Terms of Service
(Last Updated and Effective: August 7, 2023)
Expedite Systems, LLC (doing business as InStockNotify)
, a Wisconsin Limited
Liability Corporation (“InStockNotify”),
provides white-label inventory stock notification platform for retail brands
aimed at notifying consumers when a desired product is available for purchase (the
“InStockNotify Platform”). The
following terms and conditions govern all use of the InStockNotify
services, which comprise the InStockNotify Platform,
the InStockNotify website, and any software
applications developed and offered by InStockNotify
e.g., any implementation, integration, consulting, custom development, or
similar services (“Professional Services”) (collectively referred to as
the “Services”). By subscribing or using the Services, you (“you”
or “Client”) agree to be bound by these Terms of Service and InStockNotify’s
(together, the “Agreement“). If you do not agree to this Agreement,
then you may not access the InStockNotify website or
use the Services.
The following terms used in this Agreement have the meanings set forth below:
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“Apps” means the software
applications developed and offered by
InStockNotify
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“Client Customer” means an
individual or entity who interacts with Client’s online retail presence
which is supported in part by the InStockNotify
Platform.
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“Client’s Marks” means all
trademarks, service marks, trade names, brands, logos, designs
and similar identifiers used by Client to identify its goods and/or
services.
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“Client Material” means
Client’s Marks and content, designs, specifications, instructions,
software, services, data, information, Customer Data or materials provided
by Client to InStockNotify
or which Client integrates with or uses in connection with the Platform
Services or any InStockNotify Material.
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“Customer Data” means all
electronic data or information pertaining to Client Customers that result
from Client’s use of the Platform Services, including Client Customers’
Non-Public Personal Information and Non-Personally Identifiable
Information.
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“
Non-Public Personal
Information
” means personally identifiable information, including
without limitation, an individual’s name, email address, telephone number,
financial account numbers, and unique identifiers associating a device
with a Client Customer.
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“
Non-Personally Identifiable
Information
” means information which, on a standalone basis, cannot
identify the Client or Client Customer. Non-Personal Information includes
usage information such as Client’s or Client Customer web page visits, IP
addresses, log files, unique device identifiers, operating system type,
browser type, GPS data and any links clicked on to interact with our
Services, and other usage information collected from cookies and other
tracking technologies.
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“Platform Services” means InStockNotify’s proprietary software, code,
algorithms, and other tools comprising the InStockNotify
Platform and ordered by Client pursuant to a Subscription Order.
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“Professional Services” means
the implementation, integration, consulting, custom development, or
similar services described in a Subscription Order.
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“Services” means the Apps,
Platform Services, and Professional Services, and services offered by InStockNotify.
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“Subscription Order” means
the physical, electronic or online InStockNotify order form, as applicable, which is
accepted by InStockNotify and further describes
the Services purchased by Client. Each Subscription Order entered into hereunder shall be governed by the terms
hereof. In the event of a conflict or inconsistency between a term in a
Subscription Order and this Agreement, the terms set forth in the
Subscription Order shall control.
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“Subscription Term” means
the subscription period for Platform Services and/or Professional Services
set forth in an applicable Subscription Order.
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“InStockNotify
Marks
” means all trademarks, service marks, trade names, brands,
logos, designs and similar identifiers used by InStockNotify to identify its goods and/or services.
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“InStockNotify
Material
” means all InStockNotify Marks and all content, designs, specifications,
instructions, software, code, services, data, information or materials
provided by InStockNotify to Client.
Provision of the Services .
InStockNotify shall make the
Services available to Client pursuant to this Agreement and any applicable
Subscription Order during the Subscription Term. If Client subscribes to use a
specific App, such App will be available for Client’s use during the
Subscription Term.
Grant of Limited License
. InStockNotify hereby grants to
Client a limited, non-exclusive, and non-transferable license to use the
Platform Services and Apps under Client’s Marks during the Subscription Term
solely for Client’s internal use and not, by implication or otherwise, to any
parent, subsidiary or affiliate of Client. An
individual or entity visiting the InStockNotify
website who does not agree to a Subscription Order hereby receives a revocable,
limited right to access the InStockNotify website solely
as necessary to review InStockNotify’s publicly
available materials about its products and services (terms herein which by
their nature apply to Clients who agree to a Subscription Order (e.g., right to
use the Apps) shall not apply to individuals or entities who do not agree to a
Subscription Order). The licenses and rights granted herein do not
transfer any ownership in the Platform Services, the Apps, the InStockNotify website or any part thereof. Except as
expressly provided herein, this Agreement grants no express or implied license,
right or other interest in or to any of InStockNotify’s
intellectual property rights and InStockNotify
reserves all rights, title and interest in and to the
Services, including all intellectual property rights.
Trademarks
. Client shall have
exclusive ownership of, and all rights in and to, Client’s Marks, and any other
Client Material provided to InStockNotify in
connection with Client’s limited license to use the Platform Services and Apps
under Client’s Marks. Notwithstanding the foregoing, Client hereby grants InStockNotify a worldwide, limited, perpetual,
non-exclusive, non-transferable license to use Client’s Marks solely in
connection with the provision of the Platform Services and the Apps. InStockNotify shall have exclusive ownership of, and all
rights in and to, all InStockNotify Marks. Nothing
herein shall be construed as granting to Client any rights in or to, or the
right to use, the InStockNotify Marks. Any use of the
InStockNotify Marks by Client requires the prior
written consent of InStockNotify.
Restrictions
. Except as expressly
stated herein, Client may not: (a) modify, adapt, translate, copy
or create derivative works based on the Services; (b) reverse engineer the
Services or any part thereof; or (c) access the Services for the purpose of (i) developing a competitive product or service, or (ii)
copying any ideas, features, functions or graphics of the Services.
Feedback and Feature Requests
. InStockNotify shall retain all
right, title and interest in the Service and the technology and software used
to provide it, including any modifications or enhancements to the Service
arising from Client feedback. InStockNotify also
shall retain all right, title and interest in the Documentation. No rights are
granted to Client by InStockNotify except as
expressly stated in this Agreement.
Data and Confidentiality.
All information and data, regardless of form, generated in
the performance of or delivered under this Agreement or otherwise related to
the Services as well as any information provided to InStockNotify
shall be and remain the sole property of InStockNotify.
Client shall keep all such information and data in confidence and not disclose
or use it for any purpose other than in performing this Agreement except with InStockNotify's prior written approval.
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Confidential Information. During the term of this Agreement
and for a period of three years after it expires or terminates, each party will
maintain in strict confidence all technical and other data, purchase
quantities, and terms covered in this Agreement and disclosed by the other
party (“Confidential Information”) that (i) are
marked "confidential", "restricted", or
"proprietary", or (ii) due to its character and nature a reasonable
person under like circumstances would treat as confidential. Neither party will use or reveal Confidential
Information without the prior written authorization of the other party.
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Exceptions. This
restriction will not apply to information (i) that is
or becomes part of the public domain other than by means of a breach of this
Agreement; (ii) that a party can prove by written documentation, was known to
it before the disclosure by the other party; (iii) that a party subsequently
rightfully receives from a third party not in violation of any trust or duty;
or (iv) that was independently developed by the non-disclosing party.
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Each Party retains ownership of all their pre-existing
intellectual property as well as intellectual property rights that were
developed outside of this Agreement. Any custom development by InStockNotify and specifically listed as a deliverable
under this Agreement or in Subscription Order under this Agreement, or
developed in compliance with Client specifications or requests, shall be solely
owned by, and title shall vest in or be assigned to InStockNotify.
Customer Data
.
Subject to the exceptions in the , we will use Customer Data to
provide the Services as permitted by this Agreement. Through provision of the
Services, InStockNotify may collect Customer Data. As
between Client and InStockNotify, Client exclusively
owns all rights, title and interest in and to all
Customer Data. Client, however, grants InStockNotify
a royalty-free, perpetual, irrevocable, non-exclusive license to access and
analyze Customer Data in order to provide or improve
the provision of the Services, validate and compute fees for any Services, and
to generate analytics on customer behavior. InStockNotify
may use Customer Data internally to associate a Client Customer with their
devices and share the associations and related data among the InStockNotify Services to enhance interoperability.
Moreover, InStockNotify may aggregate Non-Personally
Identifiable Information to use for any purpose, including selling the
aggregated information to third parties. We will not share Non-Public Personal
Information (information that identifies individual customers), except as
allowed by the and to provide improved identity capabilities for
InStockNotify Clients that consume the InStockNotify Services.
Improvements
. InStockNotify
shall own all rights, title and interest, including
but not limited to, all intellectual property rights, in and to all
improvements to the Services and any new programs, upgrades, modifications or
enhancements developed by InStockNotify in connection
with providing the Services to Client, even where such refinements and
improvements result from a request by or feedback from Client. To the extent,
if any, that ownership in such refinements and improvements does not
automatically vest in InStockNotify by virtue of this
Agreement or otherwise, Client hereby assigns to InStockNotify
all rights, title, and interest which Client may have in and to such
refinements and improvements.
Modifications to Platform Services or Apps
. Client acknowledges that InStockNotify may add, delete, change, suspend or terminate
features, functionality or other aspects of the Services or the Apps at any
time and for any reason, and that InStockNotify is
under no obligation to upgrade or update the Platform Services or the Apps or
ensure compatibility or continuity between any version of the Platform Services
or the Apps and any prior or subsequent versions thereof; provided however that
if InStockNotify makes a material change to the
Platform Services or Apps, a Client who executed a Subscription Order may
terminate the Subscription Order with written notice within seven (7) days of
the date of such material change.
TERMS OF USE.
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Client’s Responsibilities. Client is solely responsible
for: (a) the accuracy, quality, integrity, legality, reliability, and
appropriateness of all Client Material provided by Client to InStockNotify or which Client integrates with or uses in
connection with the Services; and (b) the creation, initiation and sending of
emails utilizing the Services, including but not limited to, content (other
than material provided by InStockNotify to Client),
recipients, and timing of such emails. Client shall prevent unauthorized access
to, or use of, the Services, and notify InStockNotify
promptly of any unauthorized access or use. Client shall comply with all
applicable local, state, federal and foreign laws in using the Services.
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Privacy. Client agrees:
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to publish, maintain and
abide by a privacy policy that: (i) is consistent
with Client’s use of the information Client collects from individuals using the
Services; (ii) allows InStockNotify to use Customer
Data as outlined in this Agreement; (iii) complies with applicable law and
applicable self-regulatory principles, if any; and (iv) prominently and
adequately discloses Client’s collection, use, disclosure, storage, and
aggregation of any information Client collects from individuals using the
Services, including with respect to Non-Public Personal Information, collected
via cookies, locally-stored objects or other tracking technologies;
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that Client will not
(and will not allow any third party to) use the Platform Services or the Apps
to track or collect Non-Public Personal Information without properly informing
(e.g., through a privacy policy) individuals of Client’s data collection, use,
disclosure, storage, and aggregation practices (and only so long as such use
conforms with any of Client’s other obligations under this Agreement);
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that Client will not do
any act to render any of the above obligations and notices untrue and will not
include contradictory language in any privacy policy, that Client is
responsible for ensuring that no other statement in Client’s privacy policy
contradicts or nullifies any of the above statements, that Client will not rely
on InStockNotify’s opinion or direction as a
substitute for legal advice, and that Client will retain sole responsibility
for ensuring that its conduct and policies (including Client’s privacy policy)
are sufficiently protective of Client’s end users’ rights.
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User Guidelines. Client shall use the Services solely for
its internal business purposes as contemplated by this Agreement and shall not:
(a) license, sublicense, sell, resell, rent, lease, transfer, assign,
distribute or otherwise commercially exploit or make the Platform Services
available to any third party except as contemplated by this Agreement; (b) send
via or in connection with the use of the Services infringing, obscene,
threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious
material, including material that is harmful to children or violates
third-party privacy rights; (c) send via or in connection with the use of the
Services any unsolicited commercial or non-commercial communication; (d) send
via, upload to, or store within the Services any viruses, worms, time bombs,
Trojan horses and other harmful or malicious code, files, scripts, agents or
programs; (e) interfere with or disrupt the integrity or performance of the
Services or the information contained therein; or (f) attempt to gain
unauthorized access to the Services or its related systems or networks.
FEES AND PAYMENT.
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Services Fees. All Services are available according to
pricing published on the InStockNotify Site or as set
forth in an applicable Subscription Order. Pricing is subject to change from
time to time on a prospective basis at InStockNotify’s
sole discretion; provided however that you may terminate a Subscription Order
within fourteen (14) days of receiving a price adjustment notice, and your
failure to terminate this Agreement on or before the expiration of such
termination period shall constitute your acceptance of the new pricing terms.
Client agrees to pay all fees due with respect to Client’s use of the Services.
Fees are payable in U.S. dollars. Except as otherwise specified in an
applicable Subscription Order, fees are based on the Services purchased and not
actual usage.
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Customer may upgrade Platform
Services at any time, and will be billed at the upgraded
price immediately.
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Downgrading or decreasing
Platform Services during the Subscription Term will not be refunded on a pro-rata
basis. Fees will adjust to the downgraded
Subscription pricing at the next billing term.
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Payment. Payment of all fees must be made in advance by a
valid credit card accepted by InStockNotify. By
approving a Subscription Order for the Platform Services, you authorize InStockNotify to charge your credit card monthly, in
advance, for the fees set forth in the Subscription Order. If InStockNotify is for any reason unable to effect automatic
payment via your credit card, you will be notified by email and access to the
Platform Services will be disabled until payment is received. Late payments
shall accrue interest of 1.5% per month, or the maximum rate allowable by law,
whichever is less.
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Taxes. Unless otherwise stated, fees do not include any
direct or indirect local, state, or federal taxes, levies, duties
or similar governmental assessments of any nature, including value-added, use
or withholding taxes (collectively, “Taxes”). Client is responsible for paying
all Taxes associated with its purchases hereunder, excluding taxes based on InStockNotify’s net income or property. If InStockNotify has the legal obligation to collect or pay
Taxes for which Client is responsible under this Agreement, the appropriate
amount shall be paid by Client.
EU PERSONAL DATA TRANSFERS.
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InStockNotify processes Customer Data in the
United States, and accordingly, Client represents and warrants that the
transfer of Customer Data as contemplated by this Agreement complies with
all applicable laws, including but not limited to the General Data
Protection Regulation (“GDPR”) (EU) 2016/679. To the extent Client submits
Customer Data which constitutes “personal data” of individuals subject to
the privacy laws of the European Economic Area or Switzerland
(collectively “EU Personal Data”), Client acknowledges that in all cases InStockNotify acts as the processor of EU Personal
Data and Client remains the controller of EU Personal Data.
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This Agreement incorporates by
reference the required contractual provisions from GDPR Article 28 between
controllers (i.e. Client) and processors (i.e. InStockNotify).
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This Agreement incorporates by reference the Information Commissioner's Office's (ICO) International Data Transfer Addendum to the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS.
Mutual Representations and Warranties. Each party represents and warrants that:
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it has the right and authority to enter into this Agreement;
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by entering into this Agreement it will not violate, conflict with or cause a material default under any other agreements;
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at all times during the term of
this Agreement, it shall comply with all applicable laws, rules and regulations, including without limitation,
Section 5 of the Federal Trade Commission Act and other statutes and
regulations prohibiting unfair or deceptive marketing practices, the
CAN-SPAM Act, and other consumer protection and privacy laws, regulations,
and guidelines; and
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to its knowledge, no part of any
materials provided by it to the other party infringes upon any third-party
copyright, patent, trademark, trade secret or other proprietary or
intellectual property rights.
CLIENT REPRESENTATIONS AND WARRANTIES.
Client represents and warrants that:
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Client has exclusive ownership
of, and all rights in and to, all Client’s Marks, and all other Client
Material provided to InStockNotify
or which Client integrates with or uses in connection with the Services or
any InStockNotify Material;
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Client has the exclusive
ownership of, and all rights in and to, or the right to license and
provide the Client Material to InStockNotify,
and that the use, copying, modification, aggregation, integration and
publication of the Client Material by InStockNotify
in connection with its provision of the Services: (i)
will not infringe, violate or misappropriate any third-party copyright,
patent, trade secret, or other proprietary rights; (ii) will not infringe
any rights of publicity or privacy; (iii) will not be defamatory or
obscene or otherwise violate any law;
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Client will enter into binding
and enforceable agreements with each end user of the Platform Services and
Apps provided under this Agreement and any applicable Subscription Order,
that govern their use of the Platform Services and Apps, including terms
of service and privacy policies that provide prominent and clear notices
to and requires consents from end users with respect to the collection,
use, storage, aggregation or other processing of Client’s Customer Data,
including Non-Public Personal Information, and including any transfer of
such Customer Data and Non-Public Personal Information to InStockNotify in connection with the provision of the
Services; and
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Client will, at its own expense,
comply with all applicable laws, rules and
regulations, including without limitation all privacy and data protection
laws, in connection with Client’s use of the Services and information
derived therefrom (including but not limited to Customer Data) and the
performance of Client’s obligations under this Agreement.
Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS THE SERVICES AND
INSTOCKNOTIFY MATERIAL PROVIDED BY INSTOCKNOTIFY IN CONNECTION WITH THIS
AGREEMENT ARE PROVIDED SOLELY ON AN AS-IS BASIS, WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
WARRANTY ARISING OUT OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE,
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND NON-INFRINGEMENT. INSTOCKNOTIFY DOES
NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR ACHIEVE THE
RESULTS DESIRED BY CLIENT OR THAT ANY CODE, FIXES, PATCHES, REVISIONS, UPDATES
OR MODULES, IF ANY PROVIDED BY INSTOCKNOTIFY IN CONNECTION WITH THIS AGREEMENT
OR THE SERVICES, WILL BE BUG-FREE OR ERROR-FREE OR THAT ANY CORRECTIONS OR
FIXES WILL BE EFFECTIVE.
Indemnification by Client.
Client agrees to defend, indemnify and hold InStockNotify and its officers, directors, employees, and
agents (each a “InStockNotify Indemnitee”) harmless
from and against any claims, demands, lawsuits, actions, proceedings or
investigations made by any third party (“Claim”) from and against any fees,
costs, sanctions, penalties, damages, losses or expenses (including reasonable
attorneys’ fees) due to or arising out of: (a) Client’s use or misuse of the
Services; (b) allegations that Client Material and/or any other information or
material provided to InStockNotify by Client in
connection with the provision of the Services, infringe the intellectual
property rights or other rights of a third party; (c) InStockNotify’s
use, in connection with its provision of the Services as provided herein, of
any Customer Data provided by Client which has harmed a third party; (d)
Client’s violations of applicable laws, rules or regulations in connection with
its use of the Services, including without limitation, privacy laws; and (e)
Client’s breach of the representations, warranties and covenants made by Client
herein.
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Procedure. InStockNotify
agrees to use reasonable efforts to promptly notify Client in writing of a
Claim for which indemnification is sought and to provide Client with all
non-monetary assistance, information and authority
reasonably necessary for the defense and settlement of such Claim. InStockNotify reserves the right, at Client’s expense,
to assume the exclusive defense and control of any Claim for which Client
is required to indemnify any InStockNotify
Indemnitee and Client agrees to cooperate with the InStockNotify
Indemnitee in the defense of the Claim. Client shall obtain InStockNotify’s prior written consent to any
settlement of a Claim, said consent not to be unreasonably withheld, conditioned or delayed.
LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO
EVENT SHALL A PARTY’S (INCLUDING THE PARTY’S OFFICERS, DIRECTORS, EMPLOYEES AND
AFFILIATES) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED, IN
THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT TO INSTOCKNOTIFY FOR
THE SERVICES LESS ANY REFUNDS OR CREDITS RECEIVED BY CLIENT; HOWEVER, SUCH
LIMITATION SHALL NOT RELIEVE CLIENT FROM HIS PAYMENT OBLIGATIONS FOR ANY
OUTSTANDING AND DUE INVOICES FOR SERVICES RENDERED. IN NO EVENT SHALL A PARTY
(INCLUDING THE PARTY’S OFFICERS, DIRECTORS, EMPLOYEES AND AFFILIATES) HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE
HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS AND
EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES’ AGREEMENT AS TO THE
ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH THEIR OBLIGATIONS
UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER LEGAL
RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. NO CLAIM MAY BE BROUGHT BY
CLIENT UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
TERM AND TERMINATION.
Agreement Term. This Agreement commences upon Client’s
first access to or use of the Services and continues until terminated as set forth
in this Section 9 (the “Term”).
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Subscription Term. A subscription
to the Services commences on the date on which InStockNotify
makes the InStockNotify Platform available to
Client upon payment of the applicable monthly subscription fee. Unless
otherwise set forth in a Subscription Order, subscriptions shall
automatically renew for additional periods of one month for the fees set
forth in the applicable Subscription Order unless either party gives the
other notice of non-renewal at least ten (10) days prior to the end of the
relevant Subscription Term. Closing
your account on an e-commerce platform such as BigCommerce
or Shopify does not constitute notice of cancellation and billing will
continue until InStockNotify receives notice via
one of the following methods:
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Uninstall the Platform Services,
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Close account functionality on the billing page within the Platform,
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Email of
your intent to cancel.
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Termination for Convenience.
Either party may terminate this Agreement without cause upon fourteen (14)
days written notice to the other party.
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Termination for Cause. A party
may terminate this Agreement: (a) upon seven (7) days written notice of a
material breach to the other party if such breach remains uncured at the
expiration of such period; or (b) immediately if the other party becomes
the subject of a petition in bankruptcy or any other proceeding relating
to insolvency, receivership, liquidation or
assignment for the benefit of creditors. Upon any termination for cause by
InStockNotify, Client shall remain obligated to
pay all fees owed, which fees shall become immediately due and payable in
full.
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Effect of Termination. Upon
termination or expiration of this Agreement all licenses granted herein
shall be immediately revoked and terminated. Client has 90 days from the date
of termination to download their data from the Service, after which time
all data will be permanently deleted.
The rights and obligations of the parties set forth in the Data and
Confidentiality and Representations, Warranties and Disclaimers, and Feedback
and Feature Requests Sections shall survive termination or expiration of
the Agreement, and you shall immediately remit all outstanding amounts due
under this Agreement which accrued prior to the termination of this
Agreement. THE TERMINATION PROVISIONS IN THIS SECTION STATE CLIENT’S SOLE
RIGHTS AND EXCLUSIVE REMEDY FOR INSTOCKNOTIFY’S FAILURE TO DEVELOP,
OPERATE, OR PROVIDE THE PLATFORM SERVICES.
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Relationship of the Parties.
Nothing in this Agreement shall be construed to create a partnership,
joint venture, affiliate, employer-employee or
principal-agent relationship, but rather the relationship of the parties
shall be that of independent parties.
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No Third-Party Beneficiaries. The
parties agree that there are no third-party beneficiaries to this
Agreement.
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Waiver and Cumulative Remedies.
The failure to enforce any provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect a party’s
enforcement rights thereafter. Other than as expressly stated herein, the
remedies provided herein are in addition to, and not exclusive of, any
other remedies of a party at law or in equity.
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Force Majeure. Neither party
shall be deemed in default of this Agreement to the extent that
performance of its obligations or attempts to cure any breach are delayed
or prevented by reason of any act of God, fire, natural disaster,
accident, riots, acts of government, shortage of materials or supplies, epidemics,
pandemics, or any other cause beyond the reasonable control of such party.
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Attorneys’ Fees. If either party
hereto resorts to legal action for the redress of a breach of this
Agreement, the prevailing party shall be entitled to an award of costs and
reasonable attorneys’ fees.
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Changes to Agreement. InStockNotify may modify the terms of this Agreement
and may discontinue or change any aspects of the Services at its sole
discretion (on a prospective basis); provided, however, that InStockNotify provides adequate written or electronic
notice to you of any material changes (the posting of the Agreement on the
InStockNotify Site shall constitute effective
electronic notice). If Client executed a Subscription Order and does not
agree to such changes, Client may terminate the Subscription Order with
written notice within seven (7) days of such changes. You should review
the InStockNotify Site regularly. Changes will
not apply retroactively and will become effective upon those changes being
made live.
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Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties and their
successors and assigns; provided, however, that this Agreement shall not
be assigned by Client without InStockNotify’s
prior written consent. InStockNotify may assign
this Agreement in connection with a change of control, reorganization, or
sale of at least a majority of its assets or
outstanding voting securities.
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Severability. If any provision of
this Agreement shall be held invalid or unenforceable, the remaining
provisions shall not be affected thereby.
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Governing Law. This Agreement
shall be governed by the laws of the State of Wisconsin, without regard to
its choice-of-law principles. Any dispute arising out of or related to
this Agreement or the Services shall be subject
to the exclusive jurisdiction and venue of the Wisconsin state courts, and
the parties hereby agree to the personal and exclusive jurisdiction and
venue of these courts.
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Notices. All notices under this
Agreement shall be in writing and shall be deemed to have been given upon:
(a) personal delivery; (b) the second business day after mailing; (c) the
second business day after sending by confirmed facsimile; or (d) the
second business day after sending by email. Except as otherwise agreed,
all notices required or permitted to be provided to Client hereunder shall
be sent to the email address provided by Client to InStockNotify
in connection with the Subscription Order or through the InStockNotify Site. Except as otherwise agreed, all
notices required or permitted to be provided to InStockNotify
shall be sent to the following email address: support@instocknotify.com.
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Entire Agreement. This Agreement
constitutes the entire agreement between the parties and supersedes all
prior and contemporaneous agreements, whether written or oral, concerning
its subject matter. No modification, amendment, or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the
party against whom the modification, amendment or waiver is to be
asserted.