1.0 Site Use
1.2 Customer assumes total responsibility to evaluate the accuracy, completeness and usefulness of any and all opinions, advice, services, merchandise and any other products or information provided through YippieMove.
1.3 Customer understands and accepts that WireLoad cannot and does not provide any assurance of any kind that service provided through YippieMove will be uninterrupted or error-free or that any such or related defects will be remedied in any time or manner other than as set forth in the provisions provided herein.
1.4 Customer understands that except for information, products or services clearly identified as being supplied by WireLoad and constituted as YippieMove, Customer’s permitted use does not extend to any other information, products or services as WireLoad does not operate, control or endorse such information, products or services.
1.5 Customer understands that in the course of Customer’s use of YippieMove, Customer may come into contact with information, products or services which are not directly offered, controlled, operated or otherwise connected to WireLoad or YippieMove but which may still exist and be accessible to Customer through Customer’s use of YippieMove by virtue of third party offers, and through use of the internet generally. Customer understands that in Customer’s contact with any such information, product or service, WireLoad cannot and does not guarantee, represent or warrant in any way that files available for downloading or access through YippieMove will be free of infection, viruses, worms, Trojan-horses or other code which may manifest contaminating or destructive properties. Customer assumes responsibility for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for independent security and protection of Customer’s computing hardware and software as well as for confirming accuracy of data outputs or inputs and for maintaining a means external to YippieMove for the reconstruction or recovery of any lost data or other information.
1.6 Customer understands that in the course of Customer’s use of YippieMove, Customer may come into contact with information, products or services which are not directly offered, controlled, operated or otherwise connected to WireLoad or YippieMove but which may still exist and be accessible to Customer through Customer’s use of YippieMove by virtue of third party offers, and through use of the internet generally. Customer understands that in Customer’s contact with any such information, product or service, Customer may, by virtue of the nature of the internet, be expose to some unedited materials which may be sexually explicit, elicit or otherwise disturbing or offensive to Customer. Customer understands and accepts the risk of any such exposure and accepts that WireLoad has no control over nor shall bear any responsibility for such exposure.
1.7 Customer hereby represents and warrants that Customer is at least 14 years of age and is otherwise of legal age and competence to use YippieMove and access the internet and utilize email generally in an informed, intelligent and responsible fashion. If Customer is not at least 14 years of age or cannot otherwise provide the aforementioned representation and warranty, then Customer’s use of and access to YippieMove is prohibited.
1.8 Customer’s use of and access to YippieMove shall otherwise conform to and follow all terms and conditions set forth herein as well as any and all instruction as may be provided from time to time by WireLoad through YippieMove.
2.0 Copyrights, Trademarks, Licenses and Creative Submissions
2.1 All contents of YippieMove and the website upon which it is provided, as well as any and all other websites and their associated content as provided by WireLoad are protected under international copyright laws and trademark laws including but not limited to the United States Copyright Act, the Berne Convention, the Madrid Convention, the Lanham Act and applicable Moral Rights. The owner of all such protected material is solely and exclusively WireLoad and the sole and exclusive rightful users of such protected material are limited by WireLoad’s own discretion as granted to its authorized assigns and licensees.
2.2 Customer may not copy, derive, modify, reproduce, republish, upload, post, transmit, perform or otherwise distribute, in any not expressly authorized manner, the protected content of YippieMove and/or WireLoad including any material constituting website material, text, graphics, code, or any form of creative, expressive, distinctive, secure or otherwise proprietary content. Customer may print and/or download portions of material contained in and derived from YippieMove which Customer is authorized to access for the sole purpose(s) of Customer’s own personal and/or commercial uses provided that Customer agrees to not change or delete any proprietary notices of any kind from some such material, nor otherwise claim unauthorized license or ownership of any kind.
2.3 Customer agrees to grant to WireLoad a non-exclusive, royalty-free, worldwide, perpetual license, with rights to sub-license, reproduce, distribute, transmit, create derivative works, publicly display and publicly perform, for any materials and/or other information (including, without limitation, ideas contained therein for new or improved products and services) Customer may submit with or without solicitation to any public areas of YippieMove or WireLoad, including but not limited to bulletin boards, forums, customer support or newsgroups.
2.4 All products, publications, content, services, logos or otherwise, constituted by YippieMove or existing via WireLoad’s placement on yippiemove.com or wireload.net or upon any of WireLoad’s websites are, in addition to being protected creative content, in all appropriate cases, trademarks, trade-dress, trade-names of WireLoad, YippieMove and/or the authorized affiliates of the same, or in some cases of non-affiliated entities through nominal use. In all cases, Customer shall not appropriate, reproduce, publish, transmit, make available or otherwise use any such proprietary mark, logo, appearance or image without the express authorization of its legal owner, whether that be WireLoad or an affiliated or non-affiliated entity as the case may be.
3.0 Limitation of Liability
3.1 In no event will WireLoad be responsible or liable for any incidental, consequential, or indirect damages (including but not limited to damages for loss of profits, damage to reputation, business interruptions, loss of programs, information or data) arising out of or related to Customer’s use of YippieMove or Customer’s inability to use YippieMove or from any provision or non-provision of any aspect of any product or service constituted by YippieMove, even in the event that WireLoad or its authorized representatives are advised of the possibility of such damages.
3.2 In no event shall WireLoad be responsible or liable for any damages, claims, judgments, awards or penalties arising out of any unauthorized use of or submission to YippieMove by Customer, including but not limited to any content or data to which Customer does not possess proprietary rights or which is otherwise illegal in its nature by designation by any appropriate local, state or federal authority.
3.3 Certain authorities do not allow the exclusion or limitation of liability for consequential or incidental damages; the above limitations may not apply to Customers using or accessing YippieMove under such jurisdictions. In all such cases WireLoad’s liability is limited to the greatest extent permitted by applicable law.
5.0 Third Party Rights
The provisions of Paragraphs 2, 3 and 4 are for the benefit of WireLoad and its officers, directors, employees, agents, contractors, licensors, suppliers, and any associated third party information or service providers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against Customer on its own behalf.
6.0 General Provisions
6.5 Limitation on Action. To the fullest extent permitted by applicable law, any cause of action or claim Customer may have with respect to YippieMove shall be commenced within One (1) Year after the time at which such claim or action accrued or else shall be barred.
END OF DOCUMENT
Terms of Sale and Service Agreement
AGREEMENT: These Terms of Sale (“Terms of Sale”) are entered into by and between WireLoad, Inc., a Delaware corporation formed under the laws of the United States, (“WireLoad”) and you (“Customer”) for any and all products and services arising out of or reasonably related to the product and service of WireLoad known as YippieMove (“YippieMove”), unless WireLoad and Customer enter into or have entered into another agreement (including but not necessarily limited to a written, click-wrap, click and accept, or electronic agreement) with regard to the purchase and/or license of another specific WireLoad service or product and such agreement is in effect at the time the applicable Purchase Order is received by WireLoad, in which case the terms and conditions of such Existing Agreement shall govern the purchase and/or license of such other specific WireLoad product or service. The Terms of Sale are entered into by you with reference and full agreement to WireLoad’s Terms of Service (“Terms of Service”); all provisions of the Terms of Service are incorporated by reference into the Terms of Sale and agreed to by you upon your agreement to the Terms of Sale which shall occur automatically upon your Purchase Order of YippieMove.
1.1 YippieMove is the product and/or service provided and developed by WireLoad as embodied by any and all software, hardware, content and code associated with its creation, maintenance and existence, past, present and continuous.
1.2 You are Customer and the user authorized to access and use YippieMove by your purchase of YippieMove and your agreement to the Terms of Sale; subject to the Terms of Sale, You are also any other user authorized either expressly or impliedly by You to use YippieMove or using YippieMove so long its access and use remains under your control, or its provision is caused by you in any event.
1.3 Wireload.net is WireLoad’s suite of online service links and directory to products and information provided by Wireload and its partners and subsidiaries, located at http://wireload.net.
1.4 Yippiemove.com is WireLoad’s suite of online services, products and information embodied by YippieMove, located at http://www.yippiemove.com and providing Customer with all primary services, products and information contemplated under these Terms of Sale.
1.5 Product is any good that is the subject of the Terms of Sale either directly or by reference alone, including but not limited to YippieMove and any and all other goods developed and/or provided by WireLoad.
1.6 Service is any provision of any action or activity to Customer by WireLoad or provided to or by any third party as referenced in the Terms of Sale, including any maintenance, technical support or any other actions performed or to be performed by WireLoad in relation to one of WireLoad’s Products or other Services.
1.7 Documentation is any and all user manuals, training materials, product instructions, descriptions or specifications, technical information, license agreements, supporting materials and/or other information relating to Products or Services offered or provided by WireLoad, whether distributed in print, electronically or digitally.
1.8 Purchase Order is an order issued either electronically by click-through or in hardcopy or otherwise by You to WireLoad for Products or Services to be purchased, licensed or provided under the Terms of Sale or any other applicable terms as referenced herein.
1.9 Software is the machine readable (object code) version of the computer programs, products or services listed from time to time as available directly for purchase and/or license by WireLoad through purchase, license or otherwise including firmware, and any copies made, bug fixes for, updates to, or upgrades thereof.
1.10 Effective Date is the date the Terms of Sale are electronically accepted, click-accepted or in the absence of any of the forgoing, the Terms of Sale shall be effective from the date Customer places a Purchase Order.
1.11 Territory is the Universe.
2.1 The Terms of Sale set forth the terms and conditions for Customer’s purchase and utilization of YippieMove. The rights and obligations set forth herein are solely for application in the Territory and solely for (i) Customer’s personal or business use. Customer may make YippieMove available for use by other end users and/or other third parties but in all cases additional parties using YippieMove shall be subject to the terms and conditions set forth herein and in no case shall Customer transfer or assign its own rights or obligations under the Terms of Sale absent express written permission from WireLoad.
3.1 Prices for YippieMove shall be those specified in WireLoad’s then current listing as set-forth upon or within Wireload.net and/or YippieMove.com, less any applicable discount at the time of acceptance of the PurchaseOrder or in accordance with an applicable, valid written price quotation, if any, submitted by WireLoad to Customer for such Products or Services.
3.2 All prices are exclusive of any freight, handling and shipping insurance charges, taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon the Terms of Sale. Customer shall pay any taxes related to Products and Services provided pursuant to the Terms of Sale (except for taxes based on WireLoad’s revenue income) or shall present an exemption certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on any invoice.
4.1 Customer shall purchase and/or license Products or Services constituted by YippieMove, by placing an online order and/or issuing a Purchase Order, signed, if requested by WireLoad, or (in the case of electronic transmission) sent by it or its authorized representative, indicating its identity. No contingency contained on any electronically placed order or any Purchase Order shall be binding upon WireLoad. The terms of the Terms of Sale shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to WireLoad, and any such additional or conflicting terms to the Terms of Sale are deemed rejected by WireLoad unless WireLoad otherwise grants express written approval.
4.2 Upon processing of Customer’s Purchase Order, automatic email confirmation shall be sent to Customer’s listed email address. Customer’s payment shall be confirmed through the standard acknowledgment process as provided by whichever third party payment processing service WireLoad elects to employ. WireLoad is not responsible for confirming acknowledgement of payment. WireLoad shall make all commercially reasonable attempts to notify Customer upon the completion of Customer’s data migration via email, however WireLoad makes no guarantee of such notification as in certain circumstances such notification may not be practicable. In the case of large scale migrations, in lieu of notification upon migration completion, WireLoad will provide Customer access to monitor the migration progress via yippiemove.com.
5.0 TRANSFERS UPON ORDERS
Read this section carefully as it may affect your right to a refund if you are dissatisfied with YippieMove.
5.1 WireLoad cannot guarantee that all emails of Customer will be transferred upon the processing of a Purchase Order of YippieMove because certain emails and email servers do not comply with the standardization specified by the IETF, as provided at: http://www.ietf.org/rfc.html
5.2 WireLoad does guarantee that at least 95% of all of Customer’s emails as submitted to the YippieMove service and product and complying with the IETF and WireLoad’s own Transfer Limits will be transferred upon WireLoad’s processing of a Purchase Order. If such guarantee is not met, Customer may be eligible for a refund.
5.3 WireLoad may, at its discretion, not transfer any more than 100.0 GB of data through the sale and/or license of YippieMove to Customer upon any given Purchase Order. This limitation is upon the assumption of perfect on conditions, meaning at least 6 MB/sec transfer speed at both the source and destination for five hours of run time on WireLoad’s servers (including overhead). If perfect conditions are not met, the imposed limit will be five hours multiplied by the transfer speed of the slower server (source or destination).
5.4 If at any point the transfer of Customer's email is prevented before completion due to a persisting error condition outside of WireLoad's system(s) and/or control, including but not limited to the Customer's source or destination credentials changing (such as email access passwords), the transfer will be suspended and the Customer will be notified through email and/or via a message on the "Status" page for the transfer on yippiemove.com. If the Customer does not cause the error condition to be resolved and accordingly notify WireLoad in writing, the concerned transfer will be terminated after sixty (60) days following WireLoad's initial notification to the Customer of the error. In the event of such a termination the Customer shall have no right to a refund and WireLoad shall have no obligation to retain any Customer data related to the transfer.
6.1 Upon and subject to credit approval by WireLoad wherever applicable, payment shall be processed prior to the commencement of any transfer/migration of Customer’s emails. All payments shall be made in the currency of the price listing for YippieMove as posted upon the page(s) of yippiemove.com and/or wireload.net, as accessed by Customer, or in one of the local currencies made available by WireLoad, subject to Customer and WireLoad entering into a local currency agreement.
6.2 If at any point Customer’s payment is not processed or is otherwise rejected through no fault of WireLoad, and the transfer of Customer’s emails has already commenced or been completed, WireLoad reserves the right to cease any remaining portion of the transfer to be completed until such time that Customer remedies payment outstanding. In such an event WireLoad shall treat Customer as in breach of the Terms of Sale and shall in any event reserve the right to cease execution of the transfer, terminate the Terms of Sale and/or to refuse to commence the transfer, and to inform Customer that YippieMove is no longer available for purchase/license/use by Customer. In any event where YippieMove has already been sold/licensed into use and some or the entire portion of the transfer process has commenced and payment is not rendered, any sum not paid by Customer when due shall bear interest from the due date to the date of payment, such interest shall run day to day and after as well as before any judgment at a rate of (i) ten per cent per annum or (ii) the maximum rate permitted by applicable law, whichever is less.
7.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING UPON USE
7.1 Subject to the terms contained in the Terms of Service, WireLoad grants to Customer a non-exclusive, non-transferable license to use and otherwise utilize YippieMove for Customer’s personal or business use during the term and within the scope of the Terms of Sale solely as permitted by Section 2.0 (Scope), and this Section 7.0. Customer may not assign or sublicense, to any person or entity, or third party any rights or obligations set forth herein; any third party using YippieMove through Customer’s making it available shall become subject to all provisions set forth in the Terms of Sale.
8.0 LIMITED WARRANTY
8.1 Notwithstanding any other term of the Terms of Sale, WireLoad’s sole and exclusive warranty and obligations are set forth in Section 4.0 and Section 5.0 of the Terms of Sale; WireLoad makes no other warranties or representations about the usability, performance, functionality, safety or commercial, technical or personal viability of YippieMove. Customer shall not make any warranty commitment, whether written or oral, on WireLoad’s behalf. Customer shall indemnify WireLoad against any warranties made in addition to WireLoad’s standard warranty statements as provided in this Section 8.0 and Sections 4.0 and 5.0 and for any misrepresentation of WireLoad’s reputation or of WireLoad’s Products and Services.
8.2 Services described herein shall be performed consistent with industry standards. Customer must notify WireLoad promptly, but in no event more than thirty (30) days after completion of the Services, of any claimed breach of this warranty. Customer’s sole and exclusive remedy for breach of this warranty shall be, at WireLoad’s option, re-performance of the Services, or termination of the Terms of Sale or the applicable Service and return of the portion of the Service fees paid to WireLoad by Customer for such non-conforming Services.
8.3 The limited warranties referenced in this Section 8.0 do not apply if YippieMove (a) has been altered, except by WireLoad, (b) has not been installed, operated, repaired, used or maintained in accordance with instructions made available by WireLoad either in the Terms of Sale or otherwise, (c) has been subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated; (d) is acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which WireLoad does not receive a payment of a purchase price or license fee.
8.4 Except as expressly provided in this Section 8.0, WireLoad hereby disclaims and Customer waives all representations, warranties, conditions or other terms (whether express, implied, or statutory), including, without limitation, any warranty, condition, or term (a) of merchantability, fitness for a particular purpose, reasonable care and skill, noninfringement, satisfactory quality, accuracy, or system integration, or (b) arising from any course of dealing, course of performance, or usage in the industry. To the extent permitted by law, if a warranty, condition, or term cannot be disclaimed, such warranty, condition, or term shall be limited in duration to the applicable express warranty period.
9.0 CONFIDENTIAL INFORMATION
9.1 “Confidential Information” to be disclosed by Customer under these Terms of Sale may be information regarding Customer's network operations, technical plans, marketing, financial and personal data. Further, “Confidential Information” to be disclosed may be information regarding WireLoad’s products and services, technical, financial and marketing data, information relating to future product and service development, and information which may be posted from time to time on Wireload.net and/or YippieMove.com.
9.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of the Terms of Sale; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by theReceiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand except where transfer and/or storage capabilities mandate a different time frame, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
9.4 Each party shall retain all right, title and interest to such party’s Confidential Information. No license to any intellectual property (or application for intellectual property protection) is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software, methods, systems, devices, apparatuses or other utility elements disclosed to it and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, trade-secret, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party or from any copies the Disclosing Party is authorized to make.
9.5 Neither party shall disclose, advertise, or publish either the existence, the subject matter, any discussions relating to, or any of the terms and conditions, of the Terms of Sale (or any summary of any of the forgoing) to any third party without the prior written consent of the other party. Any press release, publication, advertisement or public disclosure regarding these Terms of Sale is subject to both the prior review and the written approval of both parties.
10.0 TERM AND TERMINATION
10.2 In no event shall termination actively occur during a period which the requirements of termination would disrupt WireLoad’s secure transfer and storage of data and/or its provision of services to Customers under the Terms of Sale; in such an event, where termination is requested and/or mandated, it shall be instituted at the earliest reasonable convenience following such period where transfer, storage and/or service might otherwise be compromised.
10.3 Either party may terminate these Terms of Sale at any time by providing the other party with at least forty-five (45) days’ prior written notice of termination.
10.4 A party may terminate these Terms of Sale immediately by written notice if (i) the other party ceases or threatens to cease to carry on business as a going concern; or (ii) the other party becomes or is reasonably likely to become subject to voluntary or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party’s assets; or (iv) an event similar to any of the foregoing occurs under any applicable law.
10.5 If a party breaches any of the provisions of these Terms of Sale, the non-breaching party may terminate these Terms of Sale as follows: (a) immediately upon providing written notice to the breaching party if the breach is not capable of being cured, and (b) thirty (30) days after providing written notice to the breaching party if the breaching party fails to cure such breach within such thirty (30) day period.
10.6 In addition to the aforementioned, WireLoad may terminate the Terms of Sale immediately upon written notice in the event that Customer is in breach of Sections 7.0 (Proprietary Rights and Software Licensing), or Section 9.0 (Confidential Information).
10.7 Upon termination or expiration of the Terms of Sale, (a) WireLoad reserves the right to cease all further delivery/execution/transfer of Product or Services, (b) all outstanding invoices immediately become due and payable by electronic transfer or certified or cashier’s check, and (c) all rights and licenses of Customer under the Terms of Sale shall terminate. If WireLoad agrees to complete delivery/execution/transfer of any further Products or Services due against any existing Purchase Orders then Customer shall pay for such Products or Services in advance by electronic transfer or certified or cashier’s check.
10.8 In the event of termination of the Terms of Sale for any reason, Customer shall have no rights to damages or indemnification of any nature related to such termination (but not limiting any claim for damages it might have on account of WireLoad’s breach of the Terms of Sale, even if the breach gave rise to termination, such liability being governed by and subject to the limitations set forth elsewhere in these Terms of Sale), specifically including no rights to damages or indemnification for other commitments in connection with the business and good will of Customer or indemnities for any termination of a business relationship.
10.9 In the event that, following the expiration or termination of the Terms of Sale, Customer places Purchase Orders and WireLoad accepts such Purchase Orders, then any such Purchase Orders shall be governed by the Terms of Sale notwithstanding the earlier expiration or termination of the Terms of Sale.
10.10 Subject to Section 11.7, expiration or termination of the Terms of Sale shall not affect or prejudice any rights accruing to either party hereunder.
11.0 COMPLIANCE WITH LAWS
11.1 In connection with the sale or distribution of YippieMove and/or any WireLoad Products or Services, or otherwise in carrying out its obligations under this Agreement, Customer represents and warrants the following:
(a) Customer shall obtain all licenses, permits and approvals required by any government or applicable authority, including any restrictions upon data disclosure or transfer or intellectual property contained in such data, and Customer shall indemnify, defend and otherwise hold harmless WireLoad for any claims brought against Customer or WireLoad arising out of or related to Customer’s breach of Customers representations and warranties provided herein.
(b) In no event shall WireLoad be obligated under this Agreement to take any action or omit to take any action that WireLoad believes, in good faith, would cause it to be in violation of any laws identified or otherwise contemplated in this Agreement.
(c) No person working for or on behalf of WireLoad (“WireLoad Personnel”) has (i) any ownership interest or other right or interest in the profits and/or revenues of Customer, or (ii) has or will receive any payment or other benefit as a result of any transaction under this Agreement. Customer shall promptly report to WireLoad any proposed transaction or dealing with WireLoad Personnel that may violate this section.
(d) Customer, its owner(s), principals, directors and officers have not been formally charged with, convicted of, or plead guilty to, any offense involving fraud or corruption.
(e) Customer, its owner(s), principals, directors and officers have not been listed by any government or public agency (such as the United Nations or World Bank) as debarred, suspended, or proposed for suspension or debarment or otherwise ineligible for government procurement programs.
(f) Notwithstanding any other provision in this Agreement, WireLoad may suspend performance or terminate this Agreement immediately upon written notice if Customer breaches any of the representations and warranties set forth in this section. Customer will indemnify, defend and otherwise hold harmless WireLoad for any violation by Customer of any provision of this Section.
12.0 LIMITATION OF LIABILITY
12.1 Subject to the following paragraph, and notwithstanding anything else in the Terms of Sale to the contrary, all liability of WireLoad, its affiliates, officers, directors, employees, agents and suppliers collectively for claims under the Terms of Sale or otherwise howsoever arising (including, without limitation, in contract, tort (including negligence) and/or under any indemnity) shall be limited separately for Products and Services purchased to the money paid to WireLoad for Products or for Services, separately and as applicable, under the Terms of Sale during the twelve (12) month period preceding the event or circumstances first giving rise to such liability. This limit of liability for Products and Services is cumulative and not per-incident (i.e., the existence of two or more claims will not enlarge this limit).
12.2 Nothing in these Terms of Sale shall limit (i) the liability of WireLoad, its affiliates, officers, directors, employees, agents and suppliers to Customer for (i) WireLoad’s liability arising from fraudulent misrepresentation, or (iii) any liability of WireLoad which cannot be excluded under applicable law.
13.0 WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES
Subject to the exceptions enumerated below in this paragraph, and notwithstanding anything else in the Terms of Sale to the contrary, in no event shall either party, its respective affiliates, officers, directors, employees, agents or suppliers be liable for any special, incidental, indirect or consequential damages, or lost revenue, lost profits, or lost or damaged data, loss of use, loss of goodwill, loss of anticipated savings, wasted expenditure (other than any expenditure necessarily incurred in order to discharge the innocent party’s duty to mitigate) whether arising in contract, tort (including negligence), or otherwise, even if such party has been informed of the possibility thereof. The foregoing waiver shall not apply to any liability arising out of (i) fraudulent misrepresentation, (ii) any terms which cannot be excluded under applicable law, (iii) Customer’s breach of Section 7.0 (Proprietary Rights And Software Licensing Upon Use) or (iv) amounts due for Products and Services purchased/used/transferred with respect to the payment for which no bona fide dispute exists.
14.1 Choice of Law. The validity, interpretation, and performance of the Terms of Sale shall be controlled by and construed under the laws of the United States, in the jurisdiction of San Francisco County and the Northern District of California as if performed wholly within this territory and jurisdiction, and without giving effect to the principles of conflicts of law. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.
14.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, internet viruses, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
14.4 Remote Service Ban. Included in the liability limitations discussed at Section 12, WireLoad shall not be liable or responsible for any ban upon or termination of service provided by a remote email service not affiliated with WireLoad as any result of Customer’s use of YippieMove. Customer is strongly advised to review the use policies of Customer’s remote email services prior to using YippieMove.
14.6 Refund. If an email transfer fails, Customer may be eligible for a refund, subject to the provisions of the Terms of Sale, including but not limited to Section 5 (Five). In the event of a failed or unsatisfactory email transfer, Customer is required to notify WireLoad in writing no later than 14 (fourteen) days following the failed or incomplete transfer; in all such cases WireLoad reserves the right to cure any error on the part of WireLoad and following exercise of such right WireLoad will determine if Customer is otherwise eligible for a refund and shall notify Customer within a reasonable period of time but no case later than 30 days following notice of the failed/incomplete transfer to WireLoad by Customer.
14.7 No Waiver. The waiver by either party of any right provided under the Terms of Sale shall not constitute a subsequent or continuing waiver of such right or of any other right under these Terms of Sale.
14.8 Assignment. Neither the Terms of Sale nor any rights or obligations under the Terms of Sale shall be assigned by Customer without the WireLoad’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted unauthorized assignment shall be void and of no effect. WireLoad may assign the Terms of Sale and any right or obligation under it without Customer’s approval, to any Affiliate or any party who becomes an owner of 51% or more of the business assets constituting either WireLoad and/or YippieMove. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under the Terms of Sale.
14. Severability.* In the event that part of or one or more terms of the Terms of Sale become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void. All remaining terms of the Terms of Sale shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of the Terms of Sale is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate these Terms of Sale by written notice with immediate effect to the other.
14.10 Revisions. The Terms of Sale may be revised from time to time by WireLoad without approval of or notice to Customer. Customer is hereby advised to that any continued use of YippieMove upon a revision of the Terms of Sale shall constitute Customer’s acceptance of any revisions to the Terms of Sale. Customer is therefore advised to periodically review the Terms of Sale (including Terms of Service) so that Customer may be well informed of any changes; Customer is particularly urged to review the Terms of Sale and Terms of Service prior to each time Customer utilizes YippieMove for a new data/email transfer.
14.11 No Agency. The Terms of Sale do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of these Terms of Sale. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
14.12 Entire Agreement. The Terms of Sale constitute the entire agreement between the parties concerning the subject matter of the Terms of Sale and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein.