1.0 SERVICE ACCESS
Subject to the terms and conditions of this TOU, including payment by Customer of all amounts due hereunder, Green Badger grants to Customer a project-based, nonexclusive, revocable, non-transferable license, without the right to sublicense, to access and use the Green Badger Solutions during the Term (defined below) in connection with Customer’s business purposes.
To be eligible to access and use the Green Badger Solutions, Customer must have validly purchased a subscription to the Green Badger Service via a valid Order Form and must be current in all payments due to Green Badger hereunder.
Except as is expressly permitted in writing by Green Badger, Customer will not: (i) rent, lease, lend, assign, sublicense, transfer, distribute, sell or otherwise make available, the Green Badger Solutions to any third party; or (ii) reverse engineer, decompile, or disassemble the Green Badger Solutions or permit any third party to do the same. Customer may not (a) remove, alter, or obscure any proprietary notices, labels, or marks from the Green Badger Materials, or (b) modify, translate, adapt, arrange, or create derivative works based on the Green Badger’s Materials for any purpose without Green Badger’s prior written authorization. Any attempt to do so may result in the immediate cancellation of your account.
In order to utilize the Green Badger Solutions, Customer will be required to provide certain contact and account information as part of a registration process. Customer (i) represents and warrants that all information submitted by it during the registration process is accurate and (ii) agrees to update this information to keep it accurate and complete during the term of this TOU. Customer grants to Green Badger the right to store on the Site personal contact information provided by Customer.
The right of Green Badger to receive any payment will not be subject to any abatement, reduction, setoff, defense, counterclaim or recoup of any amount due or alleged to be due because of any past, present or future claims of Customer. Customer agrees to pay Green Badger all sales, VAT or similar tax, if any, is ever imposed on the provision of the Green Badger Solutions (but not in the nature of an income tax on Green Badger), regardless of whether Green Badger fails to collect the tax at the time the Green Badger Solutions are provided.
Green Badger is utilized on a subscription basis enabling Customers to perform tasks pursuant to accomplishing a ‘green’ building project and/or for submittal to the US Green Building Council for LEED certification.
Green Badger reserves the right, but shall have no obligation, to verify that users have been authorized and to restrict or terminate access to the Green Badger Solutions if, in its reasonable judgment, a user cannot be so verified.
5.0 ALL RIGHTS RESERVED
Except as expressly provided otherwise in this TOU, title, ownership, and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the Green Badger Solutions remain with Green Badger and its licensors, or to the respective trademark holder. LEED (TM) is a registered trademark of the US Green Building Council.
The structure, organization, and code of the Green Badger Solutions, and all accompanying materials, are valuable trade secrets of Green Badger, and Customer shall keep such trade secrets confidential. As previously stated in Section 1.0, Customers may not copy, reverse engineer, decompile, or disassemble the Green Badger Solutions or permit any third party to do the same. No logo, graphic, sound, content or image from the Site may be copied or re- transmitted unless expressly permitted by Green Badger separately in writing. The Green Badger Solutions are licensed on a subscription basis and not sold.
7.0 RIGHT TO REMOVE OR DISABLE ACCESS
If Green Badger is made aware of Content or Customer conduct that is, or that Green Badger believes in good faith may be, (i) libelous, obscene, excessively violent, or defamatory, (ii) a violation of any law, regulation, or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander, and invasion of privacy, or (iii) a violation of Green Badger’s Acceptable Use Policy, Green Badger has the right, but not the obligation, to immediately remove or disable access to that Content and/or terminate Customer’s ability to access the Green Badger Solutions without notice to the Customer.
8.0 LICENSE BY CUSTOMER
Customer shall ensure that it has the requisite rights to submit, post, reproduce, publish, distribute, or otherwise transmit all material, information and media submitted or uploaded by Customer or its users on or through the Site, including without limitation building design information, PDF file(s), gbXML file(s) and/or other relevant information uploaded by Customer (“Content”).
By submitting, posting, or otherwise making Content available to Green Badger, or available to any individual or entity on or through the Site, each Customer hereby grants Green Badger a non-exclusive, royalty free, paid up, worldwide, sub-licensable license to use, read, store, display, perform, reproduce, modify, transmit, distribute, add information to and otherwise create derivative works of the Content to enable Green Badger (a) to qualify products and services of third party vendors; (b) to share information content and/or content with third party entities individually or by category; (c) to use and disclose building statistics and analysis results in an aggregated form on an anonymous basis; and (e) to format, maintain, repair, protect, organize and otherwise administer the Site and Green Badger Solutions and otherwise use such Content in the ordinary course of Green Badger’s, or of its chosen third parties’ provision of the Green Badger Solutions.
Green Badger expressly does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or other communications posted via the Site or endorse any opinions expressed. You understand that by using the Site, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Green Badger be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Site or broadcast elsewhere, and
Green Badger makes no warranties or representations to any Customer or user as to the accuracy or usefulness of any information or compliance with applicable laws including the applicability of the information to the Leadership in Energy and Environmental Design (LEED), a mark owned by the United States Green Building Council (USGBC) certification process, as defined by the USGBC and GBCI contained on the Site and assumes no liability or responsibility as to the accuracy or usefulness of any information, or any errors or omissions in the content of the Site. Green Badger assumes no responsibility for the completeness or usefulness of the information or products, nor do we warrant any of the claims made by the manufacturers or certification bodies, nor do we ensure compatibility with or qualification for any applicable laws, codes, regulations or buildings standards or certification programs. Green Badger is simply providing factual information for materials that meet industry standards for definitions of green building attributes. It is the responsibility of the user to determine that the applications of the materials are adequate to meet the needs of any particular use or project.
9.0 CONTENT: GENERAL
As between Green Badger and Customer, Customer is solely responsible for all Content and all activities that occur on the Site under Customer’s accounts, including, without limitation any comments, information, questions, data, plans, feedback, ideas, descriptions of processes, or other information submitted, posted, reproduced, published, distributed, or otherwise transmitted to Green Badger by Customer through the Site or Green Badger Solutions. Customer may use the Green Badger Solutions for lawful purposes only.
We may not monitor or control the Content posted via the Site and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Site or obtained by you through the Site is at your own risk.
None of the products listed on the Site should be viewed or considered as products or services that are endorsed by Green Badger. Green Badger does not endorse, guarantee or warrant any of the specific products, services or service providers listed or displayed on the Site. Green Badger is not responsible for any loss, damage (including actual, consequential, incidental, punitive, or otherwise), injury, or costs resulting from or arising out of, directly or indirectly, any use or purchase of products listed herein.
The information or opinions expressed in product listings or any other public or private forum available on or through the Site are not necessarily those of Green Badger. Green Badger does not endorse and makes no representations regarding any such user-submitted information or opinions. Green Badger is not responsible for any loss, damage (including actual, consequential, incidental, punitive, or otherwise), injury, or costs resulting from or arising out of, directly or indirectly, any user-submitted information or opinion appearing on the Site. Green Badger has no obligation to monitor any user-submitted listings, information, and opinions provided on or through the Site. However, we reserve the right to edit, refuse to post, or remove any user-submitted material that we deem inappropriate or in violation of the TOU and/or terminate or suspend Site access of any user at our sole discretion.
Customer is responsible for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for accuracy of data input and output. Customer acknowledges that: (i) Customer will evaluate and bear all risks associated with the use of any Content, including any reliance by Customer or third parties on the accuracy, completeness, or usefulness of such Content; and (ii) under no circumstances will Green Badger be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damages or any kind incurred as a result of Customer’s or any user’s use, deletion, modification, or correction of any Content.
Customer shall maintain backup copies of the Content submitted to the Site. Green Badger will make commercially reasonable efforts to assist Customers in the event of Content loss stemming from hardware malfunctions on Green Badger servers or the servers of our service providers. Green Badger makes no warranties or representations regarding its back-up practices, and does not warrant that it will be able to fully restore any lost or damaged Content or other data.
10.0 PROTECTION AND USE OF CONTENT
Customer acknowledges that no network security procedures can assure complete network security or prevent all unauthorized access to the Site and will immediately notify Green Badger of any known security breaches affecting the Site, Green Badger Solutions, or Green Badger Materials.
Each time a visitor comes to www.getgreenbadger.com, we gather some basic information. (e.g., visitor’s domain name, referral data, and browser and platform type). Green Badger also counts, tracks and aggregates the visitor’s activity into our analysis of general traffic flows at our sites. To these ends, we may consolidate information into group data, which may then be shared on an aggregated basis with third parties affiliated with Green Badger, but we will not disclose individual identity or personally identifiable data to parties without a Green
Badger account unless explicitly authorized by you. When we do present aggregated information, no one will be able to identify or contact you directly.
11.1 Confidential Information: As used in this TOU, confidential information shall mean (a) any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or designated as “confidential” or “proprietary” at the time of disclosure; (b) Green Badger Solutions, (c) information related to access to the Site, including Customer’s registration information and account passwords, (d) information related to Green Badger’s business or operations, product plans or product prices, and (e) the terms of this TOU (collectively “Confidential Information”).
11.2 Limitations on Disclosure and Use of Confidential Information: Receiving Party shall exercise the same degree of care employed by such party to prevent the unauthorized disclosure of its own Confidential Information, but in no event employing less than reasonable care. Confidential Information disclosed under this TOU shall only be used by Receiving Party in the furtherance of this TOU or the performance of its obligations hereunder. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the extent possible.
Notwithstanding the foregoing, nothing herein shall limit Green Badger’s right to disclose its standard and other Green Badger Confidential Information to third parties.
11.3 Exceptions: Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party free of any obligation of confidence, as shown by Recipient’s written records; or (iii) was rightfully disclosed to the Receiving Party by another person without restriction as to use or disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information as shown by Receiving Party’s written records.
11.4 Independent Development: Receiving Party reserves the right to independently develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Disclosing Party under this TOU without the use of the Disclosing Party’s Confidential Information.
12.0 GREEN BADGER LIMITED WARRANTY AND ADDITIONAL DISCLAIMERS
12.1 (i) Green Badger warrants to Customer that, as of the Effective Date and during the Term the Site will provide substantially the features and functions described in the online help documentation for the version of the Site purchased by Customer under normal use and circumstances. Green Badger’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is, at Green Badger’s sole option, to attempt to correct or work around errors, or to refund the fees actually paid by Customer and terminate this TOU. Customer must notify Green Badger in writing via USPS Certified Mail of any claim under the warranty set forth in this Section 12.1(i) within thirty (30) days of occurrence of the event giving rise to such claim.
(ii) Green Badger warrants to Customer that the Customer Support Services will be performed in a manner consistent with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. Green Badger’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is for Green Badger to use commercially reasonable efforts to correct or re-perform the non-conforming Customer Support Services in accordance with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. Customer must notify Green Badger in writing via USPS Certified Mail of any claim under the warranty set forth in this Section 12.1 (ii) within thirty (30) days of occurrence of the event giving rise to such claim.
12.2 GENERAL DISCLAIMER OF WARRANTIES: EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 12.1 HEREOF, THE GREEN BADGER SOLUTIONS ARE PROVIDED “AS IS” AND GREEN BADGER AND ITS SUPPLIERS, THIRD PARTY PROVIDERS AND AGENTS MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (i) REGARDING THE USABILITY, SUITABILITY, CONDITION, OPERATION OR ACCURACY OF THE SOFTWARE OR THE GREEN BADGER SOLUTIONS, (ii) THAT ACCESS TO OR USE OF THE CONTENT, SOFTWARE OR GREEN BADGER SOLUTIONS WILL BE AVAILABLE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, (iii) THAT THE GREEN BADGER SOLUTIONS WILL DELIVER CUSTOMER’S DESIRED RESULTS OR MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR (iv) THAT THE CONTENT, GREEN BADGER SOLUTIONS AND SOFTWARE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12.1, GREEN BADGER AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. CUSTOMERS’ USE OF THE GREEN BADGER SOLUTIONS AND CONTENT IS AT ITS OWN RISK, AND CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE OF OR INABILITY TO USE THE CONTENT, SOFTWARE, OR GREEN BADGER SOLUTIONS.
12.3. GENERAL DISCLAIMER: GREEN BADGER SOLUTIONS ARE INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY AND ARE NOT SUBSTITUTES FOR PROFESSIONAL JUDGMENT, INDEPENDENT TESTING, BUILDING DESIGNS, OR CONSTRUCTION TECHNIQUES. GREEN BADGER IS NOT A SUBSTITUTE FOR INDEPENDENT ANALYSIS, ESTIMATION, OR TESTING OF DESIGNS, BUILDING PRODUCTS, OR ANY OTHER ASPECT OF A GREEN BUILDING PROJECT. GREEN BADGER SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE GREEN BADGER SOLUTIONS OR FROM ANY THIRD-PARTY RESOURCE USED IN CONJUNCTION WITH GREEN BADGER. PERSONS USING THE GREEN BADGER SOLUTIONS ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THEIR USE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE GREEN BADGER SOLUTIONS AND THE SELECTION OF OTHER PROGRAMS AND SERVICES TO ACHIEVE INTENDED RESULTS. PERSONS USING THE GREEN BADGER SOLUTIONS ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT, INCLUDING ANY RESULTS PROVIDED.
13.0 ADDITIONAL LIMITATIONS OF LIABILITY
GREEN BADGER’S, AND ITS SUPPLIERS’, ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE GREEN BADGER SOLUTIONS, THE SOFTWARE, AND THE CONTENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL OF THE CUSTOMER’S LICENSE FEE PAYMENTS.
IN ADDITION, IN NO EVENT SHALL GREEN BADGER OR ITS SUPPLIERS OR OTHER THIRD PARTY PROVIDERS OR AGENTS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUE OR DATA, OR COST OF COVER ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE GREEN BADGER SOLUTIONS, THE SOFTWARE OR THE CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 13.0 SHALL APPLY TO ALL DAMAGES, CLAIMS AND LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT (INCLUDING, BUT NOT LIMITED TO,
WARRANTY OR INDEMNIFICATION CLAIMS), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF GREEN BADGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
14.0 TERM, SUSPENSION, AND TERMINATION
14.1 License Fee: This TOU shall commence immediately upon receipt of a Customer’s license payment (the “Effective Date”). Renewal terms (each, a “Renewal Term”) shall commence on the one (1) year anniversary of the Effective Date and automatically will continue on a year-to-year basis from the Effective Date immediately following the end of the initial one year Term or until this TOU is canceled by Green Badger or by the Customer and in the case of the Customer subject to the Customer remaining current with license payments. The lnitial Term and any Renewal Term(s) (if any) of your subscription are collectively referred to as the “Term”.
This TOU takes effect on the Effective Date, and shall continue during the Term of your subscription, or, if earlier, the date on which your subscription is terminated in accordance with the terms set forth herein.
The Customer may terminate (“Customer Termination”) this TOU at any time by providing electronic or written notice to Green Badger. Upon Customer Termination, the Customer will have the right to use Green Badger through the remainder of the initial Term or Renewal Term paid for at the time of termination notice. Green Badger is not obligated to pro-rate or refund any unused portion of the lnitial Term or Renewal Term at the time of Customer Termination notice.
Each of Green Badger and you may immediately terminate the license if either party fails to perform its obligations under these terms and conditions and such failure continues for thirty (30) days after written notice by the non-defaulting party.
Green Badger may suspend or terminate a Customer’s license if the Customer fails to pay Green Badger (or an authorized reseller as the case may be) for a license or renewal in accordance with these terms. Green Badger may terminate your license at any time for convenience, in which case Green Badger shall refund that proportion of the subscription fee you paid which equals the unexpired portion of the then current Term.
For free or evaluation subscriptions to the Green Badger Solutions, Green Badger may suspend or terminate a Customer’s subscription and/or Customer’s access to the Green Badger Solutions in its sole discretion at any time without notice. Green Badger may terminate your license to Green Badger Solutions, without penalty or further obligation, for any reason upon sixty (60) days prior written notice to Customer.
Should Green Badger elect termination for any reason other than Customer’s default, Customer shall only be liable for a pro rata payment for those Green Badger Solutions delivered to Customer prior to the effective date of termination. Termination is in addition to all other legal or equitable remedies available to Green Badger. Sections 3, 5,8, 9, 11, 12.2, 13, 14, 16, 17 and 18.4 shall survive any termination.
15.0 EFFECT OF TERMINATION
Upon termination of this TOU for any reason, Customer shall maintain the right to access the Green Badger Solutions to retrieve any of its project data, but not to use Green Badger Solutions for any other use. Upon termination, Customer will delete all Green Badger Materials made available by Green Badger to Customer under this TOU. Upon termination of the TOU, all of Customer’s rights hereunder shall cease.
Customer agrees to indemnify, defend and hold harmless Green Badger and its members, officers, directors, owners, agents, employees and suppliers (collectively, the “Green Badger Indemnified Parties”) from all damages, losses, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Green Badger Indemnified Parties in connection with any third party claim against a Green Badger Indemnified Party arising out of or related to any claim that the Content or Customer’s use of the Green Badger Solutions violates any applicable law, rule, regulation or the rights of any third party.
Green Badger shall promptly notify Customer of any such claim and shall cooperate, at Customer’s expense, as reasonably required by Customer in the defense of any claim. Customer shall have the right to conduct the defense of any such claim, provided, however, that Green Badger shall have the right, at its own expense, to participate in the defense of any matter subject to indemnification hereunder, and Customer shall not settle any such claim without the consent of Green Badger. Green Badger reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer hereunder.
17.0 ENTIRE AGREEMENT
This document (including the documents incorporated by reference herein) contains the entire agreement and understanding between Customer and Green Badger concerning the subject matter of this TOU, and supersedes all other prior or contemporaneous communications, representations, advertising, discussions, negotiations, proposed agreements and all other agreements, whether written or oral, for the Green Badger Solutions. Green Badger has not made and Customer has not relied upon any representations not expressly set forth in this document in making this TOU.
If Customer does not accept a modification by Green Badger to its policies, Customer must notify Green Badger of its termination of its license to the Green Badger Solutions within thirty (30) days in writing via USPS Certified Mail, and Customer must immediately discontinue accessing and using the Green Badger Solutions. If Customer continues to use the Green Badger Solutions, Customer will be deemed to have accepted the modifications.
18.0 GENERAL PROVISIONS 18.1. Waiver/Severability
No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of or excuse of any other, different or subsequent breach. If and to the extent any provision of this TOU is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this TOU in any other jurisdiction.
18.2. Force Majeure
Except for the failure to make payments, neither party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, war, terrorism or terrorist act, civil unrest, strikes, lockouts or other labor disturbances, failure or interruption of a third party internet connection(s) or infrastructure, supplier delay or other causes beyond the non-performing party’s reasonable control and not caused by the negligence of the non-performing party, provided that the non-performing party promptly notifies the other party of the delay and the cause thereof and promptly resumes performance as soon as is reasonably possible to do so.
18.3. Independent Contractor
In performing their respective duties under this TOU, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Nether of the parties will hold itself out in any manner that would be contrary to the provisions of this Section 18.3.
18.4. Governing Law, Jurisdiction, and Venue
The Green Badger Solutions are controlled by Green Badger, LLC and third party vendors from within the state of Georgia, United States of America. By accessing or using the Green Badger Solutions, Customer agrees that the statutes and laws of the State of Georgia, without regard to the conflicts of laws principles thereof, shall govern all matters relating to Customer’s access to, or use of, the Green Badger Solutions. Customer and Green Badger specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. No choice of law rules of any jurisdiction apply.
The parties hereby submit to the exclusive personal jurisdiction of and venue in the Superior Court of the State of Georgia, County of Chatham, and the United States District Court for the Southern District of Georgia in Savannah, Georgia in respect to all claims arising out of or related to the Green Badger Solutions and the TOU. The TOU is void where prohibited by law, and the right to access the Green Badger Solutions is hereby revoked in such jurisdictions.
In conformity with laws and regulations of the United States and other countries relating to international trade, Customer and its employees, agents and Users shall not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided under this TOU, or use the Green Badger Solutions to disclose, export or re-export any Content to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations as modified from time to time by the U.S. Department of Commerce or the U.S. Department of the Treasury or under other laws or regulations to which Customer may be subject. Customer shall be solely responsible for (i) complying with those laws and regulations and (ii) monitoring any modifications to them.
Green Badger makes no representation that Green Badger Solutions or Content are appropriate or available for use in locations outside the United States, and accessing them from territories where the contents are illegal is prohibited. Those who choose to access the Green Badger Solutions or Content from other locations do so at their own initiative and risk, and are responsible for compliance with all local laws.
Notices to Green Badger under the TOU shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to:
Attention: Legal Department, PO Box 8003, Savannah, GA 31412
Neither party may make any public statement, press release, or other public announcement relating to the terms of or existence of the TOU or any relationship between the parties, without the prior written approval of the other party, except as required by law; provided, however, that Green Badger may identify Customer as a customer on any Green Badger customer list published orally, in print, or electronically. The TOU is in the English language only, which language shall be controlling in all respects, and all versions hereof, in any other language, shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to the TOU shall be in the English language only.
Green Badger Solutions contains links to third-party Internet sites that are not under the control of Green Badger. When Customer accesses a non-Green Badger Internet site, Customer does so at Customer’s own initiative and risk, and Green Badger is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made on these sites: or for the quality of any products or services available on such sites: or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods, or services available on or through any such link, site, or resource.
Customer agrees that its rights and obligations under this TOU may not be transferred or assigned and its duties may not be delegated directly or indirectly without the prior written consent of Green Badger in its sole discretion. Green Badger may assign or otherwise transfer its rights and obligations to successors-in-interest (whether by purchase of stock or assets, merger, operation of law, or otherwise) of that portion of its business related to the subject matter hereof. Any attempted assignment in violation of this Section 18.8 shall be a material breach of this TOU and shall be void. Subject to the restrictions set forth in this Section 18.8, all of the terms and conditions of this TOU shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto.
19.0 Special Terms For Customer’s Purchasing Green Badger Applications Through Apple
The parties commitments pursuant to this TOU are subject to the additional and further provisions specified in Apple’s Instructions for Minimum Terms of Developer’s End-User License Agreement (the “Minimum Terms Agreement’ attached hereto as Exhibit A to this Agreement and incorporated by reference as if its terms were set forth herein. Both parties to this Agreement expressly agree to the terms and acknowledgements specified therein. To the extent of any conflict between the Minimum Terms Agreement and any other provisions of this TOU, the Minimum Terms Agreement shall control.