Vendor Agreement

RUSTON WEB SERVICES, LLC (“PEACHTOWN”), IS WILLING TO PROVIDE RIGHTS TO PARTICIPATE IN PEACHMART ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. YOUR RIGHTS TO PARTICIPATE ARE SUBJECT TO APPROVAL BY PEACHTOWN AS PROVIDED IN SECTION 2 BELOW. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT”, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. ALL REFERENCES TO “WE”, “US”, “OUR”, “THIS WEBSITE” OR “THIS SITE” SHALL MEAN PEACHTOWN AND THIS WEBSITE, SHOP.PEACHTOWN.ORG. IF YOU ARE NOT ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL, THEN “YOU” MEANS YOUR COMPANY OR ORGANIZATION. YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WE ARE UNWILLING TO AUTHORIZE PARTICIPATION IN PEACHMART.

Effective Date: January 01, 2021

Definitions:
1. “PeachMart” means the online service at http://shop.peachtown.org that permits Sellers to offer their Products for sale to the public through the service which (i) is accessible directly via the Internet, and (ii) that will process transactions for and on behalf of Sellers in exchange for commissions and transaction processing fees in accordance with this Agreement.
2. “Product” means any goods or services listed for sale.
3. “Seller” means an individual person or entity that is registered and authorized to participate in PeachMart for purposes of offering their Products for sale to the public.
4. “Remittance Amount” means gross revenues from the Sale of a Seller’s Product to an end-user customer via PeachMart, less Selling Fees retained by us in accordance with this Agreement.
5. “Return Policy” means the return policy specified by a Seller in the Seller’s account settings for the return of Products purchased via PeachMart.
6. “Sale” of a Product for purposes of payment of a Remittance Amount to a Seller means: (i) the initiation of a purchase transaction via PeachMart for a Product listed by you on PeachMart, and (ii) payment in full for the purchased Product and receipt by PeachMart of the gross sales proceeds.
7. “Selling Fees” means the fee calculated as follows: a mutually agreed upon percentage of gross sales of a Product listed on PeachMart.
8. “Subscription Fees” means the monthly fees payable in advance for participation in PeachMart.

Conditions for Participation in PeachMart as a Seller: Your acceptance of this Agreement means that you have agreed to the terms and conditions for participating in PeachMart as a Seller; however, your participation is subject to our prior written approval, which may be withheld in our sole discretion. This Agreement will not be legally binding unless and until we provide written notice of acceptance to you as a participant in PeachMart. You agree to our making inquiries to verify your identity and to determine the good standing of you personally and your business. You agree that we may (i) obtain your credit report for our review of your application to participate in PeachMart, and (ii) that we may share or report your personal and credit information to third parties.
Agreement: This legal Agreement between you and us consists of this Seller Agreement plus our Privacy Policy, which is incorporated herein and accessible at http://peachtown.org/privacy-policy. By clicking on “I Accept” you indicate your agreement to be bound by this Agreement which includes the terms and conditions of our Privacy Policy which may be modified from time to time in accordance with its terms.
Modification of Agreement: We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible on this page and by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
Eligibility and Registration: We do not allow minors (persons under 18 years of age) to participate in the Platform. Additional eligibility requirements for participation in PeachMart are determined in our sole discretion. Registration is required for you to participate in PeachMart. You agree (i) to provide current, complete, and accurate information about you in your profile as prompted by our online registration form (“Registration Data”), and (ii) to maintain and update your Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide your Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate your participation in PeachMart. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
Limited License Grant to Seller: Restrictions. Subject to the terms and conditions hereof and only for the term hereof, we hereby grant to you a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, limited right and license (i) to participate as a Seller in PeachMart, and (ii) to display and offer your Products for sale to the public via PeachMart. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY POTENTIAL INCOME YOU MAY MAKE.
1. We may use tracking methodologies for tracking usage data on PeachMart and other related analytics, including without limitation, cookies, pixels, web beacons, and other tags. You are not authorized to alter, modify, obscure, or disable any of the tracking methodologies.
2. The terms of this Agreement are confidential, and you agree to not disclose the terms described herein to any party (other than your employees, parent companies, and shareholders on a need-to-know basis only after undertaking reasonable precautions to preserve the confidentiality of the information made available to such individuals). The terms contained herein are confidential between us and not known to the general public outside of this Agreement. Accordingly, any breach of this confidentiality provision by you shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to us for which there will be no adequate remedy at law. In the event of such breach, we will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
3. This Agreement does not establish you as our agent or representative for any other purpose other than those purposes expressly provided herein. You are not authorized to accept orders or to enter into contracts or to create any obligation in our name, or to transact any business on behalf of us.
4. The relationship of us and you shall be and shall at all times remain, that of independent contractors, and not that of employer and employee, franchisor and franchisee, joint venturers, or partners. No up-front payment of any fee or equivalent charge is required of you by us as a condition to enter into this Agreement.
5. We have the right in our sole discretion to terminate your account with us if your account has been inactive for at least 6 consecutive months while there was no use of your account for transactions.
Data, Licenses and Ownership:
1. “Customer Data” means all Personal Information and Usage Data defined in our Privacy Policy.
2. Regarding any Customer Data in your possession or in the possession of a third-party engaged by you, you shall ensure that (i) you and such third-party use and process the Customer Data in conformity with your posted privacy policy and all applicable laws, and (ii) that you and any such third implement and comply with reasonable security measures in using and archiving any Customer Data.
3. You shall immediately notify us if you become aware of or suspect any unauthorized access to or use of Customer Data in your possession, and you shall cooperate with us in the investigation of such breach and the mitigation of any damages. You will bear all associated expenses incurred by us to comply with applicable laws (including without limitation, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in your possession or control. Upon termination or expiration of this Agreement, you shall, as directed by us, destroy or return to us all the Customer Data in your possession and in the possession of any third-party; however, we will provide you with a record of your basic customer transaction information for up to the past year upon your request and in compliance with applicable law.
4. You grant to us a non-exclusive, worldwide, royalty free, fully-paid, perpetual, irrevocable, transferable and sub-licensable right and license to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) your business name, name, image, likeness, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved by you for use with PeachMart (collectively, “Seller IP”); and (ii) any third-party ‘s business name, name, image, likeness, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved by you for use with PeachMart (collectively, “Third-Party IP”), in all media or formats now known or hereafter developed. Our use of the Seller IP and Third-Party IP is within our sole discretion.
5. Upon request from you, we may share the Seller IP, Third-Party IP, and certain Customer Data with third parties at your direction and to the extent we are legally allowed to share it; provided, however, you agree that such use will be governed by your agreements with those third parties, and further that we are not responsible for the use of such data by such third parties. If we share such information with third parties at your request, you agree to indemnify, defend, protect and hold us and our affiliates harmless from and against any and all third-party damages, losses, claims and expenses, including but not limited to governmental penalties and reasonable attorneys’ fees, which may be asserted against or incurred by us or any affiliate arising out of or resulting from the sharing, use or ownership of such data.
6. You agree that you will not upload, submit or post any Seller IP, Third-Party IP or Customer Data to PeachMart unless you have the required authorization.
7. You acknowledge and agree that any information you transmit through PeachMart may be read or intercepted by others, even if such information is encrypted, and that we are neither responsible nor liable for any such interception, or for any resulting loss or damage.
8. You acknowledge that we may collect and analyze information related to our site’s visitors, customers, and your interaction with and the operation of PeachMart, including without limitation, the time spent using PeachMart, browser types and language, Internet Protocol addresses, device-specific information, including hardware model, operating system and version, unique device identifiers, mobile network information, information about the location of the device and the locations of customers in relation to you and the device, the device’s interaction and performance with Peachmart and customers, peripheral hardware. We may also identify other software running in connection with PeachMart for anti-fraud and malware-prevention purposes (collectively, the “Usage Data”). As between you and us, we own all right, title and interest in and to any and all Usage Data, and we reserve the right to use and share such Usage Data in accordance with our Privacy Policy.
9. PeachMart, its contents, Usage Data, Customer Data, and any Products or services provided or sold directly by us are our sole and exclusive property, and are protected by the copyright and other intellectual property laws (collectively, the “PeachTown IP”). To the extent such rights do not vest in us by virtue of this Agreement, you hereby irrevocably assign to us all right, title, and interest in and to PeachTown IP. Any unauthorized reproduction, modification, distribution, transmission, republication, display or performance of the PeachTown IP is strictly prohibited. You agree that nothing on or in PeachMart shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any copyrighted property displayed on or in the PeachTown IP without the prior written permission of the copyright owner.
10. No license is granted herein for use of our tradename or trademarks, whether registered or unregistered, including without limitation, any of our logos, trade dress graphics, page headers, or icons; however, during the term of this Agreement, you are authorized to use any materials provided by us such as banner advertisement links, button links, and/or a text links which may incorporate our tradename or trademarks, but only in the form provided by us, and only for purposes of indicating us as the source of origin. All other trademarks and other indicia or origin that may appear on PeachMart (i) are owned by third parties and not owned by us, (ii) are the property of their respective third-party owners, and (iii) are subject to the ownership and use rights of their respective third-party owners. No rights are granted by implication, estoppel or otherwise for you to use any trademarks or indicia of origin of any third parties.
11. We reserve all rights not expressly granted to you in the limited license granted to you by this Agreement.
Payment Processing: All Sales of your Products shall be between you as Seller and the purchaser of your Products. You hereby agree that payment processing for all Sales will be by PayPal, or any other transaction processor designated by us from time to time.
Product Display, Shipment, Subscription Fees, Remittance Amount, Refunds and Taxes:
1. We will display your Products and promotional messages on PeachMart in accordance with our published policies. You agree to provide us with an accurate description of each Product including: item description, item condition, item photos, correct name of item, whether bottle is unopened or if opened the amount in the item bottle.
2. You agree to ship sold Product items to the purchaser within five (5) calendar days of the date of the applicable purchase transaction via PeachMart.
3. For each completed Sale of your Product transacted through PeachMart, we will reserve the gross sales proceeds until: (i) all payments for the Product have been processed by PeachMart and paid in full, and (ii) any Product return period stipulated in your Return Policy has expired, at which time we will retain the Selling Fee and pay the Remittance Amount to you in accordance with our then-current monthly payment schedule.
4. For Product returns requested by the end-user customer within the Product return period stipulated in your Return Policy, upon receipt of written notice from you of satisfactory receipt of the returned item, we shall refund promptly all sales proceeds to the end-user customer, less any applicable restocking fee stipulated in your Return Policy which we will promptly remit to you in accordance with our then-current monthly payment schedule.
5. You are solely responsible for satisfactory receipt of all Product returns.
6. You are solely responsible for all taxes levied on Sales transactions, including without limitation all applicable sales taxes. You shall register for sales and use tax collection purposes with all applicable governmental agencies. You are solely responsible for ensuring that all taxes and related charges incident to any sale of your Products are paid timely and in full. We assume no responsibility for any taxes and related charges.
Your Promotions and Restrictions:
1. All ad copy, artwork, and branding for your promotions on PeachMart are subject to our prior review and approval, which will not be unreasonably withheld or delayed. Our right of prior approval shall not be construed to assume any responsibility for your compliance with all applicable laws, which is your sole responsibility.
2. The following are not authorized for your promotions via PeachMart: (i) tool bars, banner networks, news groups, chat rooms, forums, message boards, adware, pop-up/pop-under technologies, plug-ins, spyware, adware, and (ii) devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods.
3. You are not authorized to use advertisements or marketing materials that feature or utilize pornography, racially or ethnically discriminatory, political issues, software pirating or hacking, hate-mongering, gambling, pyramid schemes, multi-level (MLM), franchise, or business opportunities as regulated by the FTC Biz Op Rule, or otherwise use objectionable or illegal content.
4. You acknowledge that you are solely responsible for your costs and expenses associated with your promotion of Products through PeachMart, including without limitation costs associated with advertising, mailing, marketing materials, and your website operations. Your financial responsibility applies regardless of whether your promotions result in sales or not.
5. We do not provide legal advice or review your promotions for legal compliance, or for any purpose. You are solely responsible for the content of your promotions. You agree that you will not promote Products with any illegal material or means, including without limitation, infringement of another’s intellectual property rights such as copyrights, trade secrets, trademarks, trade dress, rights of publicity and privacy, moral rights, and rights of attribution. You agree that you will not engage in promotions that are defamatory regarding other persons, Products, or services.
6. We strongly recommend that you seek legal counsel to advise you regarding your promotions via PeachMart. You agree that your promotions will incorporate Truth in Advertising Principles, and will not incorporate any marketing or advertising methods or claims that are false, misleading, or otherwise in violation of any applicable law or regulation, including without limitation, the Federal Trade Commission Act and regulations promulgated and enforced by the Federal Trade Commission (“FTC”), the Federal Communications Commission (“FCC”), consumer protection laws of any State in the United States, or any other regulatory body whether federal or state. In addition, you agree you will not participate in promotions that do not comply with the CAN-SPAM Act, the Telephone Consumer Protection Act (“TCPA”) and any applicable state laws regarding anti-spam, text messages and/or Do-Not-Call Registries.
7. You agree that you will not suggest that you are representing us or this website in any way, or that you are endorsed by us or this website.
8. You are authorized to use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized to purchase or register, any keywords, search terms or other identifiers that include any principal words in our or any Seller’s tradename, domain name, or any of our trademarks or logos, or any variation thereof (“Proprietary Terms”) for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service.
Our Monitoring Rights: No Right to Control. You agree that we may monitor your marketing methods, procedures, and communications. Our rights to monitor do not imply, and should not be construed to grant, rights for us to control your marketing and promotional activities. We have no right or authority to control, nor will we exercise any purported right to control, your marketing and promotional activities.
Consent to Release of Information: You agree that we may provide information about you and your relationship with us (i) to any governmental or regulatory agency that is investigating your marketing methods, procedures, or communications, and (ii) to any private person or organization which we believe may have a good faith claim based on your marketing promotions, methods, procedures, or communications.
Defamation: Communications Decency Act Notice. This site is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
Seller Representations and Warranties, and Indemnification:
1. You represent and warrant throughout the term of this Agreement that: (i) you have the right, power and authority to enter into this Agreement; (ii) you have legal title to all product items listed by you on PeachMart; (iii) all Product items you list on PeachMart are authentic and are accurately by you; (iv) you have not altered the label or contents of any Product item bottle for any product you list on PeachMart; (v) you are registered for sales and use tax collection purposes in all states in which your Products will be provided; (vi) your marketing and sale of Products via PeachMart comply with all, and will not violate any, local, state or federal law, statute, rule, regulation, or order (“Laws”); (vii) you own all right, title and interest in the Seller IP and have the right to grant the licenses in the Seller IP and Third-Party IP; (viii) your advertising or promotion of your Products will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws; and (ix) the Seller IP and Third-Party IP do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third-party or any laws.
2. You agree to defend, indemnify and hold PeachTown, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including without limitation attorney’s fees and costs) arising out of or relating to any of the following: (i) any breach or alleged breach by you of this Agreement or the representations and warranties stated above; (ii) any claim for state sales or use tax obligations (“Taxes”) arising from the sale of your Products; (iii) any claim arising out of a violation of law and/or regulation; (iv) any claim regarding infringement of intellectual property rights, including without limitation infringement claims arising out of the Seller IP and Third-Party IP; or (v) any claim arising out of or relating to your Products, including without limitation, any claims for false advertising, Product defects, personal injury, death, or property damages. Without limiting the foregoing, you shall pay any monies owed to any party, as well as all attorney’s fees, related to any action against, or determinations against, us related to any action to pursue us for unpaid taxes.
3. Upon receipt of notice a claim or action for which we are entitled to indemnification, we will (i) promptly notify you in writing of the claim or action against which indemnification is sought under this Section; and (ii) provide you the opportunity to assume the entire defense and settlement of such claim or action at your cost and expense; provided, however, that we shall have the right to be represented separately by counsel of our own choosing at our own expense. No settlement may be consummated without our express written authorization, which shall not be unreasonably withheld or delayed.
4. This Section in no way limits our right to seek any other remedies available to us herein or under law to recover its costs and expenses for addressing such demands or claims.
Our Warranty Disclaimers: NEITHER PEACHTOWN NOR ANY OF ITS SUPPLIERS MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. PEACHTOWN PROVIDES PeachMart “AS-IS” AND WITH ALL FAULTS. PEACHTOWN AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THIS SITE, PeachMart AND/OR SERVICES PROVIDED BY THIS SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THIS SITE, PeachMart AND/OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT PEACHTOWN HAS NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THIS SITE, PeachMart AND ITS SERVICES. WE MAKE NO WARRANTY THAT YOU WILL MAKE MONEY OR NOT LOSE ANY MONEY IN CONNECTION WITH YOUR PARTICIPATION IN PeachMart. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. PARTICIPATION IN PeachMart IS NOT AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Disclaimer of Incidental and Consequential Damages: EXCEPT FOR YOUR INDEMNITIES PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Liability Cap: In no event shall the aggregate liability of PeachTown and this site, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the lesser of: (i) total amount of Remittance paid to you during the thirty (30) day period preceding the claim, or (ii) $50.
Disclosure of Personal Information: You agree to hold any personal information that we may disclose regarding a referred transaction in strictest confidence and to use such information only for purposes of monitoring that specific transaction.
Email and Telephone/Text Messages: You hereby consent to our sending to you periodic emails and pre-recorded phone messages and/or text messages to your designated phone number regarding PeachMart and the operation of this site.
Term and Termination:
1. The term of this Agreement will begin upon our issuance of written notice of acceptance to you as a participant in PeachMart in accordance with Section 2 above, and shall continue until terminated. Either you or we may terminate this Agreement at any time for convenience, with or without cause, by giving the non-terminating party thirty (30) days prior written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with PeachMart.
2. Notwithstanding anything to the contrary contained herein, if we terminate this Agreement due to our determination that (i) you have violated the material terms of this Agreement, or that (ii) your marketing practices appear to us to be in violation of FTC regulations, or any other law or regulation of any regulatory authority, you agree to forfeit any Remittance Amounts you may have earned under this Agreement.
Notices: We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: PeachTown, 133 Baxter Rd, Ruston, LA 71270, in either case, addressed to the attention of “Managing Member”. Notices will not be effective unless sent in accordance with the above requirements.
Force Majeure: We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
Arbitration: By agreeing to arbitration, you understand and agree that you are waiving your rights to maintain other resolution processes, such as a court action or administrative proceeding, to settle your disputes. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Atlanta, Georgia and may be conducted by telephone or online. The arbitrator shall apply the laws of Georgia to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
Jurisdiction and Venue: Applicable Law. The parties submit to the exclusive jurisdiction and venue of the state courts located in Fulton County, Georgia and the U. S. District Court for the Northern District of Georgia for all legal proceedings that are not arbitrated under this Agreement. The laws of Georgia shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
Continuing Obligations: The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the confidential information and other intellectual property, and (v) the payment of taxes, duties, or any money hereunder.
Miscellaneous: This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.