Terms & Conditions of Use For The Best LASIK Surgeons In America Products

December 29, 2022

CONTENTS

  1. DEFINITIONS
  2. DELIVERY, FEES, INVOICING & PAYMENT
  3. TERM & TERMINATION
  4. COOPERATION & OTHER OBLIGATIONS
  5. USER ACCOUNT, PASSWORD, AND SECURITY
  6. YOUR CONTENT
  7. UPGRADES AND OTHER SERVICES
  8. PROPRIETARY RIGHTS
  9. CERTIFICATION
  10. OTHER RESPONSIBILITIES
  11. INDEMNIFICATION
  12. DISCLAIMER OF WARRANTIES
  13. LIMITATION OF LIABILITY
  14. CONFLICT
  15. CONFIDENTIALITY
  16. GENERAL
  17. ADDITIONAL TERMS & CONDITIONS FOR SPECIFIC PRODUCTS

The following Terms and Conditions of Use and those terms linked to herein (collectively, the “Terms of Use”) govern the products and services (as applicable, the “Products”) that you (“Customer”) have ordered and form a part of your Agreement. The Products ordered by you are provided by The American College of Elective Surgery, LLC, dba BestLasikSurgeons.com or BLS (referred to herein as “BLS,” “we,” “us” or “our”):

1. DEFINITIONS

“Agreement” means the Order you approved, including its terms and any documents incorporated into the Order, if applicable, and these Terms of Use.

“Customer Website” means the websites provided for you under the Agreement, including domain name, user interface, all related technology, Content, and Software.

“Content” means any text, data, trademarks, service marks, trade names, graphics, logos, URLs, domain names, brand features, photographs, pictures, communications, animation, images, digital clips, audio or video and other related components appearing in any Products.

“Media Outlets” means any or all of the following: the Websites, certain websites with which BLS has alliances, and the BLS online services.

“Online Directory” means the content of the Law Directories searchable at or through the Media Outlets.

“Order” means any order or confirmation of an order for Products however provided, including but not limited to email or other electronic or telephonic confirmations, add-ons, rider orders or amendments to an order, which incorporates any additional documents to the Order and any materials referenced in the additional documents and these Terms of Use.

“Software” means any software and related tools that BLS makes available for your use in connection with the Product.

“Websites” mean any or all of the websites owned or licensed by us, including but not limited to bestlasiksurgeons.com as applicable to the Product.

“Website Service(s)” means the services provided to develop, create, enhance, upgrade or modify a Customer Website.

“You” and “your” (both capitalized and lower case) mean the Customer, person or medical practice named in the Agreement.

“Your Content” (Sometimes referred to as “Customer Content”) means any Content provided by you for use in any of the Products.

2. DELIVERY, FEES, INVOICING & PAYMENT

2.1. Subject to the terms and conditions of the Agreement, including those in these Terms of Use, those terms in or referenced in the Order and those terms incorporated by reference, if any, BLS shall provide you with the Products specified on your Order with reasonable skill and care and you shall pay to BLS the applicable fees for the Products in accordance with the invoice terms.

2.2. All payments are due within 10 days from receipt of the invoice. Amounts which have not been paid within 30 days after the invoice date will thereafter, until paid, be subject to a late payment charge at a rate equal to 15% per annum (or, if less, the maximum rate permitted under applicable law). Customer shall owe and BLS has the right to invoice for the then-current non-sufficient funds fee for all returned checks. BLS reserves the right to change payment terms by providing written notice to you for the period following notice. Fees should be paid in U.S. dollars. Fees do not include any telecommunication provider’s charges. Invoices will include additional charges for shipping and handling, if applicable, as well as applicable taxes. Further, you shall be liable for all costs of collection incurred by BLS, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs, if you fail to comply with the payment obligations set forth herein. Restrictive endorsements or other statements on checks or other forms of payment accepted by BLS will not be enforceable.

2.3. The fees for the Products may include set-up fees, deposits, Transactional Fees (described in Order), Monthly Subscription Fees (described in Order), and other commitments (collectively, “Fees”). While some Fees may be expressed in terms of a Monthly Subscription Fee, Customer is obligated for the sum of any Monthly Subscription Fees or other types of periodic payments throughout the Term. Deposits must be paid upon acceptance of an Order and are non-refundable. Transactional Fees are payable when invoiced. Any changes or additions to Customer’s selections will impact the Fees.

2.4. Customer billing shall commence upon the commencement of the Term set forth in your Order for each Product, unless otherwise designated. Customers who renew following an Initial Term (defined below in section 3.2) commitment may be subject to an increase of (Fees), as set by BLS.

3. TERM & TERMINATION

3.1 The term of your Agreement begins either (a) on the date Customer’s billing account is set up if Customer is a new BLS customer or (b) upon entry of the first order under the Agreement by BLS if Customer is an existing customer, and continues until the expiration of the latest expiring of all the terms for the Products ordered in the Agreement and its riders, extensions, and amendments or until termination of the Agreement in accordance with its terms (the “Term”).

3.2. Each of the Products ordered shall be provided for the Term specified in the Order (the “Initial Term”). After expiration of the Initial Term, the Term for the Products in the applicable Order will be renewed and extended for another twelve (12) month period under the terms of the Agreement, until either party terminates in accordance with the terms of the Agreement. Each renewal of the Agreement shall be deemed a Renewal Term. Notwithstanding the foregoing, (a) Products that consist solely of one-time development are excluded from the Renewal Term; and (b) transactional Products will only be invoiced if the Product is shipped during any Renewal Term.

3.3. The Term continues until the expiration of the latest expiring of all Orders and riders under the Agreement or until termination of the Agreement in accordance with its terms. Either party may terminate the Agreement:

  1. Effective on the first day of any Renewal Term by providing 30 days’ prior written notice to the other party. If you fail to terminate the Agreement as set forth in this section 3.3.a., then you will be invoiced for such Renewal Term and the applicable Products will automatically renew.
  1. Effective immediately for a material breach by the other party that remains uncured for more than 30 days after the allegedly breaching party receives written notice from the non-breaching party identifying the specific breach.

3.4. Except as set forth in Section 3.3 above, the Agreement may not be terminated by Customer during the Initial Term, except (a) by following the “Early Cancellation Provisions” set forth in Section 3.5 below; (b) 30 days after BLS receives written notice of termination as a result of complete dissolution of Customer’s practice, or in the case of a solo practitioner, if there is a death or retirement; or (c) in the event of any increase in a Monthly Subscription Fee, excluding (i) any increases set forth in the Agreement, or (ii) increases related to adjusting any estimates; provided that such notice of termination is given by Customer in writing 30 days prior to termination and is provided within 60 days after the price increase becomes effective. Upon termination, your right to use the Software and Products shall immediately cease and BLS may delete from its servers and the Media Outlets Your Content, your Customer Website and your Products. In addition, if you are in default under the Agreement, BLS reserves the right to withhold all BLS services from you, including those specified above or provided under separate BLS agreements.

3.5. Customer acknowledges that its commitment to each Initial Term was an important factor in BLS’s decision to agree to the pricing in the Agreement. However, Customer may terminate the Agreement for Customer’s convenience before the end of the applicable Term if Customer (i) notifies BLS at least 60 days before the effective date of termination and (ii) pays BLS all amounts invoiced and unpaid as of the date of termination, plus 100% of all deposits, set-up fees or similar up-front charges in the Agreement, plus an “Early Cancellation Fee” equal to 60% of the total remaining amounts due under the Agreement for the remainder of the applicable Term. If BLS terminates the Agreement for Customer’s breach, Customer shall pay the Early Cancellation Fee in addition to, and not instead of, any other remedies provided elsewhere in the Agreement, or by law for breach, including without limitation BLS’s right to seek injunctive relief and to sue for damages. Hereinafter, the terms and conditions of this paragraph shall be referenced as the “Early Cancellation Provisions.”

4. COOPERATION & OTHER OBLIGATIONS

In order for BLS to provide you the Products you have ordered, throughout the Term, you shall promptly provide BLS true, accurate, current and complete information, including but not limited to Your Content, and provide reasonable and timely feedback to BLS and its third party providers on all requests for Your Content, your review, approval and any other information. Failure to promptly provide such information may be considered a material breach of the Agreement and may result in denial, suspension or termination of the Products. You hereby acknowledge that information provided to BLS under the Agreement may be shared with BLS affiliates and other entities that have alliances with BLS. You understand that you may review and update your information for certain Products through the BLS Client Service Center (the “CSC”) located through bestcatractsurgeons.com. You agree to review the most recent version of these Terms of Use located at: each time you log onto the CSC. Use of the CSC constitutes your reaffirmation to these Terms of Use and your agreement from your date of use of the CSC forward to the latest version of the Terms of Use set forth therein and such Terms of Use shall control the Products under the Agreement thereafter.

5. USER ACCOUNT, PASSWORD, AND SECURITY

You acknowledge receipt of one or more passwords and account designations for your Products. Passwords are non-transferable and should not be shared under any circumstances. You are responsible for maintaining the confidentiality of the password and account designation. You will promptly notify BLS of any unauthorized use of your password or account or any other breach of security involving the Products, and the Media Outlets.

6. YOUR CONTENT

6.1. By providing, posting, publishing, uploading, inputting or distributing any Content to or through BLS or its Products (“Your Content” defined above), you grant (or warrant that the owner of such rights has expressly granted) BLS a perpetual, worldwide, irrevocable, royalty-free, non-exclusive right and license, with the right to sublicense, to use, reproduce, modify, adapt, publish, publicly perform, publicly display, digitally display and digitally perform, translate, create derivative works from and distribute Your Content or incorporate Your Content into any form, medium, or technology now known or later developed throughout the universe, for the purposes of developing, providing, displaying and marketing the Products, for internal use for product development and for marketing purposes. BLS may compile and use aggregated non-personal information taken from Your Content and may provide such information to third parties. Aggregated non-personal information means information that is taken from Your Content or your use of the Products, but that is compiled in a way so that it no longer identifies an individual person. BY ENTERING INTO THE AGREEMENT YOU UNDERSTAND AND CONSENT TO BLS EXTRACTING YOUR CONTENT FROM YOUR EXISTING PRACTICE WEBSITE(S) FOR USE IN THE PRODUCTS (E.G. the Best LASIK Surgeons Profile). YOU FURTHER AGREE THAT SUCH EXTRACTED DATA A) SHALL BE CONSIDERED PROVIDED BY YOU FOR USE IN PRODUCTS, AND B) IS SUBJECT TO THE LICENSE GRANT SET FORTH IN THIS SECTION 6.1. YOU AGREE THAT ANY INFORMATION EXTRACTED FROM YOUR WEBSITE WILL REPLACE CURRENT INFORMATION IN YOUR PRODUCTS. IF YOU DO NOT POSSESS SUFFICIENT RIGHTS IN CONTENT ON YOUR WEBSITE TO ALLOW BLS’S USE OF THE CONTENT IN ACCORDANCE WITH THESE TERMS, YOU AGREE TO PROVIDE BLS PROMPT NOTIFICATION OF SUCH LIMITATIONS. SHOULD YOU WISH TO WITHDRAW OR LIMIT THE FOREGOING CONSENT AT ANY TIME YOU MAY REMOVE ANY SUCH EXTRACTED MATERIALS FROM THE PRODUCTS THROUGH THE CSC OR YOU MAY GIVE NOTICE TO BLS OF ANY DESIRED REMOVAL OR OF ANY LIMITATIONS ON USE EITHER BY CONTACTING BLS, EMAIL: outreach@bestLASIKsurgeons.com, OR U.S. MAIL: TO ADDRESS ON bestlasiksurgeons.com.

6.2. You are solely responsible for Your Content. You are liable for any material protected by copyright, trademark, patent or trade secret law used in Your Content without the permission of the author or owner, and for defamatory materials in any of Your Content. BLS is not responsible for reviewing Your Content before it appears on the Products. You represent and warrant that (i) Your Content contains no offensive, harassing, inflammatory, defamatory, indecent, or obscene material, (ii) Your Content does not violate any applicable laws, regulations, or judicial rulings; (iii) Your Content is not false, misleading, deceptive, or fraudulent; (iv) you will endeavor in good faith to honor all promises, offers, and statements you make in Your Content and in any related materials, products, services, or communications you offer or make through Your Content; (v) you own or are authorized to use Your Content and all trademarks, trade names, and similar materials of any kind which are included in Your Content; and (vi) Your Content does not infringe upon or violate any intellectual property, proprietary, or other rights of BLS, its affiliates, and any third party. BLS reserves the right, in its sole discretion, to refuse to display or to remove from the Products at any time any Content that it reasonably regards as violating this provision as otherwise inappropriate or as inconsistent with BLS editorial policies in effect from time to time. BLS reserves the right to release current or past information related to you if BLS believes that you or any of Your Content, any of the Products you ordered, or your account is in violation of any criminal laws or is being used to commit unlawful acts, or if the information is subpoenaed. You understand that certain Products are made available in print form and, as such, you understand and agree that Your Content may appear in such print products after the termination of your Agreement with BLS for the relevant year. BLS is not responsible for any changes to the Content, including Your Content, which have not been made prior to the print deadline for the printed Products.

6.3. Customer understands and acknowledges that: (a) BLS’s timely development and implementation of your Products is contingent upon your timely provision of Your Content and feedback, (b) the Products, Your Content and media plans are subject to the rules of each applicable Media Outlet on which they may appear; and (b) once a Product is distributed, posted, hosted or placed upon a third party Media Outlet Website or search engine, BLS assumes no responsibility for its display on or removal from that site.

7. UPGRADES AND OTHER SERVICES

7.1. You agree to cooperate in the installation or implementation of any upgrade, update, fix or work around BLS releases or offers to release to you for one of the Products in your Order. Your use of all updates, upgrades, fixes and work arounds is subject to the terms and conditions of the Agreement. After such installation or implementation, Customer may no longer continue to use the earlier version of the Product. You agree that by installing and implementing an upgrade, update, fix or work around you voluntarily terminate your right to use any previous version of the Product.

7.2 You hereby acknowledge that BLS may send you information (via postal service, email or other electronic means, and facsimile) and offers about upgrades and other services provided by BLS, its affiliates and other entities that have alliances with BLS unless you provide written notice to the contrary. Notwithstanding the foregoing, under no circumstances will BLS, its affiliates or other entities have any obligation to provide you with upgrades, enhancements, or modifications for the Products.

8. PROPRIETARY RIGHTS

Except as otherwise specified in the Agreement and except for Your Content and any domain name(s) you own, (i) the Software; (ii) the Products; (iii) the BLS domain names (iv) the Websites and all content therein, (v) the BLS online services and all content therein; (vi) BLS owned, licensed or controlled logos, service marks and trademarks (the “Marks”) placed in any Products and (vii) all Content other than Your Content, are owned by BLS and/or its licensors and are protected by copyrights, trademarks, service marks, patents, or other proprietary rights, laws, and regulations. As between you and BLS, you retain ownership of Your Content.

9. CERTIFICATION

Customer acknowledges that the pricing provided to Customer for some Products depends in part on the number of LASIK surgeons in Customer’s practice. Pricing is also affected by the Customer’s location(s). Customer certifies that, as of the date Customer entered the Agreement, there are the number of surgeons (including owners, partners, members, associates, and staff) in Customer’s practice as Customer has specified in any applicable Order (“Reference Number”), if applicable. At BLS’s request, from time to time, Customer will certify in writing the then-current Reference Number and, if applicable, the Customer’s locations. If there is a change in the Reference Number or a change in the Customer’s location(s) or a new location added during the Term, BLS may, in its sole discretion on at least 30 days prior written notice to Customer, increase or decrease the Fees going forward by an amount that reflects the pricing for the new Reference Number or location(s).

10. OTHER RESPONSIBILITIES

10.1. You represent that you are a LASIK surgeon or a medical practice whose doctors are validly licensed to practice medicine as required by the applicable jurisdictions in which you or they practice. You are solely responsible for compliance with all laws, rules, and regulations governing medical advertising, ethical obligations, licensure, and the practice of medicine, promulgated by any applicable jurisdiction, court, medical association, and any other governing body which are applicable to you, your doctors or other representatives, the Customer Website, and your use of the Products.

10.2. If you include your email address or other contact information in any profile, posting or other content resulting in your receiving email or other communications sent from any third party, you acknowledge that you have the sole discretion whether to respond to that sender, who may be an impostor, and you do so at your sole risk. You are solely responsible for assessing the integrity, authenticity, honesty and trustworthiness of all persons with whom you choose to communicate. You agree that BLS and affiliates shall have no liability or responsibility whatsoever for any communications, agreements or transactions between you and any third party.

11. INDEMNIFICATION

You will indemnify, defend, and hold harmless BLS, its successors, assigns, parents, subsidiaries, alliance entities, affiliates, members and their respective officers, directors, employees, contractors, licensors, suppliers and agents from and against any and all claims, actions, demands, losses, expenses (including reasonable attorneys’ fees), damages, liabilities, taxes, penalties, assessments, judgments and costs arising out of, from, or in connection with (i) Your Content or BLS’s use of Your Content as permitted by the Agreement, (ii) your Customer Website, if any, its content, chosen keywords and phrases, and any services you offer in connection therewith, (iii) any breach of your representations or warranties set forth herein, (iv) any violation by you of applicable laws, regulations or ethical requirements, (v) your breach of any of the terms of the Agreement, or (vi) any communications you provide through any Product, including, without limitation, any claims or allegations of intellectual property infringement, libel, and legal malpractice. BLS will defend you from and against any and all third-party claims that the Content provided by BLS for the Customer Website (other than Your Content) infringes a valid US patent right, copyright or trademark or misappropriates a third party’s trade secret and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such claim. If a third party threatens or files a claim covered by this Indemnification Section against BLS, BLS shall promptly give notice to Customer. If a third party threatens or files a claim covered by this Indemnification Section against Customer, Customer shall promptly give notice to BLS.

12. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT USE OF THE PRODUCTS IS AT YOUR SOLE RISK. THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLS EXPRESSLY DISCLAIMS TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NON-INFRINGEMENT. BLS, ITS LICENSORS, SUPPLIERS, SPONSORS, SUBCONTRACTORS, MEMBERS AND AFFILIATES MAKE: (A) NO WARRANTY THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (B) NO WARRANTY ABOUT THE RESULTS OBTAINED FROM THE PRODUCTS OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS, (C) NO WARRANTY THAT DEFECTS IN THE SOFTWARE, THE PRODUCTS, OR THE RESULTS WILL BE CORRECTED, AND (D) NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE WEBSITES, OTHER WEBSITES, OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH WEBSITES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BLS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

13. LIMITATION OF LIABILITY

THE LIABILITY OF BLS IS LIMITED TO THE FEE PAID BY YOU FOR THE PRODUCTS DURING THE 12-MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. BLS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLES, EVEN IF BLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLS IS NOT RESPONSIBLE FOR ANY LOSS OF DATA RESULTING FROM BLS’S DELETION OF ANY OF THE PRODUCTS, NETWORK OR SYSTEM OUTAGES, EQUIPMENT OR TELECOMMUNICATIONS FAILURE OR MALFUNCTIONS, FILE CORRUPTION, OR ANY OTHER REASONS. UNDER NO CIRCUMSTANCES WILL BLS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PRODUCTS OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN. BLS IS NOT RESPONSIBLE FOR THE DELIVERY OF ANY GOODS OR SERVICES SOLD OR ADVERTISED BY YOU OR OTHERS. YOU ARE COMPLETELY RESPONSIBLE FOR ALL ACTIVITIES, FEES, AND/OR LIABILITIES THAT ARE RELATED TO OR RESULT FROM USE OF THE PRODUCTS UNDER YOUR PASSWORD OR ACCOUNT. IN ADDITION TO THE FOREGOING, BLS SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM SUBSCRIBER’S NON-COMPLIANCE WITH ALL LOCAL AND STATE ETHICS RULES OR OTHER RULES APPLICABLE TO THE PRACTICE OF LAW OR FROM SUBSCRIBER’S VIOLATION OF SUCH RULES.

14. CONFLICT

If there is a conflict between any written terms of your Agreement with BLS and these Terms of Use, the terms and conditions of the written Agreement govern as to the subject of the Agreement.

15. CONFIDENTIALITY

The Agreement, including but not limited to, its terms, conditions and pricing information is “Confidential Information” of BLS. Customer will receive and maintain Confidential Information in trust and confidence and not disclose or provide access to the Confidential Information to any third party. Customer will further limit disclosure within its organization to those persons who have a “need-to-know”. Customer understands disclosure of Confidential Information may cause competitive harm to BLS. If Customer breaches this confidentiality provision, BLS may, at its option, and in addition to any other remedy it may have under the Agreement, at law or in equity, immediately terminate the Products provided under the Agreement without refund and immediately collect from Customer the Early Cancellation Fee.

16. GENERAL

16.1 Dispute Resolution; Arbitration. Before initiating any arbitration proceeding, the parties will first discuss the matter informally for at least 30 days. If the parties are unable to mutually agree upon a resolution during the 30-day period, then any claim regarding this Agreement and/or the Products will be resolved through binding arbitration administered by JAMS and governed by the then current JAMS Streamlined Arbitration Rules and Procedures. It is important that the parties address any issues promptly. Regardless of any statute or law to the contrary, an arbitration proceeding for any claim or cause of action must be brought within one (1) year after such claim or cause of action arose or such claim is waived. As an exception to this arbitration agreement, the parties have the right to pursue in small claims court any claim that is within that court’s jurisdiction as long as such party proceeds only on an individual basis.

The parties agree to arbitrate only in their individual capacity, not as a representative or member of a class. No claims may be joined with any other claims and there will be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative.

Arbitration will be exclusively held in Seminole County, Florida and each party will be responsible for its own costs, including paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. In order to select an arbitrator, each party will provide a list of two available arbitrators that have experience with the subject matter of the dispute. Each party may strike one of the names on the other party’s list. The parties will select an arbitrator out of the remaining two arbitrator names. If the parties cannot mutually agree on one arbitrator, JAMS will choose the arbitrator randomly from the two remaining arbitrators. The arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction. By entering into this Agreement, each party acknowledges that such party has had the opportunity to have their legal counsel review this Agreement and that such party fully understands the terms and conditions set forth herein and the effect of entering into this Agreement.

All negotiations between the parties pursuant to this Section 16.1 prior to initiation of arbitration proceedings shall be treated as compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose in any current or future litigation.

16.2 Governing Law; Jurisdiction. The Agreement is governed by the laws of the State of Florida without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. For any claims, causes of action or disputes arising out of this Agreement which are not subject to Section 16.1 (Dispute Resolution; Arbitration), you and BLS hereby submit to the sole and exclusive jurisdiction and venue of the state and federal courts located in Seminole County, Florida and the Central District Court of Florida, respectively, to resolve any and all disputes hereunder that the parties are not able to mutually resolve. The aforementioned choice of venue is intended by the parties to be mandatory and, not permissive, in nature. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. Regardless of any statute or law to the contrary, any such claim or cause of action must be filed within one (1) year after such claim or cause of action arose or be forever barred. All claims not subject to Section 16.1 (Dispute Resolution; Arbitration) must be resolved in accordance with this Section 16.2. All claims filed or brought contrary to this Section will be considered improperly filed. Should either party file a claim contrary to this Section, the non-filing party shall be entitled to seek to recover reasonable attorneys’ fees and costs provided that the non-filing party has notified the filing party in writing of the improperly filed claim and the filing party has failed to properly withdraw the claim.

16.3 Waiver. The failure of either party to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision.

16.4 Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement will remain in full force and effect. If that term cannot be so interpreted or reformed, that term will be omitted and, if the term is essential to the Agreement, the parties will promptly begin good faith negotiations to replace it. The other terms of the Agreement will remain in effect and be enforceable with the invalid or unenforceable term interpreted, reformed, replaced, or omitted, as the case may be.

16.5 Claims. Any claim or cause of action arising out of or related to the Products or the Agreement must be filed within 24 months after such claim or cause of action arose or is forever barred, except for BLS claims based on amounts billed, payments made or your failure to pay for the Products, regardless of any statute or law to the contrary.

16.6 Modifications. BLS may modify the Products, withdraw Products it ceases to offer, or modify the Agreement, in whole or in part, at any time upon reasonable advance notice to you with such modifications taking effect from the date of such notice forward. Notice of such modification or withdrawal may be made by or on behalf of BLS to you via email, regular mail, telecopy, delivery service, or posting on a BLS Website. If the terms and conditions applicable to your Agreement are materially modified, you may terminate the Agreement with 10 days prior written notice to BLS, so long as notice of termination is made within ninety (90) days after BLS issues such notice. You will be deemed to have agreed to such modified Agreement if BLS does not receive a notice of termination from you within such period. Notwithstanding the foregoing, you shall be bound by modifications to the Agreement for any use of the Products following the notice of the change. If a Product you ordered is materially modified, you may terminate that portion of the Order including that Product with 10 days prior written notice to BLS, so long as notice of termination is made within ninety (90) days after BLS issues such notice. You will be deemed to have agreed to such modification to the Product if BLS does not receive a notice of termination from you within such period. Notwithstanding the foregoing, you shall be bound by modifications to the Agreement for any use of the Products following the notice of the change. If a Product is withdrawn from the Order, then you shall only pay BLS the pro rata Fees and applicable taxes for such Product through the date the Product ceased to be provided.

16.7 Notice. Notice to BLS shall be made to Customer Relations, P.O. Box 314, 300 N New York Ave, Winter Park, FL 32789.

16.8 Complete Agreement. The Agreement, including any exhibits, riders, and amendments, states the complete agreement between you and BLS concerning this subject and, except as stated otherwise in the written Agreement, supersedes all earlier oral and written communications between the parties concerning this subject.

16.9 Acceptance. The Agreement is subject to acceptance by BLS, which acceptance shall be evidenced by providing access to the Products. You warrant and represent that you have full right, power and authority to enter into the Agreement and to grant the rights granted herein without violating any other agreement or commitment of any kind and that the person accepting the Agreement on your behalf, whether such acceptance is in writing, electronically or through other means, has the power and authority to enter the Agreement on your behalf.

16.10 No Exclusivity. Orders do not grant Customer an exclusive right or privilege to receive Products. BLS may, in its sole discretion, provide similar or identical products to other customers, which may be competitors of Customer.

16.11 Relationship. Customer and BLS are independent contractors. Nothing in the Agreement is intended to or will constitute Customer or BLS as an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other for any purpose. Neither Customer nor BLS shall make any contract, commitment, warranty, or representation on behalf of the other, or incur any debt or other obligation in the other’s name.

16.12 Amendments. If the Agreement specifies a process by which it may be amended by BLS, then BLS may amend it according to that process. No other amendment to the Agreement will be binding unless agreed to in a writing executed by BLS and Customer, and no approval, consent, or waiver will be enforceable unless signed by the granting party. No preprinted term appearing in any document that is not part of the Agreement will be enforceable by the originating party against the other party unless that term is expressly accepted in writing by an authorized representative of the other party. No document will be deemed to amend the Agreement by implication.

16.13 Survival. Sections 1, 2.2, 3.5 and 5 through 17, and all provisions in these Terms of Use, including indemnification/defense of claims provisions, limitations of liability, representations and warranties as to Intellectual property rights, disclaimers of warranties and, any accrued but unpaid financial obligations, and any other terms in an Agreement that by their nature should or typically would survive expiration or termination will survive the expiration or termination for any reason of the Order(s) and the Agreement.

16.14 Non-Assignment. Customer may not assign its rights or delegate your duties under the Agreement to access the Products without the prior written consent of BLS, which consent shall not be unreasonably withheld.

16.15 Successors and Assigns. The Agreement will be binding on, and will inure to the benefit of, the parties’ and their respective successors and permitted assigns.

16.16 Force Majeure. No party will be liable for any damage, delay, or failure of performance resulting directly or indirectly from an act beyond the control of the affected party. If such an act occurs, the affected party will notify the other parties and make commercially reasonable efforts to mitigate the adverse effects thereof. This section does not excuse Customer’s obligation to pay for Products actually received.

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