A. Under this agreement between the User and Endoscopy Development Company, LLC (“EDC”), “User” shall mean the person or entity who uses or is authorized by such person or entity to use edcparts.com, so long as such user agrees to be bound to the terms and conditions hereof.
B. EDC hereby grants to User a revocable, temporary, limited, nonexclusive right and license to use edcparts.com on any computer controlled by User. edcparts.com allows the User to (1) to place orders for EDC goods and services (“EDC Services”) and (2) to access EDC product information provided locally or through use of on-line connections (“Information”). EDC reserves all rights not expressly granted to User.
C. User acknowledges that the Information includes valuable and proprietary property of EDC or third parties who have contributed to edcparts.com. The Information is licensed by EDC to User for User’s limited personal use in conducting User’s internal business affairs and in placing orders from EDC. Consistent with the foregoing limitation, User may copy, print, and use portions of Information for its limited personal use in conducting User’s internal business affairs and in placing orders from EDC. If User wishes to use the Information in a manner not expressly permitted by this Agreement, User may request permission from EDC by giving to EDC a written description of the intended use and such other information as EDC may request. Permission may only be granted in writing by EDC and may be granted or withheld by EDC in its sole and absolute discretion.
2. Charges and Taxes
User shall be responsible for any charges for EDC Services incurred through use of any password User adopts, any customer identification number assigned to User and any order User places with EDC, unless such charges result from EDC’S error. In addition, User shall be solely liable for any state or local sales, use or other taxes of a similar nature, if any, that may be due on account of User’s use and/or purchase of EDC Services. All invoices shall be payable in accordance with EDC’s standard order, billing, and collection policies.
EDC may terminate the license granted under this Agreement and may terminate the business relationship with User via edcparts.com or otherwise, at any time and for any reason in EDC’s sole and absolute discretion. Upon termination of this Agreement, User shall no longer be permitted to use edcparts.com. Termination for any reason shall not affect EDC’s entitlement to and ability to collect any undisputed sums due for EDC Services ordered, sold and/or performed prior to such termination.
User shall defend, indemnify and hold harmless EDC from and against any and all third party claims, actions, causes of action, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and court costs, arising from User’s use of edcparts.com. The foregoing indemnity shall not apply in the event of EDC’s gross negligence or willful misconduct.
edcparts.com and the information available therein is the valuable, confidential, copyrighted and trade secret property of EDC. EDC owns all right, title and interest in and to edcparts.com, including without limitation, all current and future enhancements, modifications, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, and all copyrights, trade secrets and patents, if any, therein.
edcparts.com may not be temporarily or permanently transferred or assigned to anyone without the prior written consent of EDC, which such consent may be given or withheld by EDC in its sole and absolute discretion. Any EDC-authorized transferee of User’s right to use edcparts.com must first agree to be bound by the terms and conditions of this Agreement.
7. Disclaimer of Warranty and Limitation of Liability
A. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT WITH RESPECT TO EDCPARTS.COM OR ANY EDC SERVICES OR ANY EDC PRODUCTS ORDERED BY USER, EDC HEREBY DISCLAIMS ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE MAY NOT APPLY.
B. EDC IS NOT AN INSURER WITH RESPECT TO USER’S USE OF EDCPARTS.COM OR EDC SERVICES OR EDC PRODUCTS ORDERED BY USER AND, THEREFORE, EDC SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE EDCPARTS.COM OR EDC SERVICES OR EDC PRODUCTS ORDERED BY USER, EVEN IF EDC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. EDC’S ENTIRE LIABILITY AND USER’S EXCLUSIVE REMEDY FOR DAMAGES DUE TO PERFORMANCE OR NON-PERFORMANCE OF EDC, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, SHALL BE LIMITED TO REFUND OF THE CHARGE SPECIFICALLY RELATED TO SUCH EDC SERVICE OR EDC PRODUCT ORDERED BY USER.
A. EDC’s performance shall be excused during a period of delay or interruption due to causes beyond EDC’s control such as war, terrorism, riot, strike, unavailability of materials and Acts of God.
B. This Agreement shall be treated as though it were executed and performed in the County of St. Louis, State of Missouri. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods, the application of which is expressly excluded, but such rights and obligations will instead be governed by the substantive and procedural laws of the State of Missouri. The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be the Courts of St. Louis County, State of Missouri, and the parties hereto expressly submit to the jurisdiction of said courts. User and EDC specifically consent to extra-territorial service of process. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri (without regard to conflict of law principles).
C. No action arising under this Agreement may be brought more than one (1) year after the cause of action has accrued.
D. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court of competent jurisdiction, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. Failure of either party to enforce any provision of this Agreement shall not constitute nor be construed as a waiver of such provision nor of the right to enforce such provision.
Notice of EDC Trademarks EDC ® and edcparts.com ® are registered trademarks and/or service marks of EDC. All other brand, product or company names are trademarks of their respective owners.
THE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES HERETO RELATIVE TO THE SUBJECT MATTER OF THIS AGREEMENT.