THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF ARTSMARTINC.COM SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. EITHER OF THESE AFFIRMATIVE ACTS CONSTITUTES YOUR ELECTRONIC SIGNATURE AND YOUR CONSENT TO ENTER THIS AGREEMENT. YOU AGREE IN SO DOING THAT WE MAY ELECTRONICALLY SEND YOU ANY PRIVACY NOTICES, DISCLOSURES OR ANY OTHER DOCUMENTS OR RECORDS REGARDING OUR SERVICES. YOU AGREE THAT ANY NOTICE IS EFFECTIVE WHEN WE SEND IT REGARDLESS WHEN YOU RECEIVE IT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are ARTSMARTINC.COM direct competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and ARTSMARTINC.COM as of the date of You accepting this Agreement.
Table of Contents
Definitions
Purchased Services
Use of the Services
Fees and Payment for Purchased Services
Proprietary Rights
Confidentiality
Warranties and Disclaimers
Indemnification
Limitation of Liability
Term and Termination
Who You Are Contracting With, Notices, Governing Law and Jurisdiction
General Provisions
DEFINITIONS
"Confidential Information" means all confidential information disclosed by a Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; ARTSMARTINC.COM Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
"Non-GA Services" means any ARTSMARTINC.COM products or services that are not generally available to ARTSMARTINC.COM customers. These services are clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.
"Order Form" means the documents for placing orders hereunder that are entered into between You and ARTSMARTINC.COM, including addenda and supplements.
"Purchased Services" means Services that You purchase under an Order Form and made available by ARTSMARTINC.COM online via the User login link at http://www.ArtSmartInc.com including associated offline components, as described in the User Guide. All Services are subject to the User Limitations in Section below.
The Services offered are:
Access to User Data
Access to User Guide
Backups
Data Storage
Technical Support
Upgrades to Services
"User Data" means all electronic data or information submitted by You to the Purchased Services.
"User Guide" means the online user guide for the Services, accessible via login at http://www.ArtSmartInc.com, as updated from time to time.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by ARTSMARTINC.COM at your request). Users may include but are not limited to your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" or “ARTSMARTINC.COM” means the ArtSmart Projects, Inc. company described in Who You Are Contracting With, Notices, Governing Law and Jurisdiction Section below.
"You" or "Your" means the person, company or other legal entity for which you are accepting this Agreement.
PURCHASED SERVICES
Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by ARTSMARTINC.COM regarding future functionality or features.
Your Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as your subscriptions and may be accessed by no more than the specified number of users, (ii) additional user subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional user subscriptions are added, and (iii) the added user subscriptions shall terminate on the same date as the pre- existing subscriptions. User subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the Services.
USE OF THE SERVICES
Our Responsibilities. We shall: (i) provide ARTSMARTINC.COM basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ARTSMARTINC.COM employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
ARTSMARTINC.COM Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Compelled Disclosure Section below or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.
Your Responsibilities. You shall (i) be responsible for users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services (as stated in the User Guide) and notify ARTSMARTINC.COM promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks. At your own expense you must provide internet access and compatible software and equipment to access and use ARTSMARTINC.COM Services.
Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide.
Legal Protection. ARTSMARTINC.COM Services are all protected by United States copyright, trademark and patent laws and other proprietary rights. We own all of the Services.
Licenses. Subject to the terms and provision of this Agreement, We hereby grant you a limited non-exclusive, non-transferable and revocable license to access and use the Services.
User Generated Content. You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that ARTSMARTINC.COM will have the right to block access to or remove such content made available by you, if ARTSMARTINC.COM receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by ARTSMARTINC.COM for this purpose.
Spamming and Illegal Activities. You agree to be solely responsible for the contents of your transmissions through the Services. You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity.
FEES AND PAYMENT FOR PURCHASED SERVICES
Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) the number of user subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for user subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
Invoicing and Payment. You will provide ARTSMARTINC.COM with valid and updated credit card or PayPal account information. If You provide credit card or PayPal account information to ARTSMARTINC.COM, You authorize ARTSMARTINC.COM to charge such credit card or PayPal account for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Term of Purchased User Subscriptions Section below. Such charges shall be made in advance, either monthly or annually or in accordance with any different billing frequency stated in the applicable Order Form. You are responsible for providing complete and accurate billing and contact information to ARTSMARTINC.COM and notifying ARTSMARTINC.COM of any changes to such information.
Suspension & Termination of Service. If your credit card or Pay Pal account expires, we will allow 3 subsequent logins during this delinquent period. After that the account will be frozen and access to Services will be denied until payment information is updated and payment is received in full. You will be notified via email and/or regular mail to the billing address provided that your account is in arrears in accordance with Manner of Giving Notice Section below, before suspending services to You. We may suspend your user account or temporarily disable access to whole or part of any Service in the event of any suspected illegal activity, extended periods of inactivity or requests by law enforcement or other government agencies. In addition, we reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Terms and to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service.
Inactive User Accounts Policy. We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 120 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and backup of your data by email.
Payment Disputes. You must notify ARTSMARTINC.COM with any billing dispute you have within 30 days of receipt of your bank or credit card statement. If you do not so notify within 30 days, you waive your claim and agree with the billing as charged.
Taxes. Unless otherwise stated, ARTSMARTINC.COM fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You.
PROPRIETARY RIGHTS
Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including users, relating to the operation of the Services.
CONFIDENTIALITY
Protection of Confidential Information. Personal information you provide to ARTSMARTINC.COM through the Service is governed by ARTSMARTINC.COM PRIVACY POLICY. Your election to use the Service indicates your acceptance of the terms of the ARTSMARTINC.COM PRIVACY POLICY. You are responsible for maintaining confidentiality of your username, password and other sensitive information. You are responsible for all activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account. We are not responsible for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES AND DISCLAIMERS
ARTSMARTINC.COM Warranties. We warrant that We have validly entered into this Agreement and have the legal power to do so.
Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. ARTSMARTINC.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ARTSMARTINC.COM MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM ARTSMARTINC.COM, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Non-GA Services. From time to time We may invite You to try, at no charge, ARTSMARTINC.COM “Non-GA Services". You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in ARTSMARTINC.COM sole discretion and may never make them generally available.
Beta Testing. We may offer certain Services as closed or open beta services for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that We will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
INDEMNIFICATION
Indemnification. You shall defend ARTSMARTINC.COM against any claim, demand, suit or proceeding made or brought against ARTSMARTINC.COM by a third party alleging that You, Your Data, or Your use or misuse of the Services, including claims of infringement or misappropriation of the intellectual property rights of a third party, or violations of applicable law and You shall indemnify ARTSMARTINC.COM for any damages, attorney fees and costs finally awarded against ARTSMARTINC.COM as a result of, or for any amounts paid by ARTSMARTINC.COM under a customer-approved settlement of, a Claim Against ARTSMARTINC.COM. You may not settle any Claim Against ARTSMARTINC.COM unless the settlement unconditionally releases ARTSMARTINC.COM of all liability.
Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
LIMITATION OF LIABILITY
Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $2,400 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You accept it and continues until all user subscriptions granted in accordance with this Agreement have expired or been terminated.
Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all user subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in ARTSMARTINC.COM systems or otherwise in ARTSMARTINC.COM possession or under ARTSMARTINC.COM control.
Surviving Provisions. Fees and Payment for Purchased Services, Proprietary Rights, Confidentiality, Disclaimer, Limitation of Liability, Return of Your Data, Who You Are Contracting With, Notices, Governing Law and Jurisdiction and General Provisions shall survive any termination or expiration of this Agreement.
WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
General.
Notices should be addressed to:
ArtSmart Projects, Inc.
c/o The Company Corporation
2711 Centerville Road, Suite 400
Wilmington, DE 19808
The governing law is:
California and controlling United States federal law.
The courts having exclusive jurisdiction are:
Los Angeles, California
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Arbitration. Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such 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 decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, ARTSMARTINC.COM may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
GENERAL PROVISIONS
Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of ARTSMARTINC.COM employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify ARTSMARTINC.COM.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. You shall pay on demand all of ARTSMARTINC.COM reasonable attorney fees and other costs incurred by ARTSMARTINC.COM to collect any fees or charges due ARTSMARTINC.COM under this Agreement following your breach of Section 4.2 (Invoicing and Payment).
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, 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 either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Amendments. You agree that We can amend or change this Agreement at any time at ARTSMARTINC.COM sole discretion. Should You disagree with the changes We have made, your only recourse is to cancel your Service and You must do so before any such changes or amendments take effect. Your continued use thereafter constitutes you agreement to the changes.