THIS SUBSCRIPTION AND SERVICES AGREEMENT (THIS “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND MASTER MARGIN LLC (“MASTER MARGIN, ”WE,” “US” OR “OUR”). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH MASTER MARGIN AGREES TO GRANT YOU ACCESS TO AND USE OF MASTER MARGIN’S SERVICES. YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY EXECUTING AN ORDER FORM OR OTHER PROVISIONING DOCUMENT THAT INCORPORATES THESE TERMS BY REFERENCE, OR BY USING MASTER MARGIN’S SERVICES.
Pre-arbitration clause
IMPORTANT: BY AGREEING TO THESE TERMS YOU AGREE TO RESOLVE DISPUTES WITH MASTER MARGIN THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED
No Financial Advice Intended
IMPORTANT: BY AGREEING TO THESE TERMS YOU AKNOWLEDGE THAT MASTER MARGIN LLC IS NOT REGISTERED AS AN INVESTMENT OR FINANCIAL ADVISER WITH ANY FEDERAL OR STATE REGULATORY AGENCY. THE INFORMATION OR ANALYSES PRESENTED IN THIS WEBSITE ARE NOT INTENDED TO BE CONSTRUED AS ADVICE ON THE PURCHASE, SALE, AND VALUE OF A SECURITY. ANY ADVISORY OR SIGNAL GENERATED BY MASTER MARGIN IS PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. ANY TRADES PLACED UPON RELIANCE ON MASTER MARGIN ARE TAKEN AT YOUR OWN RISK.
Services
Use of the Services. Master Margin grants Customer a nonexclusive, nontransferable right, for the subscription term, to access and use the services that are identified in each mutually executed Order Form solely for Customer’s and its Permitted Affiliates’ internal business operations. Master Margin reserves all other rights.
Right to Use Subscription Services. Customer acknowledges (i) that it is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for Customer to access and use the Subscription Services, and Customer may be unable to access or utilize some or all aspects of the Subscription Services unless such minimum technical specifications are met, and (ii) this Agreement allows only for the purchase of certain rights of access for Customer to the Subscription Services pursuant to an Order Form, and nothing in this Agreement may be interpreted as an implied license or to require Master Margin to deliver a copy of any software or other product utilized by Master Margin to provide the Subscription Services.’
Registration.
To use our Subscription Services, You will need to register and obtain an account and password. When You register, the information You provide to Us during the registration process will help Us in offering content, customer service, network management and other services. You are solely responsible for maintaining the confidentiality of Your account, UserName, and password (collectively, Your “Account”) and for all activities associated with or occurring under Your Account. You represent and warrant that Your Account information will be accurate at all times. You must notify Us (a) immediately of any unauthorized use of Your Account and any other breach of security, and (b) ensure that You exit from Your Account at the end of each use of the Services. To the extent permissible under applicable law, we cannot and will not be responsible for any loss or damage arising from Your failure to comply with the foregoing requirements or as a result of use of Your Account, either with or without Your knowledge, prior to Your notifying Us of unauthorized access to Your Account.
You may not transfer Your Account to any other person and You may not use anyone else’s Account at any time. In cases where You have authorized or registered another individual, including a minor, to use Your Account, You are fully responsible for (i) the online conduct of such Student; (ii) controlling that Student’s access to and use of the Services; and (iii) the consequences of any misuse.
Reservation of Rights and Restrictions
Proprietary Rights; No Implied Licenses. Customer acknowledges that Master Margin owns all Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Subscription Services. To be clear, however, the preceding sentence does not constitute a representation or warranty regarding ownership of any intellectual property rights or other proprietary interests. Without limiting the generality of the foregoing, Master Margin retains ownership of all algorithms and the resultant calculations utilized in analyzing Customer Data. Except to the extent that the same constitutes or embodies Customer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided by Master Margin shall be solely owned by Master Margin. There are no licenses granted by implication under this Agreement and Master Margin reserves all rights that are not expressly granted.
Customer Content. Master Margin acknowledges that, as between the Parties, Customer owns all Customer Content, including all reports, statistics, and other data to the extent generated solely from the Customer Content, whether such data is provided by Customer or obtained by Master Margin from Customer’s agents or customers during the performance of the Services; provided, however, that during the Subscription Term, Customer grants to Master Margin a world-wide, non-exclusive, royalty-free license to aggregate or compile the Customer Content with other data, including the customer data of other Subscription Services customers and data obtained from third parties, so long as such aggregation or compilation omits any data that would enable (i) the identification of Customer, Customer’s customers, any individual, any company or any organization, or (ii) the attribution of Customer or Customer’s customers as the source of such data (the “Compiled Benchmark Data”). Master Margin shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Compiled Benchmark Data, including all reports, statistics, analyses or benchmarks created or derived therefrom.
General Restrictions on Use. Customer agrees not to act outside the scope of the rights that are expressly granted by Master Margin in this Agreement. Customer will not (a) make the Services available to anyone other than Customer and its Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute any Services or Reports, or include any Services or Reports or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify or make derivative works based upon the Subscription Services, including any products using similar ideas, features, functions or graphics of the Services; (d) “frame” or “mirror” any Reports contained in, or accessible from, the Subscription Services on any other website, server, wireless or Internet-based device; or (e) decompile, disassemble, reverse engineer the Services or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code. Customer agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities. Customer acknowledges and agrees that compliance with this paragraph is an essential basis of this Agreement. Customer agrees to reimburse Master Margin for attorneys’ fees and court costs incurred in connection with any lawsuit brought by Master Margin in which a court or arbitrator finds that Customer or its authorized end users have breached any provisions of this paragraph.
Treatment of Content
Rights in Customer Content. Customer hereby grants to Master Margin (i) a non-exclusive license to use, store, process, analyze and display in Reports all Customer Content during the Subscription Term for the limited purposes of performing Master Margin’s obligations under this Agreement; and (ii) the right to use data regarding Customer’s use of the Subscription Services to provide feedback to Customer on such use and to assist Master Margin in the further development, maintenance and provision of Master Margin products and services. Further, without conveying any right, title or interest, the Parties agree that Master Margin may make accurate informational references to Customer’s trade names, trademarks or service marks (collectively, the “Marks”) in connection with its performance of the Services, including, without limitation, references in promotional materials, notices, and advertisements, subject to the condition that Master Margin shall promptly cease any use of any Mark owned by Customer in connection with its performance of the Services upon (i) termination of this Agreement; or (ii) receipt of notice from the Customer to discontinue such use. In the event that Master Margin makes reference to any Mark that is inaccurate, or otherwise incorrect, then Customer may notify Master Margin of the necessary correction(s), and Master Margin shall implement such correction(s) as soon as is reasonably practicable. Customer acknowledges that: (i) Customer Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws; and (ii) except for such rights as are granted by Customer pursuant to this paragraph, Master Margin does not own any Intellectual Property Rights or other rights or licenses in or to the Customer Content. Prior to uploading Customer Content to the Subscription Services or using the Subscription Services to collect Customer Content, Customer shall, at its own expense, obtain all licenses, consents and/or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Content as necessary to enable Customer to grant the rights granted by this paragraph.
Content Disclaimers. Master Margin shall have no obligation to preview, verify, flag, modify, filter or remove any Customer Content (although Master Margin may do so in at its sole discretion), and Master Margin shall not be responsible for any failure to remove, or for any delay in removing, harmful, inaccurate, unlawful or otherwise objectionable Customer Content. Master Margin does not provide any warranty or support under this Agreement for any non-Master Margin products or services.
Third Party Websites. Master Margin shall have the right to include in any Master Margin survey provided to any Customer a request seeking authorization for Master Margin to share the information submitted by such customer with the operators of third-party websites for use by and publication of such information on such websites. It shall be solely the customer’s choice whether to allow such third-party sharing. If the survey respondent agrees to allow such sharing, Master Margin shall not be deemed to be in violation of its confidentiality obligations by virtue of disclosing such information to such third-party websites.
Fees and Payments
Fees Payable. In consideration for the rights granted and the promises made by Master Margin under this Agreement, Customer agrees to pay to Master Margin the amounts stated in each mutually executed Order Form at such times as the applicable Order Form requires. Customer agrees to make all payments, without offsets or other deductions, no later than the date when they are due. All payments due are made to Master Margin LLC.
Additional Charges for Late Payments. If Customer fails to make any undisputed payment when due, Master Margin will have the right, without prejudice to any other remedies it may have, to charge an additional fee equal to one-and-one-half percent (1.5%) of the overdue amount for each full or partial month that the amount remains unpaid. If Master Margin elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after Master Margin issues an invoice.
Suspension of Access Rights. Customer’s right to receive access rights to the Subscription Services is conditioned upon Customer’s timely payment of all amounts due hereunder. In the event that Customer’s account is more than thirty (30) days overdue, Master Margin shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s access to the Subscription Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
Confidentiality
Basic duties regarding Confidential Information. With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, the receiving party is the “Recipient.” The Recipient agrees not to disclose or permit access to the Owner’s Confidential Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Confidential Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Confidential Information in a manner consistent with Recipient’s duties under this Agreement. The Recipient will not use the Owner’s Confidential Information except (i) as necessary to perform the Recipient’s duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Even after termination or expiration of this Agreement, the Recipient will continue to treat Confidential Information received from the other Party in accordance with this Agreement, for so long as the information fits the definition of “Confidential Information,” or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force, up to a maximum a three (3) years following termination or expiration of this Agreement. jThe Recipient’s duties under this section will apply only to information which is marked to clearly identify it as the Owner’s Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure and again in a writing delivered by the Owner within a reasonable time. The Documentation and all non-public aspects of the Subscription Services shall in any event be considered Master Margin’s Confidential Information and the Customer Content shall in any event be considered Customer’s Confidential Information.
Exceptions to confidentiality obligations. Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient.
Compliance with legal duties. The Recipient will not be in breach of this Agreement by delivering some or all of the Owner’s Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Confidential Information to any of those third parties. If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.
Security. Master Margin shall make good faith commercially reasonable efforts to undertake and maintain reasonable and industry standard security measures to protect the security, confidentiality and integrity of all Customer Data and other proprietary information transmitted through or stored on Master Margin’s server, including, without limitation: (i) maintenance of the Customer Data; and (ii) Firewall protection from network attack and other malicious harmful or disabling data, work, code or program. For purposes of this Agreement “Firewall” shall mean the protection provided through the process of blocking off external ports on servers to prevent malicious attacks.
Attorneys and accountants. The Recipient may permit its attorneys and accountants to view the Owner’s Confidential Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.
Trademark
The trademarks, service marks, and logos (the “Trademarks”) used and displayed through Our Subscription Services are Our registered or unregistered Trademarks or of Our suppliers or third parties and are protected pursuant to U.S. and foreign trademark laws. All rights are reserved and You may not alter or obscure the Trademarks, or link to them without Our prior approval.
Representations and Warranties
Customer Representations and Warranties. Customer represents and warrants that it will not, nor will it permit or authorize anyone else to (i) upload, post, store, view, transmit, distribute or otherwise publish any Customer Content that (a) restricts or inhibits any other person from using and enjoying the Subscription Services, (b) is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, invasive of another’s privacy, hateful, indecent, or otherwise tortious, (c) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, (d) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights, (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or personal information, or (f) would harm minors in any way; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Services to transmit or store any personally-identifiable information such as: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or their related systems or networks.
Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY MASTER MARGIN ARE PROVIDED “AS IS,” AND MASTER MARGIN DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. MASTER MARGIN DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY MASTER MARGIN WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.
Indemnification
Customer’s Indemnity Obligations. Customer agrees to defend or settle any claim brought against Master Margin by any third party arising from (i) Customer’s gross negligence or willful misconduct; (ii) allegations that the Customer Content, or Customer’s use of the Subscription Services in breach of this Agreement or pursuant to Customer’s assumed risks, infringes or misappropriates such third party’s Intellectual Property Rights or other proprietary rights including rights of privacy and rights of publicity, or violates applicable laws; or (iii) Customer’s assumed risks. Customer shall pay all amounts that are finally awarded against Master Margin based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.
Notice for California Users. Under California Civil Code Section 1789.3, California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Exclusions and Limitations of Liability
Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER FORM AND EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO MASTER MARGIN BY THE CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
Terms and Termination. The Customer or Master Margin may terminate an order form an Subscription Plan by notifying the other party in writing at least 30 days before the beginning of the next billing cycle. Upon termination of the order form or Subscription Plan for any reason, the Customer, and all its users accessing the Subscription Services using the Customer account, will immediately cease all use of the Subscription Services. After termination, Master Margin will remove all data in the Customer account. Master Margin will make a file of the Customer data available to the Customer for a fee if the Customer makes such a request in writing at the time notice of termination is given, and all Customer charges are paid in full upon termination. The Customer acknowledges, and agrees, that Master Margin is not obligated to retain the Customer data after termination, and will delete the data after such time.
General Provision
Entire Agreement. This Agreement (including the information which is incorporated into the agreement by written reference) is the complete agreement between the parties for the services ordered and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. This Agreement may not be amended or extended except by further specific written agreement of the parties signed by their respective authorized representatives provided.
Notice. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given (i) upon personal delivery, (ii) when sent by confirmed facsimile, if sent during normal business hours of recipient, or if not, then on the next business day, or (iii) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the party to be notified a the address as set forth on the signature pages hereof or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto.
No Assignment. Customer may not sell, license, assign or otherwise transfer, whether voluntarily, or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Master Margin; provided, however, that either party may, without such consent, assign this Agreement and its right, and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction. Any purported assignment, transfer or delegation by Customer will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California. In the event of any dispute under or relating to this Agreement, or breach thereof, it is agreed that the same shall be submitted only to the jurisdiction and forum of any state or federal court located in the County of San Diego in the State of California, to which jurisdiction and forum the parties irrevocably consent. Master Margin and Customer will informally attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. To the extent otherwise available under applicable law, either party may seek provisional relief from any court of competent jurisdiction as to any matter arising out of or related to this Agreement.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least forty five (45) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined to by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Orange County, CA. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Orange County, CA, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.
In no event shall any Dispute brought by either Party related in any way to this Agreement be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Attorneys’ Fees. The prevailing party in any suit, arbitration or other proceedings shall, as an additional item of damages, recover its reasonable attorneys’ fees and court costs, arbitration costs, arbitrator’s fees, expert witness, consultant and like costs, or costs of such other proceedings as may be fixed by any court, arbitrator or other judicial or quasi-judicial body having jurisdiction thereof, including without limitation any costs incurred in any appeal and in any collection effort, whether or not such litigation or proceedings proceed to a final judgment or award.
Relationship of Parties. Nothing in this Agreement is intended, nor shall it operate, to create any relationship between the parties other than that of independent contractors. Neither party shall hold itself out as an agent, subsidiary, or affiliate of the other party, nor have the authority to bind the other party to any obligation.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Agreement Prevails. In the event that any provision of any purchase order, receipt, invoice, request for proposal, or other document issued by either party is inconsistent with the provisions of this Agreement, then the terms of this Agreement will prevail. Notwithstanding the foregoing, in the event of any conflict between this Agreement and the express terms of any Statement of Work, the terms of the Statement of Work shall control.
Force Majeure. Master Margin shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion power failure, equipment failure, industrial or labor dispute, inability to obtain necessaries supplies and the like.
Taxes. Fees set forth in the Order Forms are exclusive of all sales, use and other taxes and all other governmental charges and assessments. Customer acknowledges that Master Margin is acting solely as a commissioned transaction facilitator and all such services shall be provided solely to the Customer. Any tax Master Margin may be required to collect or pay upon the transactions contemplated by this Agreement, other than taxes based on the income of Master Margin and any foreign withholding taxes, shall be paid by Customer, or in lieu thereof, Customer shall provide a tax exemption certificate acceptable to the taxing authorities. On transactions occurring outside the United States, in whole or in part, all required import/export duties, license and other fees shall be payable by Customer in addition to the stated payments to Master Margin. If Customer is required to withhold any foreign withholding taxes from amounts payable to Master Margin under a Statement of Work, Customer shall advise Master Margin of such requirement at the time of signing such Statement of Work, shall timely remit such foreign withholding taxes to the appropriate taxing authority, and shall deliver to Master Margin proof of each such remittance (in a form acceptable to the U.S. Internal Revenue Service so that Master Margin can claim applicable U.S. federal tax credits) within sixty (60) days of such remittance.
Non-waiver. Failure or delay of either party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and not constitute a part of this Agreement.
Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal by any court of competent jurisdiction, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Further Acts. Each party to this Agreement agrees to execute and deliver all documents and to perform all further acts and to take any and all further steps that may be requested by the other party and are reasonably necessary to carry out the provisions of this Agreement and the transactions contemplated hereby. Time is of the essence in the performance of this Agreement.
Counterparts. This Agreement or any amendment hereto may be executed in several counterparts and, as executed, shall constitute one agreement binding on all the parties hereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart or that the parties are signatory to facsimile copies.
Language. All amendments of this Agreement, notices and communications between the parties, and all material supplied under this Agreement by either party to the other shall be in the English language