By signing up for the Solid Cactus eCommerce services (hereinafter referred to as the “Services”), you agree to the following Terms of Service:
These Terms of Service along with any applicable Service Agreement and/or Order Page (hereinafter these Terms of Services and any such Service Agreement and/or Order Page are collectively referred to as the “Agreement”) constitutes a legally binding contract between Web.com Group, Inc. (“Solid Cactus”) and the person or organization that submits an order for the Services, pays for Services, and/or utilizes the Services (“You” and/or “Client”). Solid Cactus reserves the right to change or modify the Services and/or any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to existing and/or future customers. Solid Cactus may make such changes or modifications to the Services and/or the terms and conditions contained in this Agreement without additional notice to Client whereby Client’s continued use of the Services following such any changes or modifications will constitute Client’s acceptance thereof.
1. Eligibility Criteria.
Notwithstanding anything contained herein, this Agreement will not bind Solid Cactus unless Client meets the following Eligibility Criteria:
The Services and license thereof are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to children (persons under the age of 18). If Client is registering as a business entity, Client represents that they have the authority to bind the entity to this Agreement. Solid Cactus uses many techniques to verify the accuracy of the information Client provides when Client registers on the Solid Cactus website. If for any reason, Solid Cactus, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to Client, to revoke any and all licenses under this Agreement or to refuse to provide the Services under this Agreement to Client.
A. The Services may include any one or more of the following elements, depending upon the package and options selected by the Client during the ordering process:
- i. Shopping Cart and eCommerce software that facilitates the sale of products by the Client to customers on a website controlled by the Client;
- ii. Email marketing tools and services;
- iii. Online advertising tools and services;
- iv. Affiliate marketing tools and services; and
- v. Online website store builder services.
B. Solid Cactus will provide Client with a limited license to use and receive the Services hereunder and Solid Cactus will further provide the Services ordered by the Client subject to all of the terms, conditions and limitations applicable to the Services that are set forth in the Agreement and on the Solid Cactus website.
C. Client will pay for the Services at the price and in accordance with any fee schedule indicated upon Client’s ordering of the Services. Solid Cactus may change the prices for the Services at any time and any such change in prices will be effective after Solid Cactus posts the change on its website or otherwise provides notice to Client. All fees collected under this Agreement are fully earned when due and nonrefundable when paid except as expressly provided for in Section 6(E) and Section 6(F) below. All fees due under this Agreement must be paid in United States dollars via credit card or other payment method acceptable to Solid Cactus. Client agrees to provide its accurate name, mailing address, telephone and other contact information in Client’s profile and to update such contact details as they may change.
D. The Services are either owned by Solid Cactus or licensed from a third party. In accordance with this Agreement and subject to the payment of applicable fees, Solid Cactus will provide certain hosting, support and other miscellaneous Services licensed by Client under this Agreement during the term of this Agreement. Any hosting to be provided by Solid Cactus under the Agreement shall be on servers operated by or for Solid Cactus (“Solid Cactus Servers”) and several merchants may share the resources and network capacity of those Solid Cactus Servers.
E. Solid Cactus reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to Client. Client agrees to receive administrative communications from Solid Cactus in regards to the Services, Client’s account, policy changes and system updates.
F. Third-Party Licensors
- i. Client acknowledges and agrees that the Services may include and/or may be provided, in some cases, by third party Licensors to Solid Cactus (hereinafter “Third Party Licensors”). For all Services that are provided by Third Party Licensors to Solid Cactus, Client agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the “Additional Terms and Conditions”). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Client acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Client further agrees that it will be subject to all Additional Terms and Conditions where Client elects to add services to its Services package.
- ii. Client acknowledges that Solid Cactus may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the Services. In the event that Solid Cactus changes Third Party Licensors, Solid Cactus may provide Client with notification of changes in Third Party Licensors and refer Client to information posted on Solid Cactus’ website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
- iii. Client further expressly agrees that in conjunction with any use of any MasterPass Online services on Client’s website and/or otherwise in connection with the Services, Client agrees to the Additional Terms and Conditions related thereto and located online here, and further authorizes Solid Cactus to accept such Additional Terms and Conditions on Client’s behalf. Client expressly authorizes Solid Cactus to opt Client in to the MasterPass Online services, and should Client be opted-in to any such services by Solid Cactus, Client shall have the right to opt-out of such services by contacting Solid Cactus at 1-888-361-9814.
3. Ownership and License.
A. The Services provided by Solid Cactus hereunder, and all worldwide intellectual property rights therein, are the exclusive property of Solid Cactus. All rights in and to the Services not expressly granted to Client in this Agreement are wholly reserved by Solid Cactus.
B. Subject to the terms and conditions of this Agreement, Solid Cactus grants to Client a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Services.
C. Client acknowledges that the Services and their structure, organization, and source code constitute valuable trade secrets of Solid Cactus. Accordingly, except as expressly allowed under this Agreement, Client will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Services; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services or (d) transfer its interest in and to the Services to any third party.
D. Subject to the terms and conditions of this Agreement, Solid Cactus grants to Client a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce certain trademarks provided to Client by Solid Cactus under this Agreement (“Solid Cactus Marks”), solely for use in the display on those locations as designated by Solid Cactus in its sole discretion. Solid Cactus grants no rights in the Solid Cactus Marks other than those expressly granted in this Section. Client acknowledges Solid Cactus’ exclusive ownership of the Solid Cactus Marks. Client agrees not to take any action inconsistent with such ownership and Client agrees not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Solid Cactus Marks or in such a way as to create combination marks with the Solid Cactus Marks. At Solid Cactus’ request (in its sole discretion), Client will immediately discontinue any use and display of the Solid Cactus Marks. Client acknowledges and agrees that, except with respect to the trademark license granted herein in and to the Solid Cactus Marks, no licenses are granted by Solid Cactus to any other trademarks, service marks, or trade names owned by Solid Cactus, its parent, or affiliates.
E. Certain additional features that Solid Cactus may make available to Client in conjunction with the Services may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions (“Additional Software”). Similarly, Solid Cactus may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (“Additional Services”). Client agrees that Client will not use such Additional Software or Additional Services unless Client has agreed to the applicable terms and conditions, including but not limited to Client’s payment of additional fees as required.
F. If Client purchases a domain name as part of the boarding process for the Services (the “Domain Name”) Client will be considered the owner of the Domain Name; however Solid Cactus will be listed as the technical contact. By using the Services, Client represents and warrants that any name or word submitted to be used as all or part of the Domain Name does not infringe any trademark or domain name rights of any third party. Moreover, Customer warrants that it has a present good faith intention to use the Domain Name in connection with a commercial or personal endeavor and that it is not merely “cyber squatting,” i.e., obtaining the Domain Name merely to attempt to sell the rights to the Domain Name or sub domain to some third party. Client further represents and warrants that the Domain Name will not violate the Acceptable Use Policy and other acceptable use provisions referenced or listed in Section 5 below.
4. No Guarantee of Results.
Client acknowledges that Solid Cactus does not guarantee, imply, or predict any type of profit or response from the Services. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of Solid Cactus and for which Solid Cactus will bear no responsibility. Client irrevocably covenants, promises and agrees to indemnify Solid Cactus and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys’ fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Solid Cactus under this Agreement.
5. Covenants and Acceptable Use.
A. Client may use the Services only in accordance with this Agreement, applicable laws in the United States and the applicable laws of any other jurisdiction. Client agrees not to use the Services in any manner that violates the Solid Cactus Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time. In addition, Client agrees that it will not use the Services to:
- i. Engage in any illegal or tortuous activity;
- ii. Violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
- iii. Sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material;
- iv. Use verbal, physical, written or other abuse (including threats of abuse or retribution) of any Solid Cactus customer, employee, member, or officer will result in immediate account termination; or
- v. Publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Solid Cactus in its sole discretion.
B. Client’s failure to comply with the covenants set forth in this Section of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination of this Agreement and the Services.
A. The Services will commence on the date Client’s order for the Services is accepted by Solid Cactus (the “Effective Date”) and will thereafter continue on the basis of successive billing periods (with the first day of each billing period being a “Billing Date”) until terminated by either party in accordance with this Agreement. For each billing period, Solid Cactus will charge the Client’s credit card on each Billing Date for (i) any non-refundable recurring subscription fees as well as any other annual or one-time fees due in advance for the billing period beginning on that date, and (ii) any transaction fees and all other fees designated to be paid in arrears based on the value of goods and services sold through the Client’s Store (as defined below) during the previous billing period.
B. Without limiting Solid Cactus’ other remedies, any amount that is not retrievable from Client’s credit card when due will accrue a late fee at one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Solid Cactus may continue to submit charges on Client’s credit card from time to time until all fees due are paid. Solid Cactus may suspend all or any portion of the Services at any time when fees are due and unpaid. For any amounts not paid when due Solid Cactus will be entitled to recover from Client losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses’ cost or other costs of any kind incurred by Solid Cactus hereunder.
C. All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Client will be responsible for payment of all such taxes (other than taxes based on Solid Cactus’ income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or performance of the Services hereunder.
7. Use of Client Data.
8. Termination and Suspension.
A. Client may terminate this Agreement at any time by giving Solid Cactus notice at least seven (7) days prior to the next Billing Date.
B. Solid Cactus may also terminate this Agreement at any time by giving Client at least four (4) weeks prior notice. In addition, Solid Cactus may immediately terminate this Agreement, limit Client’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Client’s account or the Services, in whole or in part, and/or refuse to provide some or all of the Services functionality to Client, without notice, if in Solid Cactus’ sole discretion: (i) Client fails to pay any fees in accordance with this Agreement; (ii) Client breaches the covenants of this Agreement; (iii) Client breaches this Agreement or the documents it incorporates by reference in any other manner; (iv) Solid Cactus is unable to verify or authenticate any information Client provided to Solid Cactus; or (v) Solid Cactus believes that Client’s actions may cause financial loss or legal liability for Client or Solid Cactus.
C. Rights Upon Termination. In the event of termination of this Agreement for any reason, the licenses granted under this Agreement shall automatically and immediately cease and Client shall destroy all copies of the Services in its possession, if any. Following termination the Client will have no right to use or access the Services. Upon termination, there will be no refund provided to Client and all outstanding fees owed by Client shall become immediately due and payable. In its discretion, Solid Cactus may permit a Client to recover data from the Services following termination after payment of additional fees. Additionally, if applicable, within four (4) weeks of termination of this Agreement Client must move the Domain Name from any Solid Cactus Servers. Termination shall not affect the rights of Solid Cactus to recover from Client losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or expert witnesses’ cost or other costs of any kind under this Agreement.
A. Solid Cactus may give notice to Client of any matter under this Agreement (i) orally, by calling Client’s representative or by leaving a voicemail for Client’s representative at the telephone number in Client’s profile, (ii) by email to the email address provided by Client in Client’s profile, (iii) by regular mail to Client’s mailing address in Client’s profile, or (iv) by posting to our website and/or any of the applicable pages linked thereto, as updated from time to time. All mail notices shall be effective upon receipt, email and fax notices shall be effective upon transmission and all website notices shall be immediately effective upon posting.
By providing your contact information to Solid Cactus, you agree that Solid Cactus may use that information to contact you via email, postal mail, telephone or fax in any format or manner. Solid Cactus may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall Solid Cactus be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
B. Client may give notice to Solid Cactus by regular or certified mail to the following address:
12808 Gran Bay Parkway West
Jacksonville, FL 32258
Attn: Legal Department
However, Client is to give notice of termination of the Services to Solid Cactus by calling Solid Cactus at either 570-970-4389 or 888-722-7523 between 9am to 5pm EST.
10. Affiliate Program.
If during the order process Client checked the box to participate in the Solid Cactus affiliate marketing program, or has otherwise been accepted by Solid Cactus to participate in such affiliate marketing program, the following provisions apply:
i. Solid Cactus will pay a commission (the “Commission”) equal to ten percent (10%) of amounts billed and received by Solid Cactus from new customers who purchase services from Solid Cactus within six (6) months after clicking on an approved Solid Cactus affiliate marketing banner on a website owned or controlled by Client.
ii. All tracking of referrals and clicks are as determined by Solid Cactus’ systems. Solid Cactus will not pay Commissions on sales that are subsequently rescinded or charged back and any Commissions paid on such sales must be repaid or debited from future Commissions due.
iii. Solid Cactus will aggregate Commissions due and issue checks only when the check amount is equal to or greater than $50.00 (USD).
iv. Solid Cactus may change the commission rate and other terms and conditions of this affiliate marketing program at any time, with such changes to be effective when posted to the Solid Cactus website.
v. After enrolling in the affiliate marketing program, a Client must click the referral program link within the Client’s account and use the enclosed tracking link. Client may not use or display on the affiliate link any material that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Solid Cactus.
vi. A Client enrolled in the affiliate marketing program will continue to earn Commissions even after the Client terminates Services. Solid Cactus may offset against any Commissions earned, however, any due and unpaid amounts in respect of Services.
11. Online Store Builder and Website Content.
A. If during the order process Client selects the online website store builder services; the Services may enable Client to select a template and build an online website (the “Store”) through which they can sell their products and services online. Client will be solely responsible for the development, operation and maintenance of the Store, including the operation of the Store, accepting, processing and filing customer orders generated through the Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through the Store. Client agrees that Solid Cactus has no obligation to back-up any data related to the Store’s operations and Client should independently take appropriate steps to maintain such data in accordance with Client’s needs and requirements.
B. Client will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on the Store or otherwise utilized by Client in conjunction with the Services (the “Content”), including all descriptions of the products and services Client offers or sells to customers via the Store and/or Services. As a conduit, Solid Cactus will give Client discretion over the Content provided it is compatible and interoperable with the Services. Client retains all rights, title and interest in and to all intellectual property rights embodied in the Content, exclusive of any content provided by Solid Cactus. Notwithstanding anything contained in the foregoing, if Client breaches any of the covenants of this Agreement, Solid Cactus is entitled to immediately suspend or terminate Services, the Store and/or any access to information or data related to Client’s account.
C. Client acknowledges that, by only providing Client with the ability to publish and distribute Client’s own or third party products, services or content, Solid Cactus and its Services are acting only as passive conduits for the distribution and/ or publishing of such products, services and/or Content. Solid Cactus has no obligation to Client or any third party, and undertakes no responsibility, to review the Content to determine whether any such Content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Solid Cactus believes in its sole discretion (as applicable) that the Content may create liability for Solid Cactus, Client agrees that Solid Cactus may take any actions with respect to the Content that Solid Cactus believes are prudent or necessary to minimize or eliminate Solid Cactus’s potential liability. Solid Cactus shall, as applicable, be the sole judge of what Content or materials may create liability for Solid Cactus.
D. Moreover, Client covenants that any products, services, or Content published and distributed on the Store or otherwise in conjunction with the Services shall not violate the Solid Cactus Acceptable Use Policy that is incorporated herein by reference (including Section 5 above) and as it may be amended from time to time, nor shall they:
- i. Be false, inaccurate or misleading;
- ii. Be fraudulent or involve the sale of counterfeit or stolen items;
- iii. Infringe or misappropriates any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- iv. Violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);
- v. Be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- vi. Be obscene or contain child pornography;
- vii. Contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- viii. Involve the transmission of any unsolicited commercial or bulk email (known as “spamming”) and Client shall not use its account or the Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
- ix. Involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
- x. Be harmful or potentially harmful to the Solid Cactus Server structure as determined in Solid Cactus’ sole discretion, including without limitation overloading the Solid Cactus technical infrastructure;
- xi. Involve subleasing Client’s account or offering “free space” on or other access to Client’s account or the Store to third parties;
- xii. Create liability for Solid Cactus and its subcontractors or expose them to undue risk or otherwise engage in activities that Solid Cactus, in its sole discretion, determines to be harmful to Solid Cactus’ affiliates, operations, reputation, or goodwill; and
- xiii. Link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation.
E. Furthermore, during the period that Solid Cactus provides Services to Client pursuant to this Agreement, Client hereby grants to Solid Cactus and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform the Content solely for the purposes provided in this Agreement.
Client agrees to fully defend, indemnify, and hold harmless Solid Cactus and each of Solid Cactus’ officers, directors, employees, agents, suppliers, service providers and affiliates (an “Indemnified Party”) from, against, and in respect of any and all losses, damages or deficiencies resulting from any third party claim against any Indemnified Party in connection with the following: (a) any breach of the covenants contained in this Agreement, (b) any Content provided by Client or generated by users of the Store, (c) any claims arising from the sale or license of goods or services in the Store or otherwise in conjunction with the Services, or (d) any breach of this Agreement or any of the documents it incorporates by reference. Solid Cactus and the other Indemnified Parties’ rights hereunder shall not be limited or offset by any contributory negligence by Solid Cactus or any other Indemnified Party. In connection with any request for indemnification under this Agreement, the indemnified party must: (i) give the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) grant control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperate with the indemnifying party at the indemnifying party’s expense.
13. Disclaimer Of Warranties.
Solid Cactus, its suppliers and service providers, provide the software, additional software, and services, on an “as is” basis and expressly disclaim any and all express, implied or statutory warranties, including the warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement, and warranties arising from a course of dealing, usage or trade practice are excluded. Solid Cactus, its suppliers and service providers, do not warrant that the software, additional software, or services will be error-free or uninterrupted and make no representations regarding uptime, use, data security, accuracy and reliability of their services. Client acknowledges and agrees that this Section is reasonable and an essential element of this agreement and that in its absence, the economic terms of this agreement would be substantially different.
14. LIMITATION OF LIABILITY.
IN NO EVENT WILL SOLID CACTUS BE LIABLE FOR ANY (A) LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SOLID CACTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF SOLID CACTUS UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT DURING THE THREE (3) MONTH PERIOD BEFORE THE DATE ON WHICH SUCH LIABILITY AROSE. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, SOLID CACTUS WOULD NOT ENTER INTO THIS AGREEMENT.
A. Governing Law and Venue. This Agreement shall be governed in all respects by the laws of the State of Florida without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in Florida, with sole venue in the courts located in Duval County, and each party hereby submits to the personal jurisdiction of such Courts.
B. Legal Compliance. Client shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding its our use of the Services.
C. No Agency. Client and Solid Cactus are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
D. Entire Agreement. This Agreement sets forth the entire understanding and agreement between Client and Solid Cactus with respect to the subject matter hereof. This Agreement may not be modified or amended by you without the express written consent of Solid Cactus.
E. Force Majeure. Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
F. Assignment. Client shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. Client agrees that this Agreement may be assigned by Solid Cactus, in Solid Cactus’ sole discretion.
G. No Third Party Beneficiary. Client acknowledges and agrees that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
H. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Solid Cactus’ failure to act with respect to a breach by Client or others does not waive Solid Cactus’ right to act with respect to subsequent or similar breaches. Neither party may waive any right hereunder except expressly and in writing.
I. Construction. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
J. Survival. Sections 2 (Services), Section 3 (Ownership and License), 6 (Billing) with respect to any outstanding fees owed for the Services, 7 (Use of Client Data), 8 (Termination and Suspension), 12 (Indemnification), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), and 15 (General) shall survive any termination or expiration of this Agreement where necessary for Solid Cactus to enforce its rights therein.
K. Prohibited Transactions. Client warrants that Client is not, nor is Client acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, Client is not, nor is Client acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Client’s breach of this section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Client under this Agreement.
L. Miscellaneous. Each party hereto agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules, and regulations of the United States governing the export of technical information. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or this Agreement.
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