TERMS AND CONDITIONS OF ASCENTE BUSINESS CONSULTING, LLC
Services Activation for the LibertyID® for Small Business solution (the “Product”) described on the Activation Page constitutes agreement to the following terms and conditions (“Terms”). If you do not agree with any of these Terms, do not access, use or activate the Product.
1. Term & Terms & Conditions. These Terms are valid during the Term (as defined in your Proposal), including any renewal thereof, and are subject to change by Ascente Business Consulting, LLC, and its affiliates (collectively, “Ascente”) at any time and without notice to you.
2. Inspection and Acceptance; Returns. If the Product is defective or does not conform with your order, you must give notice to Ascente of such defect or nonconformity within ten days after activation. If no such notice is received, the Product will be deemed to conform to requirements and to have been irrevocably accepted by you.
3. No Warranties. Ascente provides the Product to you “as is” or “as available” basis. Ascente makes no warranties of any kind, either express or implied, with respect to the Product and expressly disclaims any implied warranties of merchantability and fitness for a particular purpose or use, or any warranties relating to infringement of any third party rights or title in the Product or that the Product is free from bugs, viruses, hackers, uninterrupted or error-free. To the extent assignable, Ascente hereby assigns all manufacturer warranties to you. Ascente provides no warranty that the Product will prevent a data breach. A data breach for these Terms means an unauthorized or unintentional exposure, disclosure, theft, or loss of sensitive, personally identifiable information relating to employees, customers, clients, or other individuals that is collected, stored, or otherwise used by a business.
4. Liability, Remedy. Ascente’s exclusive liability and your exclusive remedy in the event the Product is proven to be defective or nonconforming will be replacement of such Product without charge or the refund of the purchase price, upon the return of such Product in accordance with Ascente’s instructions.
Ascente will not in any event be liable for incidental, consequential, or special damages of any kind resulting from any use or failure of the Product, even if Ascente has been advised of the possibility of such damage, including liability for loss of use, loss of work in progress, down time, loss of revenue or profits, failure to realize savings, loss of Product by you, or any liability of yours to a third party on account of such loss, or for any labor or any other expense, damage, or loss occasioned by such product including personal injury or property damage.
5. Indemnification. You agree to defend, indemnify. and hold harmless Ascente, its officers, directors, members, managers, employees, agents, predecessors, successors, insurers, and assigns for, from and against any and all claims, damages, obligations, losses, liabilities, judgments, costs, penalties, fees, fines, interest, debt, and expenses (including, without limitation, attorneys’ fees and expert witness fees) arising from (i) your use of and access to the Product; (ii) your violation or the violation of any provision of these Terms; and (iii) arising from any modifications or alterations to the Product, made by you, that result in or contribute to a violation of any third-party right, including, without limitation, any trade secret, patent, copyright, trademark, property, publicity, or privacy right. This indemnification obligation shall survive the termination of these Terms and the termination of your use of the Product.
6. Force Majeure. Ascente will not be liable for delays in delivery or performance of the Product, when such delay or failure results from a cause beyond its reasonable control. Such causes include acts of God, acts of the public enemy, acts or failures to act by the other party, acts of civil or military authority, governmental priorities, strikes or other labor disturbances, shortages of raw material, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, delays in transportation, car shortages, and loss or damage to goods in transit.
7. Taxes. You will be responsible for the payment of all applicable sales, use, occupation, excise, property, value added tax, fee, duty, governmental charge, and other assessments in the nature of taxes however designated, on all Product purchased by you.
8. Export Obligations. You agree to comply with all United States export laws and regulations, and you will not export the Product outside the United States unless all necessary export licenses have been obtained. Ascente will have no responsibility for obtaining any licenses necessary to import the Product into any country.
9. Governing Law; Arbitration; Fees and Expenses. This Agreement will be subject to, and governed by, the laws of the state of Colorado, U.S.A., without reference to any conflict of law principles.
Any claim or dispute between Ascente and you or any of your agents or employees, whether common law or statutory, will be submitted to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association, as amended from time to time (the “Arbitration Rules”) under the authority of the Colorado Arbitration Act, and may not be the subject of litigation in any forum. Ascente and you agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of Ascente, you, and all parties to such arbitration or proceeding.
Each party voluntarily, knowingly and intelligently waives any rights such party may otherwise have to seek remedies in court or other forums, including the right to jury trial, and agrees that any proceedings to resolve or litigate any dispute, whether in arbitration, in court or otherwise, will be conducted solely on an individual basis, and that neither Ascente nor you will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Ascente or you acts or proposes to act in a representative capacity.
The arbitration will be conducted only in Denver, Colorado, before a single arbitrator selected in accordance with the Arbitration Rules. The decision of the arbitrator will be final and binding, and judgment on the award by the arbitrators may be entered in any court of competent jurisdiction.
This submission and agreement to arbitrate will be specifically enforceable.
The arbitrator will award all expenses of arbitration (including reasonable attorneys’ fees) to the party prevailing on all or substantially all of its claims and defenses or as the arbitrator may determine is just and reasonable.
10. Miscellaneous. The failure of Ascente to enforce at any time any of the provisions of these Terms, to exercise any election or option provided herein, or to require at any time your performance of any of the provisions herein will not in any way be construed to be a waiver of such provisions. These Terms supersede any prior agreement or understanding relating to the Product between you and Ascente, except for the Proposal provided by Ascente, which is hereby incorporated herein, and the sale of the Product to you is expressly conditional upon your assent to the terms set forth herein, which assent will be deemed given upon activation of the Product. Any modification of these Terms will be effective only to the extent they are reduced to writing and signed by Ascente and you, and Ascente will not be bound by any terms or conditions proposed in any purchase order or other document that are additional to or different from these Terms. In case any one or more of the provisions contained in these Terms will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of these Terms. These Terms will be construed as if such invalid, illegal, or unenforceable provision had never been a part hereof. A reference in these Terms to including means “including but not limited to.”