Important Information About These Terms and Conditions of Service Projects
These Terms and Conditions of Service Projects constitute a binding contract between Customer and YMNet, Inc and are referred to herein as either "Terms and Conditions of Service Projects" or this "Agreement". Customer accepts these Terms and Conditions of Service Projects by placing an order with YMNet, Inc or shopping on YMNet, Inc's Website (the "Site") or otherwise engaging YMNet, Inc to perform or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions of Service Projects are subject to change without prior notice, except that the Terms and Conditions of Service Projects posted on the Site at the time Customer places an order or signs a Statement of Work will govern the order or Statement of Work in question, unless otherwise agreed in writing by YMNet, Inc and Customer.
Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting YMNet, Inc. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
IN CASE OF A PURCHASE OF PRODUCTS, INDEPENDENTLY OR IN CONJUNCTION WITH SERVICES, SUCH PRODUCT PURCHASES SHALL BE ON AND SUBJECT TO THE TERMS AND CONDITIONS OF PRODUCT SALES POSTED ON THE SITE.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Service Projects or any document in electronic or written form that is signed and delivered by each of the parties or purchase order (whether in electronic or written form) to YMNet, Inc that has been accepted by YMNet, Inc for the performance of Services other than Third Party Services (each, a “Statement of Work”) or invoice related thereto. This Agreement, together with any Statements of Work, contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS OF SERVICE PROJECTS, ANY STATEMENTS OF WORK AND THE SERVICES HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN SAN DIEGO, CALIFORNIA AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions of Service Projects or any Statement of Work more than one (1) year after the cause of action has arisen. The rights and remedies provided YMNet, Inc under these Terms and Conditions of Service Projects are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Customers may order services (collectively, "Services") from or through YMNet, Inc from time to time. Orders are not binding on YMNet, Inc until accepted by YMNet, Inc. Certain Services, such as extended warranty service by manufacturers, are sold by YMNet, Inc as a distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer hereby releases YMNet, Inc and the entities that control, are controlled by, or are under common control with YMNet, Inc ("Affiliates") from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by YMNet, Inc will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions of Service Projects and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Term and Conditions of Service Projects, the terms and conditions of this Agreement will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. YMNet, Inc will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions of Service Projects and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with YMNet, Inc in connection with performance of the Services by providing (i) timely responses to YMNet, Inc's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by YMNet, Inc which are necessary or useful as determined by YMNet, Inc in connection with providing the Services, including, but not limited to, physical and computer access to Customer's computer systems, and (iii) all Required Consents necessary for YMNet, Inc to provide the Services. "Required Consents" means consents or approvals required to give YMNet, Inc, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with YMNet, Inc.
YMNet, Inc will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to YMNet, Inc from time to time.
YMNet, Inc may perform the Services at Customer's place of business, at YMNet, Inc's own facilities or such other locations as YMNet, Inc and Customer deem appropriate. When the Services are performed at Customer's premises, YMNet, Inc will attempt to perform such Services within Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide YMNet, Inc access to Customer's staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff and resources at such location) that YMNet, Inc determines are useful or necessary for YMNet, Inc to provide the Services. When the Services are provided on Customer's premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect YMNet, Inc and Customer's premises and to indemnify and hold YMNet, Inc and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of YMNet, Inc's gross negligence or willful misconduct.
In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the Services as invoiced by YMNet, Inc. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by YMNet, Inc. YMNet, Inc may invoice Customer for all of the Services or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold YMNet, Inc and its Affiliates harmless from, any applicable sales, use or other taxes and any federal, state or local fees or charges imposed on, in respect of, or otherwise associated with any Statement of Work or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide YMNet, Inc with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of YMNet, Inc's costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, YMNet, Inc reserves the right to suspend Services until payment is received. There is a $25.00 service fee, in addition to the actual amount of any bank charges, for returned payment of any type.
Except as otherwise specified on an applicable Statement of Work, Customer will reimburse YMNet, Inc for all reasonable out-of-pocket expenses incurred by YMNet, Inc in connection with the performance of the Services, including, but not limited to, travel and living expenses.
PRICING INFORMATION; AVAILABILITY DISCLAIMER
YMNet, Inc reserves the right to make adjustments to pricing and service offerings for reasons including, but not limited to, changing market conditions, supplier price changes and errors in advertisements. All orders are subject to the availability of Personnel to perform the Services. Therefore, YMNet, Inc cannot guarantee that it will be able to fulfill Customer's orders. If Services are being performed on a time and materials basis, any estimates provided by YMNet, Inc are for planning purposes only.
LIMITATIONS OF LIABILITY
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL YMNet, Inc, ITS AFFILIATES, OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF YMNet, Inc HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY YMNet, Inc OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SERVICES; OR (D) ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY YMNet, Inc OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF YMNet, Inc AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Customer's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) that is created (individually or jointly) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever.
Each party anticipates that it may be necessary for each party to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by Personnel of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees that it will hold such Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind. Disclosures of Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or receiving the Services or otherwise in connection with this Agreement, or (ii) to its business, legal and financial advisers, each on a confidential basis. At the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Confidential Information, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure.
The obligations of the parties under this Section (Confidential Information) shall survive the expiration or termination of performance of a Service or any Statement of Work.
Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Customer will pay YMNet, Inc for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Work. Customer will also pay YMNet, Inc for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Services, the interpretation or application of these Terms and Conditions of Service Projects or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions of Service Projects or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto),or YMNet, Inc's or its Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF YMNet, Inc, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither YMNet, Inc nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions of Service Projects, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in San Diego, California. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to YMNet, Inc arising out of the Services hereunder will be exclusively litigated in court rather than through arbitration.
YMNet, Inc may assign or subcontract all or any portion of its rights or obligations with respect to the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions of Service Projects, or any of its rights or obligations herein without the prior written consent of YMNet, Inc. Subject to the restrictions in assignment contained herein, these Terms and Conditions of Service Projects will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between YMNet, Inc and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail to the address stated below, or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.