Mark-A-Hydrant, LLC Terms & Conditions End User Agreement
ALL SALES OF PRODUCTS (COLLECTIVELY THE “PRODUCTS”) AND RELATED SERVICES MADE BY MARK-A-HYDRANT, LLC ("MARK-A-HYDRANT") TO THE END USER CUSTOMER ("CUSTOMER") ARE MADE ON THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER AGREEMENT AND LIMITED WARRANTY AGREEMENT (THE “AGREEMENT”). MARK-A-HYDRANT HEREBY EXPRESSLY OBJECTS TO ANY TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT RECEIVED FROM CUSTOMER. UPON THE PURCHASE OF ANY PRODUCT OR SERVICE OR BY ACCESSING OUR WEB SITE, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ANY AMENDMENTS THERETO WHICH MARK-A-HYDRANT MAY MAKE, FROM TIME, TO TIME IN ITS DISCRETION.
1. AMENDMENTS. From time to time, and in its sole discretion, Mark-A- Hydrant may modify any of the terms of this Agreement. We encourage you to review this Agreement on a regular basis. By accessing our web site or by purchasing any products or services of Mark-A- Hydrant, you agree to be bound by the then current version of this Agreement.
2. ORDERS. Products and/or related services may be ordered at the applicable price by Customer in accordance with this Agreement. Orders shall be either submitted via a Mark-A-Hydrant sales representative, phone, email or Mark-A- Hydrant’s web site, to Mark-A- Hydrant and shall not be binding upon Mark-A- Hydrant unless and until the order has been accepted in writing or Product has been shipped in accordance with the order. Changes requested by Customer to an accepted order may be treated by Mark-A- Hydrant as a separate order. If any such change affects Mark-A- Hydrant's ability to meet its obligations under the original order, any price, anticipated shipment date, anticipated installation date or other term is subject to change and additional charges may apply.
3. PRICES AND DELIVERY. Prices do not include shipping charges, the cost of insurance, import duties or VAT, sales, use, excise, withholding or similar taxes. Customer shall directly pay or reimburse Mark-A- Hydrant for any such taxes, insurance and import duties applicable to the sale or furnishing of any Product hereunder. Anticipated shipment dates are based on conditions prevailing at time of order acceptance. Mark-A- Hydrant shall use its commercially reasonable efforts to meet any such shipment dates, however, Mark-A- Hydrant shall not be liable for any damages resulting from its failure to meet any shipment date, even if Mark-A- Hydrant has been advised of the possibility of such damages. In the absence of specific routing instructions, Mark-A- Hydrant reserves the right to make selections of common carrier and method of shipment. All Products shall be shipped F.O.B. destination. Title and risk of loss or damage shall pass to Customer upon delivery of the Products by Mark-A- Hydrant at the point of destination.
4. PAYMENT. Customer shall pay Mark-A- Hydrant net fifteen (15) days from the invoice date. Amounts outstanding for more than fifteen (15) days will be subject to a monthly charge at the rate of one and one-half percent (1.5%) per month, or the maximum permitted by law, whichever is less. It is agreed that it would be impracticable or extremely difficult to fix the actual damages suffered by Mark-A- Hydrant as a result of Customer's failure to make timely payment. Accordingly, Customer and Mark-A- Hydrant agree that the late payment charge of one and one half percent (1.5%) per month is a reasonable estimate of such damages and shall serve as liquidated damages in the event of late payment by Customer. If Mark-A- Hydrant has any concerns as to the payment history or ability of Customer, it may ship any or all Products only against prior payment, letter of credit, C.O.D. or other payment terms specified by Mark-A- Hydrant.
6. USE OF INFORMATION. No rights to any intellectual property residing in the Products, documentation, data or other information furnished or disclosed by Mark-A- Hydrant hereunder (hereafter "Information") are granted except the right to use such Information incidental to the use of the Products purchased under this Agreement. Similarly, any data or information furnished or disclosed by Customer hereunder (hereafter "Customer Information") are provided solely to enable Mark-A- Hydrant to provide services to Customer. Mark-A- Hydrant Information and Customer Information are collectively referred to as "Information". Mark-A- Hydrant and Customer will each use the same standard of care to protect the Information of the other party which it uses to protect its own confidential information of a similar nature, but no less than a reasonable degree of care. Neither Mark-A- Hydrant nor Customer shall have any right to copy, reproduce, sell, rent, lease, license or otherwise disclose the Information of the other party to third parties, in whole or in part, without the prior written permission of the party originally providing the Information under this Agreement. The Product is patented by Mark-A- Hydrant. Use of such Product is governed by this Agreement. Customer hereby agrees and covenants that it will not reverse engineer, decompile or otherwise attempt to recreate the Product.
7. LIMITATION OF LIABILITY. FOR PURPOSES OF THE EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, MARK-A-HYDRANT IS DEEMED TO INCLUDE MARK-A-HYDRANT, LLC, ITS SUCCESSORS, ASSIGNS, SUBCONTRACTORS AND SUPPLIERS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ALL OF THE FOREGOING. MARK-A-HYDRANT’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST MARK-A-HYDRANT FOR LOSS OR DAMAGE ARISING FROM ANY PRODUCT PURCHASED FROM MARK-A-HYDRANT, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE REPAIR OR THE REPLACEMENT OF THE PRODUCT THAT WAS PURCHASED BY SUCH CUSTOMER. IN NO EVENT WILL MARK-A-HYDRANT BE LIABLE WHETHER IN CONTRACT, IN TORT, OR ON ANY OTHER BASIS, FOR ANY DAMAGES, INCLUDING DIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHATSOEVER. THE PRODUCT, MARK-A- HYDRANT’S WEBSITE AND ANY MATERIALS PROVIDED TO THE CUSTOMER BY MARK-A- HYDRANT ARE PROVIDED BY MARK-A- HYDRANT UNDER THESE TERMS AND CONDITIONS “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. MARK-A- HYDRANT DOES NOT WARRANT THE ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCT, MARK-A- HYDRANT’S WEBSITE AND ANY MATERIALS PROVIDED TO THE CUSTOMER BY MARK-A- HYDRANT . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARK-A- HYDRANT, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RESULTING FROM (I) THE USE OF, OR INABILITY TO USE, THE PRODUCT, MARK-A- HYDRANT’S WEBSITE AND ANY MATERIALS PROVIDED TO THE CUSTOMER BY MARK-A- HYDRANT OR (II) ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF MARK-A- HYDRANT IS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED WHICH ARISE OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT. THE USE OF THE PRODUCT, MARK-A- HYDRANT’S WEBSITE AND ANY MATERIALS PROVIDED TO THE CUSTOMER BY MARK-A- HYDRANT IS DONE AT THE CUSTOMER’S DISCRETION AND RISK. THE CUSTOMER SHALL TAKE ALL RESPONSIBILITY FOR ANY DAMAGED CAUSED BY THE USE OR INABILITY TO USE THE PRODUCT, MARK-A- HYDRANT’S WEBSITE OR ANY SERVICES PROVIDED BY MARK-A- HYDRANT. All Mark-A-Hydrant products are sold with the understanding that the purchaser has independently determined the suitability of such products for its purposes. Mark-A-Hydrant products are warranted to be free from defects in material and workmanship for one year from date of shipment, if said product is properly stored and applied. The purchaser acknowledges that slight curvature of the product is a normal and acceptable condition. Up to 1/4" as measured by placing the Mark-A-Hydrant® reflector on a flat surface -- curved side up -- and measuring the gap from the surface, to the underside of the marker. Mark-A-Hydrant’s sole obligation and Purchaser’s exclusive remedy under this warranty is limited to the repair or replacement of the defective product without charge. OTHER THAN THE EXPRESS WARRANTY PROVIDED FOR ABOVE, MARK-A-HYDRANT (1) SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, AND (2) MAKES NO EXPRESS WARRANTY OR IMPLIED WARRANTY REGARDING THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The warranties, limitations and remedies contained herein allocate risk of breach of warranty or other liability. Accordingly, Mark-A- Hydrant’s prices reflect such allocation of risk. Certain jurisdictions restrict the ability to exclude implied warranties, limit or exclude incidental or consequential damages, limit liability under strict liability laws or limit liability under product liability laws. To the extent any such restrictions may apply and may not be hereby waived, the foregoing limitations and exclusions may not apply.
8. FORCE MAJEURE. Mark-A- Hydrant shall not be responsible for failure of performance or delay due to strikes or labor disputes, acts of God, the elements, war, civil disturbances, inability to secure raw materials or transportation, embargoes, fuel or energy shortages or other causes beyond its reasonable control.
9. PRODUCT OPERATION. Customer agrees that all Products purchased or licensed under this Agreement shall be operated and maintained exclusively by duly qualified personnel in a safe and reasonable manner in accordance with the instructions set forth on the Mark-A- Hydrant web site. Except for damages resulting from Mark-A- Hydrant’s sole negligence, Customer agrees to indemnify and hold Mark-A- Hydrant harmless from and against all claims, demands, actions, causes of actions, judgments and costs, including reasonable attorney's fees, arising out of or in connection with the operation and maintenance of the Products by Customer.
10. COMPLIANCE WITH LAWS. In their performance under this Agreement, both parties shall comply with all applicable laws, orders and regulations of federal, state and local government entities.
11. WAIVER. A waiver of any provision of this Agreement shall not be deemed a continuing waiver of any such provision absent a written statement of such waiver.
12. WAIVER OF JURY TRIAL. Customer hereby expressly waives his, her or its respective rights to a jury trial of any claim or cause of action based upon or arising out of this Agreement, any other agreement to which the Customer is a party or any dealings between them relating to the subject matter of this Agreement.
13. SEVERABILITY. If any provision in this Agreement is found or held to be invalid or unenforceable, then such provision shall be severed from this Agreement and the remainder shall remain in full force and effect.
14. GOVERNING LAW AND VENUE. This Agreement, its construction, validity, performance and all other questions arising hereunder shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania, without regard to its provisions concerning the applicability of the laws of other jurisdictions. Any suit hereunder shall be brought in the federal or state courts in the districts which include Lehigh County, Pennsylvania and Customer hereby agrees and submits to the personal jurisdiction and venue thereof.
15. HEADINGS. The section headings in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
16. ENTIRE AGREEMENT. The terms and conditions contained in this Agreement shall constitute the entire agreement between Mark-A- Hydrant and Customer with respect to the sale and license of Products by Mark-A- Hydrant to Customer and shall not be interpreted or limited by any prior course of dealing. This Agreement supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. This Agreement supersedes all terms and conditions contained in any purchase order, order acknowledgment form, invoice or other business form submitted hereafter by either party to the other. No advertisements, catalogues or other publications or statements, whether written or oral, regarding the performance of the Products purchased under this Agreement shall form part of this Agreement. This Agreement may only be modified by written amendment signed by Mark-A- Hydrant and Customer.
17. COPYRIGHT AND CONTENT OWNERSHIP 17.1. We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours. However, by setting your pages to be shared publicly, you agree to allow others to view and share your Content. 17.2. Mark-A-Hydrant does not pre-screen Content, but Mark-A-Hydrant and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. 17.3. It is assumed that the client holds the copyright or has negotiated permission to use all images and quotes submitted for the website. 17.4. Upon completion of the design phase of the website and receipt of full payment of the setup fees, the copyright for all original artwork will pass to the client. 17.5. The client retains the right to use any functionality as programmed and customized for the client during the entire paid subscription period. The copyright for all code remains the property of Mark-A-Hydrant. 17.6. Mark-A-Hydrant requests the right to place a small credit hyperlink below the footer, such as "powered by Mark-A-Hydrant". 17.7. Mark-A-Hydrant reserves the right to present the website project in an online or printed portfolio, or in general marketing pieces. Trademark "Mark-A-Hydrant", "Mark-A-Hydrant LLC", and our logo are registered trademarks and may not be used or reproduced without permission. Any individual, organization, or company wishing to use Mark-A-Hydrant’s logos and trademarks must obtain the right to do so in writing from Mark-A-Hydrant prior to use.