CERTIFIED ORGANIC BUSINESS SOLUTIONS LLC
SOFTWARE AS A SERVICE AND WEBSITE SUBSCRIPTION AGREEMENT
EFFECTIVE DATE: MAY 1, 2012
CAREFULLY READ THE FOLLOWING DOCUMENT. THE CERTIFIED ORGANIC BUSINESS SOLUTIONS, LLC SOFTWARE AS A SERVICE AND WEBSITE SUBSCRIPTION AGREEMENT, IS A LEGAL AGREEMENT BETWEEN CERTIFIED ORGANIC BUSINESS SOLUTIONS, LLC (“COBS, LLC”) AND YOU OR THE COMPANY YOU REPRESENT IN THIS TRANSACTION (COLLECTIVELY “YOU” OR “YOUR”).
BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, COBS, LLC WILL NOT PROVIDE YOU WITH THE SERVICES AND YOU MUST SELECT THE “I DO NOT ACCEPT” BUTTON, BELOW.
RECITALS:
A. COBS, LLC is the owner of proprietary software and hosts a Website. You are able to access the Website and create an electronic record and manage and maintain that electronic record of Your information necessary for certification or inspection of your agricultural products. You are paying to access this Website and the application.
B. You desire access to and use of the Website and services under the terms and conditions as set forth in this Agreement.
In consideration of the above Recitals which are incorporated in this Agreement and in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, You and COBS, LLC agree as follows:
AGREEMENT:
section 1. definitions
As used in this Agreement and in any Order Form, the following terms shall have the following meanings:
1.1 Agreement. “Agreement” means this Subscription Agreement and any other matters available on the COBS, LLC Website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by COBS, LLC from time to time in its sole discretion.
1.2 Content. “Content” means the visual information, documents, software, products, and services made available to You in the course of using the Service.
1.3 Your Data. “Your Data” means any data, information, or material provided or submitted by You to COBS, LLC and which You upload to the Website.
1.4 Effective Date. “Effective Date” means the earlier of either the date first set forth above or the date You begin using the Service.
1.5 Initial Term. “Initial Term” means the initial period during which You are obligated to pay for the Service equal to the billing frequency selected by You during the subscription process (e.g., if the billing frequency is annual, the Initial Term is the first year).
1.6 Inspectors. “Inspectors” means those third party certifiers You authorize to access Your Content in order to obtain organic certifications pursuant to written agreement.
1.7 Intellectual Property Rights. “Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.8 License Term(s). “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service.
1.9 Order Form(s). “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form is incorporated into and to becomes a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
1.10 COBS, LLC Technology. “COBS, LLC Technology” means all of COBS, LLC’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by COBS, LLC in providing the Service.
1.11 Service. “Service(s)” means the hosting of the Website and providing You, Your users and Inspectors with access to the Website and its various records and reports.
1.12 Users. “User(s)” means Your employees, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by COBS, LLC at Your request).
1.13 User Service. “User Service” means the fees described in Section 9 of this Agreement.
1.14 Website. “Website” means that certain website known as www.gap-pro.com.
section 2. license grant and restrictions
COBS, LLC hereby grants You a nonexclusive, nontransferable, worldwide right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by COBS, LLC
You may not access the Service if You are a direct competitor of COBS, LLC, except with COBS, LLC’s prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for Your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Section 3. intellectual property ownership
COBS, LLC shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the COBS, LLC Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the COBS, LLC Technology or the Intellectual Property Rights owned by COBS, LLC. COBS, LLC’s name, COBS, LLC’s logo, and the product names associated with the Service and Website are trademarks of COBS, LLC and no right or license is granted to use them.
section 4. necessary equipment
You will be solely responsible, at Your own expense, for acquiring, installing, maintaining, backing up and updating all hardware and software that may be necessary for Your use of the Services and any data You upload to the website. Pursuant to Sections 18, 19 and 20, COBS, LLC shall have no responsibility or liability for the loss of, damage to or corruption of your hardware, software or data.
section 5. service activation
You are required to register an Account through which all Services will be provided. Notwithstanding anything to the contrary herein, You acknowledge and agree that You shall have no ownership or other property interest in Your Account or the Service.
During the registration process, You are required to select a username and a password that are unique to Your Account (collectively “Login Information”). You are responsible for maintaining the confidentiality of the Login Information and will be responsible for all uses of the Login Information, whether or not authorized by You. In the event that You become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, You must immediately notify COBS, LLC by emailing: ServiceDept@gap-pro.com.
All information provided to COBS, LLC during Service activation or at any time otherwise is subject to the COBS, LLC privacy policy, which can be found at gap-pro.com. To the extent the Privacy Policy contradicts this Agreement the terms of this Agreement govern.
section 6.users and INSPECTORS
Users may include all parties, including Inspectors who You have authorized access to Your Content. Except as otherwise agreed herein, You are responsible for paying the fees necessary for all Users. You acknowledge and agree that anyone using Your Login Information is authorized to bind You in connection with any Services provided to You under this agreement. Additionally, You may assign additional authorized Users of Your Service a unique logon identifier and password and assign and manage the business rules that control the User's access to the Services. You are responsible for (a) all liabilities, cost and expense arising out of or related to any use of the Services by You and Users; (b) the security and/or use of the User’s logon identifier and password; (c) the User’s use of the Services consistent with the assigned business rules; and (d) the User’s use of the Services in accordance with the terms and conditions of this Agreement. You will be responsible for advising each User of his or her obligations under this Agreement.
During the term of this contract You may authorize Inspectors to have Access to Your Content. You will grant this Access in the Farm ID section of the GAP-Pro.com notebook by answering ‘Yes’ to the question ‘Permit your inspector to access your records online?’
You are solely responsible for authorizing the Inspector access to Your Data. You may also be responsible for any fees that may be charged for Inspector access.
COBS, LLC is not responsible for and specifically disclaims any liability from the loss or alteration of data by Your authorized Users or Inspectors.
section 7. unpermitted uses; acceptable content
You and Your Users will not use the Services to sell or otherwise distribute content that: (a) constitutes spamming, mail bombing, spoofing or any other types of unsolicited e-mail of any kind, regardless of the content or nature of the message; (b) knowingly introduces into or transmits any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or (c) alters, steals, corrupts, disables, destroys, trespasses, or violates any security or encryption of any computer file, database, or network; (d) incites violence, threatens violence, or contains harassing content or hate speech; (e) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; (f) is defamatory or violates a person's privacy; (g) creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement; (h) contains wares or other black market software, cracks, or materials that infringe on an existing copyright; (i) improperly exposes trade secrets or other confidential or proprietary information of another person; (j) is intended to assist others in defeating technical copyright protections; (k) clearly infringes on another person's trade or service mark, patent, or other property right; (l) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (m) provides online gambling; (n) contains adult-related media (as defined below); (o) is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to COBS, LLC; (p) or is otherwise malicious, fraudulent, or may result in retaliation against COBS, LLC by offended viewers, all as determined by COBS, LLC at its sole discretion.
COBS, LLC defines "adult-related media" as any of the following: (a) photos or videos containing sexually explicit material; (b) print media containing sexually explicit material; (c) audio clips or text containing sexually explicit material; (d) links to other sites containing such material. COBS, LLC reserves the right to determine what is considered "sexually explicit” at its sole discretion.
COBS, LLC reserves the right to determine what use of the Website or Services violates the above provision at its sole discretion.
If You or Your Users, or a third party on Your behalf, violates any of the foregoing prohibitions, COBS, LLC may immediately suspend the Services and/or terminate this Agreement without further liability or obligation to You.
section 8. third party interactions
During use of the Service, You may enter into an arrangement with third parties to be Authorized Users of Your Account with access to Your Data. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, are solely between You and the third parties. COBS, LLC shall have no liability, obligation, or responsibility for any correspondence or action between You and a third party as an authorized User. COBS, LLC provides these links to you and the third party only as a matter of convenience, and in no event shall COBS, LLC be responsible for any action taken by a third party. COBS, LLC provides the Service to You pursuant to the terms and conditions of this Agreement.
COBS, LLC is not responsible for and specifically disclaims any liability from the loss or alteration of data by Your authorized Users.
section 9. charges and payment of fees
During any offered free period You shall not be obligated to pay any fees or charges.
You shall pay all fees or charges to Your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User Service fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for each User and Service ordered for the entire License Term, whether or not such User and Services are actively used. You must provide COBS, LLC with valid credit card or approved purchase order information as a condition to signing up for the Service. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. COBS, LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to You, which notice may be provided by email. All pricing terms are confidential, and You agree not to disclose them to any third party.
section 10. Billing and removal
COBS, LLC charges and collects in advance for use of the Service. COBS, LLC will automatically issue an invoice to You each year on the subsequent anniversary or as otherwise mutually agreed. The renewal charge will be equal to the then-current number of total User licenses times the User Service fee in effect during the prior term, unless COBS, LLC has given You at least 30 days prior written notice of a fee increase, which shall be effective upon renewal.
You agree to provide COBS, LLC with complete and accurate billing and contact information. This information includes Your legal company name, street address, email address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, COBS, LLC reserves the right to terminate Your Account access to the Service in addition to any other legal remedies.
If You believe a bill is incorrect, You must contact COBS, LLC in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
section 11. nonpayment and suspension
In addition to any other rights granted to COBS, LLC herein, COBS, LLC reserves the right to suspend or terminate this Agreement and Your Account and Your access to the Service if Your Account becomes delinquent. Delinquent invoices and accounts are subject to interest of 1.0 percent (1%) per month on any outstanding balance. You will continue to be charged for User licenses during any period of suspension. If You or COBS, LLC initiates termination of this Agreement, You will be obligated to pay the balance due on Your account. You agree that COBS, LLC may bill You for such unpaid fees.
COBS, LLC reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service. YOU AGREE AND ACKNOWLEDGE COBS, LLC HAS NO OBLIGATION TO RETAIN YOUR DATA AND YOUR DATA MAY BE IRRETRIEVABLY DELETED IF YOUR ACCOUNT IS 30 DAYS OR MORE PAST DUE.
section 12. termination upon expiration
This Agreement commences on the Effective Date and will automatically renew for successive one year terms at COBS, LLC’s then current fees unless terminated in accordance with this Agreement.
Either party may terminate this Agreement or reduce the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.
YOU AGREE AND ACKNOWLEDGE COBS, LLC HAS NO OBLIGATION TO RETAIN YOUR DATA UPON TERMINATION AND YOUR DATA MAY BE IRRETRIEVABLY DELETED UPON TERMINATION.
section 13. termination for cause
COBS, LLC, in its sole discretion, may terminate Your Account or use of the Service if You, a User or Inspector breach or otherwise fail to comply with this Agreement, and such breach has not been cured within 30 days of notice of such breach. In addition, COBS, LLC may terminate a free account at any time in its sole discretion. Any breach of Your payment obligations or unauthorized use of the COBS, LLC Technology, Service, or Website will be deemed a material breach of this Agreement. YOU AGREE AND ACKNOWLEDGE COBS, LLC HAS NO OBLIGATION TO RETAIN YOUR DATA UPON TERMINATION AND YOUR DATA MAY BE IRRETRIEVABLY DELETED UPON TERMINATION.
section 14. collection costs and attorney fees
You will be responsible for any costs or expenses associated with collecting any unpaid amounts owing under this Agreement including, without limitation, legal costs, attorneys’ fees, court costs and collection agency fees, regardless of whether legal action is commenced.
In the event either party defaults or breaches this Agreement, such party shall reimburse all reasonable costs and attorney fees incurred by the other in connection with the default or breach, regardless of whether litigation is commenced. In the event of any litigation or other proceeding, including any action or participating in connection with a case or proceeding under any chapter of the Bankruptcy Code or any successor statute, between the parties to declare or enforce any provision of this Agreement, the prevailing party or parties shall be entitled to recover from the other party or parties, in addition to any other recovery and cost, reasonable attorney fees incurred in such litigation, mediation, arbitration or other proceeding, in both the trial and in all appellate courts and reasonable post-judgment collection costs, including attorney fees.
section 15. representations and warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. COBS, LLC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision of the Services and that the Service will perform substantially in accordance with this Agreement under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.
As provided in Section 18, Section 19 and Section 20, COBS, LLC does not warrant and is not responsible for loss of Service or loss of Your Data due to service failures of third party hosts or providers, by Hackers or otherwise.
section 16. mutual indemnification
You shall indemnify and hold COBS, LLC, any of its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of Your Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You, Authorized Inspectors or Your Users of this Agreement, provided in any such case that COBS, LLC (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally releases COBS, LLC of all liability and such settlement does not affect COBS, LLC’s business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.
COBS, LLC shall indemnify and hold You and any of Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim arising from breach of this Agreement by COBS, LLC; provided that You (a) promptly give written notice of the claim to COBS, LLC; (b) give COBS, LLC sole control of the defense and settlement of the claim (provided that COBS, LLC may not settle or defend any claim unless it unconditionally releases You of all liability); (c) provide to COBS, LLC all available information and assistance; and (d) have not compromised or settled such claim. COBS, LLC shall have no indemnification obligation, and You shall indemnify COBS, LLC pursuant to this Agreement, for claims arising from any infringement arising from the combination of Your, Your Inspectors or Authorized Users of the Service with any of Your Content.
section 17. disclaimer of warranties
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, COBS, LLC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COBS, LLC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; (D) THE QUALITY OF ANY SERVICE, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF HACKER’S VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COBS, LLC.
section 18. internet delays
COBS, LLC’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COBS, LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, LOSS OF DATA OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
section 19. limitation of liability
IN NO EVENT SHALL COBS, LLC’S LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL COBS, LLC BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING INTERRUPTED COMMUNICATION, LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
section 20. additional rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply to You.
section 21. notice
Any consent, approval, notice or demand (individually, and collectively, a “Notice” or “Notices”) which may or are required or permitted to be given by any other party to the other hereunder shall be in writing. All Notices shall be sent by United States Postal Service, certified or registered mail, return receipt requested, or by recognized overnight courier service (such as Federal Express), or by facsimile or other telecommunication device capable of transmitting and creating a written record (including email), or personally. Notices are effective on receipt. Each party shall give notice to the other of its address for Notices by written Notice to the other. You shall be given notice at the address and/or other contact information provided at the time You enter this Agreement. COBS, LLC shall be given at:
COBS, LLC BUSINESS SOLUTIONS, LLC
Attn: Richard Wilen
PO Box 50172
Eugene, OR 97405
Phone: 541-556-1956
Email: rwilen@cog-pro.com
For the purpose of this Agreement, the term “receipt” shall mean the earlier of any of the following: (i) the date of delivery of the Notice to the address specified pursuant to this paragraph as shown on the return receipt or by the records of the courier; (ii) the date of actual receipt of the Notice by the office of the person or entity specified pursuant to this paragraph; or (iii) in the case of refusal to accept delivery or inability to deliver the Notice, the earlier of (A) the date of the attempted delivery or refusal to accept delivery, (B) the date of the postmark on the return receipt, or (C) the date of receipt by the sending party of notice that the Notice has been refused or cannot be delivered. Any Notice sent by facsimile or email will be effective on receipt provided that it is transmitted during normal business hours on business days in the state in which the recipient is located (and if received outside such normal business hours, will be effective on the next business day).
section 22. modification to Terms
COBS, LLC reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.
section 23. assignment; change in control
This Agreement may not be assigned by You without the prior written approval of COBS, LLC but may be assigned without Your consent by COBS, LLC to (i) a parent or subsidiary or its successors or assigns, or (ii) an acquirer of assets. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of COBS, LLC directly or indirectly owning or controlling 50 percent or more of You shall entitle COBS, LLC to terminate this Agreement for cause immediately upon written notice.
section 24. survival
Except as otherwise stated in this Agreement, any provisions in this Agreement that by their sense and context are intended to survive the termination of this Agreement shall survive such termination. Notwithstanding the foregoing, any cause of action that COBS, LLC may have against You for breach of this Agreement before the date of termination shall survive such termination.
section 25. miscellaneous
25.1. No Partnership. No joint venture, partnership, employment, or agency relationship exists between You and COBS, LLC as a result of this agreement or Your use of the Service.
25.2. Waivers. All waivers of the terms of this Agreement must be in writing and signed by the party who would otherwise be able to enforce the obligation. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this agreement will not be deemed to be a waiver of those rights or any other rights under this agreement.
25.3. Severability. If any of the provisions of this Agreement shall be deemed invalid, void or unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.
25.4. Public Announcements. You grant COBS, LLC the right to use Your name in press releases, product brochures and financial reports indicating that You are a client of COBS, LLC.
25.5. Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
25.6. Applicable Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to any principles of conflicts of laws. Any dispute arising between COBS, LLC and You related to this Agreement shall be adjudicated in any state or federal court in Lane County, Oregon. Both parties hereby submit to the jurisdiction of such courts over each of them in connection with such dispute, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
25.7. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.