INGRAM MICRO CLOUD SERVICES GENERAL TERMS OF SERVICE
Last Modified: March 01, 2019
THESE GENERAL TERMS OF SERVICE (the "Agreement") are entered into effective as of the date on which You visit the Site or register on the Site, whichever is earlier (the "Effective Date"), by and between Ingram Micro Inc., a Delaware corporation, if You live (or if a business, are headquartered) in the United States, or the applicable Ingram Micro local affiliate You transact with if You live (or if a business, are headquartered) in any other country ("Ingram Micro", "We", "Our", or "Us"), and any individual or entity who accepts this Agreement, has access to Your account, uses the Services or the Site, or orders the Services, including end users of the Services as well as Resellers (defined below) ("You", "Your"). Ingram Micro and You may be individually referred to herein as a "Party" and collectively referred to as the "Parties."
This Agreement includes the terms and conditions governing Your use of this website (the "Site"), including any use or ordering of the products and services purchased or accessed through the Site (the "Services"). As used in this Agreement "Services" means two categories of Services available on the Site: Services that are developed by and licensed to end users by Ingram Micro ("Ingram Micro Services"); and Services that are developed and licensed to end users by a third party vendor (such vendors are referred to in this Agreement as a "Third Party Vendor" and their Services are referred to as "Third Party Vendor Services") and Services include any software contained within or used in connection with the Services. BY USING THE SITE, INCLUDING ORDERING, RESELLING, OR USING ANY OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND INTEND TO BE BOUND BY THIS AGREEMENT INCLUDING THE TERMS, CONDITIONS, NOTICES AND POLICIES RELATED TO THE SITE AND THE SERVICES AS POSTED ON THE SITE OR A THIRD PARTY VENDOR’S WEBSITE (THE "TERMS"), AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BE LEGALLY BOUND BY THIS AGREEMENT AND TO LEGALLY BIND YOUR COMPANY TO THIS AGREEMENT. THE TERMS "YOU" AND "YOUR" REFER TO YOUR COMPANY AND TO YOU IN CONNECTION WITH YOUR USE AS A USER ON BEHALF OF YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS, NEITHER YOU, NOR YOUR COMPANY MAY USE THE SITE OR ANY SERVICE.
This Agreement is in addition to any terms and conditions that apply to particular Services or the Site, including any other Ingram Micro or Third Party Vendor terms of service and use agreements, and other policies such as the Acceptable Use Policy, that are incorporated by reference in this Agreement and available online via the Site or on the applicable Third Party Vendor website.
If We determine, in Our sole discretion, that You may have violated this Agreement, We may temporarily or permanently prevent You from using the Site and Services, cancel the Services without a refund and, if appropriate, pursue legal action against You. In addition, You may be subject to civil or criminal penalties and injunctive relief.
If You are an authorized reseller of Ingram Micro or an Ingram Micro affiliate ("Reseller"), and unless otherwise agreed to in a separate written agreement with respect to the Services, You agree that Our sales terms and conditions set forth at www.ingrammicro.com, as modified by this Agreement, govern Your purchase of Services for resale to Your customers as well as use of the Site by You or Your customers. As used in the Agreement "User" or "customer" means end users of the Services who purchase the Services through a Reseller.
As a Reseller, You acknowledge that You are responsible for the acts or omissions of Your customers that use the Site or the Services and confirm that You have disclosed to and that Your customers have agreed to their responsibilities and obligations under this Agreement. If You become aware of any customer violating its obligations under this Agreement, You will immediately notify Us. You agree that the financial arrangement between You and Us is NOT a "paid when paid" arrangement. Accordingly, failure of Your customers to pay for Services purchased will not relieve You of Your obligation to timely pay Us for the Services ordered by or through You. You are responsible for providing Services support to Your customers.
3. END USERS
If You are an end user of the Services, You acknowledge and agree that You must first contact Your Reseller or its designated representative with regard to any issues related to the Services, including any issues with support or payment.
The Services are only available to Users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Services are offered.
a. USE OF SERVICES. We will specify the term of authorized use of the Services, the fees and other charges for the Services, any special payment terms, the scope of use, and the numbers, types and identifiers of permitted Users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Services in Your order. You may not use or otherwise access the Services in a manner that exceeds Your authorized use. If You exceed Your authorized use of the Services then You will promptly notify Us and immediately and: (i) disable or correct impermissible use; or (ii) purchase additional Services to correspond to actual use. You agree that We may review Your use of the Services, and You will provide any reasonable assistance to verify Your compliance with this Agreement. We may suspend or terminate Your use of the Services immediately upon written notice of non-compliance identified in such review, in addition to exercising any other rights or remedies We may have.
b. FEES AND PAYMENT TERMS.
i. Resellers: If You are a Reseller, You agree to the following terms set forth in this section. Payment may be accepted by methods made available by Us from time to time, including credit card, wire transfer, PayPal or ACH. You agree to pay the fees and charges for the Services as outlined on the Site, as may be amended from time to time. You acknowledge that fees and charges for Services You purchase may, as a result of foreign currency exchange fluctuation, be adjusted during the term of Your subscription, at Our sole discretion. Therefore, the amount You pay for the Services may vary from time to time during the term of Your Subscription, even though You may purchase Services in advance for a fixed term. Fees and charges for Services are non-refundable. Charges may include, but are not limited to: (i) subscription fees for the Services; (ii) domain registration and renewal fees; (iii) SSL certificate fees; and (iv) any applicable taxes. We will notify You of any such changes by updating the Site or sending notice by e-mail or regular mail.
You must pay in advance for Your or Your customers' use of the Services, unless otherwise agreed to by Us. You authorize Us to charge any amounts payable by You in connection with Your or Your customer's use of the Services automatically using the payment method You selected during the registration process or such payment information that You provide after You register subject only to the terms and conditions of the agreement between You and Your payment processing provider. Your right to order the Services is subject to any limits established by Your credit card or other payment processing issuer. For any and all credit card chargebacks, We may charge You an administration fee equivalent to the greater of 5% of the chargeback or USD $25. For all valid credit cards that You provide Us for the purpose of payment, if You do not notify Us prior to the expiration date of such credit card, We will automatically update the expiration date of the credit card in Our internal system to the next year in order to prevent interruption of Services.
If We waive the requirement for You to pay in advance, You must pay within 30 days of the date of Our invoice, or within such other time as indicated on the invoice, and You must pay via wire transfer, ACH or such other electronic payment method deemed acceptable by Us. We may charge You 1.5% per month, or the highest rate permitted by law, whichever is less, for late payments. In no event will We extend credit of more than $5,000 to You, unless otherwise agreed to in writing. We may require You to provide credit card information as backup for payment in case You do not pay within the time indicated on the invoice and in such case, We may automatically charge Your credit card for such outstanding amounts and may charge You a one-time processing fee of 3.5%.
We may, in its sole discretion, charge amounts payable by You in USD or in in Your local currency. If You fail to make timely payment You agree that We may, in addition to all other rights and remedies provided to Us hereunder or at law, terminate or suspend the affected Services.
Wire transfers should include any additional processing fees that may apply, particularly international wire transfers. You are responsible to ensure these additional fees, if any, are added to the wire transfer submitted to Us.
You are responsible for billing and collecting any payments for Services from Your customers. To the extent We provide You with payment frequency options, You agree that You will extend the payment frequency option that You choose to Your customers.
If at any time Your fees are more than ninety (90) days in arrears, We, in Our sole discretion, may deem that You have abandoned Your customers and We reserve the right to terminate Your customer accounts with cause and assume ownership of Your customers directly, without any financial consideration or relief whatsoever to the Reseller. We may assume the billing and support relationship with Resellers' customers directly. We may also establish a direct relationship with Your customers in the event You or We terminate Your Reseller account.
Quoted prices, including discount structure, are subject to change without notice.
ii. End Users: If You are an end user of the Services purchasing the Services from a Reseller, Your Reseller will invoice Your Service fees to You and You will make payment directly to the Reseller. If You are an end user of the Services purchasing the Services directly from Us, We will invoice Your Service fees to You and You will make payment directly to Us.
c. TAXES. Unless otherwise indicated in an invoice or agreed to in writing by You and Us, all payments are exclusive of national, federal, state, provincial, local or foreign taxes, duties, tariffs, levies and similar assessments. You agree to bear and be responsible for the payment of all taxes, duties, tariffs, levies, fees and charges of any kind, including sales, use, excise or value added taxes, and all other similar charges (collectively, "Taxes") that are imposed on transactions by or under the authority of any government body, excluding Taxes based solely upon Our net income. If You are a tax-exempt entity or claim exemption from any Taxes hereunder, You will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, We will not charge You any Taxes from which You are exempt.
6. GRANT OF USE RIGHTS; OWNERSHIP; CUSTOMER RESTRICTIONS
a. INGRAM MICRO SERVICES. We hereby grant to You, conditioned upon payment of applicable fees, a non-exclusive, non-assignable, non-transferable, worldwide, contractual right during the term of the subscription to access and use Ingram Micro Services.
b. CLOUD MARKETPLACE. We hereby grant to You, conditioned upon payment of applicable fees, a non-exclusive, non-assignable, non-transferable, worldwide, contractual right during the term of Your subscription to access and use the Site in furtherance of its access and use of Services. The Site includes any and all third party licenses in furtherance of the creation and maintenance of the Site.
c. DOCUMENTATION. We hereby grant to You a non-exclusive, non-assignable, non transferable, worldwide right during the term of Your subscription to access and use, if any, User documentation relating to the operation and use of the Ingram Micro Services that may be provided by Us to You, as updated by Us from time to time ("Documentation").
d. CUSTOMER DATA. You hereby grant Us and applicable Third Party Vendors a non-exclusive, non-transferable, royalty-free, worldwide right to use the electronic data specifically pertaining to You and/or Your Users that is processed using the Services (collectively "Customer Data") strictly for the limited purpose of providing the Services to You or an end user.
e. OWNERSHIP. You acknowledge and agree that the Site and any and all related software used in connection with the Services contain proprietary and confidential information of Ingram Micro or Third Party Vendors or other third parties that is protected by applicable intellectual property rights and other laws. As between Ingram Micro and You, all rights, title, and interest in and to all intellectual property rights in the Ingram Micro Services and Documentation are owned exclusively by Us. Except as expressly provided herein, We do not grant You (and We expressly reserves for ourselves and any of Our licensors) any rights, express or implied, or ownership in the Ingram Micro Services and Documentation. We will have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right to make, use, sell, offer for sale, import, or otherwise incorporate into Ingram Micro Services and Documentation, any suggestions, enhancements, recommendations or other feedback provided by You relating to the Services and Documentation.
f. RESTRICTIONS. You may not (and may not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, loan, transfer, distribute, time share or grant a security interest in the Services or Documentation or any portion of the Site, or make any of them available for access by third parties, including without limitation, in the manner of a service bureau or hosted application (provided that there is no restriction for a Reseller reselling the Services as permitted under this Agreement); (ii) create derivative works based on or otherwise modify the Services or Documentation; (iii) disassemble, reverse engineer or decompile the Services; (iv) access the Services or Documentation in order to develop a competing product or service; (v) use the Services to provide a service for others; (vi) use the Site to operate more or different type of applications than permitted by Us; (vii) use or send viruses or other harmful computer code; (viii) interfere with the integrity of the Services in any manner; (ix) remove or modify a copyright or other proprietary rights notice on or in the Services or Documentation; (x) use the Services to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (xi) use a computer or computer network to cause physical injury to the property of another; (xii) violate any law or regulation of the United States or Canada, any state thereof or other government authority, including any applicable laws or regulations outside the United States or Canada based on Your use and access; (xiii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xiv) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xv) disrupt the integrity of the Services; (xvi) temporarily or permanently remove, copy, add, modify, halt or disable any computer data, computer programs or computer software from a computer or computer network without authorization; (xvii) cause a computer to malfunction, regardless of how long the malfunction persists; (xviii) alter, disable, or erase any computer data, computer programs or computer software without authorization or use them to obtain unauthorized access to the Services or Site; or (xix) access the Site or Services by any means other than through the interface provided by Us to access the Site or Services.
g. CUSTOMER CONDUCT. You agree that You are responsible for, without limitation, the following: (i) Your implementation of the Services; (ii) protecting the names and passwords of the Users of the Services and Site and preventing and notifying Us of unauthorized use of the Services or Site; (iii) appointing key designated support contacts for purposes of contacting Us with regard to support questions and/or technical issues and ensuring that such contact information is current with Us; (iv) the lawfulness of each User's acts and omissions; (v) using the Services and Site encryption feature, if and when made available to You, for any of Your data containing sensitive information; (vi) using the Services and Site within the permitted scope and only in accordance with the numbers, types and identifiers of permitted Users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Services and Site as set forth in this Agreement; and (vii) using the Services and Site only in accordance with applicable documentation.
h. THIRD PARTY SERVICES. Notwithstanding anything to the contrary in this Agreement, Your license to use any Third Party Vendor Services is provided by the Third Party Vendor and not Ingram Micro, and is subject to any terms and conditions of services as made available by the Third Party Vendor, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses.
i. THIRD PARTY SOFTWARE. As part of the Ingram Micro Services, You may be allowed to use certain software (including related documentation) provided by third party licensors. This software is neither sold, nor distributed to You and You may use it solely as part of the Services and subject to any terms of service as made available by the third party, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses. You may not transfer such Software outside the Ingram Micro Services without specific authorization by Us to do so.
7. PRODUCT SPECIFIC TERMS
a. SUPPORT SERVICES.
i. If We determine that any support request falls outside the scope of the Services, We may provide custom support services for a fee, or on a per service basis, which We will provide a quote to You before performing the Services. We may require that You pay for the Services prior to the commencement of any work being performed. You must, within 14 days of any such support Services, notify Us if there are any issues with the Services. We are not responsible for and will not provide assistance with any issues that arise beyond this time frame.
ii. We may request certain information from You and may request that You follow certain processes prior to providing You with support for the Services and to enable Us to provide the Services. If You decline to provide such information or follow such processes, We will not be liable and You will be solely responsible for the backup of any and all information and data that You provide to We and You will be solely responsible for any damage and loss You might suffer including, without limitation, data loss or a privacy breach.
b. APPLICATION PROGRAMMING INTERFACES
Subject to the terms and conditions of this section and provided that You remain in compliance with the terms of this Agreement, if You opt to access and use the Application Programming Interfaces (each, an “API”), We grant You a limited, non-transferable, non-exclusive, and revocable contractual right to access and use the API solely for the purposes of purchasing and managing transactions through Ingram Micro’s Cloud Marketplaces. We make APIs available on a country-specific basis. Each API We make available under this Agreement is for Your access and use solely within the applicable country for Your account(s). You are responsible for maintaining the security and confidentiality of its unique authorization (e.g., token or credentials), which We provide to You for Your sole use of the applicable APIs. The use of the APIs by third parties without Our express written consent is strictly forbidden. You will remain primarily liable for any and all charges or fees incurred by or through the use of the API(s) made available to You. Further, You will be responsible for indemnifying, defending and holding Us harmless from and against any potential claims, losses or expenses which may result from Your breach of this section. In consideration for the access and use of the API(s) We grant to You, You will pay to Us the amounts set forth in the Site.
8. SERVICE LEVEL AGREEMENTS
Service Level Agreements may apply to certain Services. We may change, discontinue or add Service Level Agreements from time to time.
9. INTELLECTUAL PROPERTY
a. By submitting media or information such as text, photos, audio or videos, or any other content to the Site or through the Services (collectively, "Content"), You represent and warrant that such Content does not infringe upon any third party intellectual property right or personal rights, including, but not limited to, patent, copyright, trademark, trade secret, privacy or other intellectual or proprietary right or violate any law, regulation or rule.
b. If We become aware of any Content posted by You in connection with the Services that could be infringing on a third party's intellectual property rights or violate law, regulations, or rules, We will be authorized to initiate an investigation. If We receive a claim from a third party complainant with the applicable copyright or trademark registration number, a copy of the underlying copyrighted work along with Your materials and/or a good faith declaration, signed under penalty of perjury, that: (i) the material is the property of the complainant; or (ii) the work has been copied and that use of the material is not defensible, then We, in Our sole discretion, may, at any time, restrict Your access to the challenged material.
c. We will notify You of the copyright infringement allegation and will allow You to respond to the allegation(s). You agree that We will have no liability, directly or indirectly, to third parties for any of Your infringing materials nor to You for any cautionary measures taken by Us as described herein.
d. We respond to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If You believe that Your work has been exploited in a way that constitutes copyright infringement, You may contact Us through the contact information provided below.
e. You will not use the name, trademarks or logos of Ingram Micro, its affiliates or any Third Party Vendors without the prior written approval of the respective party. All content included on the Site and in the Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Ingram Micro or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of Ingram Micro and protected by U.S. and international copyright laws. All software used on the Site is the property of Ingram Micro or its software suppliers and protected by United States and international copyright laws.
10. WARRANTY DISCLAIMER
a. TO THE EXTENT PERMITTED BY LAW, THE SITE AND ALL SERVICES PROVIDED BY US ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT.
b. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. THIRD PARTY SERVICES ARE PROVIDED AS-IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED; ANY WARRANTY FOR THIRD PARTY SERVICES IS PROVIDED, IF AT ALL, BY THE THIRD PARTY VENDOR FOR SUCH SERVICES. WE MAKE NO OTHER REPRESENTATIONS, PROMISES, WARRANTIES OR UNDERSTANDINGS OF ANY KIND RELATING TO THE SITE, SERVICES, INCLUDING THIRD PARTY SERVICES, OR CONTENT UNDER THIS AGREEMENT. FOR CLARITY, WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL COMPLY WITH APPLICABLE LAWS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA") AND HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ("HITECH"), AS THEY MAY BE AMENDED FROM TIME TO TIME, AND ANY REGULATIONS ISSUED THEREUNDER. WE WILL NOT BE LIABLE TO YOU, YOUR CUSTOMERS OR ANY THIRD PARTY FOR ANY CLAIM OR LIABILITY ARISING FROM OR RELATING TO YOUR USE OF THE INTELLECTUAL PROPERTY, THE SERVICES, INCLUDING THIRD PARTY SERVICES, THE SITE, OR FROM THE MANUFACTURE, USE, IMPORTATION OR SALE OF THE SERVICES, OR FOR ANY CLAIM FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND.
c. You represent and warrant that You are: (i) a party doing business; (ii) located in a jurisdiction; and (iii) engaged in activities, such that We are not required to obtain any export license, permit or other approval under applicable laws and regulations including but not limited to export control and/or sanctions regulations of any jurisdiction the laws of which may be implicated by this Agreement. Furthermore, You acknowledge and agree that We have the exclusive authority to monitor such status on a regular basis and, if it should be determined by Us that You at any point in time are in violation of any of these representations and warranties, We have the exclusive authority to immediately terminate any and all Services to You (and any accounts You have with Us) without prior written notice, and You will forfeit any remaining balance on Your account.
d. Unless otherwise specified in writing by Us, We do not intend uses of the Services to create obligations under HIPAA and makes no representations that the Services satisfy HIPAA requirements. If You or Your customer are (or become) a Covered Entity or Business Associate, as defined in HIPAA, You will not and ensure Your customer does not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless You have received prior written consent to such use from Us.
e. If You are (or become) a Covered Entity or Business Associate, as defined in HIPAA:
i. And if You order Services from Us through the Site that are identified in the Site as HIPAA compliant, then You agree to the Ingram Micro Cloud Marketplace Reseller Business Associate Agreement; and
ii. You will not, and You will ensure Your customer does not, use any Services (other than those identified in Section 10.d for any purpose or in any manner involving Protected Health Information (as defined in HIPAA). We do not intend uses of the non-HIPAA compliant Services to create obligations under HIPAA and makes no representations that the non-HIPAA compliant Services satisfy HIPAA requirements.
You agree to defend, indemnify and hold harmless Ingram Micro, its affiliates, and their respective directors, officers, shareholders, employees, agents, licensors and advisors ("Indemnified Parties"), from and against any claim, demand, liability, damage, losses, judgments, suit, action, or cause of action, costs and expenses (including, without limitation, reasonable legal fees) arising directly or indirectly out of Your use of the Services or the Site, including, but not limited to: (a) Your breach or violation of any provision of this Agreement, including reasonable attorneys and associated advisor fees and costs; (b) Your use of any Service or the Site, including Your publication or use of Content that infringes the intellectual property rights of any third party, including, but not limited to, patent, copyright, and trade secret rights; (c) any action taken by Us in investigating a suspected violation of this Agreement or as result or finding that a violation has occurred; (d) Your activities and use of the Services that attract taxes and fees from government regulations including, without limitation, federal and/or state telecommunications regulations; and (e) costs associated with document production, depositions, interrogatories and related demands arising out of private third party, governmental or regulatory claims in connection with the Services or Site to the extent We are not a target. For purposes of this indemnity provision, if You are a Reseller, references to "Your" includes You and Your customer(s).
12. LIMITATION OF LIABILITY
a. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY), RESULTING FROM: (i) THE DISRUPTION, USE OR THE INABILITY TO USE THE SERVICES, THE SITE OR ANY CONTENT FOR ANY REASON; (ii) ANY THIRD PARTY CLAIMS THAT THE USE BY YOU OF THE SITE, SERVICES OR THE CONTENT VIOLATES ANY INTELLECTUAL PROPERTY RIGHT; (iii) ANY ACTION TAKEN BY THE INDEMNIFIED PARTIES AS PART OF AN INVESTIGATION INTO A SUSPECTED VIOLATION OF THE TERMS OR AS A RESULT OF ITS CONCLUSION THAT YOU HAVE VIOLATED, OR (iv) ANY OTHER MATTERS RELATING TO THE SERVICES, THE SITE OR THE CONTENT.
b. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU FOR ANY CONTENT DOWNLOADED FROM THE SERVICES. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ANY AND ALL CLAIMS UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING UNDER THESE TERMS OR FROM ANY OF INGRAM MICRO OR AFFILIATE POLICIES OR THE USE OF THE SITE, THE CONTENT, OR THE SERVICES IS LIMITED TO USD $100.
13. TERM AND TERMINATION
a. TERM AND TERMINATION. This Agreement will commence on the Effective Date and will remain in force until Your use of the Site and all of Your subscriptions to Services end (i.e., terminate or expire). The initial term of any subscription for Services will be the term specified during the registration process for such Services with Us through the Site. Unless expressly terminated as set forth herein, the subscription to any Services will automatically renew for additional terms at a period equal to the initial term for such Services. You may terminate the subscription to any Services by providing Us written notice of such termination at least 30 days prior to the end of the then-current term for such Services.
b. EFFECT OF TERMINATION OF SERVICES. Upon expiration or other termination of the Services for any reason as permitted in this Agreement, You must stop using, and We will stop providing, the terminated Services. In the event of such termination, You will be responsible for all subscription fees until the end of the subscription term. Upon termination of Services for any reason, You agree that all amounts outstanding from You to Us for Services will accelerate and become immediately due and payable.
c. SURVIVAL. Any provision required by its construction or required for rights and obligations enforcement, will survive termination, including, but not limited to, the indemnity provisions, limitations of liability and the survival terms and this Section (Term and Termination).
By using the Services, You agree that We may use data in accordance with Ingram Micro's Privacy Statement, available at www.ingrammicro.com. Your use of Third Party Vendor Services may also be subject to the privacy policies of the Third Party Vendor.
If You are a Reseller, You agree that You have received proper consent from Your customers to provide their information to UD for use in connection with Services.
15. GENERAL PROVISIONS
a. ASSIGNMENT. You may not assign Your rights or obligations, whether by operation of law or otherwise without Our prior written consent, and any such act by You will be void.
b. NOTICE. Except as otherwise provided herein, all notices will be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (iii) the first business day after sending by email, except that email will not be sufficient for notices of termination or regarding a claim. Notices to You will be sent to Your email address that We have on file. It is important that Your address is up to date. Notices to Ingram Micro must be sent to:
Ingram Micro Legal Department
c. FORCE MAJEURE. We will not be liable or responsible to You, nor be deemed to have defaulted under or breached this Agreement, and will be excused from performance in the event of any failure or delay in fulfilling or performing any term of this Agreement or its performance of the Services, when and to the extent such failure or delay is caused by or results from acts beyond Our reasonable control, including without limitation: domain name server or instant messaging issues, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), trespassing, sabotage, theft or other criminal acts, by requirement of law, regulation, order or other governmental action, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions.
d. NO WAIVER AND AMENDMENT. We will not be considered to have waived any of its rights or remedies described in the Agreement unless such waiver is in writing and signed by an authorized representative of Ingram Micro. No delay or omission by Us in exercising Our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy by Us will not preclude further exercise of any other right or remedy. Our failure to enforce the strict performance of any provision of the Agreement will not constitute a waiver of Our right to subsequently enforce such provisions. We may amend this Agreement at any time without prior notice in our sole discretion.
e. RELATIONSHIP OF THE PARTIES. You and Ingram Micro are independent contractors to each other. Nothing in the Agreement will be interpreted to create a partnership, joint venture, agency, fiduciary or trustee relationship. You will not have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of Ingram Micro. We may at any time subcontract any or all of Our obligations hereunder to any third party.
f. GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION. This Agreement will be governed by, subject to, and interpreted in accordance with the laws of the State of New York USA, without regard to conflict of laws principles. You hereby irrevocably consent to the nonexclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in New York, for the purposes of adjudicating any action or proceeding to enforce the Agreement. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. No cause of action arising under or relating to this Agreement may be brought by You more than one year after it first occurs.
g. CONSTRUCTION. The Services will be provided in the English language unless agreed otherwise. The Parties confirm that they have requested that this Agreement and all related documents be drafted in English at the express wishes of the Parties. Les Parties ont exigé que le présent contrat et les documents connexes soient rédigés en anglais selon la volonté expresse des Parties. Section headings are for convenience only and are not to be used in interpreting the Agreement.
h. ENTIRETY. This Agreement, together with any referenced terms, conditions and policies, are the final and entire agreement between You and Us regarding the subject matter of this Agreement and supersede all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations. In the event of any conflict between this Agreement and any referenced or attached documents this Agreement will govern unless the referenced or attached document is signed or electronically agreed to by the authorized representatives of each Party and manifests a clear intent to override this Agreement.