including, without limitation, members of the public.
2.6. Billing Errors: Lauletta LPG’ obligation with respect to any errors resulting in Service Client overpayments for Services is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstance will any billing error affect the Service Client’s obligation to pay for Services rendered and used.
2.7. Service Client Acknowledgements, Representations, and Warranties: Service Client acknowledges, understands and agrees that Lauletta LPG will provide the Services “AS IS” without any warranty or guaranty, express or implied. Service Client further acknowledges, understands and agrees that Service Client has accessed or received (and had an opportunity to review) (i) Lauletta LPG’ Privacy Policy (set forth at https://laulettalpg.com/privacy-policy/), and, to the extent applicable, (ii) all necessary Uniform Applications for Investment Adviser Registration (Form ADV). Service Client represents and warrants, by entering into the Agreement and accepting the Services from Lauletta LPG, that: (i) If Service Client is an entity, Service Client is a legal entity duly organized and existing, and is in good standing, under the laws of jurisdiction of its organization; (ii) Service Client’s execution, delivery, and performance of the Agreement has been duly authorized by all appropriate corporate action on the part of Service Client, and the Agreement, together with these Terms and Conditions, constitutes a valid and binding obligation of Service Client enforceable against it in accordance with its terms and these Terms and Conditions; (iii) there is no outstanding or threatened order, writ, injunction, or decree of any court, governmental agency, or arbitration tribunal against Service Client that affects, involves, or relates to its performance under the Agreement and these Terms and Conditions; (iv) Service Client is not insolvent, as that term is defined in Ohio Revised Code § 1301(B)(23) of the Uniform Commercial Code and, in the event that Service Client becomes insolvent at any time during the Term, it will promptly notify Lauletta LPG in writing; and (v) Service Client will use the Services solely as authorized in the Agreement or these Terms and Conditions and in accordance with all applicable laws, including, without limitation, all laws relating to communications, intellectual property, and data privacy.
3.0 INDEMNIFICATION
3.1. Indemnification: The Service Client shall indemnify, defend and hold harmless Lauletta LPG and its Affiliates, partners, directors, officers, employees, representatives, and their successors in interest and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of (i) any act or omission of the Service Client; (ii) a breach by Service Client of any representation, warranty, and/or agreement with any Indemnified Party; (iii) failure by Service Client to pay any and all applicable taxes, customs, duties, tariffs, and the like arising from the transactions set forth in these Terms and Conditions and/or the Agreement; (iv) any and all corrupt data, viruses, malware, or security breaches directly or indirectly introduced by the Service Client or resulting from the Service Client’s failure to take commercially reasonable measures to prevent the same; (v) a violation by Service Client (any of its officers, directors, employees or agents) of any applicable law, regulation, or order of the United States or any other applicable government or quasi-governmental authority; and/or (vi) any claim that Service Client property or any portion thereof infringes or misappropriates any third party patents, copyrights, trademark, and/or intellectual property or other proprietary rights. The indemnification obligations under this Section shall continue indefinitely.
3.2. Procedure: If a third party makes a claim against an Indemnified Party, the Indemnified Party will promptly notify the Service Client in writing no later than sixty (60) days after receipt of such notification of a potential claim. The Service Client may assume sole control of the defense of such claim and all related settlement negotiations. The Indemnified Party will provide, at no additional cost to the Indemnified Party, the assistance, information and authority necessary to assist the Service Client in its obligations. Service Client may not settle any such matter without the prior written consent of the Indemnified Party as to any settlement that imposes an obligation on, or requires any admission by, the Indemnified Party. Failure of the Indemnified Party to promptly notify the Service Client will not relieve the Service Client of its obligations except to the limited extent such delay materially prejudices the Service Client.
4.0 SERVICE CLIENT OBLIGATIONS
4.1. Commencement of Relationship and Provision of Services: The execution of an Agreement by Service Client and acceptance thereof by Lauletta LPG establishes the respective rights and obligations of the parties. If there is no executed Agreement but Service Client nevertheless uses Services, Service Client is deemed to have consented to all terms of the Agreement, including these Terms and Conditions and any documents incorporated therein by reference.
4.2. Conditional Use of Services: Without the prior written consent of Lauletta LPG, Service Client may not: (a) use any service mark or Trademark of Lauletta LPG or its Affiliates, including those licensed to Lauletta LPG or its Affiliates, or (b) refer to Lauletta LPG or any of its Affiliates in connection with any service or product, promotional offering, or publication of the Service Client, or (c) make any purchases, sales, and/or trades in Service Client’s exchange accounts that are the subject of the Services.
4.3. Notice of Claims and Problems: Service Client shall immediately notify Lauletta LPG in writing upon its receipt of any information that might adversely affect Lauletta LPG, including, but not limited to, notices of any claims or proceedings that involve Service, and Service Client promptly shall notify Lauletta LPG of any problem relating to Services or Service performance and reasonably cooperate with Lauletta LPG in remediating the problem with the Services.
4.4. Additional Services: Service Client may request additional Service(s) from Lauletta LPG, which Lauletta LPG, in its sole discretion, may agree to provide pursuant to a separate instrument, a rider or addendum to the Agreement, or an amended and restated Agreement.
4.5. Confidentiality: Owner may provide to the Recipient from time to time or the Recipient may have access to Owner’s Proprietary Information. Except as expressly permitted herein, Recipient shall not disclose any Proprietary Information to any third party or use any of the Proprietary Information for any purpose, except as is necessary to perform its obligations or exercise its rights as set forth herein or in the Agreement. Proprietary Information shall not include any information that: (i) corresponds in substance to information developed by Recipient without reference to the Proprietary Information or can be demonstrated by Recipient to be in the Recipient’s possession prior to receipt of the same from Owner; (ii) now is or hereafter becomes publicly known through no fault of the Recipient; or (iii) otherwise lawfully becomes available to the Recipient from a third party not known by the Recipient to be under an obligation of confidentiality to Owner. Upon termination of the Agreement, all Proprietary Information and other information shall be returned or destroyed promptly upon request, no copies thereof shall be retained by Recipient, and Recipient shall not thereafter utilize such information in any respect or for any purpose whatsoever.
4.6. Intellectual Property:
4.6.1. Notwithstanding anything contained in these Terms and Conditions or the Agreement to the contrary, Lauletta LPG shall retain sole and exclusive ownership of the Background IP together with any and all Intellectual Property rights in and to any of the foregoing (collectively, “LLPGIP”). Service Client shall have no interest in or claim to the LLPGIP. Further, all: (a) LLPGIP and Lauletta LPG’s materials; (b) systems, materials, techniques, policies, procedures, processes, work flows, ideas and know-how and other materials developed by Lauletta LPG; and (c) all Intellectual Property with respect to the foregoing, shall be, as between Service Client and Lauletta LPG, the exclusive property of Lauletta LPG.
4.6.2. Lauletta LPG shall not be responsible or liable to Service Client for storage of data or files that cannot be recovered due to corrupt data, fires, mechanical or equipment failure, damage or destruction, virus, malware, security breach, or any other disaster, casualty, or event not in control of Lauletta LPG. Unless otherwise expressly set forth in in writing in the Agreement, Service Client shall be primarily responsible to back-up and store all files and data that Service Client deems important to insure the integrity and security of Service Client’s data.
4.6.3. Other than a license expressly granted by the Agreement, Service Client shall have no rights with respect to any of Lauletta LPG’s existing or subsequently-acquired or developed Intellectual Property, and Service Client hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and Confidential Information are and shall remain vested in or controlled by Lauletta LPG. Service Client shall not at any time during the Term and any time thereafter do or permit to be done any act or thing which impairs or may impair the rights of Lauletta LPG with respect to Lauletta LPG’s Intellectual Property. Service Client will never represent that it has any ownership in any of Lauletta LPG’s Intellectual Property. Service Client expressly agrees that all of the use and goodwill of Lauletta LPG’s Intellectual Property shall inure to the sole benefit of Lauletta LPG.
4.7. Injunctive Relief: The parties hereby acknowledge and agree that the extent of damages in the event of a breach of the restrictive covenants contained in these Terms and Conditions may be difficult or impossible to ascertain and that there may be no adequate remedy at law in the event of any such breach. Consequently, in the event of such breach, the non-breaching party shall be entitled, in addition to any other remedies it may have at law, to seek an injunction or other equitable relief to enforce any or all of the covenants contained in these Terms and Conditions. The breaching party expressly waives (i) the defense that a remedy in damages will be adequate and (ii) any requirement in an action for specific performance or injunction for the posting of a bond.
4.8. Reservation of Remedies: The rights, powers and remedies that may be given or reserved to the parties by these Terms and Conditions and the Agreement shall be cumulative and in addition to all other and further remedies provided by law. These Terms and Conditions and the Agreement shall not be construed to deprive the parties of any other rights, powers and other remedies otherwise given by law or at equity. No delay or failure by Lauletta LPG in exercising any right or remedy and no partial or single exercise of such right or remedy shall constitute a waiver by Lauletta LPG of such right or any other rights in these Terms and Conditions and/or the Agreement. No consent by Lauletta LPG to a breach of any express or implied term of these Terms and Conditions and/or the Agreement shall constitute a consent to any prior or subsequent breach of the same or any other term.
5.0 BILLING AND PAYMENT ARRANGEMENTS
5.1. Service Client Responsibility for Payment: Lauletta LPG shall invoice Service Client for Services and all shipping costs, sales, use, customs, duties, and tariffs associated with the Services (each, an “Invoice”). Service Client agrees to pay each Invoice upon receipt in U.S. Dollars by wire transfer or immediately available funds to an account designated in writing by Lauletta LPG. Lauletta LPG’s obligation with respect to any errors resulting in Service Client overpayments for Services is limited to granting Invoice credits equal to the dollar amounts erroneously billed. Under no circumstance will any billing error affect the Service Client’s obligation to pay for Services.
5.2. Taxes: Service rates and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges. Service Client shall promptly pay any and all applicable sales and use taxes, customs, duties, and tariffs on the Services provided by Lauletta LPG to Service Client.
5.3. Late Payment Fee on Past Due Amounts: Except as expressly provided otherwise, any payment set forth in these Terms and Conditions or the Agreement not paid when it is due shall bear interest at a rate of one and one half percent (1.5%) per month or the maximum monthly rate permitted by law on past due balances from the date said payment is overdue until paid in full.
5.4. Credit Balances on Closed Accounts: If a Service Client whose account for Service has been closed has a credit balance owing, Lauletta LPG will transfer the credit balance to another account of the Service Client, if there is one, or will mail a check for the credit balance owed to the Service Client if Lauletta LPG believes it has a valid and current address for the Service Client. If Lauletta LPG is not certain it has a valid and current address for the Service Client, it will include a notice in the final invoice mailed to the Service Client’s last known address according to Lauletta LPG’ records, asking that the Service Client verify the address so Lauletta LPG can mail a check for the credit balance owing, or it will write to the Service Client at that address and request Service Client verification of the address. Verification may be achieved by a Service Client calling a designated telephone number or writing to a specified address. Upon receiving verification, a check for the credit balance owing will be mailed to Service Client. If the final invoice or the notification letter is returned to Lauletta LPG by the post office as undeliverable, or if no Service Client response is received within thirty (30) days of the mailing of the final invoice or the notification letter, Lauletta LPG may apply a closed account maintenance charge of $5.00 per month beginning in the second monthly billing period following the month in which the account was closed. This charge will apply until either the Service Client requests a refund in writing or the credit balance owed is exhausted.
5.5. Recovery of Collection Costs: Unless otherwise prohibited by law, Service Client shall reimburse Lauletta LPG for any costs incurred by Lauletta LPG in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys’ fees.
6.0 TERMINATION/DEFAULT
6.1. Termination: The Agreement shall commence on the date set forth therein and shall continue for as long as Lauletta LPG performs, renders, delivers, or otherwise provides Services to the Service Client in accordance with the Agreement or unless otherwise set forth in the Agreement (the “Term”). The Agreement shall not be terminated except (i) by either party in the event of a material breach (excluding non-payment) by the other party (which shall require a thirty (30) day written notice and opportunity to cure before any such termination can be effective), (ii) by written consent of both parties, or (iii) if Service Client fails to pay timely all amounts due under an Invoice for Service or reimbursable expenses issued by Lauletta LPG and Service Client does not cure such breach within five (5) calendar days of the date the same is due; provided however, if Service Client fails to make timely payment of its invoices two (2) or more times, then Lauletta LPG may, at its option, without (x) termination of the Agreement, (y) without being in breach of any of its obligations under these Terms and Conditions or the Agreement, and (z) without waiver of any of its rights or remedies under these Terms and Conditions or the Agreement, stop work and cease providing Services, by giving written notice to Service Client, until all outstanding amounts due to Lauletta LPG hereunder and/or pursuant to the Agreement have been paid in full to Lauletta LPG. Further, the Agreement may be terminated immediately by one party in the event that the other party shall have (i) ceased to do business as a going concern, (ii) made a general assignment for the benefit of creditors or (iii) filed or had filed against it a petition seeking the reorganization, arrangement, composition, adjustment, liquidation or dissolution of such party or seeking similar relief under any other statute, law or regulation, or seeking the appointment of a trustee, receiver, assignee, liquidator or similar officer of the court for a substantial part of its properties; provided, however, that either party shall have a sixty (60) day cure period for any involuntary petitions in bankruptcy.
6.2. Consequences of Termination. Termination of the Agreement in accordance with the foregoing provisions will not affect (i) the rights and obligations of the parties with respect to invoices issued by Lauletta LPG prior to the effective date of the termination, (ii) the rights and obligations of the parties with respect to intellectual property rights, confidentiality, indemnification non-competition, non-circumvention, non-solicitation, and governing law of the parties as set forth herein, or (iii) terminate liabilities arising out of conduct prior to the actual date of termination. Otherwise, all rights and obligations of the parties shall cease to exist upon termination of the Agreement. In the event any amount due from Service Client to Lauletta LPG remains unpaid upon termination of the Agreement, Service Client irrevocably authorizes Lauletta LPG to sell any and all goods of the Service Client in possession of Lauletta LPG and in all other property of Service Client in Lauletta LPG’ possession anywhere in the world, by any and all methods, manners and media, including, without limitation, by digital marketing and internet sales. Service Client acknowledges and agrees that Lauletta LPG and/or Lauletta LPG’ affiliates or representatives may sell such goods and property of the Service Client in accordance with terms and conditions as Lauletta LPG determines from time to time in its sole discretion, including, without limitation, purchase price, payment terms, and/or shipping terms. Lauletta LPG is irrevocably authorized to bill, invoice and collect all sales proceeds from the sale of such goods and property of the Service Client by Lauletta LPG, its affiliates and representatives. Upon satisfying any and all amounts due and owed to Lauletta LPG by Service Client, including costs and expenses incurred in selling such goods and property and collecting upon such sales, Lauletta LPG shall pay the excess proceeds, if any, to Service Client.
6.3. Termination Not Exclusive Remedy: Any remedy provided to Lauletta LPG shall not be construed to be an exclusive remedy and shall not deprive Lauletta LPG of its ability to pursue other available remedies. The parties agree that Lauletta LPG’ damages in the event of Service cancellation or termination would be difficult or impossible to ascertain and, therefore, any early cancellation or termination charges invoiced to Service Client by Lauletta LPG are intended to serve as liquidated damages rather than penalties.
7.0 MISCELLANEOUS PROVISIONS
7.1. Export Regulations. Service Client acknowledges that certain Services sold by Lauletta LPG hereunder and any documentation and other technology of Lauletta LPG may be subject to application export control and sanction laws, regulations, and orders. Service Client certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. Service Client hereby agrees to defend, indemnify and hold Lauletta LPG harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
7.2. FCPA; Anti-Bribery. In carrying out its responsibilities hereunder and under any Agreement, Service Client shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the Territory. Service Client understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Service Client represents and warrants that, in the performance of this Agreement and in connection with its purchase of Services, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Service Client will advise Lauletta LPG of any change in such representation; (ii) Service Client and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Service Client will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Service Client agrees to indemnify, defend, and hold Lauletta LPG harmless for damages and expenses resulting from a violation of the foregoing by Service Client or its representatives.
7.3. OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Service Client may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Service Client certifies, represents and warrants to Lauletta LPG that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Service Client hereby agrees to defend, indemnify and hold Lauletta LPG harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
7.4. Relationship among Lauletta LPG, Service Client, and Third Parties: Neither party nor any other agents or employees, officers, directors, managers, shareholders or members of such party shall be deemed a representative or agent of the other, nor shall either party hold itself out as a representative or agent of the other beyond the scope of the Agreement and/or these Terms and Conditions, and, neither party shall have any right or authority to conduct any business in the name of, or for the account of or on behalf of the other party. The parties hereto agree and understand that, solely with respect to the Agreement and/or these Terms and Conditions, Lauletta LPG will be and act as an independent contractor of Service Client, Service Client and Lauletta LPG are separate entities and that there is no master/servant, partnership, joint venture, principal/agent, or employer/employee relationship between the parties.
7.5. Severability: Should any part, portion, or provision of these Terms and Conditions and/or the Agreement be held invalid, illegal, void or unenforceable, the remainder of these Terms and Conditions and/or the Agreement or the application of such provision shall not be affected thereby and each provision of these Terms and Conditions and/or the Agreement shall be valid and enforced to the fullest extent permitted by law.
7.6. Choice of Law and Venue: The Agreement and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made and wholly performed in such state without regard to choice or conflicts of law principles. The Agreement and these Terms and Conditions shall be deemed to have been entered into at Cleveland, Ohio, U.S.A., regardless of the place or places of signing by the parties hereto or the order of their signing. Service Client hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Ohio State Court or Federal Court sitting in Cuyahoga County, in any action or proceeding arising out of or relating to the Agreement and/or these Terms and Conditions. Service Client agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
7.7. Non-exclusive Dealing: The Agreement is non-exclusive. Nothing shall prevent Lauletta LPG from entering into similar arrangements with, or otherwise providing Services to, any other person or entity.
7.8. No Waiver: No waiver of any of the provisions of these Terms and Conditions and/or the Agreement shall be binding unless made in writing and signed by the waiving party. The failure of either party to insist on the strict enforcement of any provision of these Terms and Conditions and/or the Agreement shall not be deemed to constitute a waiver of the provision, and all terms and conditions herein and/or therein shall remain in full force and effect.
7.9. Amendments. Unless otherwise set forth in the Agreement or in these Terms and Conditions, no modifications, additions, or amendments to the Agreement shall be effective unless made in writing as an addendum to the Agreement and signed by duly authorized representatives of both parties.
7.10. Assignment. Service Client shall not assign or transfer the Agreement, in whole or in part, whether by means of merger, reorganization, combination, sale of assets, change of control, operation of law or otherwise, without Lauletta LPG’ prior written consent (which may be withheld in Lauletta LPG’ sole and absolute discretion), and any assignment or attempt to do so without such consent will be void and of no effect. The Agreement, together with these Terms and Conditions will only inure to the benefit of the parties to the Agreement and their respective permitted successors and assigns, and, except as expressly set forth in the Agreement and/or these Terms and Conditions, there are no third-party beneficiaries to the Agreement or these Terms and Conditions.
7.11. Notices. All notices, requests, directions, approvals or other communications to be provided in the Agreement or these Terms and Conditions will be in writing and will be deemed to have been sufficiently given (i) upon receipt if delivered in person; (ii) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (iii) on the date transmitted if by email; provided that the original will promptly follow by internationally-recognized mail service or overnight courier. All notices will be sent to the applicable party at the address(es) on the signature page of the Agreement (or as otherwise instructed in writing by such party).