If you work for or represent a business, you represent and agree that you are authorized by that business to enter into this Agreement. SameDayPOD is relying on the fact that you are authorized to enter into this Agreement on behalf of that business. SameDayPOD reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Site or these T&C, in whole or in part, at any time without further notice. For changes to these T&C that we deem material, we will place a notice on www.samedaypod.com by revising the link on the homepage to read substantially as Updated Terms and Conditions for an amount of time that we determine at our discretion. If you access or use the Site in any way after the T&C have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these TAC will be available on www.samedaypod.com and will supersede all previous versions of these T&C.
Certain parts or features of the Site may require registration/creation of an account or may otherwise ask you to provide information to participate in certain features or to access certain content. The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain parts or features of the Site. You agree that you will not provide any false business or personal information to the Site, or create an account for anyone other than yourself or your company without their permission. You will also not create more than one personal profile, and if you select a username for your account, we reserve the right to remove or reclaim it if we believe in our sole discretion that it is necessary or appropriate (such as if a trademark owner complains about a username). If you register with the Site, you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of the Site. You accept responsibility for all activities that occur under your account, email or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights. SameDayPOD may, in its sole discretion, and at any time, with or without notice, terminate your password and membership, for any reason or no reason at all. If we disable your account, you agree that you will not create another one without our prior written permission.
2. Use of the Site
Provided you comply with the terms of this Agreement, you may access, use or download the Site and the materials thereon ("Content") for your business only as specifically permitted on the Site, or for your personal, noncommercial purposes. SameDayPOD grants you a limited, revocable, nonexclusive right to use the online marketing tools and services provided through or on the Site ("Marketing Tools") as specifically permitted on the Site, for the purposes expressed on the Site. No other use of Content or Marketing Tools is allowed. For purposes of this Agreement, Marketing Tools are included in the definition of Content. These limited rights are granted to you as long as you:
Agree that, once you receive a SameDayPOD "customer number" you and/or authorized employees and agents will use your customer number to access the Site for your internal business purposes, and you will not allow anyone other than your authorized employees or agents to use your customer number to access the Site for any purpose.
- Make only lawful use of the Site and the Content.
- Violate no rights or licenses of any third party.
- Keep unchanged all copyright and other notices.
- Protect the Content from unauthorized use, modification, reproduction, distribution or publication.
- Do not portray SameDayPOD, its affiliates or licensors, or their products or services, in a false, misleading, derogatory, or offensive way, as determined by SameDayPOD in its sole discretion.
- Abide by all applicable local, state, federal, national and international laws, rules and regulations.
- Send emails only to recipients with whom you have a prior business relationship.
- Send no emails to recipients who have asked that you stop sending them emails.
- Do not use a false e-mail address, impersonate any person or entity, or otherwise mislead anyone as to the origin of your services or of any Content.
- Do not directly or indirectly access, use or download Content for the purpose of competing with SameDayPOD (e.g., scraping product data or user information).
You may not upload post, transmit, distribute or otherwise publish on or to the Site any of the following:
- Software, malware, virus or any other harmful content or component.
- Advertising or commercial material of any kind, except as expressly authorized in advance by SameDayPOD.
- False, threatening, libelous, defamatory, pornographic, obscene or otherwise unlawful material.
You may not interfere with the Site or any other user's use of the Site by, for example, overloading, flooding, mail-bombing or crashing the Site, sending spam of any kind through the site, or inserting any code or product or manipulating the Content in any way that affects any third party's experience of the Site. SameDayPOD may, at its sole discretion, terminate your access to the Site if it believes that you have directly or indirectly violated all or any portion of your obligations under this Section 2.
The Site and all of the Content it contains, or may in the future contain, including but not limited to text, video, pictures, graphics, designs, information, applications, software, music, audio files, articles, directories, guides, photographs as well as the trademarks, service marks, trade names, trade dress, copyrights, logos, domain names, code, patents and/or any other form of intellectual property (collectively, the "Material") that relates to the Site are owned by or licensed by SameDayPOD or other third parties and are protected from any unauthorized use, copying and dissemination by copyright, trademark and other intellectual property and non-intellectual property laws and by international treaties. Except as expressly permitted in writing by SameDayPOD, you shall not capture, reproduce, perform, transfer, sell, license, sublicense, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute or exploit, in whole or in part, any of the Material. Nothing contained in this Agreement or on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Material in any manner without the prior written consent of SameDayPOD or such third party that may own the Material or intellectual property displayed on the Site
UNAUTHORIZED USE, COPYING, REPRODUCTION, MODIFICATION, PUBLICATION, REPUBLICATION, UPLOADING, FRAMING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING OR ANY OTHER MISUSE OF ANY OF THE MATERIAL IS STRICTLY PROHIBITED.
Any use of the Material other than as permitted by this Agreement will violate this Agreement and may infringe upon our rights or the rights of the third party that owns the affected Material. You agree to report any violation of this Agreement by others that you become aware of. You are advised that SameDayPOD will aggressively enforce its rights to the fullest extent of the law. SameDayPOD may add, change, discontinue, remove or suspend the display of or access to any of the Material at any time, without notice and without liability.
2. Use of the Site
SameDayPOD is pleased to hear from its visitors and welcomes your comments regarding SameDayPOD products and services but we are not soliciting from you creative suggestions, ideas, notes, photographs, drawings, or other materials. Without limiting the generality of the foregoing, if you send or post a submission or if you send us creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (each, a "Submission" and collectively, the "Submissions") despite our specific request herein that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. None of the Submissions shall be subject to any obligation of confidence on the part of SameDayPOD, and SameDayPOD shall not be liable for any use or disclosure of any Submissions.
Any Submission may be used by SameDayPOD without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. SameDayPOD shall have and is hereby irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, exploit, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit.
By submitting a Submission to the Site or SameDayPOD, you represent that such Submission is original to you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. Submissions to the Site and/or SameDayPOD will not be acknowledged or returned. You agree and understand that SameDayPOD is not obligated to use any Submission you make to the Site or SameDayPOD and you have no right to compel such use. You hereby acknowledge and agree that your relationship with SameDayPOD is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to SameDayPOD does not place SameDayPOD in a position that is any different from the position held by members of the general public with regard to your Submission.
You understand and acknowledge that SameDayPOD has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by SameDayPOD's own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in structure, purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of SameDayPOD's use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of SameDayPOD's actual or alleged exploitation or use of any material you submit to the Site and/or SameDayPOD, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the exploitation or other use of any SameDayPOD product or service based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
4. Use by Children
The Site is intended only for those ages 18 and older. If you are under 18, you may not register or submit personally identifiable information on, to or through the Site. SameDayPOD does not collect personally identifiable information from any person SameDayPOD knows to be under 18.
Links from the Site to third party sites are provided only as a convenience. You use outside links at your own risk. These links do not constitute SameDayPOD's endorsement of any third party, its site, or its goods or services. SameDayPOD shall not be responsible for and hereby disclaims liability for any injury or damages you may experience by using third party materials. You may not create links to the Site that portray SameDayPOD in a false or misleading light. You may not use framing or similar techniques to enclose any portion of the Site. Except as intentionally enabled by the Marketing Tools, you may not link to any pages other than the SameDayPOD home page. Such third party sites are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any third party site accessed through the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the applicable third party site. If you decide to leave the Site and access a third party site, you do so at your own risk and you should be aware that our terms and policies stated in this T&C do not govern the third party site.
YOU AGREE THAT YOUR USE OF THIRD-PARTY SITES OR THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
6. Jurisdictional Issues
SameDayPOD operates the Site in the United States. SameDayPOD makes no representation that the Materials, including merchandise or Goods offered for sale on the Site and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the United States. If you access the Site from locations outside of the U.S. you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable. The Site is controlled and operated by SameDayPOD from its offices within the State of Texas, United States. SameDayPOD makes no representation that materials in the Site are appropriate or available for use in other locations. Software from this Site is further subject to United States export controls. No software from this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any countries that are subject to U.S. export restrictions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
7. Disclaimers and Liability Limitations
The Site may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons. SameDayPOD assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications. SameDayPOD is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or in connection with the Site, including injury or damage to a user's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site.
THE SITE AND THE MATERIALS ARE PROVIDED AS IS WITH ALL FAULTS AND AS AVAILABLE AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SAMEDAYPOD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SAMEDAYPOD DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITE OR THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR THE MATERIALS DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY.
SAMEDAYPOD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR THE MATERIALS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT SAMEDAYPOD) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
YOU AGREE THAT SAMEDAYPOD AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INDEPENDENT CONTRACTORS (COLLECTIVELY, THE "RELEASED PARTIES") ARE NOT LIABLE TO YOU OR ANY THIRD PERSON FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE SITE, THE MATERIAL, THE FORUMS, ANY TRANSACTIONS, ANY LISTING OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SITE, EVEN IF THE SAMEDAYPOD IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE (COLLECTIVELY, THE RELEASED MATTERS).
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SAMEDAYPOD LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $1000. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, AND/OR THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MIGHT NOT APPLY TO YOU.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You hereby waive any and all rights you have or may have under California Civil Code Section 1542, and/or any similar provision of law or successor statute to it, with respect to the Released Matters. In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement. In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.
SameDayPOD makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Site and/or the Material. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by SameDayPOD.
The Internet may be subject to breaches of security. SameDayPOD is not responsible for any resulting damage to any user's computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that email submissions over the Internet may not be secure, and you should consider this fact before submitting any information to anyone over the internet. SameDayPOD makes no representation or warranty whatsoever regarding the suitability, functionality, availability or operation of the Site.
BY USING THE SITE YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES, ARISING OUT OF OR RELATING TO: YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION OF THIS AGREEMENT OF USE OR ANY LAW; YOUR USE OF THIS SITE AND/OR THE MATERIAL IN VIOLATION OF THIS AGREEMENT; INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR DEFAMES ANY PERSON; ANY MISREPRESENTATION MADE BY YOU; AND/OR SAMEDAYPOD USE OF YOUR INFORMATION. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN SAMEDAYPOD DEFENSE OF ANY CLAIM. SAMEDAYPOD RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF SAMEDAYPOD.
Your failure to comply with any of the covenants, terms or conditions in this Agreement automatically revokes your authorization, right and license to use the Site, Marketing Tools and Software, and terminates any and all rights granted to you hereunder. Various parts of this Agreement will continue in full force and effect upon termination of your rights, according to their nature, including restrictions, disclaimers, liability limitations and indemnification obligations. Upon termination, you must promptly destroy all Content or obtained from this Site, as well as all copies of any Content. SameDayPOD may change, suspend or discontinue or restrict any Site feature at any time without prior notice.
10. Applicable Law and Dispute Resolution
This Agreement shall be governed and construed in accordance with the laws of the State of Texas applicable to contracts entered into and fully performed in Texas (without regard to its conflicts of law principles that would cause the application of the laws of any other jurisdiction). With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts sitting in Dallas, Texas, you hereby consent to the exclusive jurisdiction and venue of those courts, waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and personal jurisdiction in those courts, and waive any right to a jury trial.
By using the Site in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against the Release Parties arising out of, relating to, or connected in any way with the website or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (FAA), 9 U.S.C. 1-16; (3) all in-person arbitration hearings shall be held in Dallas County, Texas; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website; (5) the arbitrator shall apply Texas law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable SameDayPOD Entity's individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award consequential or punitive damages against you or any SameDayPOD Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any SameDayPOD Entity exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, SameDayPOD agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, SameDayPOD will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and, (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor SameDayPOD shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com
Our relationship is one of independent contractors. No agency, employment, partnership or joint venture shall be created by or founded upon this Agreement. You shall not make or assign, or represent to any party, by implication or otherwise, that it may make or assign, any warranty or representation by or for SameDayPOD, nor shall you attempt, or represent that you are entitled, to make any commitment, waiver or settlement on behalf of SameDayPOD or to pledge the credit of SameDayPOD. Your rights hereunder are personal to you and the company you represent, and may not be assigned or transferred in whole or in part by you, nor may any benefit hereunder inure to any trustee in bankruptcy, receiver, or successor, whether by operation of law or otherwise, without the prior written consent of SameDayPOD, and any attempted assignment or transfer without such consent shall constitute a breach hereunder and shall be void.
This Agreement constitutes the entire agreement between you and SameDayPOD regarding access to and use of the Site and governs your use of any Content or Marketing Tools, superseding and entirely replacing prior agreements (if any) between you and SameDayPOD therefore. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. SameDayPOD's failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. SameDayPOD will not be responsible for failures to fulfill any obligations due to causes beyond its control. SameDayPOD believes it has the required permission from other manufacturers and content owners whose brands, logos, products and other content are available to you through the Site. You agree that these owners that license their rights and content to SameDayPOD for the Site are intended third-party beneficiaries under this Agreement with the right to enforce the provisions of this Agreement that directly concern their content. In the event it should be determined that any provision of this Agreement is uncertain or ambiguous, the language in all parts of this Agreement shall be in all cases construed as a whole according to its fair meaning and not strictly construed for or against either party.
YOU HAVE READ, UNDERSTOOD AND APPROVE THIS AGREEMENT. YOU HAVE HAD AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL AND WITH SUCH OTHER EXPERTS OR ADVISORS AS YOU HAVE DEEMED NECESSARY IN CONNECTION WITH THIS AGREEMENT. THE FACT THAT SAMEDAYPOD MAY HAVE DRAFTED ALL OR PORTIONS OF THIS AGREEMENT SHALL HAVE NO BEARING UPON ITS INTERPRETATION OR CONSTRUCTION.
YOU UNDERSTAND AND AGREE THAT THE PROVISIONS CONTAINED HEREIN REPRESENT AN AGREED ALLOCATION OF RISK WHICH IS REFLECTED IN THE OBLIGATIONS HEREUNDER SUCH AS THE DISCLAIMER OF ALL WARRANTIES AND THE LIMITATIONS ON LIABILITY. SAMEDAYPOD COULD NOT PROVIDE THE SAMEDAYPOD PROPERTIES, OR ITS PRODUCTS OR SERVICES TO YOU AT THE CURRENT PRICING "BUT FOR" YOUR AGREEMENT TO THESE TERMS AND CONDITIONS.