Terms and Conditions
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THESE TERMS & CONDITIONS (these "Terms") govern all purchases and sales of The Omega Mark (the "Product") between THE OMEGA MARK, LLC, a Georgia limited liability company, as seller ("Omega Mark"), and the purchaser executing a copy of these Terms ("Purchaser"), whether these Terms are executed electronically or in hard copy.
- Purchase and Sale. Omega Mark agrees to sell the Product to Purchaser from time to time, and Purchaser agrees to buy the Product from Omega Mark from time to time, each in accordance with these Terms and any written invoices or other documentation reasonably requested by Omega Mark in connection with any such purchase and sale (collectively, "Invoices"). In the event of a conflict between these Terms and any Invoices, these Terms shall govern and control in all respects. In the event Purchaser seeks to introduce any additional terms or conditions with respect to any sale, such additional terms and conditions shall be of no force or effect.
- Payment Terms. Purchaser agrees to pay Omega Mark strictly in accordance with the terms and conditions of the Invoices applicable to the purchase and sale of the Product.
- Product Use and Resale; Sales Tax. Purchaser agrees to use the Product and to cause end-users of the Product to use the Product solely for its intended purpose and in strict compliance with all applicable laws, rules, and regulations. If Purchaser is a reseller of the Product, then Purchaser further agrees to: (a) use commercially reasonable efforts to resell the Product at a suggested retail price of $4.99 or greater and to conduct all such resale efforts in strict compliance with all applicable laws, rules, and regulations and through manners and methods that do not reflect negatively on Omega Mark or the Product; (b) provide Omega Mark with a sales tax exemption certificate or other similar document from each taxing authority having jurisdiction over the purchase and sale of the Product; and (c) collect all sales taxes and other taxes applicable to the sale of the Product to consumers and remit all taxes so collected to the applicable taxing authority.
- Product Replacement. Purchaser acknowledges and agrees that Purchaser shall replace any end-user's Product, at Purchaser's sole cost and expense, if such end-user's Product becomes damaged or inoperable by cause of an employee, contractor, or guest of the property.
- Intellectual Property. Purchaser acknowledges and agrees that the names, marks, logos, slogans, and designs by which the Product is known, identified, and publicized (collectively, the "Marks") and all patents, trade secrets, and other intellectual property relating to the Product (collectively, the "IP") are the sole and exclusive property of Omega Mark and that, except for the limited license set forth below, Purchaser has not, by reason of this Agreement or otherwise, acquired any right, title, or interest in or to the Marks or the IP. If Purchaser is a reseller of the Product, then Omega Mark hereby grants Purchaser a limited, non-exclusive, revocable license to use the Marks for the sole purpose of advertising the Product for sale; provided that: (a) Purchaser shall use the Marks strictly in accordance with any guidelines provided by Omega Mark from time to time; and (b) all use of the Marks shall inure to the benefit of Omega Mark.
- User-Generated Content. Purchaser and Omega Mark acknowledge and agree that end-users of the Product purchasing the Product from Purchaser (collectively, "Purchaser Customers") will have the ability to upload photographs, videos, documents, text, and other materials (collectively, "User-Generated Content"), which may be viewed by using the Product together with the Remember Us mobile application (the "App"). With respect to all User-Generated Content, Purchaser and Omega Mark acknowledge and agree that: (a) such User-Generated Content will be hosted on a cloud-based platform; and (b) in the event Omega Mark ceases to conduct business or sells all or substantially all of its assets: (i) Omega Mark will use commercially reasonable efforts to appropriately transition the App to ensure continued functionality of the App; and (ii) Omega Mark and Purchaser each will use commercially reasonable efforts to transition any User-Generated Content uploaded by Purchaser Customers to a new hosting platform in order to ensure continued access to such User-Generated Content for Purchaser Customers
- Indemnification. To the fullest extent permitted by applicable law, Purchaser agrees to indemnify, defend, and hold harmless Omega Mark, its affiliates, and each of their respective directors, officers, shareholders, managers, members and employees (collectively, the "Indemnitees") from and against any and all claims, losses, liabilities and damages for property damage or bodily injury (including death), including, but not limited to, reasonable attorney's fees and court costs, whether incurred at trial, on appeal or otherwise (collectively, "Losses"), that the Indemnitees, or any of them, may suffer, pay or incur as a result of, arising out of or relating to: (a) the negligence, gross negligence, recklessness, or willful misconduct of Purchaser or its employees, agents, or contractors; or (b) Purchaser's breach of any representation, warranty, covenant, or other obligation under these Terms; or (c) any act or omission of Purchaser or its employees, agents, or contractors in connection with the resale of the Product.
- Warranty. TO THE FULLEST EXTENT PERMITTED BY LAW, OMEGA MARK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OTHER THAN THOSE SPECIFICALLY SPELLED OUT IN THE PROCUCT WARRANTY
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF OMEGA MARK AND ITS AFFILIATES IN CONNECTION WITH THE PRODUCT OR ANY OTHER MATTER RELATING TO THESE TERMS (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) SHALL NOT EXCEED THE PRICE PAID BY PURCHASER TO OMEGA MARK FOR THE PRODUCT. IN NO EVENT SHALL OMEGA MARK OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Non-Exclusive Relationship. Purchaser acknowledges and agrees that Omega Mark shall have the right, at any time, to sell the Product to other purchasers and that nothing in these Terms creates an exclusive right in favor of Purchaser to resell the Product.
- No Agency. With respect to any resale of the Product by Purchaser, these Terms create no employment relationship, and Purchaser will have no authority and will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of Omega Mark, or to represent Omega Mark as agent, employee or in any other capacity.
- Entire Agreement. These Terms and all Invoices (which are hereby incorporated by reference and made a part of this Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and terminates all prior agreements and understandings, either oral or in writing, between the parties with respect to the subject matter hereof.
- Venue and Jurisdiction. Except for injunctive relief sought by Omega Mark, which may be brought in a court of competent jurisdiction in any state of the United States of America or in any foreign country where Purchaser conducts business or has a place of business, all claims, disputes or controversies whatsoever arising out of or related to this Agreement in any way, shall be commenced, filed and litigated before a court of competent jurisdiction in Athens-Clarke County, Georgia, or, if the federal court has exclusive jurisdiction in any such claim, dispute or controversy, it shall be commenced, filed and litigated in the U.S. District Court for the Middle District of Georgia, Athens Division. Purchaser hereby submits to the personal jurisdiction of the state and federal courts as herein provided, and any courts of appeal therefrom, and waives any objection (on the grounds of lack of jurisdiction, or forum non-conveniens, or otherwise) to the exercise of jurisdiction over it and by any such courts.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to its conflict of laws principles.
- Counterparts. To the fullest extent permitted by law: (a) these Terms may be executed in multiple counterparts and by any electronic signature method; (b) each such counterpart shall be deemed an original; and (c) all such counterparts shall constitute one and the same instrument.