Consent for Electronic Communications and Disclosures (“E-Sign Consent”) Please read this Consent for Electronic Communications and Disclosures carefully and print or retain a copy for your records, We are providing this notice to you in order to obtain your consent to do business with Digium electronically by entering into this Agreement and using electronic signatures (or a click acceptance button) to agree to the terms and conditions contained herein. You acknowledge that by electronically signing (or using a click acceptance button) you demonstrate that you can access this Agreement and any Exhibits attached thereto. You may withdraw your electronic consent by providing notice that you wish to terminate this Agreement in accordance with the terms of Section 9 of this Agreement. You acknowledge and agree that by clicking the accept button or electronically signing you are involved in a transaction affecting commerce that is subject to the Electronic Signatures in Global and National Commerce Act and the Code of Alabama--Chapter 1A-Uniform Electronic Transactions Act and that Digium and you intend that both acts shall apply to the fullest extent possible to validate Digium’s ability to conduct business with you by electronic means. You acknowledge that your electronic signature or click acceptance of the terms of this Agreement shall bethe equivalent of a legally binding signature and Digium may rely upon it as such. You have the right to request, free of charge, a paper copy of any documents you have signed electronically by contacting Digium. You have the option to complete this process using the traditional signature process. You must contact Digium if you wish to sign your Agreement in ink. In order to access your electronically signed agreement, your computer must be equipped with the following hardware and or software: A printer compatible with your computer and Internet access.
BY ELECTRONICALLY SIGNING OR USING A CLICK ACCEPTANCE BUTTON YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT DRAWN UP IN ENGLISH, YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALL INFORMATION SUBMITTED BY YOU IN THIS AGREEMENT IS COMPLETE, TRUE, ACCURATE, AND NOT MISLEADING AND IF YOU ARE SUBMITTING THIS AGREEMENT ON BEHALF OF A N ORGANIZATION YOU ARE DULY AUTHORIZED TO BIND THE ORGANIZATION TO THESE TERMS. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU ARE NOT ELIGIBLE TO PARTICIPATE. THIS AGREEMENT IS MADE BY AND BETWEEN DIGIUM, INC. AND AFFILIATES (COLLECTIVELY REFERRED TO AS “DIGIUM”), AND THE PERSON OR ENTITY LISTED BY YOU IN THE SELLER PROGRAM APPLICATION (“SELLER’S APPLICATION”) SUBMITTED BY YOU (“SELLER”). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE OF NOTICE TO SELLER AS DESCRIBED IN SECTION 1 (“EFFECTIVE DATE”). THIS AGREEMENT SHALL NOT BE LEGALLY BINDING UNLESS AND UNTIL DIGIUM COUNTERSIGNS THIS AGREEMENT. THIS AGREEMENT AND ANY EXHIBIT HERETO ESTABLISHES THE TERMS AND CONDITIONS THAT APPLY TO SELLER’S PARTICIPATION IN THE DIGIUM® SALES AND REFERRAL PROGRAM ON ASTERISKEXCHANGE (THE “PROGRAM”).
1. Enrollment & Acceptance. To become a participant in the Program, Seller must first submit a completed Seller’s Application via the website at www.asteriskexchange.com ) (“Site”) and will need to submit a separate addendum for each product which Seller proposes to include in the Program (“Product Application”), the form of which is set forth as Exhibit A, a copy of which is a ttached and the terms of which are incorporated herein by this reference. The Site is an online marketplace where products or services built on or integrated with the Asterisk platform can be mark eted. Digium may refuse to accept Seller’s Application or any Product Application for any reason, including, but not limited to, rejecting a product for not being relevant with regard to Asterisk, rejecting a product as being competitive with Digium’s products (as determined in Digium’s sole discretion), or for the product not being a complete product (as determined in Digium’s sole discretion). Notwithstanding the foregoing, Digium will evaluate and may allow custom solutions provided by Digium authorized channel partners on a case by case basis. If Digium expands its product offering and in doing so becomes competitive with a Seller’s Product which is already listed on the Site, Digium reserves the right not to renew the competing Seller’s Product upon the next renewal date for that particular Product Application. Digium will notify Seller by email, or via some other method deemed appropriate by Digium, whether Seller’s Application and each Product Application has been accepted or rejected within five (5) business days from the date each applicable Product Application or Seller’s Application is submitted to Digium. If Digium rejects Seller's Application, then none of the terms and conditions of this Agreement shall apply to Seller, except for Sections 1, 10 and 14. If Digium accepts Seller's Application, then all of the terms and conditions of this Agreement shall apply and the date of notice of Digium’s acceptance to Seller shall be the effective date of this Agreement (“Effective Date”) If Digium accepts a Product Application, then all of the terms and conditions of this Agreement relevant to the type of distribution for such product as provided in this Agreement and as amended from time to time will apply and are incorporated by reference. Any product of Seller whose Product Application has been accepted by Digium shall be defined as Seller Product for the purposes of this Agreement. 2. Program Level & Scope. The Program may offer multiple levels of participation and benefits. Thus, the scope of benefits provided to the Seller is subject to: (a) the Seller level; (b) the terms of this Agreement, and (c) the terms of any Exhibits contained herein . Customers may provide reviews of Seller’s Products on the Site. Customer reviews which are factually incorrect will be removed by Digium following receipt of written notice of the inaccuracy and documented proof of the inaccuracy by Seller. Digium reserves the right to remove customer reviews which violate any policy of Digium. Notwithstanding the foregoing, Digium shall not serve as a moderator of customer reviews and may, but shall not be obligated to, remove customer reviews.
3.1 Annual Fees. If applicable, seller shall pay Digium an annual fee (“Annual Fee") as set forth in Exhibit A upon the Effective Date. Seller shall remit payment of any applicable initial Annual Fee within thirty (30) days of the Effective Date. As provided in Section 9.1 and subject to the payment of any applicable Annual Fee, this Agreement shall be automatically renewed for subsequent twelve month periods (each a "Renewal Term") unless either party provides the other party with notice of its intent not to renew at least thirty (30) days prior to the expiration of the existing term. Seller shall pay the Annual Fee set forth in Exhibit A thirty (30) days prior to the commencement of such Renewal Term to Digium. The Annual Fee is non-refundable (except as expressly provided in Section 9.1 below). If this Agreement is renewed, Seller may not participate in the Program until payment has been received for the applicable Renewal Term. Seller shall pay all taxes, howsoever designated, to the extent attributable to this Agreement or to any benefit, service or material furnished hereunder.
3.2 Other Fees. Seller shall pay the other fees, if applicable, as described Exhibit A. The basic and featured listings fees set forth in Exhibit A must be paid within thirty (30) days fro m the Effective Date. Each additional basic product listing which Digium elects to charge for and additional featured product listing must be paid within thirty (30) days following Digium’s accept ance of the applicable Product Application. All payments shall be made in U.S. dollars.
3.3 Payment requirements prior to listing on Site. Seller Product(s) shall not be placed on the Site unless and until all applicable fees set forth in Exhibit A are paid in full. The payment terms set forth in this Agreement and in Exhibit A take precedence over and supersede any conflicting terms contained in any purchase order.
4.1 Product Information License. “Product Information” means all content, including photographs, images, artwork, logos, data, text, trademarks and other copyrightable works that identify and describe a Seller Product, supplied by Seller for display on the Site from time to time. Seller shall include the Product Information in the Product Application. Seller hereby grants Digium a nonexclusive, worldwide, royalty-free license to market, display, reproduce (including compression and temporary storage), distribute, display perform, transmit and promote the Product Informatio n on the Site. Seller agrees that the Product Information must not be false, inaccurate, or otherwise misleading. Images contained in Product Information must be at least 1,024 by 768 pixels, have a 5 MB size limit, and be JPEG, GIF, or PNG supported. These criteria which may be changed by Digium’s web development team and shall be provided to Seller upon request. Word limits shall be plac ed on any company names, product descriptions or other text-based fields contained in the Product Information and shall be provided by Digium’s web development team upon request. Digium will not a ssist in any web development efforts with partner.
4.2 Product Information Obligations. Following the Effective Date and payment as set forth in Section 3.3, Digium will place the Product Information on the Site within a reasonable time after receiving all of the Product Information required in the Product Application. The positioning of Product Information within the Site or on any page therein will be determined by Digium in its sole discretion. In no event will adjustments or refunds be made because of the web page, section or position in which a Product Information has been published. Digium may redesign the Site in its sole discretion at any time. Digium reserves the right to review, reject or request Seller to modify any Product Information. Also, Digium may immediately remove any Product Information from the Site if the Product Information violates any law, statute, or regulation. In the event Digium removes any Product Information due to a violation of law, statute, or regulation, Digium shall provide Seller notice of having done so as soon as is practical and shall provide Seller with a thirty (30) day period in which to modify the Product Information so as to comply with the applicable law, regulation, or statute. Digium may also remove any Product Information from the Site, upon thirty (30) days prior written notice to Seller, if the Product Information violates any policy of Digium (which may include, but shall not to be limited to, prohibition of competitive “mudslinging”) which Digium has provided Seller written notice of and which Seller has not been able to cure within thirty (30) days of receipt of notice from Digium. If Digium removes any Product Information from the Site under this section, Seller shall be entitled to a pro-rata refund as set forth in Section 9.1. Digium shall not be liable for having removed, rejected, or modified any Product Information.
5. Digium’s Warranty and Disclaimer of Warranties. Digium shall use reasonable commercial efforts to maintain the availability of the Site to the public and the function to permit distribution of the Seller Products; provided however that Digium does not warrant the availability or functionality of the Site. DIGIUM MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE DIGIUM MARKS, THE SITE, THE LINKS OR ANY SELLER’S PRODUCTS, SERVICES OR OTHER ITEMS OFFERED, SOLD OR LICENSED THROUGH THE PROGRAM, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND ACCURACY OF INFORMATIONAL CONTENT, EXCEPT TO THE EXTENT THAT THE SELLER’S PRODUCTS HAS BEEN CERTIFIED BY DIGIUM. DIGIUM MAKES NO REPRESENTATION THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND DIGIUM WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
6.1 Approved Links. During the term of this Agreement, if Seller wishes to include a link to the Site from the Seller’s website (“Seller’s Site”), it shall only use a hypertext transfer button or text links to a page specified by Digium (“Link”). Such Links may contain only the words and/or text specified by Digium. In using the Links, Seller agrees to cooperate fully with Digium in order to establish and maintain such Links. No logos are licensed by Digium under this Agreement. This includes, but is not limited to, the Asterisk Speech Bubble Logo. Seller shall comply with all guidelines provided by Digium with respect to the graphic reproduction, appearance and "look and feel" of the Links and all references to Digium and to AsteriskExchange. 6.2 No Spam or Forced Linking. Seller shall not send unsolicited commercial email ("spam") which makes reference to Digium or to AsteriskExchange, or which includes a link to the Site. Seller al so shall not force visitors to the AsteriskExchange website via any mechanism which acts as an automatic transport, such as "meta refresh" or "forced exit" scripts. This Agreement and any Exhibit hereto, shall terminate immediately and automatically if Seller directs traffic to the AsteriskExchange website or advertises through the use of spam or any automatic transport mechanism or otherwise uses a Link in violation of the terms of this Agreement, law, state, regulation, or any policy of Digium.
7.1 Ownership. Seller acknowledges and agrees that all right, title and interest in all Digium logos, trade names, trademarks and service marks, including those incorporated in Links (collectively, the "Digium Marks"), are the sole and exclusive property of Digium and may not be used without Digium’s prior written consent.7.2 Limited Licenses.
7.2.1 Right to link. Digium grants Seller a limited, non-transferable, non-exclusive, revocable license during the term of this Agreement to: access the Site through Links established on the Seller Site solely as set forth under the terms of this Agreement Digium reserves any and all trademark rights not otherwise expressly provided to Seller in this subsection. For purposes of clarity, if Seller has no Seller Products on the Site which listing required the payment of a fee then Seller is not authorized to use the Digium Marks.
7.3 Restrictions. Seller shall not alter, modify, reproduce, or change any Digium Mark in any way whatsoever. Digium reserves all rights in the Digium Marks and all other intellectual property rights. Seller shall not assert the invalidity, unenforceability or contest the ownership by Digium of the Digium Marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice Digium's rights in the Digium Marks, render the Digium Marks generic, or otherwise weaken their validity or diminish their associated goodwill. Seller also agrees to abide by the publicly available "Digium Trademark Policy" made available on the Digium web site, as revised by Digium from time to time in its discretion. Any and all goodwill arising from Seller's use of the Digium Marks shall inure exclusively to the benefit of Digium. A copy of Digium's Trademark Policy can be found here https://www.digium.com/company/policies/trademark-policy.
7.4 Limited License to use Seller Marks. During the term of, and subject to the terms and conditions of, this Agreement, Seller grants to Digium a non-transferable, non-exclusive, license to reproduce and display Seller's logos, trademarks, trade names and similar identifying material (collectively, the "Seller Marks") so that Digium may refer to Seller as a participant in the Program should Digium so desire, such as on the Digium website, in press releases and in other marketing materials.
7.5 Marketing Approval. Each party will review and approve proposed marketing documentation prepared by the other party concerning any applicable Seller Products or mention of Seller or of Digium to ensure that such material accurately and fairly represent the Seller Products and the Site.
8.1 Operation. Seller will be solely responsible for, and Digium shall have no liability related to, the development, operation or maintenance of Seller's site, or any goods or services promoted or otherwise provided by Seller.
8.3 No Confusing Content. Seller agrees that the domain name for Seller's site does not and will not contain the "Digium" or “Asterisk” mark, or any other Digium Marks, or any variation the reof. Seller's Site may not copy, co-brand or frame the Site or otherwise have any portion of the Site visible on Seller's Site, or otherwise have any portion of Seller's Site visible on the screen once a user has clicked through to the Site. Seller's site will not in any way copy any content from, or resemble the look and feel of, the Site, nor may Seller create the impression that Seller's Site is the Site or is part of the Site. All content on the Site is the copyrighted material of Digium or a third party and may not be copied without prior written permission from Digium.
8.4 Support. Seller agrees to use commercially reasonable efforts to provide telephone, web-based, and/or e-mail support to customers for Seller’s Products during Seller’s normal business hours. Seller must also provide an e-mail address within the each Product Application that customers may use to contact Seller for support and that Digium may use to direct support inquiries from customers to Seller. Seller is solely responsible for providing support for all Seller’s Products.
8.5 Fulfillment. Seller must also provide website links, phone numbers, and e-mail addresses in each Product Application for Seller’s web store and/or sales team Seller must have the ability to facilitate customer fulfillment once the Seller’s Product is purchased.
9.1 Term. The initial term of this Agreement shall be for a one (1) year period commencing on the Effective Date. The initial term of the Product Applications shall be for a one (1) year p eriod commencing on the date of Digium’s acceptance of the applicable Product Application. This Agreement and each Product Application shall be automatically renewed for subsequent Renewal Terms unless either party provides the other party with notice of its intent not to renew either A) the Agreement as a whole, including, but not limited to, use of the Site for all previously included Seller Products or B) only intent not to renew only with regard to certain previously included Seller Products at least thirty (30) days prior to the expiration of the existing term. Either party may terminate this Agreement as a whole or with regard only to certain Seller Products which were previously included on the Site at any time and for any or no reason upon the provision of sixty (6 0) days written notice to the other. Either party may terminate this Agreement as a whole or certain Seller Products which were previously included on the site if either party has breached a term of this agreement and has not cured the breach within thirty (30) days of having received written notice of the breach. In the event that Digium terminates this Agreement as a whole without cause, Digium shall provide the Seller with a pro rata refund of any applicable Annual Fees paid for the remainder of the months in the then-current term of the Agreement. In the event that Digium removes Product Information pursuant to Section 4.2 and Seller is unable to cure within thirty (30) days of receipt of written notice from Digium, Digium shall provide the Seller with a pro rata refund of any applicable fees, as set forth in Exhibit A, paid for the remainder of months remaining in the applicable Product Application which shall be pro-rated beginning from the date of the expiration of the thirty (30) day cure period.
9.2 Effect of Termination. Upon the termination of this Agreement for any reason for one or more Seller Products, but not the Agreement as a whole, Seller will immediately: (a) cease use of, and remove from Seller's Site, all Links and any other materials provided by or on behalf of Digium to Seller pursuant to this Agreement relating to the Seller’s Products for which the Agreement is terminated and (b) cease any and all promotional activities Seller may be undertaking for the Seller Products for which the Agreement is terminated. Upon the termination of this Agreement for any reason in its entirety, all outstanding fees will become immediately due and payable and Seller will immediately: (a) cease use of, and remove from Seller's Site, all Links and any other materials provided by or on behalf of Digium to Seller pursuant to this Agreement; (b) cease use of any Digium Mark; (c) following a written request from Digium, return to Digium any and all copies of all promotional materials that incorporate any other Digium Mark within thirty (30) days from the date of the written request; and (d) return to Digium all of its confidential information. The provisions of Sections 1, 3 (with respect to any outstanding fees), 5 with regard only to the disclaimer of warranties, 9.2, 10, and all of Section 14 shall survive any termination of this Agreement.
DIGIUM WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT, ANY EXHIBIT HERETO, OR THE PROGRAM, EVEN IF DIGIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR EXHIBIT HERETO, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF DIGIUM ARISING WITH RESPECT TO THIS AGREEMENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION WILL NOT EXCEED EITHER THE TOTAL FEES PAID OR PAYABLE TO DIGIUM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE (OR WHERE THE CAUSE IS NOT THE FIRST IN A SERIES OF RELATED OR SIMILAR CAUSES, TO THE FIRST OF SUCH CAUSES) OF LOSS OR DAMAGE OR, IF NO FEES HAVE BEEN PAID, FIVE THOUSAND US DOLLARS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING (WITHOUT LIMITATION) BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATIONS AND OTHER TORTS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY SELLER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES SET FORTH IN THIS AGREEMENT OR ANY EXHIBIT HERETO.
Seller hereby represents and warrants to Digium the following: (a) this Agreement and any Exhibit hereto has been duly and validly executed and delivered by Seller and constitutes Seller's legal, valid and binding obligation, enforceable against Seller in accordance with its terms; (b) Seller is an adult of at least 18 years of age; (c) Seller is the owner of the Seller Marks and has all the rights and power to license such marks to Digium; (d) Seller's Site and business complies, and shall continue during the term of this Agreement to comply, with all applicable laws; (e) Seller holds all necessary rights to permit the use of the Product Information by Digium for the purpose of this Agreement; (f) Seller holds all necessary rights and permissions to grant the licenses he reunder and (g) the Product Information does not and will not violate any applicable laws or regulations or any third party rights, or contain any inaccuracies, omissions, misrepresentations or any material that is inappropriate, vulgar, obscene, unlawful or otherwise objectionable, including any material that encourages conduct that would constitute a criminal offense or give rise to civil liability.
As a result of Seller's participation in the Program, Digium may disclose either verbally or in writing to Seller certain information which Digium considers to be confidential ("Confidential Infor mation"). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Seller for Seller's own business purposes or for any the pur pose of exercising its rights and obligations under the Agreement except and solely to the extent that any such information is generally known or available to the public or if the same is required by law or legal process. If Seller provides any information to Digium which it wishes to be treated as confidential, Seller must clearly mark such information as confidential and if Seller verbal ly discloses information it wishes to be treated as confidential, Seller must follow up with a written description of the information disclosed and a notification that the information is to be treated as confidential.
Seller hereby agrees to indemnify, defend and hold harmless Digium , its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by Digium (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on: (a) any claim or threatened claim that Digium's use of any Seller Mark, Product Information or other material provided by Seller infringes on the copyright, trade secret, trademark, patent or other intellectual property rights, proprietary rights or other rights of any third party; (b) the breach of any representation or warranty made by Seller herein, or any of Seller's obligations herein; or (c) any claim related to Seller's website, business or practices.
14.1 Relationship of Parties. Digium and Seller are independent contractors, and nothing in this Agreement or any Exhibit hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Seller has no authority to make or accept any offers or representations on behalf of Digium, and agrees not to make any s tatement, whether on Seller's Site or otherwise, that reasonably would contradict anything in this Section.
14.2 Modification; Assignment. Seller understands that the Program is experimental and Digium may need to modify the terms of the Agreement to reflect changes in its business model, Digium may modify any of the terms contained in this Agreement or any other document incorporated herein by reference, at any time and in Digium’s sole discretion, and any such modification may include material changes. Posting on the Site of a change notice or a new agreement is considered sufficient notice, although Digium may also notify Seller of changes by email. Unless otherwise noted in an amendment, amendments shall automatically be deemed to take effect on the first day of the calendar month that occurs at least 30 days after the date that Digium first posted the amendment. If any modification is unacceptable to Seller, Seller's only recourse is to terminate this Agreement by providing Digium with written notice thereof no later than thirty (30) days after the date that the change was posted or otherwise took effect, in which case Digium shall provide the Seller with a pro rata refund of any applicable Annual Fees for the remainder of the months in the then-current term of the Agreement. Seller's continued participation in the Program following the Digium posting of a change notice or new agreement on the Site, or notifying Seller by email, will constitute binding acceptance of the change. Seller agrees always to provide Digium with timely written updates of Seller's contact information. Seller may not assign, sublicense or otherwise transfer this Agreement or any of Seller's rights or obligations hereunder, by operation of law or otherwise, without Digium’s prior written consent, which may be withheld in Digium’s sole and absolute discretion. Subject to that restriction, this Agreement, or any Exhibit hereto, will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
14.3 Interpretation. The parties have agreed to execute this Agreement and any Exhibit hereto in the English language. In the event of any dispute in connection with this Agreement or any Exhibit hereto, the English language version of the Agreement or any Exhibit hereto will control for all purposes. Any action brought under this Agreement or any Exhibit hereto shall be conducte d in the English language. Digium’s failure to enforce Seller's strict performance of any provision of this Agreement hereto will not constitute a waiver of Digium’s right to enforce such provisi on or any other provision of this Agreement. The headings used in this Agreement or any Exhibit hereto are for convenience only and are not intended to be used as an aid to interpretation. If an y part of this Agreement or any Exhibit hereto is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement or any Exhibit hereto shall not be affected and such provision shall be modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such pro vision shall then be enforceable and enforced.
14.4 Governing Law. This Agreement and any Exhibit hereto shall be deemed to have been executed in the state of Alabama and shall be governed by the laws of the State of Alabama, without regard to the conflict of laws provisions thereof. In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply to, or govern, this Agreement and any Exhibit hereto.14.5 Dispute Resolution.
14.5.1 Dispute Resolution Process. The parties agree to the following process with regard to any disputes pertaining to this Agreement. Initiation of proceedings: Any party may send the other party written notice identifying any dispute, controversy, or claim arising under, out of, or in connection with this Agreement (the “Matter”), and invoking the procedures of this Section (D ispute Resolution). Within fourteen (14) days after giving the written notice, executive representatives of the parties with authority to settle the Dispute shall meet at a mutually agreed upon location, which may be via a telephone conference call at which executives with authority to settle the Dispute are present, for the purpose of determining whether they can resolve the Matter themselves by agreement, and, if the parties have not been able to reach a mutually acceptable resolution on the Matter within fourteen (14) days after the initial meeting between the executives, then the parties shall resolve the Matter in accordance with the Dispute Resolution Procedures of this Section.
14.5.2 Mediation. Any dispute, controversy or claim arising under, out of or in connection with this Agreement, including disputes, controversies, or claims pertaining to any subsequent a mendments, or the validity, enforceability, construction, performance or breach of this Agreement including any Matter which the parties do not resolve in accordance with Section 14.5.1 (“Dispute”), shall be finally settled under the Alabama Civil Court Mediation Rules (“Rules”) of the Alabama Center for Dispute Resolution then in force on the date of commencement of the mediation. Mediation shall be conducted in accordance with the Alabama Civil Court Mediation Rules and shall occur in the exclusive jurisdiction of Madison County, Alabama. The parties will mutually agree upon a neutral mediator who is listed as a registered mediator with the Alabama Center for Dispute Resolution within thirty (30) days of receipt of a notice to mediate from either party (“Notice of Mediation”). Neither party may unreasonably withhold consent to the selection of the mediator. If the parties are unable to agree upon a mediator, each party shall select one (1) mediator who is registered as a mediator with the Alabama Center for Dispute Resolution and the two (2) mediators shall select a third (3rd) mediator who is registered as a mediator with the Alabama Center of Dispute Resolution. This 3rd (third) mediator shall serve as the sole mediator and the other two (2) selected mediators shall no longer be involved in the mediation process following the selection of the third mediator. Each party will bear its own costs of mediation, but the parties will share the costs of the mediator equally. Each party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the dispute. If the dispute remains unresolved thirty (30) days following the first date on which the parties attend a mediation session under this section, either party may then submit the dispute to a court of competent jurisdiction with Madison County, Alabama. Each party irrevocably agrees to submit the exclusive jurisdiction of the courts in Madison County, Alabama over any claim or matter arising under or in connection with this Agreement and each party irrevocably consents to a bench trial and waives the right to a trial by jury as a means of relief for any disputes relating to this Agreement. In no event shall actual damages awarded by a court exceed the amount set forth in Section 10 of this Agreement.In the event of litigation, the prevailing party on any such action shall be allowed to recoup reasonable attorney’s fees and expenses incurred in such action.
14.6 Entire Agreement. The provisions contained in this Agreement and any Exhibits attached hereto constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement, u nless Seller falls under the following sole exception. If the Seller has an active signed technology partner agreement with Digium, which was signed prior to January 21, 2010, Seller shall be list ed on the Site until such time as the existing technology partner agreement’s renewal period arrives and this shall be governed under the terms and conditions of the existing partner agreement, except that if Seller wishes to add an additional product to the Site, Digium reserves the right to negotiate with Seller new payment terms for the additional listing. If Seller wishes to remain on the Site following the renewal period of the existing technology partner agreement Seller must sign this Agreement and shall be bound exclusively by this Agreement’s terms and conditions.
14.7 Independent Investigation. Seller acknowledges that Seller has read this Agreement and the Exhibits attached hereto and has had an opportunity to consult with Seller's own legal advisors if Seller so desired, and agrees to all its terms and conditions
14.8 Force Majeure. Except for payments under this Agreement, neither party shall be liable to the other for any alleged loss or damage resulting from failure to perform due to Acts of God, terrorism, natural disasters, and acts of civil or military authority, fire, floods, epidemics, quarantine, energy crises, war or riots. Each party shall promptly notify the other party of such e vent. In the event of the occurrence of any of the foregoing, the date of performance shall be deferred for a period of time, not to exceed ninety (90) days, equal to the time lost by reason of the delay. If the delay continues past the ninety (90) day time period, the party not asserting the Force Majeure clause may terminate this agreement in writing with no further notice and no further liability to the other party, except for obligations, including payment, arising prior to the termination of this Agreement.
14.9 Copies. This Agreement may be executed in counterparts, including by facsimile, electronically, or via scanned copies, each of which will be deemed an original, but all of which together will constitute one and the same instrument.