Terms of Service
Last Updated: [5/16/24]
This Terms of Service (“Agreement”) is a legally binding contract between you and APFusion, Inc. (“APFusion,” “us,” “we,” or “our”) regarding your use of the Service (as defined in Section 1 (Overview)). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us, placing an Order (defined below) using online functionality APFusion/ShopEarl makes available like clicking a box, creating an Account (as defined in Section 2.4 (Access)), or otherwise affirmatively accepting the Agreement through another means APFusion/ShopEarl offers you. If the Service is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Service (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you and your and the entity’s rights and obligations with respect to the Service will at all times be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of this Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you, constitutes an Agreement by APFusion/ShopEarl and by you to be bound by this Agreement.
1. Overview. APFusion/ShopEarl provides a marketplace to connect after-market part suppliers (“Vendors”) and salvage yards buyers (“Buyers”) (the “Service”). A separate agreement is formed between Vendors and Buyers when Buyer purchases goods from Vendor (goods offered by Vendor, the “Goods”).
2. The Service.
2.1. Ordering Process. After-market parts and other items may be purchased as stated in an Order. An “Order” means an order that Customer completes through the online order flow APFusion/ShopEarl provides, which references this Agreement.
2.2. Permitted Use. Subject to the terms and conditions of this Agreement, APFusion/ShopEarl will make the Service available to Vendors and Buyers (collectively, “Customers”) and, if a Customer is a company or entity, to Customer’s employees and contractors of Customer that Customer allows to use the Service on Customer’s behalf (“Users”), during the Subscription Term (defined below). Customer may access the Service via an application programming interface (“API”) that APFusion/ShopEarl makes available to Customer, provided that such access will be subject to all limitations APFusion/ShopEarl places on Customer’s API access. Customer may only use the Service internally.
2.3. Desktop App. During the Subscription Term, APFusion/ShopEarl grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable license for its Users to download and install APFusion’s proprietary software on supported computing devices (“Desktop App”) for the purpose of interconnecting and communicating with the Service. Customer and its Users are responsible for installing all updates that APFusion/ShopEarl provides or makes available for download to the Desktop App.
2.4. Access. To access the Service, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide APFusion/ShopEarl with information (such name, email address, or other contact information). Customer agrees that the information it provides to APFusion/ShopEarl is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by APFusion/ShopEarl (“Log-in Credentials”), may access and use the Service. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by APFusion’s breach of this Agreement). Customer will promptly notify APFusion/ShopEarl if Customer becomes aware of any compromise of any Log-in Credentials. APFusion/ShopEarl may Process (defined below) Log-in Credentials in connection with APFusion’s provision of the Service or for APFusion’s internal business purposes. Customer represents and warrants to APFusion/ShopEarl that: (a) it has not previously been suspended or removed from the Service; and (b) its registration and use of the Service is in compliance with all relevant local, state, federal, and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of data (collectively, “Laws”).
2.5. Restrictions. Customer will not (and will not permit its Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Service to a third party (other than Users); (b) use the Service on behalf of, or to provide any product or service to, third parties; (c) use the Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public application programming interfaces to the Service, except to the extent expressly permitted by Law or authorized by under a separate agreement between Customer and APFusion; (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Desktop App); (f) remove or obscure any proprietary notices in the Service; (g) publish benchmarks or performance information about the Service; (h) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (i) transmit any viruses or other harmful materials to the Service; (j) take any action that risks harm to others or to the security, availability, or integrity of the Service; (k) access or use the Service in a manner that violates any applicable Laws; (l) use the Service to develop new products and services (including, without limitation, for developing, training, and fine tuning artificial intelligence and machine learning models) without APFusion’s express written permission, or (m) use, or permit or facilitate others to use, the Service by automated electronic processes, “robots,” “spiders,” “scrapers,” “webcrawlers,” or other computer programs that monitor, copy, or download data or other content found on or accessed through the Service, whether current or archival (except as expressly permitted pursuant to a separate agreement between you and APFusion).
2.6. Non-Circumvention. Vendor, its employees, affiliates, directors, officers and other related parties will not, directly or indirectly, or in any manner whatsoever, encourage any Buyer, its employees, affiliates, directors, officers, and other related parties, to purchase Goods outside of the Service.
2.7. Support. During the applicable Subscription Term, APFusion/ShopEarl will provide Customer with support for the Service during APFusion’s normal business hours and in accordance with APFusion’s standard support practices. Customer may contact APFusion/ShopEarl using the contact information set forth in Section 16.8 (Contact Information) below.
2.8. Privacy Policy. To the extent Personal Data as defined in APFusion’s Privacy Policy at [https://apfusion.com/legal/privacy-policy] (“Privacy Policy”) is uploaded, transmitted, Submitted, provided, or processed in connection with Customer’s use of the Service, APFusion/ShopEarl will comply with the Privacy Policy.
2.9. Customer Obligations. Customer is responsible for its Customer Data (defined below), including its content and accuracy, and will comply with Laws and applicable policies APFusion/ShopEarl may provide to Customer from time to time when using the Service. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for APFusion/ShopEarl to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (collectively, “Process”) the Customer Data as set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
2.10. Suspension. APFusion/ShopEarl may immediately suspend Customer’s and its Users’ access to the Service if: (a) Customer breaches Section 2.5 (Restrictions) or Section 2.9 (Customer Obligations); (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that APFusion/ShopEarl suspend the Service or otherwise may impose additional liability on us; or (d) Customer’s or its Users’ actions risk harm to any of APFusion’s other customers or the security, availability, or integrity of the Service. Where practicable, APFusion/ShopEarl will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, APFusion/ShopEarl will use reasonable efforts to restore your access to the Service.
2.11. Modifications to the Service. APFusion/ShopEarl may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that APFusion/ShopEarl will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). APFusion/ShopEarl will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Subscription Term (defined below) entered into or renewed after APFusion’s implementation thereof.
2.12. Customer Systems. Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer requires to access and use the Service including any hardware device on which a Desktop App can be installed and used as defined in the documentation. Customer will be solely liable for implementing, securing, and maintaining the foregoing, and APFusion/ShopEarl will not be liable to Customer for any failure or non-fulfillment of Customer to do so.
2.13. Third-Party Platforms. Use of any third-party platform, add-on, service, or product not provided by APFusion/ShopEarl that Customer elects to integrate or enable for use with the Service (“Third-Party Platforms”) is subject to Customer’s agreements with the relevant provider and not this Agreement. APFusion/ShopEarl does not control and have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Service, Customer authorizes APFusion/ShopEarl to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
3. Commercial Terms.
3.1. Subscription Term Renewal. The applicable Order identifies the period during which Customer’s subscription to access and use the Service is in effect (“Subscription Term”). Each Subscription Term will automatically renew for successive terms equal in length to the Subscription Term. Customer may cancel the Service through your Account or by emailing APFusion/ShopEarl at help@shopearl.com. YOUR CANCELLATION MUST BE RECEIVED AT LEAST THIRTY (30) DAYS BEFORE THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM IN ORDER TO AVOID BEING CHARGED FOR THE NEXT SUBSCRIPTION PERIOD.
3.2. Payment Terms
(a) Pricing for the Service. Certain features of the Service may require you to pay fees based on your use of the Service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees and other expenses are non-refundable and non-cancellable. You are responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to any purchase by you in connection with the Service, whether domestic or foreign, other than APFusion’s income tax (“Taxes”). Fees are exclusive of all Taxes. All fees will be due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection fees. If Customer does not pay the amount owed within 45 days of the applicable invoice becoming due, APFusion/ShopEarl may automatically charge your Account for the applicable invoice amount. APFusion/ShopEarl reserves the right to determine pricing for the Service. We will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing by emailing help@shopearl.com periodically for current pricing information. APFusion/ShopEarl may change the fees for any feature of the Service, including additional fees or charges, on a going forward basis if APFusion/ShopEarl gives you advance notice of changes before they apply. APFusion, in our sole discretion, may make promotional offers with different features and different pricing to any of APFusion’s customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.
(b) Authorization. In order to process your payment, we may use a third-party payment processor. Our current payment processor is Stripe (https://stripe.com). Stripe will collect, use, and process your information, including payment information, in accordance with Stripe’s privacy policy (which may be accessed at https://stripe.com/privacy), and Stripe’s terms of service (which may be accessed at https://stripe.com/legal/consumer). You authorize APFusion/ShopEarl and its third-party payment processors to charge all sums for the Orders that you place and any level of Service you select as described in this Agreement or published by APFusion, including all applicable Taxes, to the payment method specified in your Account. If you pay any fees with a credit card, then APFusion/ShopEarl may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that APFusion/ShopEarl may seek pre-authorization of the credit card account Customer provide to APFusion/ShopEarl for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. If your payment method is no longer valid at the time a renewal fee is due, then APFusion/ShopEarl reserves the right to delete your Account and any information or Customer Data associated with your Account without any liability to you.
(c) Renewal Fees. Unless otherwise agreed to by the parties, fees for renewal Subscription Terms are at APFusion’s then-current fees at the time of such renewal regardless of any discounted pricing in a prior Subscription Term or promotional offers previously extended to Customer.
(d) Refunds. Please review our refund policy, located here: [shopearl.com/refund-policy]. Your use of the Service and acceptance of this Agreement also indicates your acceptance of our refund policy. APFusion/ShopEarl reserves the right to modify our refund policy at any time and in our sole discretion.
(e) Delinquent Accounts. APFusion/ShopEarl may suspend or terminate access to the Service for any Account for which any amount is due but unpaid. In addition to the amounts due for the Service, a delinquent Account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time payment is due, then APFusion/ShopEarl reserves the right to delete your Account and any information or Submitted Customer Data associated with your Account without any liability to you.
3.3. Fees for Goods. Fees for the purchase of Goods are described in the applicable Order. All fees for the Goods (“Fees”) will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced or charged as described in the Order.
(a) Buyer’s Payment to APFusion. Unless the Order provides otherwise, Buyer will pay all Fees provided under the applicable invoice within 30 days from Vendor shipping the item(s) listed in the Order. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for Fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection Fees. All Fees and other expenses are non-refundable. Buyer is responsible for any Taxes. Fees are exclusive of all Taxes.
(b) Vendor’s Payment to Buyers. Vendor will pay APFusion/ShopEarl a platform fee for APFusion/ShopEarl to list Vendor’s Goods on the Service. The platform fee will be listed in the Order. By paying this platform fee, Vendor will have access to demand generated by APFusion/ShopEarl for the Goods. Vendor will also pay APFusion/ShopEarl a take rate for each sale between Vendor and Buyer (the “Take Rate”). APFusion’s standard take rate is 8%, but APFusion/ShopEarl reserves the right, in its sole discretion and upon prior notice to Vendor, to change the Take Rate for a particular sale.
(c) APFusion’s Payment to Vendors. Unless the Order provides otherwise, APFusion/ShopEarl will pay Vendor the applicable invoice within 30 days from APFusion/ShopEarl receiving payment from the Buyer. APFusion/ShopEarl is responsible for any Taxes. Payments made to Vendor are exclusive of all Taxes.
3.4. Description and Pricing of Goods
(a) Listing Policy. Vendor may provide descriptions Goods to APFusion/ShopEarl to be listed on the Services. All listing requests will comply with APFusion’s Listing Requirements Policy, available at: [shopearl.com/listing-policy] (“Listing Policy”). APFusion/ShopEarl reserves the right to modify the Listing Requirements Policy at any time and in our sole discretion.
(b) Descriptions of Goods. Vendor may provide APFusion/ShopEarl with descriptions of Vendor’s offered Goods, including a label, part number, description, category, or other information. APFusion/ShopEarl does not verify the accuracy of such descriptions and does not warrant that the descriptions are accurate, complete, reliable, current, or error-free. If Goods are not as described, please refer to the particular Vendor’s return policy.
(c) Right to Correct Typographical Errors. APFusion/ShopEarl reserves the right to correct any errors, inaccuracies, or omissions in the Goods’ description and to change or update information at any time without prior notice (including after you have placed an Order; provided that no changes in information regarding pricing will occur after you place an Order). Please note that such errors, inaccuracies, or omissions may relate to Goods’ design, description, pricing, or availability.
(d) Pricing for the Goods. Vendors will provide APFusion/ShopEarl with prices for Goods. APFusion/ShopEarl will post prices to the Service in accordance with the Listing Policy.
(e) Incorrect Pricing. If Vendor provides APFusion/ShopEarl with an incorrect price, APFusion/ShopEarl reserves the right to refuse or cancel any Orders placed for Goods listed at the incorrect price. APFusion/ShopEarl shall have the right to refuse or cancel any such Orders whether or not the Order has been confirmed and you have been charged for the sale. If you have already been charged for the sale at the time your Order is cancelled, APFusion/ShopEarl will issue a credit to your credit card account or refund the amount in the manner in which the purchase was made by you.
3.5. Shipping, Refunds, and Returns of Goods
(a) Shipping. Vendor is solely responsible for determining the handling time necessary for their Goods, including determining when Goods need to ship. APFusion/ShopEarl does not have any involvement in the shipping or management of Goods. Vendor will provide Buyer with written notice of shipment once the Goods are delivered to a carrier for transportation. If an Order has multiple Goods that are shipping from different warehouses, Vendor will invoice Buyer at the shipment level, not the Order level. By way of example, if an Order consists of two shipments and the first shipment ships on May 1 and the second shipment ships on May 7, the invoice for the first shipment is due May 30 and the invoice for the second shipment is due June 6.
(b) Refunds and Returns. Vendor may provide a refund and/or return policy to APFusion/ShopEarl to post on the Services. All refunds and returns of Goods purchased by Buyer will be at the discretion of Vendor and in compliance with Vendor’s refund and/or return policy. Other than making information about Vendor’s refund and/or return policy available on APFusion’s Services, APFusion/ShopEarl will not have any involvement in such refunds or returns of Goods.
3.6. Title and Risk of Loss. APFusion/ShopEarl does not own or take possession of any Goods, and is not in the chain of title for the Goods. All Goods are sold directly by Vendors to Buyers and title passes from Vendor to Buyer.
4. Limited Warranty; Disclaimer.
4.1. Warranties.
(a) APFusion/ShopEarl Warranty. APFusion/ShopEarl warrants to Customer that the Service will perform materially as described in the documentation during a Subscription Term (“Limited Warranty”). APFusion/ShopEarl is not a party to any contracts for the sale of Goods between Vendors and Buyers, and any information APFusion/ShopEarl provides on its Service regarding availability of Goods, pricing, shipping, or related information is informational only. APFusion/ShopEarl is not an auctioneer and does not represent or warrant anything about the (i) Vendor’s Goods, including the availability, quality, or safety of such Goods, or (ii) Buyer’s ability to pay for any Goods.
(b) Customer Warranty. You represent and warrant that: (i) you are the owner or valid licensee of the Customer Data that you Submit (as defined below); (ii) the Customer Data does not infringe upon the intellectual property rights (e.g., copyrights and trademarks) or other proprietary rights of any third parties; (iii) there are no outstanding disputes in connection with the property rights, intellectual property rights, or other rights in the Customer Data or any parts of the Customer Data; (iv) this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms. You represent and warrant that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; do not require the approval or consent of any other persons; and neither violate nor constitute a default under the (1) provision of any Law, rule, regulation, order, judgment, or decree to which you are subject or which is binding upon you, or (2) the terms of any other agreement, document, or instrument applicable to you or binding upon you.
(c) Vendor Warranties. Vendor represents and warrants that (i) Vendor is the sole owner of, and has proper title to, the Goods, free and clear of all liens, security interests, or other encumbrances, and (ii) for a period of 12 months from the delivery date, all Goods will: (1) conform in all material respects to the description Vendor provided to APFusion/ShopEarl and any other applicable specifications and quality standards applicable to any Order; (2) be fit for their intended purpose and operate as intended; (3) be merchantable; and (4) comply with all applicable Laws.
4.2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 4.1(a) (APFusion/ShopEarl WARRANTY), THE SERVICE IS PROVIDED “AS IS”. APFUSION, ON OUR OWN BEHALF AND ON BEHALF OF OUR SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES REGARDING THE SERVICE OR THE GOODS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT APFusion/ShopEarl WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. WE DO NOT WARRANT THAT THE QUALITY OF ANY GOODS, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. APFusion/ShopEarl IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE APFUSION’S CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE GOODS, SERVICE, OR APFusion/ShopEarl OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING APFusion/ShopEarl OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE GOODS, SERVICE, AND YOUR DEALING WITH ANY OTHER CUSTOMER OR USER. YOU UNDERSTAND AND AGREE THAT YOU USE ALL PARTS OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER CONTENT. VENDOR IS SOLELY RESPONSIBLE FOR ALL REPRESENTATIONS AND WARRANTIES WITH REGARD TO THE GOODS AND APFusion/ShopEarl HAS NO RESPONSIBILITY RELATING TO THE GOODS. APFusion/ShopEarl DOES NOT CONTROL OR ENDORSE IN ANY RESPECT ANY INFORMATION, GOODS, OR INFORMATION OFFERED BY THIRD PARTIES ON OR THROUGH THIS SITE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
4.3. Warranty Remedy. If APFusion/ShopEarl breaches a Limited Warranty during the Subscription Term and Customer makes a reasonably detailed warranty claim in the manner required by APFusion/ShopEarl within 30 days of discovering a breach of the Limited Warranty for the Service, then APFusion/ShopEarl will use reasonable efforts to correct the non-conformity. If APFusion/ShopEarl cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the Service. APFusion/ShopEarl will then refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Subscription Term. This Section 4.3 sets forth Customer’s exclusive remedy and APFusion’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the documentation; or (d) Trials and Betas (defined below) or other free or evaluation use.
5. Submitted Customer Data
5.1. Submitted Content. Certain features of the Service may permit Users to submit, upload, or otherwise transmit (“Submit”) content to the Service, including messages, shipping information, data, text, and any other works of authorship, other works, or other information, including through any messaging portal available on the Service. If you Submit a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
5.2. Limited License Grant to APFusion. By Submitting Customer Data to or via the Service, you grant APFusion/ShopEarl a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to (a) host, store, transfer (including via an API Customer makes available to APFusion/ShopEarl or that APFusion/ShopEarl makes available to Customer), reproduce, modify for the purpose of formatting for display, create derivative works as authorized in this Agreement, and otherwise use your Customer Data to provide and improve the Service, and (b) access (including via an API Vendor makes available to APFusion) Vendor’s yard management system data as necessary for APFusion/ShopEarl to extract data for internal business use, provided that such access will be “read only” and APFusion/ShopEarl will have no right to modify or distribute the data. “Customer Data” means any data or information that: (i) Customer (including its Users) Submits to the Service, including from Third-Party Platforms; and (ii) is Processed by APFusion/ShopEarl to provide the Service to Customer. In addition to the foregoing, Customer will provide APFusion/ShopEarl with access to Customer’s internal yard management system, and Customer grants APFusion/ShopEarl a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use the data that APFusion/ShopEarl extracts from that system.
5.3. Usage Data. APFusion/ShopEarl may Process information generated from the use of the Service, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Service (“Usage Data”) for internal business purposes to: (a) track use of Service for billing purposes; (b) provide support for Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) improve Service, our other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
5.4. You Must Have Rights to the Content You Submit; Customer Data Representations and Warranties. You must not Submit Customer Data if you are not the owner of or are not fully authorized to grant rights in all of the elements of that Customer Data. APFusion/ShopEarl disclaims any and all liability in connection with Customer Data. You are solely responsible for your Customer Data and the consequences of providing Customer Data via the Service. By providing Customer Data via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the Customer Data, or have the necessary licenses, rights, consents, and permissions to authorize APFusion/ShopEarl and Users of the Service to use and distribute your Customer Data as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by APFusion, the Service, and this Agreement;
(b) your Customer Data, and the Submission or other use of your Customer Data as contemplated by this Agreement, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause APFusion/ShopEarl to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your Customer Data could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
5.5. Customer Data Disclaimer. We are under no obligation to edit or control Customer Data that you or other Users Submit and will not be in any way responsible or liable for Customer Data. APFusion/ShopEarl may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Data that in our sole judgment violates this Agreement, is alleged to violate the rights of third parties, or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against APFusion/ShopEarl with respect to Customer Data. If notified by third party that Customer Data allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the Customer Data, which we reserve the right to do at any time and without notice. For clarity, APFusion/ShopEarl does not permit infringing activities on the Service.
5.6. Monitoring Content. APFusion/ShopEarl does not control and does not have any obligation to monitor Customer Data or any content made available by third parties. You acknowledge and agree that APFusion/ShopEarl reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time APFusion/ShopEarl chooses to monitor the Customer Data, then APFusion/ShopEarl still assumes no responsibility or liability for the Customer Data or any loss or damage incurred as a result of the use of the Customer Data. During monitoring, information may be examined, recorded, copied, and used in accordance with our [shopearl.com/privacy-policy]. APFusion/ShopEarl may block, filter, mute, remove or disable access to any Customer Data uploaded to or transmitted through the Service without any liability to Customer or the User who Submitted such Customer Data to the Service or to any other Users of the Service.
6. Intellectual Property Rights Protection
6.1. Respect of Third Party Rights. APFusion/ShopEarl respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks Users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
6.2. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
APFusion, Inc.
Attn: Legal Department (IP Notification)
301 N. Neil St
ST 400
Champaign, Illinois, 61820
Email: Copyright@APFusion.com
6.3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by APFusion/ShopEarl with the User alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to APFusion/ShopEarl making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
6.4. Repeat Infringers. APFusion’s policy is to: (a) remove or disable access to material that APFusion/ShopEarl believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the Accounts of and block access to the Service by any User who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. APFusion/ShopEarl will terminate the Accounts of Users that are determined by APFusion/ShopEarl to be repeat infringers. APFusion/ShopEarl reserves the right, however, to suspend or terminate Accounts of Users in our sole discretion.
6.5. Counter Notification. If you receive a notification from APFusion/ShopEarl that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide APFusion/ShopEarl with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to APFusion’s Designated Agent through one of the methods identified in Section 6.2 (DMCA Notification), and include substantially the following information:
(a) your physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which APFusion/ShopEarl may be found, and that you will accept service of process from the person who provided notification under Section 6.2 (DMCA Notification) above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
6.6. Resubmission of Content Subject to a Counter Notification. If you submit a Counter Notification to APFusion/ShopEarl in response to a Notification of Claimed Infringement, then APFusion/ShopEarl will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that APFusion/ShopEarl will replace the removed Customer Data or cease disabling access to it in 10 business days, and APFusion/ShopEarl will replace the removed Customer Data and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless APFusion’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on APFusion’s system or network.
6.7. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of APFusion/ShopEarl relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” APFusion/ShopEarl reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
7. Term and Termination.
7.1. Term. This Agreement starts on the Effective Date and continues until terminated in accordance with the terms of this Agreement of all Subscription Terms.
7.2. Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminate. In addition, APFusion/ShopEarl may, in our sole discretion, terminate this Agreement or Customer’s Account on the Service, or suspend or terminate Customer’s access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination. Customer may terminate your Account and this Agreement at any time by following the procedures in your Account or by emailing APFusion/ShopEarl at help@shopearl.com.
7.3. Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and APFusion’s obligations to provide the Service will cease. APFusion/ShopEarl may, but will be under no obligation to, store or retain any Customer Data and may delete any Customer Data at any time in our sole discretion. Customer Data and other Confidential Information, as defined in Section 12 (Confidentiality), may be retained in Recipient’s (defined below) standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
7.4. Survival. These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 2.9 (Customer Obligations), 3.2(a) (Payment Terms), 3.2(b) (Authorization), 4.2 (Disclaimer), 5 (Submitted Customer Data), 7.3 (Effect of Termination), 7.4 (Survival), 8 (Ownership), 9.2 (Messaging Feature), 10 (Limitations of Liability), 11 (Indemnification), 12 (Confidentiality), 15 (Dispute Resolution and Arbitration), 16.1 (General Provisions), 16.2 (Governing Law), 16.3 (Additional Terms), and 16.10 (Conflicts in Interpretation). You are solely responsible for retaining copies of any Customer Data you Submit to the Service since upon termination of your Account, you may lose access rights to any Customer Data you Submitted to the Service. Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
8. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data, subject to the licenses granted under this Agreement. Except for Customer’s use rights in this Agreement, APFusion/ShopEarl and our licensors retain all intellectual property rights and other rights in the Service, software, documentation, Usage Data, APFusion’s catalogue, and APFusion’s technology, templates, formats, and dashboards, including any modifications or improvements to these items made by us. If Customer provides APFusion/ShopEarl with feedback or suggestions regarding the Service or our other offerings (collectively “Feedback”), APFusion/ShopEarl may use the Feedback or suggestions without restriction or obligation.
9. Communication.
9.1. Consent to Electronic Communications from APFusion. You agree that APFusion/ShopEarl and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational and marketing calls or messages about your use of the Service. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM APFUSION, YOU CAN EMAIL help@shopearl.com OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM APFUSION, YOU CAN EMAIL help@shopearl.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. By using the Service, Customer consents to receiving certain electronic communications from APFusion/ShopEarl as further described in APFusion’s [shopearl.com/privacy-policy]. Customer agree that any notices, agreements, disclosures, or other communications that APFusion/ShopEarl sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
9.2. Messaging Feature. In order to facilitate communication between Buyer and Vendor, APFusion/ShopEarl offers messaging functions with certain parts of the Services (“Messaging”). Messaging may allow Buyer and Vendor to communicate via text, voice, video or other media. Users must have a valid Account in order to participate in Messaging. When using Messaging, the name registered to your Account will be visible to other Messaging participants. All text or any other media you input or upload in Messaging shall be considered “Customer Data,” as defined in Section 5.2 hereof. You acknowledge that APFusion/ShopEarl will not pre-screen or otherwise moderate Customer Data Submitted to or via the Messaging, and that you may be exposed to Customer Data you find offensive or inappropriate. You should have no expectation of privacy when using Messaging. Customer Data Submitted may be viewable by APFusion/ShopEarl and APFusion/ShopEarl reserves the right to hide or delete messages that violate this Agreement. Messaging sessions may be recorded and stored by APFusion. Your use of Messaging is consent to be recorded in this manner. You may report a User to APFusion/ShopEarl and, if APFusion/ShopEarl decides in its sole discretion that the reported conduct violates this Agreement, APFusion/ShopEarl may take action to enforce the Agreement, including, but not limited to, terminating the offending User’s Account.
10. Limitations of Liability. Except for Customer’s breaches of Sections 2.2 (Permitted Use), 2.5 (Restrictions), 2.9 (Customer Obligations), either party’s breach of Section 12 (Confidentiality) (but excluding claims relating to Customer Data), and amounts payable to third parties under the indemnifying party’s obligations in Section 11 (Indemnification) (collectively, “Excluded Claims”), neither APFusion’s, Customer’s, or their respective suppliers or licensors will have liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance. Except for Excluded Claims, neither APFusion’s, Customer’s, or their respective suppliers’ or licensors’ liability arising out of or related to this Agreement will exceed in aggregate the amounts paid or payable by Customer to APFusion/ShopEarl pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement. The waivers and limitations in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
11. Indemnification. Customer will defend APFusion, our affiliates, and their respective directors, officers, employees, agents, successors, and assigns (“APFusion Indemnities”) from and against any third-party claim to the extent resulting from: (a) Customer Data; (b) Customer’s breach or alleged breach of Sections 2.9 (Customer Obligations) and 3 (Commercial Terms); (c) Customer’s or its Users’ violations of Law, fraud, gross negligence, or willful misconduct; or (d) Customer’s or its Users’ breach of non-fulfillment of any representation, warranty, or covenant in this Agreement, and Customer will indemnify and hold the APFusion/ShopEarl Indemnities harmless against any damages and costs awarded against the APFusion/ShopEarl Indemnities (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
12. Confidentiality.
12.1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Our Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service.
12.2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 5 (Submitted Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where APFusion/ShopEarl is the Recipient, APFusion/ShopEarl may retain the Customer’s Confidential Information to the extent required to continue to provide the Service. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided Recipient remains responsible for their compliance with this Section 12 and they are bound to confidentiality obligations no less protective than this Section 12.
12.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
12.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 12.
12.5. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
13. Trials and Betas. If Customer or its Users receive access to or use of Service or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by APFusion/ShopEarl (not to exceed thirty 60 days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Service and, subject to the remainder of this Section 13, all provisions of this Agreement relating to the Service will apply to these Trials and Betas. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that APFusion/ShopEarl may never release, and their features and performance information are deemed to be APFusion’s Confidential Information. APFusion/ShopEarl may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its Users’ use of Trials and Betas is at their own risk. At the end of the trial period, the parties will enter into an Order to begin a paid Subscription Term in accordance with Section 3 (Commercial Terms) above. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, APFusion/ShopEarl PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.
14. Modifications. APFusion/ShopEarl may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless APFusion/ShopEarl indicates an earlier effective date. If APFusion/ShopEarl requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to APFusion, in which case APFusion/ShopEarl will provide Customer a refund of any pre-paid Fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify APFusion/ShopEarl of its objections within 30 days after APFusion’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Service constitutes its acceptance of the modifications. APFusion/ShopEarl may require Customer to click to accept the modified Agreement.
15. Dispute Resolution and Arbitration. In the event a dispute arises between the parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in San Francisco, California, in accordance with the rules of the American Arbitration Association (“AAA”). The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. If this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 (Governing Law) will govern any action arising out of or related to this Agreement.
16. Miscellaneous.
16.1. General Provisions. This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and APFusion/ShopEarl regarding your use of the Service. The terms of this Agreement apply to both Vendors and Buyers unless specifically identifying only Vendor or only Buyer. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without APFusion’s prior written consent. APFusion/ShopEarl may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect APFusion’s right to require performance at any other time after that, nor will a waiver by APFusion/ShopEarl of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. The parties are independent contractors, not agents, partners, or joint venturers. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
16.2. Governing Law. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts having jurisdiction over Santa Clara County, California, and both parties submit to the personal jurisdiction of those courts.
16.3. Additional Terms. Customer’s use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that APFusion/ShopEarl may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
16.4. Consent to Electronic Communications. By using the Service, Customer consents to receiving certain electronic communications from APFusion/ShopEarl as further described in APFusion’s Privacy Policy. Please read APFusion’s Privacy Policy to learn more about APFusion/ShopEarl electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that APFusion/ShopEarl sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
16.5. Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, APFusion/ShopEarl may include Customer and its trademarks in APFusion’s customer lists and promotional materials but will cease further use at Customer’s written request.
16.6. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Service in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not Submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
16.7. Government End-Users. Elements of the Service are commercial computer software. If the User or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
16.8. Contact Information. The Service is offered by APFusion, Inc., located at 301 North Neil Street, ST 400, Champaign, Illinois, 61820. Customer may contact APFusion/ShopEarl by sending correspondence to that address, by emailing APFusion/ShopEarl at help@shopearl.com, or by calling the phone number as provided on the Service.
16.9. Notice to California Residents. If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
16.10. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any schedules, exhibits, attachments, addenda, Orders, and other documents attached to or incorporated by reference in this Agreement now or as later mutually agreed to by the parties, the order of precedence is as follows: (a) the terms of the Order (but only with respect to the Service purchased thereunder); (b) the terms contained in the body of this Agreement; (c) the terms of the applicable schedules, exhibits, attachments, addenda, and policies to this Agreement; and (d) the documentation.
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