COOKERCLOUD™ TERMS AND CONDITIONS OF USE
These Blentech Corporation CookerCloud™Terms and Conditions of Use (“Terms and Conditions”) apply to all Sales Orders, Subscriptions, Licenses and Contracts for access to, participation in, or use of, the Blentech Corporation CookerCloud™, a cloud-based platform for remote monitoring of food and beverage operations (the “Service”). As used in these Terms and Conditions, the word “Service” may, if and to the extent expressly so provided by agreement, also include other options and services, including support and consulting related thereto.
By accessing, using or participating in the Service, you agree to be bound by these Terms and Conditions. We may modify, add, or delete portions of these Terms and Conditions, including the pricing terms, at any time. If you do not agree to these Terms and Conditions, you must cease using the Service. If we change these Terms and Conditions, we will post a notice that we have made changes to these Terms and Conditions on the Blentech Corporation website and/or the CookerCloud™web page, for at least 7 days after the changes are posted and will indicate at the bottom of the Terms and Conditions the date these terms were last revised. Any revisions to these Terms and Conditions will become effective on the earlier of (i) the end of such 7-day period or (ii) the first time you access or use the Service after such changes have been posted. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access or participate in (or continue to use, access or participate in) the Service.
Any access or use by you (“you” or the “User”) of the Blentech Corporation CookerCloud™platform is limited to and expressly made conditional on assent to these Terms and Conditions which supersede and reject all prior courses of dealing, or prior agreements, representations, discussions or negotiations, whether written or oral, with respect hereto and any prior or subsequent conflicting terms and conditions. The CookerCloud™ platform is further subject to your assent and agreement to the Blentech Corporation End User License Agreement. By using the Service, you are consenting to the Blentech Corporation End User License Agreement.
Blentech will provide access only to those elements of the CookerCloud™ platform to which User is contractually entitled, and as specifically listed in or on a sales order, license, subscription or contract, which is incorporated herein by this reference. Blentech assumes no responsibility for terms or conditions of, or for furnishing other cloud-based access to any other equipment or material other than those expressly contemplated herein or therein. Accessing the Service is prohibited from territories where such content of service is illegal. If you access the Service from other locations, you do so at your own initiative and risk and are responsible for compliance with local laws. Access and use of the Service is limited to the United States and those jurisdictions where such access and use is permitted by law.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BLENTECH HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. BLENTECH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BLENTECH OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BLENTECH BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF BLENTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall BLENTECH’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Blentech Corporation is not responsible or liable in any manner for any User Content or Third Party Content posted on the Site or displayed in connection with the Service. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post, transmit or distribute on the Blentech website or the CookerCloud™webpage, and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Content. Blentech Corporation is not responsible for the conduct, whether online or offline, of any User.
The Service may be temporarily unavailable from time to time for maintenance or other reasons. Blentech Corporation shall have no responsibility for any interruption, delay in operation or transmission, theft or destruction of, unauthorized access to, or alteration of, User communications or any other content made available via the Service. Under no circumstances will Blentech Corporation be responsible for any personal injury or death resulting from the use of the Service, any User Content or Third Party Content, or any products or services provided by Users.
BLENTECH CORPORATION CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. BLENTECH CORPORATION FURTHER CANNOT GUARANTEE THAT THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. USER’S USE OF THE SERVICE IS SOLELY AT USER’S OWN RISK. IN NO EVENT WILL BLENTECH CORPORATION BE LIABLE FOR LOSS OF ANY OF YOUR CONTENT OR OTHER DATA.
YOU AGREE THAT BLENTECH CORPORATION HAS NO SPECIAL RELATIONSHIP WITH, OR FIDUCIARY DUTY TO YOU. YOU ACKNOWLEDGE THAT BLENTECH CORPORATION HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING: (I) WHICH INDIVIDUALS, COMPANIES OR OTHER ENTITIES GAIN ACCESS TO OR USE THE SERVICE; (II) THE CONTENT THAT YOU MAY ACCESS VIA THE SERVICE; (III) THE EFFECT THE CONTENT MAY HAVE ON YOU; (IV) HOW YOU OR OTHER INDIVIDUALS MAY INTERPRET OR USE THE CONTENT OR SERVICE; OR (V) THE ACTIONS YOU OR OTHER USERS OR PROVIDERS MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE CONTENT OR SERVICE.
WITHOUT LIMITING THE FOREGOING, BLENTECH CORPORATION DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, CONTENT OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; BLENTECH CORPORATION DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; BLENTECH CORPORATION DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SERVICE, OR ITS SERVERS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USER’S USE OF THE SERVICE IS SOLELY AT USER’S OWN RISK. IN NO EVENT WILL BLENTECH CORPORATION BE LIABLE FOR LOSS OF ANY OF YOUR CONTENT OR OTHER DATA.
THE DISCLAIMERS SET FORTH ABOVE IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
SOME STATES MAY NOT ALLOW LIMITATIONS ON CERTAIN WARRANTIES OR HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR MAY BE LIMITED BY ACTION OF LAW. IN SUCH EVENT, YOU AGREE THAT THE BLENTECH CORPORATION’ LIABILITY WILL BE THE LOWEST LIABILITY ALLOWABLE UNDER APPLICABLE LAW.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701 2711): BLENTECH CORPORATION MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICE OR ANY WEBSITE LINKED TO THE SERVICE. BLENTECH CORPORATION WILL NOT BE LIABLE FOR THE PRIVACY OF EMAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT STORED ON BLENTECH CORPORATION’S EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY THE SERVICE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SERVICE.
OWNERSHIP AND TITLE
These Blentech Intellectual Property ownership provisions shall not be superseded by any printed form used in connection with or arising out of a license, subscription, sales order induced by a proposal or otherwise. The title and right of possession of the Blentech Intellectual Property made available hereunder shall remain with Blentech.
"Blentech" and “CookerCloud™) are trademarks of Blentech Corporation, and together with the other graphics, logos, designs, page headers, button icons, scripts and service names on the Blentech website or CookerCloud™ webpage, are the trademarks or trade dress of Blentech Corporation in the U.S. and other countries ("Blentech Marks").
You may not use the Blentech Marks, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or create the impression that Blentech endorses any product or service. You may not reproduce or use the Blentech Marks without the prior written permission of Blentech.
All content and Blentech Intellectual Property on the CookerCloud™platform and otherwise available through the Service, including any User content, designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of Blentech Corporation. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, reverse engineered, decompiled, disassembled or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms and Conditions.
Users may access and use the Service and the Site Content and download or print a reasonable number of copies of portions of the Site Content to which the User has properly gained access solely for express use permitted hereunder, and solely by duly authorized employees of User, on a need-to-know basis. User agrees to maintain all Site Content confidential, and to take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Blentech’s Site Content. Without limiting the foregoing, User agrees to take measures no less stringent than it takes to protect its own most highly confidential information and shall ensure that its employees with access to Site Content have signed an agreement containing substantially similar provisions related to confidential information as those contained herein before disclosing such confidential information to such employees. User agrees to maintain all Blentech Corporation copyright or other proprietary notices on all copies of Site Content.
If and to the extent the Service allows or permits you to post your own information on the Blentech Corporation website or a CookerCloud™ web page or otherwise (“User Content”), Blentech does not and shall not verify the accuracy, completeness, reliability or authenticity of any User Content, and makes no representations, warranties or covenants with respect to any User Content.
When you post User Content, you grant to Blentech an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute such User Content. Subject to the rights granted to Blentech Corporation in these Terms and Conditions, you retain ownership of your User Content.
Except for your own User Content, you may not publish or otherwise distribute Site Content, including via the Internet or any intranet or extranet site, or incorporate the Site Content in any other database or compilation. You may not use any data mining, robots, scraping or similar data gathering or extraction methods to obtain Site Content. Any use of the Site or the Site Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to use of the Service and the Site Content granted herein. All rights of Blentech or its licensors that are not expressly granted in these Terms and Conditions are reserved to Blentech and its licensors.
In the event of any material breach by User of any sales order, license, subscription or other agreement with Blentech, including any failure to promptly pay in full any invoice or invoices when due, Blentech may immediately exclude User from any and all access to the Services, with or without process of law or may pursue its other remedies. User agrees, in case of its default and upon demand, to pay immediately all sums due and all expenses, including interest charges and reasonable attorney’s fees, incurred by Blentech in excluding User from access to the Services due to a material breach. User agrees to cooperate fully with Blentech, and to preserve the confidentiality of, and not use or disclose any Blentech Intellectual Property.
Blentech Corporation respects the intellectual property rights of others and expects Users of the Service to do the same. Blentech Corporation complies with the federal Digital Millennium Copyright Act (“DMCA”), the text of which may be found on the U.S. Copyright Office Website at http://www.copyright.gov/legislation/dmca.pdf. We will respond to notices of alleged copyright infringement that comply with the DMCA and other applicable law and are properly provided to us.
If you believe that any User Content has been copied or used in a way that constitutes
copyright infringement, please provide us with the following information:
- a physical or electronic signature of the copyright owner or a person authorized to act
on their behalf;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- your contact information, including your address, telephone number, and an email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you believe that your User Content that was removed after we received a notice of
copyright infringement is not actually infringing, or that you have the necessary rights to post your User Content, please send us a counter-notice containing the following information:
- your physical or electronic signature (with your full legal name);
- identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
- a statement that you have a good faith belief, under penalty of perjury, that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
- your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
If we receive a counter-notice, we may send a copy of the counter-notice to the person alleging copyright infringement and inform that person that we may replace the removed User Content in ten business days. Unless the original person alleging copyright infringement files an action seeking a court order against the User, the removed User Content may be replaced, in 10 to 14 business days or more after receipt of the counter-notice, at Blentech Corporation’s sole discretion.
Filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
We reserve the right to remove User Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Blentech Corporation may also terminate a User's account if the User is determined to be a repeat infringer.
You agree not to do any of the following in connection with your use of the Service and to otherwise use the Service in compliance with these Terms and Conditions.
- use automated scripts to collect information from or otherwise interact with the Service;
- use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape", "crawl" or "spider" any web pages or other services contained in the Service;
- impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from Blentech Corporation;
- upload, post, transmit, distribute or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain
letters,"; "pyramid schemes," or any other prohibited form of solicitation;
- upload, post, transmit, distribute, store or otherwise make publicly available on the Service any private information, including any personally identifiable information or personal data, of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- intimidate or harass another, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- upload, post, transmit, distribute or otherwise make available any material which does or may infringe any copyright, trade mark or other intellectual property rights of any other person;
- upload, post, transmit, distribute or otherwise make available any material which is defamatory of any person, obscene, offensive, hateful or inflammatory;
- upload, post, transmit, distribute, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense;
- use or attempt to use another's account, service or system without authorization from Blentech Corporation, or create a false identity on the Service;
- use the Service in a manner that may create a conflict of interest or undermine the purposes of the Service, such as trading reviews with other Users or writing or soliciting shill reviews;
- use the Service in a manner that violates any law (including the CAN-SPAM Act of 2003) or otherwise conduct illegal activities in connection with your use of the service;
- upload, post, transmit, distribute, store or otherwise make available any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; or
- upload, post, transmit, distribute, store or otherwise make available content that, in the sole judgment of Blentech Corporation, is objectionable or which restricts or inhibits any other person from using the Site, or which may expose Blentech Corporation or its users to any harm or liability of any type.
NO HIGH RISK USE
You may not use the Service in any situation where failure or fault of any kind of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage ("High Risk Use"). High Risk Use is STRICTLY PROHIBITED, and Blentech Corporation expressly disclaims any liability that may result from your High Risk Use of the Service, to the extent permitted under applicable law. High Risk Use includes, for example, the following: nuclear or chemical facilities and Class III medical devices under the Federal Food, Drug and Cosmetic Act.
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF USER
In addition to any other representations and warranties in these Terms and Conditions, you represent and warrant that:
- User Content and all other content submitted to the Service through your account or otherwise posted, transmitted, or distributed by you on or through the Service: (i) does not violate or infringe upon the rights of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights), (ii) does not contain libelous, defamatory or otherwise unlawful material, (iii) is truthful and accurate, and (iv) is not materially misleading or fails to include any statement necessary to make such material not misleading; and
- you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, and you are not listed on any U.S. government list of prohibited or restricted parties.
THIRD PARTY WEBSITES AND CONTENT
The Blentech CookerCloud™platform may contain (or you may be sent through the Service) links to other web sites ("Third Party Sites") as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (the "Third Party Content"). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Content posted on, available through the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of, linking to or permitting the use of any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by Blentech Corporation. If you decide to leave the Site and access the Third Party Sites or to access or use any Third Party Content, you do so at your own risk and you should be aware that, with respect to Third Party Sites, our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
SALES AND SIMILAR TAXES
Unless expressly and separately stated, Blentech’s prices for the Services do not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, or in any sales order, license, subscription or other agreement, the amount of any present or future sales, use, excise or similar tax applicable to the provision of the Services hereunder (including any interest and penalties imposed by any governmental authority) shall be paid by the User, or in lieu thereof, the User shall provide Blentech with a tax-exemption certificate acceptable to the taxing authorities.
CHANGES OR CANCELLATION
Orders which have been accepted by Blentech are not subject to cancellation or changes in specification except upon prior written agreement by Blentech and upon terms that will indemnify Blentech against all losses resulting from or arising out of such cancellation or change in specifications. In the absence of such indemnification, Blentech shall be entitled to recover all damages and costs of whatever nature permitted by the Uniform Commercial Code or other applicable law.
User agrees to strictly observe each and every obligation set forth herein. User further agrees to indemnify, defend and hold Blentech harmless against any and all losses, liabilities, expenses (including attorneys’ fees) and causes of action relating to injury, death, property damage, destruction or otherwise, arising from, in connection with or related to, or alleged to arise from, be connected with or related to: (i) the operations, activities and use of the Services provided hereunder, or (ii) any consequences of use of the Services by User.
Blentech Corporation may modify the Service, and all content, software and other items used or contained in the Service, at any time. References on the Service to any companies, organizations, products, or services, or other information do not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Blentech Corporation.
CREDIT AND PAYMENT
Unless otherwise noted on the face hereof, payment for Services shall be thirty (30) days net. Any discount period which may be granted by Blentech begins on the invoice date and all payments are due 30 days after the invoice date. All payments shall be made without deduction, deferment, set-off, lien or counterclaim of any nature. All amounts due not paid within 30 days after the date such amounts are due shall bear interest at the lesser of 1.5 percent per month or the maximum rate of interest allowed by law. Blentech reserves the right at any time to suspend credit or to change credit terms provided herein, when, in Blentech’s sole opinion, User’s financial condition so warrants. Failure to pay invoices when such invoices are due and payable, at Blentech’s election, shall make all subsequent invoices immediately due and payable irrespective of terms, and Blentech may withhold all subsequent deliveries until the full account is settled. Blentech shall not, in such event, be liable for delay of performance or nonperformance of contract in whole or in part subsequent to such event.
User shall maintain such public liability insurance, including product liability, contractual liability, completed operations, contractor’s liability and protective liability, automotive liability insurance (including nonowned automotive liability), workers’ compensation and employer's liability insurance, cyber insurance, technology liability insurance for errors and omissions arising out of the making of professional services, including coverage for claims arising from access to systems or data, or both, by third parties, virus transmission, failure to protect, or wrongful disclosure, of confidential or sensitive information and identity theft as will adequately protect Blentech against all damages, liabilities, claims, losses and expenses. User agrees to submit certificates of insurance evidencing its insurance coverage when requested by Blentech. All insurance coverage provided to Blentech by User pursuant to these Terms and Conditions shall be primary insurance with respect to User’s obligations, and shall not be, or be considered to be, contributing insurance with any of Blentech’s policies of insurance. No recovery by Blentech under any policy of insurance procured by User shall limit, waive or bar any other right, remedy, claim, cause of action or recovery that Blentech may have against User under these terms and conditions or applicable law.
User shall not assign its order or any interest therein or any right hereunder without consent of Blentech. No waiver, alteration, or modification of any of the provisions hereof shall be binding unless in writing and signed by a duly authorized representative of Blentech.
The construction and performance of the contract of which this document is a part shall be exclusively and irrevocably governed by the laws of the State of California, without regard to choice of law requirements. User and Blentech Corporation agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Sonoma, California, to resolve any dispute or claim arising from these Terms and Conditions.
This document constitutes the entire contract and exclusively determines the rights and obligations of the parties, and any prior or subsequent written communication (unless signed by Blentech), or oral statements or course of dealing, custom, or usage of trade or course of performance shall not change, alter or modify the terms and provisions set forth herein.
Should any dispute, arbitration or litigation arise regarding the enforcement or interpretation of these Terms and Conditions, the prevailing party in such dispute shall be entitled to collect from the other party the prevailing party’s attorneys’ fees and costs, in addition to any other relief to which such party may be entitled. Such recovery may be part of such action, proceeding or arbitration, or may be the subject of another proceeding, and shall include attorneys’ fees and costs incurred in any appeal or proceeding to enforce the judgment obtained or otherwise collect the amounts recovered or awarded.
Failure or delay by either party to insist on the strict performance of any covenant, term, provision or condition hereunder, or to exercise any option herein contained, or to pursue any claim or right arising herefrom, shall not constitute or be construed as a waiver of such covenant, term, provision, condition, option, claim or right. Any waiver by either party shall be effective only if in a writing delivered to the other party hereto and setting forth, with specificity, the covenant, term, provision or condition so waived. Any such waiver shall not constitute or be construed as a continuing waiver of any subsequent default.
These Terms and Conditions shall be binding on and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns.
Neither party shall assign or transfer any rights or obligations hereunder without the prior written consent of the other and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, except that a party may assign rights under these Terms and Conditions without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its
In any action, proceeding or other arbitration in which User is required to indemnify or defend Blentech, Blentech may be represented by and actively participate through its own counsel, at User’s expense.
ELECTRONIC DELIVERY/NOTICE POLICY AND CONSENT
By using the Service, you consent to receive from Blentech Corporation reasonable communications including notices, agreements, legally required disclosures or other information in connection with the Service (collectively, "Contract Notices") electronically. Blentech Corporation may provide such electronic Contract Notices by posting them on the Service. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the Service.
These Terms and Conditions of Use are effective as of June 23, 2019.