DLU SUBSCRIPTION AGREEMENT
DIESEL LAPTOPS UNIVERSITY - TERMS AND CONDITIONS
LAST UPDATED: August 2023
Please review these Terms and Conditions carefully as it applies to Subscriber’s subscription to and use of the services provided by the Company’s Diesel Laptops University including the Company’s DLU website located at https://www.diesellaptops.com and all subdomains thereof and any mobile applications offered as part of the DLU platform. Subscriber’s use of the DLU platform is governed by this Agreement regardless of how Subscriber’s Authorized Users access the DLU platform, including through the Internet, a mobile network, in-person, or otherwise.
1. Scope. These Terms and Conditions shall apply to all Subscription Agreements (each, a “Subscription Agreement,” and together with these Terms and Conditions, collectively, this “Agreement”) entered into by Diesel Laptops, LLC, a South Carolina limited liability company (the “Company”), and the applicable subscriber, as set forth on the Subscription Agreement (the “Subscriber”), for access to and the use of the Company’s proprietary platform Diesel Laptops University (“DLU”), an offering of various training services and content provided or made available by the Company from time to time as determined in the Company’s sole discretion. DLU has been created and developed by the Company for the Company’s customers in a variety of subject areas relating to . The training offered by DLU consists of a combination of online and in-person “classroom” instruction and information, which may include the provision of, or access to, certain of the Company’s proprietary programs, content, catalogs, digital products, applications, software, systems, communications, and services, as well as any and all online modules, posters, webinars, webcasts, videos, social media posts, tutorials, graphics, presentations, downloadable presentation materials, blogs, podcasts, content, assessments, sheets, messages, training materials, course outlines, manuals and other communications and training tools provided or made available by the Company as part of DLU (collectively, the “DLU Materials”). Subscriber represents that it has read, understood, and agrees to be bound by this Agreement in connection with its access to and use of DLU.
2. Access to and Use of DLU.
(a) Limited License. Subject to the terms and provisions of this Agreement, the Company hereby grants to Subscriber a non-exclusive, non-assignable, non-sublicensable and non-transferable limited right and license (“License”) to use and access DLU for the number of Authorized Users set forth in the Subscription Agreement and for its intended purposes during the Term (as defined herein), so long as Subscriber has met all payment and other obligations set forth in this Agreement.
(b) Online Training. The online training provided as part of the DLU will be made available through the Company’s website and/or mobile application, as determined by the Company in its discretion. Subscriber agrees that Subscriber is solely responsible for any and all computer, hardware, internet services, intranet services, or web-related services as it may require to use DLU. The quality (e.g., the resolution) of streaming content, as well as the download speed of downloadable content, may be affected by a variety of factors, such as the Authorized User’s location, the content being streamed or downloaded and the speed of the Authorized User’s Internet connection. The Company makes no representation or warranty regarding access to content available through or in connection with DLU, including the quality of streaming content and the download speed of downloadable content.
(c) In-Person Training. The in-person “classroom” training provided as part of the DLU will be hosted by the Company at one of the Company’s physical facilities. A schedule of the available training sessions will be published periodically on the Company’s website and/or mobile application, as determined by the Company in its discretion. An Authorized User must register in advance to secure his or her attendance for any in-person training session, on a first-come, first-serve basis. Such Authorized User shall be responsible, at the Subscriber’s sole cost and expense, for all transportation costs, lodging costs, and any other expenses incurred in connection with such Authorized User’s attendance at any in-person training session offered by the Company.
(d) Recordings. Subscribers acknowledges that, if one of its Authorized Users participates in a DLU program, either as an audience member or other attendee, and whether such Authorized User participates remotely or in person, such Authorized User may be photographed, filmed or recorded by the Company or its representatives (“Recordings”) in connection with such program, and Subscriber hereby agrees for itself and its Authorized User that the Company and its designees may use (i) such Recordings in accordance with the Company’s rights therein, and (ii) the Authorized User’s name, voice, image, likeness, personal characteristics, and professional biographical information in connection with such Recordings, including to incorporate the Recordings into, or use in connection with, print publications, electronic publications and databases, social media accounts, promotional materials, and/or any other media.
(e) Title to DLU Materials. All right, title, and interest in and to the DLU Materials are and shall remain the exclusive property of the Company.
3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months (the “Initial Term”). The Initial Term shall automatically renew for additional and successive periods of twelve (12) months each (each, a “Renewal Term”, and collectively, the “Renewal Terms”) commencing on the next day following the expiration of the Initial Term or of the immediately preceding Renewal Term, as applicable, unless either Party provides written notice to the other Party of its intention not to renew the Agreement at least sixty (60) days prior to the expiration of the Initial Term or of the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to herein as the “Term.”
4. Authorized Users.
(a) Subscriber Restrictions. Subscriber shall strictly limit access to and use of DLU to those users who are (i) designated by name to the Company by Subscriber as an Authorized User to access DLU, and (ii) employed by Subscriber (each, an “Authorized User”). Subscriber shall not allow the number of Authorized Users to be in excess of the Annual Limit as specified in the Subscription Agreement. Subscriber is solely responsible for each Authorized User’s compliance with this Agreement. Subscriber shall make every reasonable effort to prevent unauthorized third parties from accessing DLU. Any breach of this Agreement by an Authorized User shall be deemed a breach by Subscriber. The rights of any one Authorized User may not be shared by more than one individual. Subscriber shall not change the permitted number of Authorized Users without the prior written consent of the Company.
(b) Additional or Reassigned Authorized Users. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Upon request by Subscriber, and subject to the prior written approval of the Company in each instance, during the Term additional Authorized User(s) may be added at the then prevailing Authorized User rate as that for the pre-existing subscriptions, prorated for the remainder of the applicable Initial Term or Renewal Term in effect at the time the additional Authorized User subscription(s) are added. Added Authorized User subscriptions shall terminate on the same date as the pre-existing subscriptions at the end of the applicable Initial Term or Renewal Term. Upon request by Subscriber, and subject to the prior written approval of the Company in each instance, during the Term subscriptions may be reassigned to new Authorized Users replacing former Authorized Users who are on leave or no longer employed by Subscriber. Subscriber shall pay any processing fees charged by the Company in connection with adding any approved additional Authorized Users or reassigned Authorized Users.
(c) Usernames and Passwords. Subject to any user limitations set forth in this Agreement, Subscriber may register Authorized Users on DLU with e-mail addresses and passwords to enable Authorized Users to access DLU pursuant to this Agreement. Each e-mail address and password may only be used to access DLU during the Term. Subscriber will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. Subscriber is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts. Subscriber agrees to (i) not allow a third party to use Subscriber’s accounts at any time; and (ii) notify the Company promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. The Company reserves the right to terminate any accounts that the Company reasonably determines may have been used by an unauthorized third party. Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses DLU. Notwithstanding the foregoing, any reduction in the number of Authorized Users shall not reduce the total Fees paid or payable by Subscriber for the then current Term. Subscriber shall be solely responsible for all access to and use of DLU by its Authorized Users and all access to and use of DLU through any Authorized User’s account.
(d) Restrictions on DLU Use. Except as otherwise provided herein, Subscriber and all Authorized Users will not: (i) copy, reproduce, disclose or publicly display any DLU Materials; (ii) directly or indirectly license, distribute, resell, rent, lease, subcontract, sublicense, operate as a service bureau, or otherwise make available to any third party, any DLU Materials; (iii) decompile, disassemble, reverse engineer or create derivative works of any DLU Materials; (iv) develop a competitive product or service using similar ideas, features, functions, or graphics as any DLU Materials; (v) disclose any passwords or other security or authentication device with respect to DLU to any natural person or entity other than to an Authorized User; (vi) use DLU in a manner than is not contemplated in any documentation provided by the Company or that constitutes a violation of any applicable law, rule or regulation; (vii) contract with an outside individual contractor or organization to deliver security related services which utilize any DLU Materials or any DLU methodologies; or (viii) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on any DLU Materials. Subscriber shall not (a) make DLU (or the DLU Materials) in any way available or accessible to anyone other than Authorized Users, (b) use DLU (or the DLU Materials) to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use DLU (or the DLU Materials) to store or transmit malicious code or malware, (d) interfere with or disrupt the integrity or performance of DLU or any of the DLU training sessions (whether in-person or remote) or any third-party data contained therein, or (e) attempt to gain unauthorized access to DLU or its related systems or networks.
5. Fees.
(a) Annual Fees. For the Initial Term, Subscriber shall pay to the Company the annual fees set forth in the Subscription Agreement (the “Fees”). As set forth in the Subscription Agreement, Subscriber shall pay the Fees either (i) in full upfront by a lump-sum payment upon the Effective Date, or (ii) in equal monthly installments at the beginning of each month during the Initial Term. The Fees for any Renewal Terms shall be due and payable either (i) in full upfront by a lump-sum payment upon the applicable anniversary of the Effective Date at the start of such Renewal Term, or (ii) in equal monthly installments at the beginning of each month during such Renewal Term. The Company reserves the right to raise or change its DLU subscription pricing in any manner and at any time as it may determine in its sole discretion, provided that any price changes to the Fees will not take effect until the commencement of a subsequent Renewal Term. With respect to any proposed increase in annual Fees over 5.00% from the current year, the Company shall provide Subscriber with written notice of such price change at least [ninety (90)] days prior to the expiration of the then current Term. All Fees shall be paid to the Company without any offset, deduction, or counterclaim.
(b) Payment Terms. The Company may accept and process payment of Fees by either credit card (i.e., Visa, Mastercard, or any other issuer acceptable to the Company), wire transfer, or ACH payment, as determined by the Company. Subscriber acknowledges and agrees to allow the Company to process payment (including renewals) of Fees periodically due from Subscriber based on any credit card information the Company is provided by Subscriber. By providing the Company with credit card information, Subscriber agrees that the Company is authorized to invoice and charge Subscriber’s credit card for all Fees and charges due and payable to the Company in accordance with this Agreement until the earlier termination or expiration of the Term and that no additional notice to or consent from Subscriber is required. Subscriber shall be responsible for all related credit card charges or fees. Subscriber agrees that the Company may request that Subscriber’s credit card payment issuer pre-authorize and hold an amount equal to the next recurring Fees for DLU in advance of the due date for such payment. If Subscriber’s credit card issuer rejects any amount charged on Subscriber’s credit card, then the Company will notify Subscriber thereof and Subscriber will timely pay the fees and expenses by wire transfer. If any Subscriber payment is more than 30 days past due, interest at a rate of 12% per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue. Subscriber is responsible for paying for all Fees, whether or not applicable licenses/subscriptions are actively used by Subscriber’s Authorized Users (and regardless of whether Subscriber reduces its number of Authorized Users). Subscriber agrees to provide the Company with complete and accurate billing and contact information. Subscriber agrees to provide written notice to the Company of any changes to Subscriber’s billing and/or contact information within 30 days of any change to it.
(c) No Refunds. All Fees and other amounts paid by Subscriber under this Agreement are non-refundable.
(d) Suspension. In the event that Subscriber’s account is more than 30 days overdue on any payment for any reason, the Company shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Subscriber’s use of DLU, without further notice to Subscriber, until Subscriber has paid the full balance owed, plus any interest due thereon. If Subscriber fails to remedy any unpaid Fees, plus any interest due thereon, and the Company elects to suspend Subscriber’s use of DLU, Subscriber shall immediately discontinue use of DLU, return all materials received during the Term of this Agreement, and warrant in writing that all electronic copies of any material provided by or downloaded from DLU have been removed from
Subscriber’s system and all printed copies of any materials received, downloaded, or accessed from DLU have been destroyed.
(e) Taxes. The Fees payable by Subscriber to the Company do not include any taxes of any jurisdiction that be assessed or imposed upon the services provided by the Company as contemplated by this Agreement, including any sales, use, excise, value added, personal property, export, import, and withholding taxes, excluding only taxes based on the Company’s net income. Subscriber shall pay any such taxes assessed. Subscriber shall promptly reimburse the Company for any taxes payable or collectible by the Company (other than taxes based upon the Company’s net income).
6. Intellectual Property Rights. The Parties acknowledge and agree that the Company owns solely, and shall retain sole ownership of, any and all rights, title and interest in and to the DLU platform and DLU Materials, including any and all modifications, alterations, improvements, derivative works, and derivations thereof, and that the Company has the exclusive right to license and manage DLU and its intellectual property rights. The DLU Materials are protected by copyright, trademark, patent and/or other intellectual property laws. This Agreement provides Subscriber with only a limited-use license and no ownership of DLU or the DLU Materials or its proprietary programming, intellectual property, features, source code, and/or development methodologies. The DLU (and the DLU Materials) and any customizations created thereto by either Party pursuant to a Subscription Agreement or otherwise do not constitute “work made for hire” under applicable copyright laws, even if Subscriber requests and receives customized changes to DLU for the sole benefit of Subscriber. Subscriber further acknowledges and agrees that the only rights granted by the Company to Subscriber with respect to DLU are expressly set forth in this Agreement. Subscriber acknowledges and agrees that DLU is a commercial educational material developed exclusively at the Company’s expense and that Subscriber has only the limited rights relating to the use of DLU granted hereunder. Trade names, trademarks, and service marks on or included within the DLU platform (including the DLU Materials), are owned by the Company. Such trade names, trademarks, and service marks, whether registered or unregistered, may not be used in connection with any product or service that is not the Company’s, or in any manner that is likely to cause confusion. Nothing contained within or relating to the DLU platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use any such trade names, trademarks, or service marks without the prior written consent of the Company.
7. Confidentiality.
(a) Confidential Information. All DLU Materials and all software, documents, materials, training materials, videos, files, data, plans, specifications, formulas, drawings, sketches, tools, samples, reports, notes, manuals, instructions, and similar information, whether of a technical, engineering, operating, design, educational or economic nature, that have been or will be obtained by Subscriber or any of its employees or contractors, at any time, directly or indirectly from the Company, whether in writing, orally, virtually, or by observation or otherwise, including information forming part of the DLU platform, will be considered and treated as “Confidential Information”.
(b) Obligations. During and after the Term of this Agreement, Subscriber hereby covenants and agrees that it will, and will cause its employees, contractors and all Authorized Users to, treat the Confidential Information as strictly confidential, do all things as are reasonably necessary to preserve the secrecy and confidentiality of the Confidential Information, and to use it only for purposes of exercising its right to access DLU as set forth above as permitted by this Agreement. Subscriber acknowledges that its access to DLU set forth above does not confer any right to disclose or to make available to others Confidential Information, except as expressly permitted by this Agreement. Without in any way limiting the generality of the foregoing, Subscriber may disclose Confidential Information only to those employees and contractors of Subscriber who require access to it, who have a “need to know” same in furtherance of such purposes, and who have agreed, or are otherwise legally obligated, to protect such Confidential Information to the same extent as Subscriber. Subscriber is hereby notified in accordance with the federal Defend Trade Secrets Act of 2016 that Subscriber will not be held liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to any attorney, and (ii) is solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
(c) Exceptions. The obligations of confidentiality referred to in this Section 7 will not extend to any information that:
i) is or becomes part of the public domain other than by unauthorized acts of Subscriber (or its Authorized Users or agents or contractors);
ii) is disclosed by Subscriber pursuant to oral questions, interrogatories, requests for information or documents, subpoena or a civil investigative demand of a governmental authority; or
iii) is required to be disclosed by Subscriber under applicable law or governmental actions or any rule of any stock exchange to which it is subject;
provided that with respect to Sections 7(c)(ii) and (iii) above, Subscriber shall notify the Company in writing immediately upon receipt of any demand for questioning pursuant to an action, interrogatories, requests for information or documents, subpoena or a civil investigative demand of governmental authority, or upon becoming aware of such requirement to disclose in order to enable the Company to seek an appropriate protective order or other remedy. If in the absence of a protective order or other remedy, Subscriber is nonetheless, in the written opinion of its legal counsel, compelled to disclose the contents of any such confidential information, Subscriber may disclose only that portion of such information that Subscriber is legally required to disclose in accordance with the written opinion of its counsel; provided however, that Subscriber shall give the Company written notice of the information to be so disclosed as far in advance of its disclosure as is practicable and shall cooperate with the Company’s efforts to obtain an order or other reliable assurance that confidential treatment shall be afforded to such portion of the contents of any information required to be disclosed.
(d) Ownership of Confidential Information. All Confidential Information disclosed by the Company shall remain the property of the Company. The Company reserves all rights in its Confidential Information. Except as otherwise provided herein, nothing in this Agreement shall operate to transfer or operate as a grant of any right in the Company’s Confidential Information.
(e) Injunctive Relief. Subscriber agrees that the Company would be materially prejudiced by reason of, and would be irreparably harmed by, any breach by Subscriber of the provisions of this Section 7, and Subscriber further agrees that the Company shall be entitled to injunctive relief to restrain any such breach or anticipated breach hereof and to specifically enforce the provisions hereof. Subscriber further agrees that the foregoing rights and recourses of the Company are in addition to any other rights and recourses available to the Company.
8. Privacy Policy. Subscriber’s submission of information through or in connection with the DLU platform is governed by the Company’s Privacy Policy, which is located at the Company’s website, [****] incorporate herein. Subscriber agrees that all information that it or its Authorized Users provide to the Company is true, accurate and complete, and that Subscriber will maintain and update such information regularly.
9. Termination.
(a) Right to Terminate. Either Party may terminate this Agreement without prejudice to any of its rights in law, equity, or otherwise, if (i) except as provided in Section 9(b), the other Party fails to materially comply with or perform any provision of this Agreement and such failure continues for more than thirty (30) days after receiving written notice thereof; (ii) any representation or warranty of the other Party in this Agreement is breached or is false or misleading in any material respect, and such breach continues for more than thirty (30) days after receiving written notice thereof; or (iii) the other Party is (x) insolvent or unable to pay its debts as they mature, as evidenced by filing a petition in bankruptcy, whether voluntary or involuntary, or any other proceeding under bankruptcy, insolvency, or similar laws, (y) named in, or its property is the subject of, a suit for the appointment of a receiver, or (z) dissolved or liquidated.
(b) Termination for Failure to Pay Fees. In addition to the foregoing, the Company may terminate this Agreement without prejudice to any of its rights in law, equity, or otherwise, if Subscriber fails to pay any Fees on or before the date on which such Fees becomes due and payable.
(c) Effect of Termination. Upon termination or expiration of this Agreement, (i) if Subscriber elected to pay the Fees in monthly installments, all monthly payments of Fees that would have been owed for the remainder of the current Term are immediately due and payable in full to the Company (unless such termination was on account of a material breach by the Company); (ii) the license to access or use the DLU platform granted hereunder shall terminate immediately, and all rights and interests granted hereunder to Subscriber under such license shall cease immediately, except as otherwise expressly provided for herein; and (iii) Subscriber shall immediately discontinue use of DLU, return all materials received by or downloaded from the DLU platform during this Agreement and warrant in writing that all electronic copies have been removed from the Subscriber’s system and all printed copies of DLU Materials have been destroyed. Termination or expiration of this Agreement does not relieve a Party of its obligations which accrued prior to such termination or expiration, including, without limitation, Subscriber’s obligation to pay the Fees due to the Company.
(d) Survival. Upon termination or expiration of this Agreement, Sections 6 through 15 shall survive and remain in effect.
10. Notices. Subject to Section 15(g), all notices, requests, demands, and other communications to any Party or given under this Agreement must be in writing and delivered personally, by overnight delivery or courier, by registered mail, or by electronic transmission (with confirmation of receipt of transmission) to the Parties at the address or electronic mail address specified in the Subscription Agreement. All notices, requests, demands, and other communications shall be deemed delivered when actually received.
11. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY PROVIDES THE DLU PLATFORM AND ALL DLU MATERIALS ON AN “AS-IS” BASIS. THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO
THE USE, FUNCTIONALITY, AND EFFECTIVENESS OF THE DLU PLATFORM OR DLU MATERIALS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE IS NO WARRANTY OR GUARANTEE THAT THE DLU PLATFORM OR DLU MATERIALS IS VIRUS-FREE, THAT IT WILL OPERATE IN A MANNER THAT IS UNINTERRUPTED, ERROR-FREE OR TRANSFERABLE, OR THAT THE DLU PLATFORM OR DLU MATERIALS WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. SUBSCRIBER ASSUMES THE ENTIRE RISK OF SELECTION AND USE OF THE DLU PLATFORM AND DLU MATERIALS AND THE CONTENT AND INFORMATION CONTAINED THEREIN.
12. LIMITATION OF LIABILITY.
(a) A COMPANY PERSON (AS DEFINED HEREIN) SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM: (A) ANY ERRORS IN OR OMISSIONS FROM THE DLU PLATFORM OR ANY DLU MATERIALS; (B) THE UNAVAILABILITY OR INTERRUPTION OF ANY TRAINING SESSIONS OR ONLINE SERVICES OR ANY FEATURES THEREOF OR ANY DLU MATERIALS; (C) SUBSCRIBER’S OR ITS AUTHORIZED USERS’ USE OF THE DLU MATERIALS; (D) THE LOSS OR CORRUPTION OF ANY DATA OR EQUIPMENT IN CONNECTION WITH THE DLU PLATFORM OR ANY DLU MATERIALS; (E) THE CONTENT, ACCURACY, OR COMPLETENESS OF THE DLU MATERIALS; (F) ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE REASONABLE CONTROL OF THE COMPANY, INCLUDING A FORCE MAJEURE EVENT (AS DEFINED HEREIN); AND/OR (G) ANY CONTENT RETRIEVED FROM THE INTERNET EVEN IF RETRIEVED OR LINKED TO FROM WITHIN THE DLU PLATFORM OR DLU MATERIALS.
(b) IN NO EVENT WILL ANY COMPANY PERSON HAVE ANY OBLIGATION OR LIABILITY (WHETHER ARISING IN TORT, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF OR DAMAGE TO DATA, PROFITS, OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE DLU PLATFORM OR DLU MATERIALS OR SERVICES RELATING THERETO, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, AND WITHOUT LIMITATION, THE COMPANY PERSONS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM SUBSCRIBER’S ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE DLU PLATFORM, OR FROM ANY CONTENT DISSEMINATED OR POSTED ON OR IN CONNECTION WITH THE DLU PLATFORM BY THE COMPANY OR ANY THIRD PARTY OR RESULTING FROM ANY RECORDINGS MADE BY THE COMPANY OR ITS REPRESENTATIVES.
(c) THE LIABILITY OF THE COMPANY PERSONS FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER TO THE COMPANY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE DATE THAT THE CLAIM AROSE. NO ACTION OR PROCEEDING AGAINST A COMPANY PERSON MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE CLAIM ARISES EXCEPT FOR THE COMPANY’S CLAIMS RELATING TO COLLECTION OF FEES DUE AND PAYABLE BY SUBSCRIBER. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
(d) FOR PURPOSES OF THIS AGREEMENT, “COMPANY PERSONS” MEANS THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS.
13. Indemnification. To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless the Company Persons for any losses, costs, lawsuits, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) any act of negligence, willful misconduct, fraud or bad faith by Subscriber or its Authorized Users in connection with their use of or access to the DLU platform; (ii) Subscriber’s or its Authorized Users’ violation or breach of the terms of this Agreement or violation of any rights of a third party; or (iii) Subscriber’s or its Authorized Users’ violation of any applicable federal, state or local law, regulation or order in connection with their use of or access to the DLU platform.
14. Representations and Warranties. Each Party hereby represents and warrants to the other Party that (i) it has full power and authority to execute and deliver this Agreement and perform its obligations hereunder; (ii) it has full power and authority to grant the rights herein granted; (iii) it has duly executed and delivered this Agreement; (iv) this Agreement constitutes the legal, valid, and binding obligation of it, enforceable against it in accordance with the terms hereof; and (v) its execution, delivery and performance of this Agreement will not conflict with, result in the breach of, or constitute a default under any arrangement or agreement to which it is a Party or by which it is bound.
15. Miscellaneous.
(a) Relationship of the Parties. Nothing contained in this Agreement is intended or shall be construed to place the Parties in the relationship of partners, joint venturers, agents, or employment. Notwithstanding anything contained herein to contrary, neither Party nor any of its representatives, agents, employees, or officers shall be considered or treated as agents, employees, or officers of the other Party for any purpose whatsoever.
(b) Severability. In the event any portion of any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, (i) such unenforceable portion of the provision will be deemed severed from this Agreement, (ii) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (iii) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
(c) Force Majeure. For purposes of this Agreement, a “Force Majeure Event” shall include: acts of God, extreme weather events, strikes, epidemic, pandemic, viral plague, an act, order, or decree of a government, lock-outs, riots, sabotage, acts of war or piracy, destruction of essential equipment by fire, explosion, storm, tempest, flood, or earthquake, and delay caused by failure of power supplies or transport facilities in each case outside the reasonable control of the Party relying on such event. In the event that any Party hereto is delayed in the performance of its obligations under this Agreement by a Force Majeure Event, this Agreement shall remain in suspense until the cause thereof has ceased; provided that if such suspension continues for a period exceeding two (2) months, either Party shall be entitled to terminate this Agreement. The affected Party shall, as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and the affected Party shall use all reasonable endeavors to mit
Force Majeure Event on the performance of its obligations. This Section shall not impact in any manner Subscriber’s payment obligations.
(d) Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof. This Agreement supersedes and replaces all prior or contemporaneous understandings, negotiations, commitments, writings and agreements between the parties hereto, whether written or oral, express or implied, with respect to its subject matter. Each party to this Agreement acknowledges that no representations, warranties, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein.
(e) Assignment. Subscriber may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Subscriber’s rights under this Agreement or delegate performance of its duties hereunder without the Company’s prior written consent, which consent will not be unreasonably withheld. Subject to the foregoing restriction, this Agreement shall be fully binding upon and shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.
(f) Governing Law; Jurisdiction; and WAIVER OF JURY TRIAL. The validity, performance, and enforcement of this Agreement shall be governed by the internal laws of the State of South Carolina without regard to its principles of conflicts of laws. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue in the state and federal courts located in Lexington or Richland County, South Carolina for any claim, cause of action or other dispute arising out of, or relating to, this Agreement, the provision of the DLU platform, or other aspects of the transactions, arrangements, or matters contemplated by or incidental to this Agreement. In any action or proceeding relating to or arising in any way from this Agreement or the matters contemplated hereby, the prevailing Party will be entitled to recover reasonable legal fees and related costs. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
(g) Amendments. The Company reserves the right to update, amend, or make changes to these Terms and Conditions from time to time and may provide Subscriber with notice of such changes by any reasonable means, including by email or by posting the revised version of these Terms and Conditions on the DLU website or in connection with any DLU mobile application. Subscriber can determine when these Terms and Conditions were last revised by referring to the “LAST UPDATED” legend at the top of these Terms and Conditions (as they may be updated from time to time).
(h) Modifications to DLU Platform. The contents of the DLU platform and DLU Materials shall be determined by the Company in its sole discretion. The Company reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify or discontinue any of the DLU platform (including any component or feature thereof), with or without notice, or offer opportunities to some or all users of any of the DLU platform. If any part of any of the DLU platform is suspended, modified, or discontinued, or if a technical error occurs, information, data, or content created or provided by Subscriber in connection therewith may be deleted or become inaccessible; accordingly, Subscriber should not exclusively rely on, and agree not to exclusively rely on, the DLU platform to store or preserve any such information, data, or content. Subscriber agrees that the Company shall not be liable to Subscriber or to any third party
for any modification, suspension, or discontinuance of the DLU platform, including any content, feature, or product, in whole or in part.
(i) No Waiver. No delay, omission or failure of either Party in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right permitted hereunder (except as expressly set forth in Section 12(c)). Failure by either Party to enforce any right under this Agreement will not be deemed a waiver of future enforcement of that or any other right.
(j) Construction. The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and will not be deemed to limit, characterize, or affect in any way the scope or substance of any section of this Agreement. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. Each Party has had the opportunity to consult with its counsel with respect to this Agreement. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against any Party based on draftsmanship of the Agreement or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission or other electronic means shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or other electronic means (including DocuSign) shall be deemed to be their original signatures for all purposes.