TERMS OF SERVICE AGREEMENT (Updated March 2018)
1. Acceptance of Terms
HR Performance Solutions ("HR PERFORMANCE SOLUTIONS" or "we") provides its subscription human resource services ("Services") to you subject to the following Terms of Service Agreement ("Agreement"). This Agreement is a legal document that binds Users to certain obligations. These Services are provided to Users subject to the terms of this Agreement.
BY ACCEPTING THE TERMS OF THIS AGREEMENT AND BY CONTINUED USE OF OUR SERVICES, YOU ARE STATING YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY THE TERMS IN EFFECT AS SET FORTH HEREIN. TO VIEW THE MOST CURRENT VERSION OF THE AGREEMENT CLICK ON THE "TERMS OF SERVICE" LINK LOCATED AT THE BOTTOM OF HR CENTRAL AND EACH PRODUCT'S HOME PAGE. HR PERFORMANCE SOLUTIONS RETAINS THE RIGHT TO AMEND AND UPDATE THESE TERMS OF SERVICE AT ANY TIME. IF HR PERFORMANCE SOLUTION CHANGES ANY OF THESE TERMS OF SERVICE YOU WILL BE NOTIFIED WHEN YOU SIGN INTO THE SERVICE AND WILL BE REQUIRED TO ACCEPT THE CHANGES. IF THE CHANGES ARE NOT ACCEPTABLE TO YOU, YOU MAY CANCEL THIS SERVICE. CANCELLATION UNDER THIS SECTION WILL NOT RESULT IN A REFUND OF ANY FEES PREVIOUSLY PAID.
2. Service Terms and Limitations
a. Description of Services. Upon your acceptance of this Agreement and payment of your Service Fees, HR PERFORMANCE SOLUTIONS grants you a limited, non-transferable, and non-exclusive, right to obtain Services to which you have subscribed for use solely within your subscribing organization. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement.
b. Availability of Services. HR PERFORMANCE SOLUTIONS shall use reasonable efforts to provide access to its Application Services twenty- four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You agree that from time to time the Services may be inaccessible or inoperable for various reasons, including scheduled maintenance procedures or upgrades or certain unscheduled Service or equipment malfunctions such as interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, or other failures. HR PERFORMANCE SOLUTIONS shall provide at least twenty-four (24) hours’ notice by e-mail to administrative users in the event of any lengthy scheduled downtime and shall use reasonable efforts to minimize any disruption, inaccessibility, and/or inoperability of Services, whether scheduled or not when possible.
c. Service Level. In the event that HR PERFORMANCE SOLUTIONS discovers or is notified by you of the existence of non-scheduled downtime, we will use reasonable efforts to determine the source of the problem, attempt to resolve it as quickly as possible, and bring back up servers online as circumstances dictate. HR PERFORMANCE SOLUTIONS will address non- scheduled downtime within 1 hour of notification if such notification occurs during HR Performance Solutions’ regular business hours. In other situations, such issues will be addressed within 1 hour after resumption of HR Performance Solutions’ normal business hours. HR PERFORMANCE SOLUTIONS will endeavor to keep Users informed of downtime situations as is appropriate. HR PERFORMANCE SOLUTIONS strives to maintain a 99% availability for services within our direct control, which excludes scheduled maintenance, periods due to force majeure, issues associated with User provided hardware, software, and other equipment, and issues arising from the misuse of the Services by the User.
d. Equipment. Users are solely responsible for ensuring compatibility with the Service, providing and maintaining all hardware, software, electrical, and other physical requirements for use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to use and access the Service.
3. Security, User Accounts, and Passwords
HR PERFORMANCE SOLUTIONS shall operate and maintain the Service system in good working order with access restricted to designated employees of your organization. You shall undertake and perform reasonable measures designed to ensure the security, confidentiality, and integrity of all messages and content that you receive, transmit through, or store on the Service. You shall be solely responsible for any authorized or unauthorized access to your account by any person that has occurred as a result of your utilization of these Services. You agree to bear all responsibility for the confidentiality of your passwords and all use or changes incurred from use of the Service through your passwords. HR PERFORMANCE SOLUTIONS strongly discourages use of Social Security Numbers or other confidential identifiers as Usernames or Passwords and is not responsible for their misuse. Additionally, you agree to immediately notify HR PERFORMANCE SOLUTIONS of any unauthorized use of your password or account or any other security breach and ensure that you exit from your account at the end of each session. HR PERFORMANCE SOLUTIONS cannot and will not be liable for any loss or damage arising from your failure to comply with this Section. You warrant to HR PERFORMANCE SOLUTIONS that your representations as to your identity will be truthful. HR PERFORMANCE SOLUTIONS will provide you notice within 1 business day of HR Performance Solutions’ knowledge of any incident that involves or HR PERFORMANCE SOLUTIONS reasonably believes involves the unauthorized access, use, or disclosure of your Data or Content.
HR PERFORMANCE SOLUTIONS will not disclose any information about your company accounts including its contents, without your prior consent unless HR PERFORMANCE SOLUTIONS has a good faith belief that such action is necessary to (i) comply with legal process or other legal requirements of any governmental authority and HR PERFORMANCE SOLUTIONS will endeavor to provide you with notice before such disclosure; (ii) protect and defend the rights or property of HR PERFORMANCE SOLUTIONS and HR PERFORMANCE SOLUTIONS will endeavor to provide you with notice before any such disclosure; or (iii) enforce this Agreement. This shall not prohibit HR PERFORMANCE SOLUTIONS from using information in accordance with Section 10 of this Agreement.
5. User Obligations
a. Registration. In consideration of your use of the Service, you agree to provide true, accurate, current, and complete information about yourself and your organization. Further, you represent and warrant that you: (i) are over 18 years of age, (ii) have the power and authority to enter into and perform obligations under this Agreement, and (iii) are authorized to pay Service fees.
b. Responsibility for Content. You understand that all information, data, text, software, sound, photographs, graphics, messages, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not HR PERFORMANCE SOLUTIONS, are entirely responsible for all Content that you upload, post, e-mail or otherwise transmit via the Service. HR PERFORMANCE SOLUTIONS does not control the Content posted via the Service and, as such, will not be liable in any way for any Content. We do not prescreen Content, but you understand that HR PERFORMANCE SOLUTIONS and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, HR PERFORMANCE SOLUTIONS and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable in the sole opinion of HR PERFORMANCE SOLUTIONS. HR PERFORMANCE SOLUTIONS will endeavor to provide notice to Users of any such actions taken.
c. Prohibited Uses. You understand that you are solely responsible for any and all acts and omissions that occur under your account or passwords, and you agree not to engage in unacceptable use of the Service which includes, without limitation, use of the Service to: (i) disseminate, store or transmit unsolicited messages, "spam," chain letters, or unsolicited commercial e-mail; (ii) disseminate or transmit material that, is unlawful or to a reasonable person may be abusive, harmful, invasive of another's privacy, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate, store or transmit files, graphics, software or material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies and authorities, or without all required approvals, licenses or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (vii) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; (viii) upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships; (ix) harm minors in any way; or (x) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations related to the Service.
6. Fees and Payment Terms
a. Payment. New Users shall pay HR PERFORMANCE SOLUTIONS for each Service application within 30 days of commencement of such Service (i.e. at the time of the product's activation), in full. Thereafter, Users will be billed for service renewals 30 days prior to the expiration of the Service Term. You agree to pay renewal fees in the event you fail to timely terminate this Agreement as outlined in Section 9.
b. Prices Subject To Change. Services will be renewed at then current HR PERFORMANCE SOLUTIONS rates and terms. Notice of any rate increases will be provided 30 days prior to the expiration of the Service Term, in the form of an annual invoice. Additional licenses, as applicable, may be purchased at the current HR PERFORMANCE SOLUTIONS rates.
c. Late Payments. Delinquent payment, defined as the User failing to pay fees as of the due date, will accrue interest at the rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. HR PERFORMANCE SOLUTIONS may immediately suspend or terminate this Agreement and User's access to the Service until payment in full has been made to HR PERFORMANCE SOLUTIONS.
d. Taxes. All fees charged by HR PERFORMANCE SOLUTIONS are exclusive of sales taxes, currency conversion charges, and similar fees now in force or enacted in the future that are imposed on the transaction, all of which will be paid by the User.
7. General Practices Regarding Use and Storage
You acknowledge that HR PERFORMANCE SOLUTIONS may establish general practices and limits concerning use of the Service and, with prior notice, the maximum disk space allotted on HR Performance Solutions’ servers on your behalf. HR PERFORMANCE SOLUTIONS will implement reasonable measures, including firewall protection and maintenance of backup copies to protect the confidentiality and integrity of User Content. Currently, data are backed up every four hours on redundant drives and twice daily data are backed up to two different sources. You agree that HR PERFORMANCE SOLUTIONS has no responsibility or liability for the deletion or failure to store or backup any messages and other communications or other Content maintained or transmitted by the Service and that no security system can guarantee information, complete security or prevent all unauthorized access.
8. Service Modifications
HR PERFORMANCE SOLUTIONS reserves the right to periodically and at any time modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that HR PERFORMANCE SOLUTIONS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
9. Term and Termination
a. Initial Term. The initial term of the Services shall be for one (1) year (the “Initial Term”). The Service Fees as set forth in the proposal are not subject to change during the Initial Term.
b. Renewal Terms. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-year renewal terms (the “Renewal Term” or “Renewal Terms”), unless either party provides the other with written notice of its intent to terminate the Services prior to the commencement of any Renewal Term. HR PERFORMANCE SOLUTIONS shall provide you with written notification setting forth the Service Fees for the Renewal Term at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term.
c. User Termination of Agreement.(i) 30-Day Money Back Termination. User may terminate this Agreement within 30 calendar days of first initiating Service (i.e. service activation) and receive a full refund of basic subscription fees paid for Services cancelled. Any additional consulting, training or programming fees incurred prior to termination remain payable and are non-refundable. (ii) After 30 Days of Service. User may terminate this Agreement at any time after the initial 30 days of service. However, no fees will be refunded for the unused portion of one year service agreements or for the first year of 2 or 3-year term service agreements. Users with 2 year or 3 year agreements may cancel their services subject to payment of cancellation fees and other terms of their multiyear service agreements. (iii) HR Performance Solutions’ Material Breach. User may terminate this Agreement upon giving HR PERFORMANCE SOLUTIONS a Notice of Termination if HR PERFORMANCE SOLUTIONS materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach. Should HR PERFORMANCE SOLUTIONS fail to cure the material breach, User will receive a pro-rata refund for the remainder of the Service Term.
d. HR PERFORMANCE SOLUTIONS Termination of Agreement. HR PERFORMANCE SOLUTIONS may terminate this Agreement because of your material breach if you have failed to cure such breach upon ten (10) days written notice. HR PERFORMANCE SOLUTIONS may also, in its sole discretion and at any time, discontinue providing the Service or any part of it, with or without notice.
e. Effect of Termination. Upon the effective date of termination of this Agreement HR PERFORMANCE SOLUTIONS will cease providing Services, you will cease using the Services, and all User payment obligations through the effective date of termination, including multiyear term cancellation penalties (if applicable) will immediately become due. Upon termination and full payment by User, HR PERFORMANCE SOLUTIONS will make available your Content and data, if any, which resulted from use of HR PERFORMANCE SOLUTIONS Services, in the format specified for each application. Provision of data is contingent upon User written request and payment of a quoted cost and delivery schedule determined by the amount of data and time required for retrieval. Within thirty (30) days of such termination and upon written request, each party will return or destroy the other party's Confidential Information as defined below. Sixty (60) days after termination, HR PERFORMANCE SOLUTIONS will remove your Content from its servers, if requested to do so, and certify such deletion to you in writing. Notwithstanding the forgoing, and notwithstanding that HR PERFORMANCE SOLUTIONS has no liability to You or the User for its failure to store or backup Content, any Content or other messages, communication or information stored on HP PERFORMANCE SOLUTIONS servers may be deleted (automatically or manually) by HP PERFORMANCE SOLUTIONS any time after 60 days after the expiration or termination of the Services provided to you under this Agreement.
f. Survival of Termination. The provisions of Sections 3, 4, 7, 10, 11, 12, 13, 14, 16, 18, 21, 22, 23, 24 and 25 shall survive the termination of this Terms of Service Agreement.
10. Confidential Information
Each party may provide to the other certain confidential, proprietary, and trade secret business or technical information of the other in connection with this Agreement ("Confidential Information"). The parties expressly agree that the Services, any accompanying technical documentation, User Content, and the terms of this Agreement shall be deemed to be Confidential Information at all times unless expressly agreed otherwise. Each party agrees to preserve the Confidential Information that is provided as the result of this Agreement, and shall not, without the prior written consent of the other party, disclose or make available to any person, or use for its own or for any other person's benefit, other than as necessary in performance of its obligations under this Agreement, any Confidential Information. You shall have the right to disclose the terms of this agreement to your insurance companies as well as to your legal, financial, and accounting advisors. You are also able to disclose the Agreement if such disclosure: (1) is in response to a valid order of a court or other government body of the United States; (2) is otherwise required by law; or (3) is otherwise necessary to establish rights and enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
Notwithstanding the forgoing, You agree that HR PERFORMANCE SOLUTIONS may have access to and use User Content for the purpose of analyzing industry trends and compiling summaries and other similar analysis that does not result in the disclosure of any User’s identity or the disclosure of any non-public personal information that may be contained within any User Content.
HR PERFORMANCE SOLUTIONS limits staff access to User information. HR PERFORMANCE SOLUTIONS shall not provide access to or disclose the User's Confidential Information except to select employees and contractors and to the extent necessary to perform this Agreement including such functions as provision of customer support, program maintenance, and resolution of technical issues or as otherwise permitted under this Agreement. HR PERFORMANCE SOLUTIONS shall protect the User's Confidential Information against disclosure with the same degree of care as it protects its own, though in no event will it exercise less than commercially reasonable care.
11. Disclaimer of Warranties
a. No Legal Advice Provided. HR PERFORMANCE SOLUTIONS Services and materials are designed to provide accurate and authoritative information with regard to the subject matter covered. In producing these materials, HR PERFORMANCE SOLUTIONS is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
b. Errors and Omissions. As no published work can be totally current, all information should be checked against the most recent developments by a qualified professional. HR PERFORMANCE SOLUTIONS uses care in publishing materials and makes every attempt to provide accurate information. However, we cannot guarantee their accuracy or completeness. Errors and omissions may occur. HR PERFORMANCE SOLUTIONS will make reasonable efforts to correct any errors or omissions but makes no representation regarding the accuracy of information provided.
c. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, YOUR USE OF THE SERVICE IS ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND AND IS AT YOUR OWN RISK. HR PERFORMANCE SOLUTIONS WILL USE ITS REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE. HOWEVER, WE PROVIDE NO WARRANTIES WHATSOEVER AND DO NOT MAKE AND HEREBY DISCLAIM, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
d. HR PERFORMANCE SOLUTIONS DOES NOT WARRANT THAT THE SERVICE OR INFORMATION OBTAINED BY YOU THROUGH THE SERVICE WILL (i) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) BE UNINTERRUPTED, TIMELY OR ERROR-FREE, (iii) BE COMPLETELY SECURE, OR (iv) THAT ERRORS IN THE SERVICE WILL BE CORRECTED. NOR DO WE MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE.
e. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.
f. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HR PERFORMANCE SOLUTIONS OR THROUGH OR FROM THE
SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL HR PERFORMANCE SOLUTIONS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF HR PERFORMANCE SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES). THIS INCLUDES, BUT IS NOT LIMITED TO, DAMAGES RESULTING FROM: (i) YOUR USE OR INABILITY TO USE THE SERVICE, (ii) ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, (iii) DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, (iv) ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, (v) THE COST OR PROCUREMENT OF SUBSTITUTE SERVICES OR (vi) ANY DATA, STATEMENTS, CONDUCT, OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IF YOU ARE DISSATISFIED WITH THE SERVICE FOR ANY REASON, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 9.
13. Reliance on Warranty and Liability Limitations
THE PARTIES ACKNOWLEDGE THAT HR PERFORMANCE SOLUTIONS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THE SAME FORM AN ESSENTIAL BASIS OF THAT BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE TERMINATION OF THIS AGREEMENT.
14. Exclusions and Limitations
SOME STATES PROHIBIT THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS SOME OF THE ABOVE LIMITATIONS IN SECTIONS 12-13 MAY NOT APPLY TO YOU. IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, HR PERFORMANCE SOLUTIONS’ CUMULATIVE LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITLY, SHALL BE STRICTLY LIMITED TO THE SERVICE FEES PAID BY YOU DURING THE 12 MONTHS PRIOR TO SUCH EVENT. YOU RELEASE HR PERFORMANCE SOLUTIONS FROM ALL OBLIGATIONS, LIABILITIES, CLAIMS OR DEMANDS IN EXCESS OF THE LIMITATION.
15. Business Dealings with Partners, Links, Advertisers, and Other Third Parties
Your business dealings with partners, advertisers, links to other web sites, and other third parties found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third parties. You agree that HR PERFORMANCE SOLUTIONS shall not be responsible or liable for any loss or damage of any sort incurred as the result of such dealings or as the result of the presence of such third parties on the Service. HR PERFORMANCE SOLUTIONS is not responsible for the availability of such external sites or resources and is not responsible or liable for any content, products, or other materials on or available from such resources.
16. Proprietary Rights
You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Exclusive of your Content and Data, HR PERFORMANCE SOLUTIONS shall retain all right, title, and interest (including copyright, trademark, and other proprietary and intellectual property rights) relating to the Services, all legally protectable elements or derivative works. You also agree that information contained in advertisements or information presented to you through the Service or third parties is protected by copyright, trademark, patents and other proprietary rights. You shall retain all right, title, and interest in your Content and Data. HR PERFORMANCE SOLUTIONS may place copyright and/or proprietary notices, including hypertext links, within the Services. You may not alter or remove such notices without HR Performance Solutions’ written permission.
Your Content and Data shall not include anything that actually or potentially infringes or misappropriates the copyright, trademark, or intellectual property right of any other person, or contains anything that is obscene, defamatory, harassing, offensive or malicious. You agree not to display or use in any manner, any HR PERFORMANCE SOLUTIONS trademarks without HR Performance Solutions’ prior written permission. User will not, directly or indirectly, reverse engineer, decompile, or otherwise attempt to derive source code or other trade secrets from HR PERFORMANCE SOLUTIONS. You agree not to reproduce, duplicate, modify, copy, sell, resell, distribute, create derivative works, or exploit any portion of the Service, use of the Service, or access to the Service. You agree not to access the Service by any means other than through the interface provided by HR PERFORMANCE SOLUTIONS.
17. Notices & Amendments
All notices related to this Agreement itself shall be sent electronically, either by email to the addresses set forth before or by electronic message that will be delivered to You at the time you sign on to the Service. Notice shall be deemed to be delivered when sent or when posted to the Service.
18. Independent Contractors
The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Except in connection with the sale of substantially all of your assets, you may not assign any of your rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement.
No waiver of any Agreement provision, right or remedy shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent deemed to be omitted and the remainder of the Agreement shall remain enforceable.
22. Applicable Law
This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to its conflict of law provisions.
23. Digital Signature Provisions
You represent and warrant that the individual electronically agreeing to the terms of this Agreement is empowered to agree to this Agreement on behalf of User. You further agree that clicking the "AGREE" button at any time shall constitute an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act and that the Agreement is completely valid, has legal effect, is enforceable, and is binding on and nonrefutable by User.
24. Force Majeure
If the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered, or delayed by such causes.
The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
26. Entire Agreement
This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements, and understandings, whether oral or written, between the parties concerning the Service. You may also be subject to additional terms and conditions that apply when you use affiliate services, third-party content or third-party products.