Terms and Conditions
TERMS AND CONDITIONS OF SERVICE
1. Pomaybo Terms and Conditions Control the Agreement.
a. These terms and conditions are incorporated into and made a part of any purchase of Services, as defined herein, which may include a Consultation Programs agreement, a quote, or a proposal collectively the “Agreement”) as provided by Pomaybo, Inc. and any of its affiliates (collectively, “Pomaybo”). The Agreement expressly limits Client’s acceptance to these terms and conditions. Client may reject the Agreement by not purchasing Services. The Agreement does not constitute an acceptance by Pomaybo of any offer or counteroffer of Client, and Pomaybo hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders, or other documents of Client that already have been or hereafter may be presented to Pomaybo with respect to the Agreement.
b. If Client has submitted or will submit additional and/or different terms and conditions to Pomaybo, or submit a counteroffer to Pomaybo, Pomaybo’s subsequent performance will not be construed as either acceptance of Client’s additional and/or different terms and conditions or Client’s counteroffer.
c. Any change to the agreed-to Agreement will be described in a written Amendment prepared by Pomaybo which describes with reasonable specificity the proposed changes in service. No Amendment shall be effective unless jointly agreed to in writing by Pomaybo and Client.
d. Pomaybo is an independent contractor and is not an employee or agent of the Client. This Agreement shall not be deemed or construed to create a partnership, a joint venture, an employer/employee relationship or a principal/agent relationship between the parties hereto.
a. Pomaybo provides various human resource management services, workforce solutions, digital tools, learning platforms, online assessments, and related services (the “Services”).
b. In addition to such Services, Pomaybo may provide deliverables such as, printing, copying, binding, graphic design, and certain document review.
c. Services provided in daily increments are equivalent to eight (8) hours
d. Services provided monthly must be used within the calendar month and will not carry-over to a subsequent month.
a. This Agreement is effective as of the date of purchase of Services (the “Effective Date”) unless it expires or is earlier terminated by either party in accordance with the terms of this Agreement.
b. If this Agreement is for subscription in a membership for Services, the Agreement is as of the Effective Date and shall continue for an initial term of as described in the Consultation Programs agreement (“Initial Term”), unless earlier terminated by either party in accordance with the terms of this Agreement.
At the end of the Initial Term, this Agreement will automatically renew for additional 12-month term(s) (each a “Renewal Term” and together with the
Initial Term, the “Term”).
a. Unless otherwise agreed to by Pomaybo in writing, Pomaybo’s prices for the Services will be the price as stated at the time of purchase, in the Consultation Programs agreement or quote (the “Fee”). If such display or document fails to contain a listed Fee, then Pomaybo’s standard prices for such Service as of the date hereof shall be used in calculating the amount owed by Client; provided, however, that Pomaybo may change the price for the Services in accordance with any change to its standard pricing for such Services prior to the date of performance of Services.
b. The Fee for any and all Services shall be confidential, and Client shall not disclose such Fee to any unrelated third party. Client shall further hold confidential and not disclose any information relating to the pricing of Services offered by Pomaybo, regardless of whether or not such prices are ultimately applied to, included in, or referenced in the Fee. Pomaybo and Client acknowledge and agree that money damages for any and all breaches of Client’s obligation not to disclose the Fee or price of any other Services is both incalculable and insufficient and that any such breach would irreparably harm Pomaybo. Therefore, in the event of an actual or prospective breach of the obligation of Client not to disclose the Fee or prices of any other Services, Pomaybo shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Client in addition to any other remedies to which Pomaybo may be entitled at law or in equity.
5. Travel and Equipment.
a. Client is responsible for all expenses incurred in traveling and otherwise carrying out the terms of the Agreement, including without limitation airfare, meals and lodging, mileage, and automobile rental.
b. Client is responsible for all equipment necessary for on-site delivery of Services such as training equipment, projector, screens, microphones, printing and similar equipment.
a. All payments for Services must be made in United States currency unless specified in writing by Pomaybo. Payments for Services will be made by such means as Pomaybo may specify, such as by cash, check, credit card or bank transfer provided that Pomaybo may refuse, in its sole discretion, payment by any means.
b. Pomaybo shall have the right to offset any and all amounts due and owing from Pomaybo to Client under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Client to Pomaybo under this Agreement.
c. Client agrees to pay the Fee in full. Payment of the full Fee is due and payable regardless of whether Client completes the Services contained in the Agreement. Payments for Fees are non-refundable.
d. The Fee shall be paid in immediately available funds as follows:
i. 100% on the first (1st) business day of the month preceding the commencement of the Services or as
defined in the Consultation Programs agreement.
ii. All Fees not paid within five (5) days of the due date are subject to a late charge.
iii. All Fees not paid when due shall bear interest at the rate of eighteen percent (18%) per annum or the maximum rate allowed by law, whichever is lower. Additionally, the Client shall be responsible for any and all fees and costs (including attorney’s fees) related to collection efforts incurred by Pomaybo.
e. It is Client’s responsibility to maintain a current credit card on file and update its information if said credit card expires during the term of the Agreement. Approval of monthly payments does not convert the program to a month-to-month program. The full amount of the Fee is due and payable, regardless of how payments are made. In the case of default, Client will be liable for all collection costs incurred by Pomaybo including, without limitation, attorneys’ and collection agency fees, and all related disbursements.
a. Pomaybo shall promote the safe and respectful sharing of ideas and shall dismiss any Client engaged in behaviors that are found to be harassing, defamatory, or otherwise offensive, as determined at its sole discretion.
b. Pomaybo may modify, replace, or supplement the Services without cause at any time, as determined at its sole discretion.
c. Unless Pomaybo has expressly agreed otherwise in writing, it is Client’s responsibility to ensure that the Services provided are the ones that Client has requested and are correct in all regards. POMAYBO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT SERVICES
CONFORM TO ANY SPECIFICATIONS RELIED UPON BY CLIENT.
d. In the event of a typographical error relating to price or other contractual term described by Pomaybo in the Agreement, Pomaybo reserves the
right to refuse to perform Services for the price in error and/or honor such erroneously stated contract terms.
a. Pomaybo may terminate the Agreement at any time on written notice if Client fails to pay any amount when due thereunder: (i) and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment; or (b) such failure occurs two (2) or more times in any three (3) month period.
b. Pomaybo may additionally terminate the Agreement at any time if Client fails to complete assignments or other responsibilities, or is otherwise not adequately participating in the process, as Pomaybo may determine at its sole discretion.
c. Client will remain fully bound and obligated to pay the full Fee in the case of termination, regardless of reason for termination.
d. The Agreement shall terminate upon the mutual agreement of Pomaybo and the Client.
e. Pomaybo may terminate the Agreement without cause at any time, as determined at its sole discretion, and may issue
a pro rata refund of any unused Fees paid.
f. Client may terminate an annual program with ninety (90) days advance written notice.
a. Client may cancel its scheduled meeting(s), appointment(s), or other individually-scheduled Services with Pomaybo, but only if twenty-four (24) hours advance oral or written notice is provided by Client.
b. Cancellations made in violation of the above twenty-four (24) hour advance notice requirement shall result in the forfeiture of the scheduled meeting, appointment, or other Service, and Client shall be fully bound and obligated to pay the agreed-upon contract price for such Service.
c. If Pomaybo decides to extend the above one-time pass for cancellations made in violation of the twenty-four (24) hour cancellation policy to cover and apply to additional improper cancellations, such extensions shall not restrict, and shall not be construed to reduce in any capacity, the ability of Pomaybo to strictly enforce its cancellation policy in the event of future improper cancellations.
a. Client recognizes and acknowledges that Pomaybo, at its sole discretion, may independently opt to offer meetings, classes, and other Services electronically via Zoom, Skype, Teams or other video and audio transmitting software. When possible, Pomaybo will endeavor to provide Client with three (3) days advance notice prior to switching formats from, or to, in-person Services or electronic Services. Client understands that such advance notice may not always be possible, practical, or convenient for Pomaybo, and failure on the part of Pomaybo to provide three (3) days advance notice will in no case constitute a breach of its duties owed to Client in the Agreement.
b. Client expressly agrees, at its own expense, to purchase, maintain, and install all computer equipment, accessories, and software necessary for participation in electronically offered Services. Failure of Client to promptly be ready to participate in electronically offered Services at their scheduled times will not constitute a valid excuse for nonpayment of those Services, and Client will remain fully bound and obligated under the Agreement to pay for any and all electronically offered Services that are delayed, interrupted, or otherwise prevented for technical reasons.
c. Client grants express permission to Pomaybo to record, transmit, and archive electronically offered Services for any and all lawful purposes.
Client grants Pomaybo permission to take photographs during meetings and events and further authorizes Pomaybo and its assigns and transferees to use and to copyright Client’s likeness in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including social media and other web-based publications. Client understands and agrees that all Photos will become the property
of Pomaybo and may not be returned. Client irrevocably authorizes Pomaybo to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Client waives any right to inspect or approve the publication wherein Client’s likeness appears. Client understands that no payment, royalty, fee or other compensation shall become payable to Client by use of the Photos. Client affirms the consent of parent or guardian if necessary.
a. Pomaybo and Client agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative,
misleading or false statement orally or in writing to any person, including clients or prospective clients, competitors and advisors to the Client, its Affiliates or members of the investment community or press, about (i) the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents; or (ii) the business strategy or plans, policies, practices or operations of the other party or any of its Affiliates. Client agrees that Pomaybo may make mention that Pomaybo provides the Services to Client on Pomaybo’s website, in brochures, and other promotional materials.
13. Intellectual Property.
a. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, proprietary techniques and information, data, methods, know-how, and other confidential information, trade dress, trade names, logos, company names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are provided to Client under this Agreement in the course of performing the Services (collectively, the “Owned Intellectual Property”) shall be owned by Pomaybo.
b. If Client makes any changes, suggestions, enhancements, or improvements (each, a “Change”) to any materials that compose the Owned Intellectual Property, Client hereby assigns to Pomaybo, for no additional consideration, all of Client’s rights, including copyrights, in all works prepared by Client under this Agreement. Client agrees to promptly sign and deliver any documents and take any actions that Pomaybo reasonably requests to establish and perfect the rights assigned to Pomaybo under this provision.
c. Pomaybo hereby grants Client a license to use all Intellectual Property Rights in the Owned Intellectual Property free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Owned Intellectual Property and the Services.
a. From time to time during the Term of this Agreement, either Pomaybo or Client (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 5 days thereafter, is summarized in writing and confirmed as confidential, specifically including the Owned Intellectual Property (“Confidential Information”) and including without limitation all confidential
or proprietary information and all trade secrets of or relating to the Disclosing Party, including intellectual property in the form of copyrights, patents and trademarks and applications therefor, trade secrets, ideas, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or material, owned, developed or possessed by the Disclosing Party, whether in tangible or intangible form, information in respect of the Disclosing Party’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, clients, potential customers or clients, marketing methods, costs, prices,
contractual relationships, regulatory status, prospects, employees, and other service providers; provided, however, that Confidential Information does not include any information that:
i. is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section;
ii. is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
iii. was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or
iv. was or is independently developed by Receiving Party without using any Confidential Information.
b. In taking possession of or otherwise acquiring Confidential Information in the manner described above, the Receiving Party shall:
i. protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
ii. not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
iii. not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
c. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section, Receiving Party shall mean the Receiving Party’s affiliates, employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
d. Notwithstanding the foregoing, the Client acknowledges and agrees that Pomaybo may use its name and logo in connection with Pomaybo’s professional business development.
15. Limitation of Remedies.
a. Client’s sole remedy for all damages, which Client may select to pursue at its own discretion, shall be either
i. a refund of certain Fees paid, during the prior 30-day period, by Client to Pomaybo on the date that the conduct giving rise to the claim occurred or, if the conduct occurred on a series of dates, on the most recent date on which such conduct occurred; or
ii. credit redeemable for future Pomaybo Services.
b. If Client or Pomaybo has a claim or issue relating to the Services of the Agreement, such claim or issue will be disclosed by written notice to the other party within thirty (30) days of either the date of the occurrence of such claim or issue, or the date that such claim or issue becomes known, whichever is later. If any claim or issue is not disclosed to the other party within the timeframe stated above, then such claim or issue shall be deemed unenforceable and all rights to a remedy shall be totally forfeited.
16. DISCLAIMER OF WARRANTIES.
a. CLIENT IS RESPONSIBLE FOR ALL PERSONAL PROGRESS AND RESULTS FROM THE SERVICES. POMAYBO CANNOT CONTROL CLIENT’S PARTICIPATION IN THE PROGRAM. POMAYBO MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING PERFORMANCE OTHER THAN THOSE SPECIFICALLY WRITTEN IN THE AGREEMENT.
b. BECAUSE OF THE NATURE OF THE SERVICES PROVIDED BY POMAYBO, THE RESULTS EXPERIENCED BY CLIENTS VARY SIGNIFICANTLY. CLIENT ACCEPTS RESPONSIBILITY FOR THIS VARIANCE. POMAYBO IS NOT RESPONSIBLE FOR ANY DECISIONS CLIENT MAKES AS A RESULT OF THE SERVICES OR FOR ANY CONSEQUENCES OF THOSE DECISIONS.
c. THE SERVICES ARE FOR EDUCATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE PSYCHOLOGICAL, MEDICAL, SUBSTANCE ABUSE, LEGAL, FINANCIAL OR TAX ADVICE. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT NONE OF THE ADVICE PROVIDED TO CLIENT BY POMAYBO PERSONNEL DURING THE COURSE OF THIS RELATIONSHIP MAY BE DEEMED MEDICAL ADVICE. IF CLIENT HAS MEDICAL QUESTIONS, CLIENT IS ADVISED TO CONSULT WITH THE APPROPRIATE PROFESSIONALS. CLIENT IS RESPONSIBLE FOR LEGAL REVIEW OF ANY DELIVERABLES.
d. POMAYBO WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER. POMAYBO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED, WHETHER ARISING BY CONTRACT LAW OR IN EQUITY, WITH RESPECT TO THE SERVICES. POMAYBO EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
e. FOR SERVICES INVOLVING AN EMPLOYEE HANDBOOK OR SIMILAR DELIVERABLE, CLIENT WILL ACKNOWLEDGE THAT CLIENT IS RESPONSIBLE FOR REVIEW OF THE MATERIALS, CONFIRMATION OF ACCURACY AND OBLIGATION FOR INDEPENDENT LEGAL REVIEW.
17. Limitation of Liability.
a. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL:
i. POMAYBO BE LIABLE TO CLIENT FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES (EVEN IF POMAYBO IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); OR
ii. POMAYBO’S TOTAL LIABILITY RELATED TO ANY SERVICE EXCEED THE PURCHASE PRICE OF SUCH SERVICE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POMAYBO DISCLAIMS ALL LIABILITY RELATED TO AND EMERGING FROM PERSONAL INJURY TO THE CLIENT, WHETHER IN THE FORM OF STRESS, EMOTIONAL DISTRESS, ANXIETY, OR ANY OTHER TYPE OF INJURY, AND WHETHER INCURRED
DIRECTLY OR INDIRECTLY FROM THE SERVICES OFFERED IN THE AGREEMENT.
Client will indemnify, defend and hold harmless Pomaybo, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Services, regardless of whether such Losses are suffered directly by Client or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Pomaybo or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Client need not indemnify Pomaybo for Pomaybo’s obligation, if any, to Client under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Client to pay any judgments against Pomaybo or any other indemnified party resulting from any Claim, any court costs of Pomaybo or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Pomaybo or any other indemnified party in Pomaybo’s defense of any Claim. Pomaybo will have the sole and exclusive right to conduct the defense of any Claim at Client’s sole and exclusive cost and expense. Client’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Pomaybo, Client, or any third party.
During the term of this Agreement and for a period of 1 year after the last date of Services performed under the Agreement, Client shall, at its own expense,
maintain and carry insurance, in full force and effect that includes, but is not limited to, commercial general liability, and other applicable liability policies, each in a sum no less than $3 Million per occurrence with financially sound and reputable insurers. Upon Pomaybo’s request, Client shall provide Pomaybo with certificates of insurance from Client’s insurer(s) evidencing the insurance coverage specified. The certificates of insurance shall name Pomaybo as an additional insured. Client shall provide Pomaybo with 60 days’ advance written notice in the event of a cancellation or material change in any Client’s insurance policy. The Parties shall assess and adjust insurance needs and requirements every 6 months or as frequently as the Parties agree.
Client hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Services. For purposes hereof, “Laws” means any national, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies or guidance having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
21. Force Majeure.
a. Pomaybo shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Pomaybo including, without limitation, the Client’s delay in providing necessary information or approvals to the Client, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest,
national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), severe personal illness, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage (each the “Force Majeure Event”).
b. If any Force Majeure Event prevents Pomaybo from performance of any of its obligations under the Agreement, Pomaybo will have the right to
i. change, terminate or cancel the Agreement, or
ii. omit during the period of the Force Majeure Event all or any portion of the quantity of the Services due to be performed during that period. If Pomaybo is unable to supply the total demands for any Services to be performed under the Agreement due to a Force Majeure Event, Pomaybo will have the right to allocate its available Services among its customers in whatever manner Pomaybo deems to be fair and equitable. In no event will Pomaybo be obligated to purchase services or materials from other than its regular sources of supply in order to enable it to supply Services to Client under the Agreement. No change, cancellation or proration by Pomaybo will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
The rights and obligations of Pomaybo and Client as set forth in the Agreement shall survive its termination or expiration, including but not limited to, nondisclosure of Confidential Information and compliance with intellectual property rights.
23. Interpretation of the Agreement.
a. None of Pomaybo’s or Client’s members, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement. The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Pomaybo and Client or by language included on the Consultation Programs agreement. Regardless of how many times Client purchases, or has purchased, services from Pomaybo by whatever means, each time Client accepts the
Agreement, Client and Pomaybo enter into a separate agreement that will be interpreted without reference to any other agreement between Client and Pomaybo, or what Client may claim to be a course of dealing or course of performance that has arisen between Client and Pomaybo. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain, or serve to
interpret any of the terms, conditions and limitations of the Agreement.
b. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Services hereunder, (except for any contemporaneous writing agreed to in writing both by Pomaybo and Client expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters.
c. Failure by Pomaybo to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Pomaybo to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Client’s default under the Agreement will not constitute a waiver of that right or any other rights.
24. Electronic Consent.
Client acknowledges that Client’s electronic submissions constitute Client’s agreement and intent to be bound by the Agreement. Pursuant to any
applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce
Act, P.L. 106-229 (“E-Sign Act”), the Pennsylvania Electronic Transactions Act, or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC
SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH POMAYBO. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Client or by contacting Pomaybo.
25. Choice of Law.
The Agreement and all related displays or documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute
are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
Pomaybo and Client will attempt to resolve any dispute in connection with this Agreement on an amicable basis through prompt, good faith discussions
and non-binding mediation.
Any dispute that cannot be resolved by Pomaybo and Client will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. JAMS will administer the arbitration. The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either Pomaybo or Client initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration.
28. Choice of Forum.
In the case that mediation and arbitration prove insufficient for resolving a dispute, Pomaybo and Client irrevocably and unconditionally agree that neither party will commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement, and all
contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
29. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
31. Binding Authority.
Any director, officer, employee, representative, or agent of Client entering into this Agreement hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on behalf of Client.