RELEASE AND WAIVER OF LIABILITY
S-L is offering the use of the My Route Mobile Application (“My Route”) to provide information concerning real-time IBO sales, purchases and warehouse inventory availability to provide IBOs assistance in optimization of their business operations (the “Purpose”). IBO acknowledges, represents and warrants that S-L has not required the IBO to utilize My Route and that IBO will use My Route solely for the Purpose indicated herein. The term ‘My Route’ shall include, but not be limited to, the My Route application and/or webpage, its associated software, coding, the Internet web browser utilized to access My Route, the Internet connection and any and all other processes, devices or programs of any kind or nature related thereto.
By logging into or otherwise using My Route or the information contained therein, IBO and the individual accessing My Route represent and warrant that the individual in possession of the IBO’s operator number and handheld login number is an authorized representative of IBO (the “Authorized Representative”), has the authority to bind IBO, and that IBO and its Authorized Representative are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms.
IBO represents and warrants that S-L may rely on the authority of anyone accessing the IBO My Route account and any inquiries, orders other communications sent thereunder and in no event and under no circumstances shall S-L be held liable to IBO, its Authorized Representative, employees, owners, officers, directors, assigns, affiliates, subsidiaries, predecessors or successors, or any other related party (collectively and individually, the “IBO Parties”), for any liabilities or damages resulting from or arising out of (i) any action or inaction of S-L under this provision; (ii) any compromise of the confidentiality or unauthorized access of the IBO My Route account or password; or (iii) any compromise of the confidentiality or unauthorized access of any other IBO information or documentation directly or indirectly resulting therefrom. IBO specifically waives any claim or defense that challenges the validity of any Documents or other documents accessed or executed through the Email Account or E-sign Portal based upon the absence of authority or compromise of the Email Account or E-sign Portal.
The security of IBO’s personally identifying information is important to S-L. While there is no such thing as “perfect security” on the Internet, S-L will take reasonable steps to help ensure the safety of IBO’s personally identifying information. However, the IBO understands and agrees that such steps do not guarantee that use of My Route is invulnerable to all security breaches, and that S-L makes no warranty, guarantee, or representation that use of My Route is protected from viruses, security threats or other vulnerabilities.
D. TRADEMARKS AND SERVICE MARKS
Trademarks (including, but not limited to, the S-L Distribution Company, LLC logo) that are used or displayed on My Route are owned by S-L Distribution Company, LLC or its parent, affiliates or subsidiaries (collectively and individually, the “S-L Parties”), or by third parties other than S-L. IBO is not authorized at any time, to use in any manner, in whole or in part, the trademarks, service marks, tradenames, registered trademarks, product and service names, company names or logos (collectively and individually, the “Marks”) of the S-L Parties. Other Marks that appear on My Route are the property of their respective owners. IBO should look solely to such respective owner concerning the use of any of its Marks.
E. ACCEPTABLE USE
IBO agrees to use My Route in a manner consistent with all applicable laws and regulations. Additionally, IBO will not take any of the following actions with respect to My Route nor will IBO use My Route to upload, post, email, distribute, transmit, link, solicit or otherwise make available any content or use My Route in any manner that:
1. is unlawful, harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, invasive of another’s privacy, or racially, ethnically or otherwise offensive, hateful or abusive;
2. infringes someone else’s patent, trademark, trade secret, copyright or other intellectual property or other rights;
3. removes any proprietary notices or labels;
4. advocates or solicits violence, criminal conduct or the violation of any local, state, national or international law or the rights of any third party;
5. is deceptive in any way;
6. constitutes unsolicited or unauthorized advertising, junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;
7. interferes with others use of My Route;
8. contains software viruses, worms, time bombs, corrupted files, Trojan horses or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair or limit the functioning of My Route;
9. contains a charity request, petitions for signatures, chain letters or letters relating to a pyramid scheme;
10. uses any robot, spider, or other such programmatic or automatic device, inducing but not limited to automated dial-in or inquiry devices, to obtain information from My Route or otherwise monitor or copy any portion of My Route;
11. creates a false identity for the purpose of misleading others;
12. prepares, compiles, uses, downloads or otherwise copies any user information and/or usage information for any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such information to any third party;
13. uses any S-L domain name as a pseudonymous return email address;
14. provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
15. attempts to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into My Route;
16. reproduces, duplicates, copies, sells, trades, resells or exploits for any commercial purposes, any portion of My Route or access to the same;
17. systematically collects and uses any content including the use of any data mining, or similar data gathering and extraction methods; and/or
18. modifies, translates, decompiles, disassembles, uses reverse engineering or otherwise attempts to derive the source code for My Route systems and other technology that operate My Route. For purposes of these Terms, “reverse engineering” shall include the examination or analysis to determine the source code, structure, organization, internal design, algorithms or encryption devices of My Route’s underlying technology.
F. DISCLAIMER OF WARRANTIES
IBO EXPRESSLY UNDERSTANDS AND AGREES THAT:
1. IBO’S USE OF MY ROUTE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SAME AND/OR ANY SITE-RELATED SERVICE OR SOFTWARE THAT IS PROVIDED TO IBO, IS AT IBO’S SOLE RISK. MY ROUTE, INCLUDING ANY CONTENT, SOFTWARE OR INFORMATION CONTAINED THEREIN AND ANY RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. S-L AND ITS SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.
2. S-L, THE S-L PARTIES, AND THEIR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES MAKE NO WARRANTY THAT (i) MY ROUTE WILL MEET IBO’S REQUIREMENTS, (II) MATERIALS, SOFTWARE OR CONTENT AVAILABLE ON MY ROUTE ARE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; (III) THE USE OF MY ROUTE WILL BE UNINTERRUPTED, TIMELY, SECURE (INCLUDING FREE FROM UNAUTHORIZED ACCESS), PROVIDE CONTINUOUS ACCESS, OR ERROR-FREE, (IV) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF MY ROUTE WILL BE ACCURATE, COMPLETE OR RELIABLE. ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF MY ROUTE IS DONE AT IBO’S OWN DISCRETION AND RISK AND IBO WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS BUSINESS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF MY ROUTE.
3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY IBO FROM S-L, ANY OF ITS EMPLOYEES OR REPRESENTATIVES, OR THROUGH OR FROM MY ROUTE, SHALL CREATE ANY WARRANTY. ADVICE OR INFORMATION RECEIVED SHOULD NOT BE RELIED UPON FOR SIGNIFICANT PERSONAL, BUSINESS, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND IBO SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO IBO’S PARTICULAR SITUATION.
G. LIMITATION OF LIABILITY
IN NO EVENT SHALL S-L, THE S-L PARTIES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE MY ROUTE; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE CONTENT, MATERIALS, SOFTWARE OR INFORMATION; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF IBO’S TRANSMISSIONS OR DATA; (iv) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO MY ROUTE EVEN IF S-L OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IBO’S SOLE REMEDY FOR DISSATISFACTION WITH MY ROUTE IS TO STOP USING THE SAME.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO IBO. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF S-L UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED AND NO/100 DOLLARS ($100.00).
IBO agrees to indemnify, defend and hold harmless S-L, the S-L Parties, and its underlying content and service providers, licensors and suppliers, and each of their respective parent, subsidiaries, affiliates, predecessors, successors, officers, agents, assigns, and employees, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, made by any third-party due to or arising out of IBO or IBO Parties’ violation of this Release, or violation of any law or the rights of another. These obligations will survive any termination of IBO’s relationship with S-L or use of My Route. S-L reserves the right to assume the defense and control of any matter subject to indemnification by IBO, in which event IBO will cooperate with S-L in asserting any available defenses.
S-L’s failure to exercise or enforce any right or provision of this Release shall not constitute a waiver of such right or provision. If any provision of this Release shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Release and shall not affect the validity and enforceability of any remaining provisions. The Release shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania with no consideration to any conflict of laws principle. IBO agrees that any legal action or proceeding between S-L and IBO for any purpose concerning this Release or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the Middle District of Pennsylvania. Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of this Release. S-L may assign its rights and duties under this Release to any party at any time without notice to IBO. IBO’s rights and duties under this Release are not assignable by IBO without the prior written consent of S-L. This Release does not provide any third party with a remedy, claim, or right of reimbursement. IBO must file any claim or suit within one (1) year after it arises. No deletion, addition or any other modification of this Release shall be effective unless initialed by an officer of S-L. Standard carrier rates and fees, such as text messaging and data charges, may apply. Consult your provider for additional information.