Wholesail New Customer Form Terms of Service Agreement
By using the Application, the parties hereby agree to the following:
PLEASE READ THIS NEW CUSTOMER FORM TERMS OF SERVICE AGREEMENT (THE “NCF TERMS OF SERVICE”) CAREFULLY.
PLEASE BE AWARE THAT SECTION 10.4 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN US WILL BE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
Wholesail, Inc. (“Wholesail”) has developed a product that facilitates the onboarding of a seller’s new buyer customers (the “New Customer Form” or “NCF”). Using the Applications, a seller (the “Seller”) can customize an online customer application for its prospective buyers (each, a “Buyer”) to complete and then evaluate such prospective Buyer and accept or reject them. Use of the Applications is subject to the terms and conditions set forth below as well as any additional terms and conditions presented to Seller within the product experience.
1. DEFINITIONS. The following capitalized terms will have the meanings set forth below.
1.1 “Applications” means the applications made available by Wholesail for the purpose of enabling access to the NCF, including any updates thereto that may be made generally available by Wholesail from time to time.
1.2 “Authorized Users” means Seller’s employees and contractors that are authorized by Seller to use the NCF.
1.3 “Seller Content” means content and/or data that is uploaded, transmitted or otherwise provided by Seller and/or its Authorized Users to the NCF. Seller Content does not include data or content that is independently derived by Wholesail or obtained by Wholesail from a third party.
2. SELLER RESPONSIBILITIES.
2.1 Seller Acknowledgement. Seller acknowledges and agrees that it is solely responsible for determining the eligibility of any prospective Buyer when using the NCF. Wholesail is not a party to any such prospective relationship and merely provides tools and technology to help streamline Seller’s and any prospective Buyer’s experience. Seller’s actual contractual relationship with any Buyer is subject to Seller’s own terms of service and privacy policy made available to each Buyer at the time of potential onboarding. Any content provided by Wholesail within the NCF is for convenience only, and Seller is responsible for any content ultimately presented to any Buyer within the NCF.
2.2 Prohibited Businesses. Wholesail reserves the right to terminate this Agreement or suspend Seller’s access to the NCF if Seller engages in the following prohibited businesses or business activities: (1) any illegal activity or goods, (2) paraphernalia that may be used for illegal activity (3) buyers or membership clubs, including dues associated with such clubs, (4) credit counseling or credit repair agencies, (5) credit protection or identity theft protection services, (6) direct marketing or subscription offers or services, (7) infomercial sales, (8) internet/mail order/telephone order pharmacies or pharmacy referral services, (9) unauthorized multi-level marketing businesses, (10) inbound or outbound telemarketers, (11) prepaid phone cards or phone services, (12) rebate based businesses, (13) up-sell merchants, (14) bill payment services, (15) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races, (16) manual or automated cash disbursements, (17) prepaid cards, checks, insurance or other financial merchandise or services, (18) sales of money-orders or foreign currency, (19) wire transfer money orders, (20) high-risk products and services, including telemarketing sales, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (23) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury (24) internet/mail order/telephone order of age restricted products (e.g., tobacco), (25) occult materials, (26) hate or harmful products, (27) escort services, or (28) bankruptcy attorneys or collection agencies engaged in the collection of debt.
2.3 Seller Conduct. While using or accessing the Application, Seller further agrees that it will not, under any circumstances:
2.3.1 Breach or circumvent any laws, third party rights or Wholesail’s systems, policies, or determinations of Seller’s account status;
2.3.2 Interfere with or damage the Applications, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
2.3.3 Post false, inaccurate, misleading, defamatory or libelous content;
2.3.4 Transfer Seller’s account and username to another party without Wholesail’s consent;
2.3.5 Bypass Wholesail’s robot exclusion headers, interfere with the working of the Application, or impose an unreasonable or disproportionately large load on Wholesail’s infrastructure;
2.3.6 Upload, post, e-mail, transmit or otherwise make available through the Application any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
2.3.7 Use the Application to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
2.3.8 Subcontract or otherwise delegate any of Seller’s obligations under this Agreement;
2.3.9 Disclose or distribute information regarding a Buyer obtained through the Applications to a third party without Buyer’s consent;
2.3.10 Make available any Seller Content, or use the Applications in any way or engage in any activity, that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable, (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability, (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person, (v) promotes illegal or harmful activities, or (vi) involves sexual misconduct; or
2.3.11 Use any information made available via the Applications to harass, intimidate, stalk any person, or make unwanted contact with a Buyer.
3. SERVICES.
3.1 Service. Subject to Seller’s ongoing compliance with this Agreement, Wholesail grants Seller, during the Term of this Agreement, a (i) non-exclusive, non-transferable right to permit its Authorized Users to access and use the NCF solely for Seller’s internal business purpose, and (ii) non-exclusive, non-transferable, non-sublicensable license to download and install the Applications on mobile devices owned or controlled by Seller and/or its Authorized Users from a legitimate third-party marketplace. Seller will be responsible for its Authorized Users’ use of the NCF (including by ensuring that its Authorized Users comply with the terms of this Agreement) and for enforcing any of Seller’s internal policies regarding its Authorized Users’ use of the NCF and Applications.
3.2 Account Registration. Seller is required to register with Wholesail in order to access and use certain features of the NCF. If Seller chooses to register for the NCF, Seller agrees to provide and maintain true, accurate, current, and complete information about Seller as prompted by Wholesail’s registration form. Registration data and certain other information about Seller are governed by Wholesail’s published privacy policy for the NCF and other products as may be updated or amended by Wholesail from time to time in its sole discretion (“Privacy Policy”).
3.3 Restrictions. To the maximum extent permitted by applicable law, Seller and its Authorized Users shall not, directly or indirectly, and shall not authorize any person to, (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of, (ii) translate, adapt, or modify, (iii) write or develop any program based upon, (iv) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to, (v) transmit unlawful, infringing or harmful data, content or code to or from, (vi) copy or replicate, or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the NCF, Applications and all technology constituting or used to provide the foregoing, (collectively, the “Wholesail Technology”). Without limiting the foregoing, Seller and its Authorized Users shall not (1) interfere with or damage the NCF, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology, (2) use the Wholesail Technology to collect or harvest any information concerning any other person or entity, or (3) use any information made available via the NCF to harass, intimidate, or stalk any person.
3.4 Protection Against Unauthorized Use. Seller is responsible for maintaining the secrecy of any passwords that provide access to the NCF to Seller and its Authorized Users. Seller will use reasonable efforts to prevent any unauthorized access or use of the NCF and immediately notify Wholesail in writing of any unauthorized access or use. If there is unauthorized access or use by anyone who obtained access to the NCF directly or indirectly through Seller or its Authorized Users, Seller will take all steps reasonably necessary to terminate the unauthorized access or use. Seller will cooperate and assist with any actions taken by Wholesail to prevent or terminate unauthorized use of the NCF and remediate any issues resulting from, or related to, such unauthorized access or use. Seller is solely responsible for maintaining its equipment and the timely transmission of, and the accuracy, quality, integrity, and reliability of, the Seller Content.
3.5 Necessary Equipment and Software. Seller must provide all equipment and software necessary to connect to the NCF, including but not limited to, a mobile device that is suitable to connect with and use the NCF, in cases where the NCF offer a mobile component. Seller is solely responsible for any fees, including Internet connection or mobile fees, that Seller incur when accessing the NCF. By providing Seller’s cellphone number and using the NCF, Seller hereby affirmatively consents to Wholesail’s use of Seller’s or its Authorized Users’ cellphone numbers for calls and texts in order to perform and improve upon the NCF. Wholesail will not assess and charge for any calls or texts, but standard message charges or other charged from Seller’s wireless carrier may apply.
3.6 Compliance with Laws. Seller and its Authorized Users will use the NCF in compliance with all applicable laws and regulations. Seller will obtain all necessary consents, permissions, approvals, or licenses to use and permit Wholesail to use the Seller Content in accordance with this Agreement, the Privacy Policy, and all applicable laws. Without limitation of the foregoing, Seller may allow Buyers to receive communications from Seller via SMS (text) messaging to the Buyer's mobile device ("SMS Messages") in connection with the use of the NCF. In such case, Seller (i) (A) shall be solely responsible for obtaining all applicable consents from Buyers in connection with the transmission of the SMS Messages, and (B) immediately inform Wholesail of any Buyer who opts out of receiving SMS Messages, and (ii) shall release and hold Wholesail harmless from any claim regarding the SMS Messages. Seller agrees to hold harmless Wholesail from any alleged violation of the foregoing.
3.7 Independent Contractors. The relationship between the parties shall be that of independent contractors. Neither Seller nor any of its Authorized Users, employees, consultants, contractors or agents (collectively “Seller Personnel”) will be considered to be employees or agents of Wholesail for any purpose, and Wholesail will not be considered an agent of Seller or any Seller Personnel for any purpose. Neither party, nor its employees, will have any authority to bind or make commitments on behalf of the other party for any purpose, nor will it or they hold itself or themselves out as having such authority. Seller will be solely responsible for supervising, providing daily direction and control, and paying the salaries (including withholding of income taxes and social security contributions), accident and other insurance as required by law, disability benefits and the like, of all Seller Personnel.
4. FEES; PAYMENT. Seller shall be responsible for paying all applicable amounts associated with its use of the NCF, which may be set forth in an Order Form or otherwise communicated to Seller in advance. Seller shall be responsible for its own costs and expenses in connection with this Agreement.
5. TERM; TERMINATION.
5.1 Term. This Agreement will commence on the effective date set forth in the applicable Order Form (the “Effective Date”) and continue for the length of the initial term specified therein (the “Initial Term”), unless otherwise terminated in accordance with this Section. This Agreement, and each Order Form, will renew for successive periods of the same length as the Initial Term at the end of the then-current term (each a “Renewal Term”) at Wholesail’s then-current fees, unless (a) the parties agree otherwise in the Order Form, or (b) either party notifies the other of non-renewal at least thirty (30) days prior to the expiration of the then-current term (the Initial Term, together with any Renewal Term, is the “Term”).
5.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party (a) for convenience or (b) if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Wholesail may also terminate this Agreement immediately with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice, if required by law (as determined by Wholesail in its sole discretion) or if required by a Third Party Provider.
5.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, all outstanding payment obligations of Seller become due and payable immediately. All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, this 5.3, 6.2, 6.3, 7, 8, 9 and 10.
6. LICENSE; OWNERSHIP.
6.1 License from Seller. As between the parties, Seller shall own all right, title and interest in and to the Seller Content, provided that Wholesail is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, perpetual, right and license to (i) use, store, transmit, publicly perform and display, reproduce, modify, adapt, view or otherwise use the Seller Content to provide the Service or as otherwise permitted by the Privacy Policy and applicable laws and regulations, and (ii) use the Seller Content in an aggregated and anonymized form (“Anonymized Data”) for any purpose, provided, however, that no Seller-only statistics will be disclosed to third parties without Seller’s consent. Although Wholesail has no obligation to monitor Seller’s use of the NCF, Wholesail may do so and may prohibit any use of the NCF it believes may be (or is alleged to be) in violation of this Agreement, applicable laws, or any acceptable use policies posted on the NCF.
6.2 Ownership. Except for the limited rights granted in this Agreement, Wholesail hereby retains all right, title and interest, including all intellectual property rights, in and to the NCF. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY WHOLESAIL.
6.3 Feedback. Seller hereby grants to Wholesail and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all suggestions and feedback, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the NCF.
7. CONFIDENTIALITY.
7.1 Definition of Confidential Information. “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Wholesail Technology is the Confidential Information of Wholesail. The terms (but not the existence) of this Agreement is each party’s Confidential Information. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party, (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records, (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure, or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
7.2 Use and Maintenance of Confidential Information. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party, except to employees and independent contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Wholesail may use and disclose Seller Content (i) as permitted by the features and functionality of the NCF, (ii) to Wholesail's service providers (such as Wholesail's hosting provider and Third Party Providers) so that these service providers can provide services on Wholesail's behalf, or (iii) as otherwise permitted by Section 6.1 or the Privacy Policy. Additionally, Wholesail may use and disclose Anonymized Data and feedback as permitted in Section 6. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Wholesail may list Seller as a Seller in its promotional and marketing materials, including its website.
8. INDEMNIFICATION.
8.1 By Wholesail. Wholesail will defend at its expense any suit brought against Seller, and will pay any settlement Wholesail makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that Wholesail Technology infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Wholesail Technology becomes, or in Wholesail’s opinion is likely to become, the subject of a claim of infringement, Wholesail may, at Wholesail’s option (a) procure for Seller the right to continue using the Wholesail Technology, (b) replace the Wholesail Technology with non-infringing software or services which do not materially impair the functionality of the Wholesail Technology, (c) modify the Wholesail Technology so that it becomes non-infringing, or (d) terminate this Agreement, and upon such termination, Seller will immediately cease all use of the Wholesail Technology. Notwithstanding the foregoing, Wholesail will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon (i) any use of the Wholesail Technology not in accordance with this Agreement or as specified in any associated documentation, (ii) any use of the Wholesail Technology in combination with other products, equipment, software or data not supplied by Wholesail, or (iii) any modification of the Wholesail Technology by any person other than Wholesail or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 8.1 states the sole and exclusive remedy of Seller and the entire liability of Wholesail, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
8.2 By Seller. Seller will defend at its expense any suit brought against Wholesail, and will pay any settlement Seller makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a third party claim arising out of or relating to (a) an Exclusion, (b) Seller Content, (c) Seller’s use of, or inability to use, the NCF, (d) Seller’s violation of this Agreement, (e) Seller’s violation of any rights of another party, including any Buyer, or (f) Seller’s violation of any applicable laws, rules or regulations.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit, (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit, and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9. RELEASE; DISCLAIMER; LIMITATION OF LIABILITY.
9.1 Release. Wholesail expressly disclaims any liability that may arise between users of the NCF. Because Wholesail is not involved in any actual contract between any Buyer and Seller, in the event that Seller has a dispute with one or more Buyers, Seller releases Wholesail (and Wholesail’s officers, directors, agents, investors, subsidiaries, suppliers, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WHOLESAIL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. WHOLESAIL DOES NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT OR FUNCTIONALITY, OR THAT THE BUYER ONBOARDING PRODUCT WILL BE ERROR-FREE OR UNINTERRUPTED. WHOLESAIL MAKES NO GUARANTEES REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES. WHOLESAIL ONLY PROVIDES A PLATFORM FOR SELLERS AND BUYERS. WHOLESAIL DOES NOT HAVE CONTROL OVER ANY BUYER, THE TRUTH OR ACCURACY OF INFORMATION PROVIDED BY BUYER, OR BUYER’S INTEGRITY, RESPONSIBILITY, OR ACTIONS. SELLER IS SOLELY RESPONSIBLE FOR SELLER AND ITS AUTHORIZED USERS’ INTERACTIONS WITH ANY THIRD PARTY AS A RESULT OF SALES MADE THROUGH THE BUYER ONBOARDING PRODUCT AND ANY OTHER PARTIES WITH WHOM SELLERS AND ITS AUTHORIZED USERS INTERACT WITH THROUGH THE BUYER ONBOARDING PRODUCT; PROVIDED, HOWEVER, THAT WHOLESAIL RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO INTERCEDE IN SUCH DISPUTES. SELLER AGREES THAT WHOLESAIL WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS THE RESULT OF SUCH INTERACTIONS. WHEN INTERACTING WITH OTHERS, SELLER AND ITS AUTHORIZED USERS SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT PERSONAL SAFETY AND PROPERTY.
9.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7 OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE AMOUNT PAID BY SELLER TO WHOLESAIL UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE APPLICABLE CLAIM AROSE OR (B) $250.00. EXCEPT FOR ANY ACTION BY WHOLESAIL FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. IN NO EVENT WILL WHOLESAIL’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
10. GENERAL PROVISIONS.
10.1 Changes. Wholesail may make changes to the NCF in order to comply with changes to relevant laws and standards.
10.2 Assignment. Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Wholesail may assign this Agreement without the written consent of Seller as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. Any attempted assignment in violation of the foregoing shall be null and void.
10.3 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
10.4 Governing Law; Venue. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of California, including its Uniform Commercial Code, without reference to its conflict of laws principles. Seller hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the City and County of San Francisco, California for any lawsuit filed there against Seller by Wholesail arising from or related to this Agreement.
10.5 Miscellaneous. This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. All notices required or permitted under this Agreement must be delivered in writing, if to Wholesail, by emailing legal@paywholesail.com, and if to Seller by emailing the email address set forth on the corresponding purchase order or by a nationally-recognized express mail service to the business address of either party. Either party may substitute its address for notice by providing written notice thereof to the other party. Wholesail may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Seller agrees to comply with all applicable export control laws and regulations related to its use of Wholesail Technology.