SPARTA SERVICES LLC

TERMS AND CONDITIONS OF SALE

 

 

            These Terms and Conditions of Sale (“Terms and Conditions“) between SPARTA SERVICES LLC, on behalf of itself (“SPARTA SERVICES LLC“) and the entity purchasing products from SPARTA SERVICES LLC (“Buyer“) govern SPARTA SERVICES LLC’s sale, license, resale and distribution, as applicable, of third-party vendor (“Vendor“) hardware, products, services and software (including all open source licenses distributed by Vendor, or incorporated into any Vendor software) and SPARTA SERVICES LLC services, which consist of a variety of services sold and performed by SPARTA SERVICES LLC (as opposed to third-party vendor services resold by SPARTA SERVICES LLC) (“SPARTA SERVICES LLC Services“) (collectively “Products“) to Buyer. These are default terms only if general terms and conditions are not otherwise specified.

            By purchasing any Products from SPARTA SERVICES LLC, Buyer agrees to all Vendor pass-through terms as may be applicable or required. A list of such pass-through terms are located at Vendor Pass-Through Terms. This list is subject to change, and is posted purely for Buyer’s convenience. It is the responsibility of the Buyer to understand which pass-through terms are applicable to them, and ensure they have read, understand, and are in compliance with them. Any pass-through terms not listed shall remain applicable to Buyer.

 

1. ACCEPTANCE OF PURCHASE ORDERS

1.1 Acceptance: Buyer accepts these Terms and Conditions through any of the following, whichever occurs first:

1.1.1      Buyer submits a purchase order, whether electronically, by phone, or in writing (“Order“) to SPARTA SERVICES LLC regardless of whether the Products ordered are ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled;

1.1.2      Buyer provides written acknowledgment;

1.1.3      Buyer accepts any shipment of any Products;

1.1.4      Buyer’s application for credit is submitted to SPARTA SERVICES LLC;

1.1.5      Access of any SPARTA SERVICES LLC e-commerce website using Buyer’s ID and password; or

1.1.6      Buyer performs any other act or expression of acceptance.

            All Orders are subject to SPARTA SERVICES LLC acceptance, which may occur in writing, Electronic Data Interchange (“EDI“) acknowledgment, or execution of the Order. Acceptance is expressly limited to these Terms and Conditions in their entirety without addition, modification or exception. SPARTA SERVICES LLC rejects any term, condition, or proposal submitted by Buyer (whether oral or in writing) which are inconsistent with or in addition to these Terms and Conditions. SPARTA SERVICES LLC’s silence or failure to respond to any subsequent or different term, condition, or proposal shall not be deemed to be SPARTA SERVICES LLC’s acceptance. 

 

1.2 Quotations: Quotes from SPARTA SERVICES LLC are applicable for the period specified in the quote. Unless otherwise agreed to in writing by SPARTA SERVICES LLC, quotes are invitations to tender and are subject to change at any time without notice. All information relating to SPARTA SERVICES LLC pricing is proprietary and confidential and Buyer will keep such information confidential. SPARTA SERVICES LLC quotes based upon information provided by the Buyer.

1.3 Orders: SPARTA SERVICES LLC reserves the right to schedule and reschedule any Order, upon notice to Buyer, at SPARTA SERVICES LLC’s reasonable discretion, and to decline any order for any reason in SPARTA SERVICES LLC’s sole discretion. Buyer may not change, cancel, or reschedule Orders for Products without SPARTA SERVICES LLC’s prior written consent. SPARTA SERVICES LLC reserves the right to allocate the sale of Products among its buyers.

2. DELIVERY

2.1 Shipping Policy: Unless otherwise agreed in writing, SPARTA SERVICES LLC will deliver or arrange to deliver the Products in accordance with SPARTA SERVICES LLC’s shipping policy in effect on the date of shipment or if drop-shipped by the Vendor from a Vendor location, in accordance with the Vendor’s applicable shipping policy. 

2.2 Delivery Information: Delivery is subject to SPARTA SERVICES LLC’s receipt of all necessary information and documentation from Buyer including all exemption or resale certificates, licenses, and other documents required from Buyer for delivery of the Product. Buyer shall notify SPARTA SERVICES LLC no later than five (5) days from invoice date of any claimed shortages or rejections of delivery, with the exception of deliveries that reveal visible external shipping damage which must be refused immediately upon delivery by the carrier. Buyer shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Buyer’s failure to give such notice within the time specified is deemed an acceptance in full of any such delivery. SPARTA SERVICES LLC shall not be liable for any shipment delays caused by events outside of SPARTA SERVICES LLC’s control. 

3. LIMITED WARRANTY AND EXCLUSIVE REMEDY

 

Limited SPARTA SERVICES LLC Services Warranty and Exclusive Remedy: 

3.1 Limited Warranty: SPARTA SERVICES LLC warrants that SPARTA SERVICES LLC Products are sold AS IS. To the extent permitted by law, SPARTA SERVICES LLC makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. SPARTA SERVICES LLC DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE. IN PARTICULAR, SPARTA SERVICES LLC DOES NOT WARRANT THAT SOFTWARE PROVIDED BY SPARTA SERVICES LLC IS UNINTERRUPTED OR ERROR-FREE. THIS SECTION STATES SPARTA SERVICES LLC’S ENTIRE LIABILITY FOR WARRANTY CLAIMS FOR SPARTA SERVICES LLC SERVICES. BUYER MUST NOTIFY SPARTA PRODUCTS LLC IN WRITING OF ANY ALLEGED BREACH OF WARRANTY NO LATER THAN THIRTY (30) DAYS AFTER RECEIPT OF PRODUCTS.

3.2 Exclusive Remedy: Buyer’s sole remedies for breach of this limited warranty are, at SPARTA SERVICES LLC’s sole discretion, to:

3.2.1      Re-ship the SPARTA SERVICES LLC Products, or

3.2.2      Refund the portion of the price paid by Buyer that relate to the non-conforming SPARTA SERVICES LLC Products.

4. PRICE AND PAYMENT

 

4.1 Additional Fees: SPARTA SERVICES LLC’s prices stated on invoices and quotations are for the Products only and do not include applicable federal, state, municipal and other government taxes as applicable, as well as license fees, freight (except as otherwise provided in SPARTA SERVICES LLC’s shipping policy) and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products (“Additional Fees”). Buyer is responsible for all Additional Fees. SPARTA SERVICES LLC shall invoice Buyer for all taxes applicable to sales of the Products, itemized by type and jurisdiction, which SPARTA SERVICES LLC is required by law to collect from Buyer. Exemption certificates must be presented to SPARTA SERVICES LLC prior to shipment if they are to be honored. Upon Buyer’s request, SPARTA SERVICES LLC will provide Buyer with sufficient documentation to enable Buyer to complete any necessary tax filings or claim any applicable tax credits for amounts paid to SPARTA SERVICES LLC. If applicable law requires Buyer to deduct any amount from the amounts to be paid to SPARTA SERVICES LLC due to withholding taxes or any other taxes or levies of any kind, Buyer shall pay all such additional amounts so that the net amounts received by SPARTA SERVICES LLC are the amounts specified on the invoice.

4.2 Payment Terms: Payment is due as stated on SPARTA SERVICES LLC’s invoice without offset or deduction for withholding taxes or any other fees. All payment information must match Buyer’s account and authorized payment source.  If Buyer elects to use a third-party payment processor to remit the payment, Buyer explicitly agrees that all payment processing and/or transaction fees (if any) shall be paid by the Buyer

            All unpaid invoices will bear interest at an amount equal to one and one-half percent (1.5%) of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection,  cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements. 

 

            SPARTA SERVICES LLC may apply payments submitted by Buyer to any of Buyer’s accounts. Buyer shall not deduct any amounts from any SPARTA SERVICES LLC invoice without SPARTA SERVICES LLC’s express written authorization, which shall be granted by SPARTA SERVICES LLC in its sole discretion and upon Buyer providing all requested supporting documentation.

 

4.3 Licenses: In the event the SPARTA SERVICES LLC has obtained any licenses for Buyer related to any Products, Buyer agrees to pay SPARTA SERVICES LLC the full amount for any such license(s) for the term of the license. Buyer shall pay any such amount in full, within thirty (30) days of delivery.

4.4 Collections: If SPARTA SERVICES LLC engages an attorney or collection agency for the purpose of collection, or enforcing SPARTA SERVICES LLC’s security interest in the Products, with or without litigation, Buyer shall pay any and all associated costs, including and without limitation, attorneys’ fees and costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor’s rights proceedings. SPARTA SERVICES LLC reserves the right to effect a recoupment, to set off of any funds due at any time to Buyer from SPARTA SERVICES LLC, and to set off any amounts against amounts owed by Buyer to SPARTA SERVICES LLC.

5. RETURNS

 

5.1 Returns: All Product returns are subject to SPARTA SERVICES LLC’s then-applicable return policies. All Orders that are identified by SPARTA SERVICES LLC as non-standard or “NCNR” are non-cancelable and non-returnable. If SPARTA SERVICES LLC issues a return authorization to Buyer allowing Buyer to return Product to SPARTA SERVICES LLC, Buyer will deliver the Product to SPARTA SERVICES LLC’s specified address and Buyer shall bear Additional Fees designated or levied, on any replacement Product to be shipped by SPARTA SERVICES LLC to Buyer. If SPARTA SERVICES LLC determines such Products are not eligible for return, SPARTA SERVICES LLC will, at its sole discretion, send such Products back to Buyer on freight collect basis, or hold such Products (at Buyer’s expense) for Buyer’s collection and on Buyer’s account. The right to return defective Products as set forth herein shall constitute SPARTA SERVICES LLC’s sole liability and Buyer’s exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise.

5.2 Lithium Batteries: Buyer shall not return to SPARTA SERVICES LLC facilities any recalled lithium batteries or lithium batteries that are known or suspected to be defective or damaged.

5.3 Packaging and Labeling of Dangerous Goods: When returning dangerous goods to SPARTA SERVICES LLC, Buyer shall package, mark and label such dangerous goods according to local and global regulations for transport (such as IATA, IMDG, DOT, ADR). Dangerous goods include, but are not limited to, lithium batteries, magnetic materials, aerosols or pressurized gas, and other materials that can pose a risk to property and life.

6. DISCLAIMER OF WARRANTIES

 

            Buyer acknowledges that SPARTA SERVICES LLC is not the manufacturer of the Products that are being provided pursuant to this Agreement. Notwithstanding any right to return defective products under SPARTA SERVICES LLC’s limited Services Warranty as specified in Section 3 and the then-applicable Return Policy as specified in Section 5, SPARTA SERVICES LLC makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. SPARTA SERVICES LLC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SPARTA SERVICES LLC WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Except for the limited SPARTA SERVICES LLC Services Warranty as specified in Section 3, any product warranties applicable to the Products shall be provided by the Product manufacturer. Buyer shall not make any representations and warranties on behalf of SPARTA SERVICES LLC or the Product manufacturer.

 

7. LIMITATION OF LIABILITY

 

            SUBJECT TO THE LIMITATIONS OF SECTIONS 3, 5 AND 6, SPARTA SERVICES LLC SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMER OR END USER, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY SUCH PARTY OF PRODUCTS DELIVERED TO BUYER. SPARTA SERVICES LLC’S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, OR WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL: (1) BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES, AND (2) WILL NOT EXCEED THE NET AMOUNT PAID TO SPARTA SERVICES LLC BY BUYER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM. SPARTA SERVICES LLC SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, COSTS OF COVER, OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SPARTA SERVICES LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY APPLIES WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

 

8. AUTOMATIC RENEWALS, RECURRING SERVICES, AND OTHER RELATED REQUIREMENTS

 

8.1 Automatic Renewals and Recurring Services: For Products made available on a subscription or recurring term basis (“Subscriptions”), Buyer agrees that SPARTA SERVICES LLC may invoice Buyer for automatic renewals and Subscriptions, using Buyers initial purchase order number as authorization for subsequent invoices until Buyer properly cancels the applicable Subscription. Buyer further agrees to notify its customers or end users of the applicable renewal Subscriptions and payments due and acknowledges that Buyer’s obligation to pay is not conditioned on: (a) SPARTA SERVICES LLC’s invoice for Products, (b) Buyer’s placement of a renewal purchase order, or (c) Buyer’s receipt of a renewal order from its customer or end user.

8.2 Consumption-Based Subscriptions: For Subscriptions that are billed on a consumption basis, Vendor may set minimum allotted consumption entitlements (“Minimum Usage”) and/or maximum allotted consumption entitlements (“Maximum Usage”). If Buyer consumes less than the Minimum Usage for a particular billing period, SPARTA SERVICES LLC shall invoice Buyer and Buyer shall pay the applicable fee for the entire Minimum Usage amount regardless of actual usage. If Buyer consumes more than the Maximum Usage for a particular billing period (“Overage”), SPARTA SERVICES LLC shall invoice Buyer and Buyer shall pay the applicable fees for the Maximum Usage plus any applicable fees for the Overage amount.

8.3 Consent to Move End Users for Default: If Buyer defaults on these Terms and Conditions, SPARTA SERVICES LLC reserves the right to move Buyer’s customers or end users to another reseller or other provider to avoid interruption of access by the customer or end user.

8.4 Unauthorized Activity, Insolvency: If Buyer or its customer or end user becomes Insolvent (as defined below) or files for dissolution, or is subject to a security breach or hacking incident, which may result in unauthorized activity or charges, Buyer shall remain fully liable to SPARTA SERVICES LLC for all payments due under these Terms and Conditions even if such amounts are the result of unauthorized activity or charges against the customer’s or end user’s account.  “Insolvent” or “Insolvency” shall mean that a party is unable to pay its debts as they come due, has filed for protection under a bankruptcy and insolvency act or has obtained relief for its debts in an assignment for the benefit of creditors.

8.5 Other Security Obligations: Buyer shall be solely responsible for any and all activity under its portals and accounts. Buyer will ensure that (i) only its authorized representatives are given access to the portals and accounts, and (ii) its authorized representatives will access and use the portals and accounts responsibly and in a secure manner. Buyer must implement and enable a multifactor authentication (“MFA”) process to access its portals, accounts and any other underlying service. Furthermore, Buyer shall ensure that its customer and/or end user implements and uses MFA processes to secure the access to their portals, accounts or any underlying service.  Buyer will defend, indemnify and hold harmless SPARTA SERVICES LLC for any claims arising out of or related to Buyer’s breach of its obligations in this section.

9. BUYER’S OBLIGATIONS

 

9.1 Compliance with Laws: Buyer represents and warrants that it will comply with all applicable laws, codes, directives, ordinances, and regulations. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, Buyer may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; (3) chemical or biological weapons; and 4) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage.

9.2 Software: Software is the machine-readable (object code) version of computer programs (“Software“). Buyer shall not, directly or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms or processes from the Software or permit or encourage any third-party to do so. Buyer’s use of Software and any related documentation is governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately. If agreed to between the parties, Buyer authorizes SPARTA SERVICES LLC to accept, on Buyer’s behalf, any end-user license agreement, or similar agreement for Products. Buyer shall secure this same authority from its end user. Buyer acknowledges that Vendor or Vendor’s third-party licensors will provide any license required to use the Product and not SPARTA SERVICES LLC.

9.3 Refunds: Buyer will reimburse to SPARTA SERVICES LLC any funds SPARTA SERVICES LLC has provided to Buyer as a pass-through from the Vendor (“Pass-Through Funds“) in the following instances: (1) SPARTA SERVICES LLC is obligated to return the Pass-Through Funds to the Vendor, or (2) SPARTA SERVICES LLC provided the Pass-Through Funds to Buyer but did not receive the Pass-Through Funds from the Vendor. These Pass-Through Funds include but are not limited to discounts, fees, and marketing funds. SPARTA SERVICES LLC may also recover such Pass-Through Funds by offsetting any amounts due to Buyer from SPARTA SERVICES LLC.

9.4 Notices and Communications: Buyer consents to receive all communications from SPARTA SERVICES LLC or Vendor regarding Products and shall promptly notify SPARTA SERVICES LLC in writing of all changes to Buyer’s name, address, and control/ownership of its assets. Additionally, Buyer consents to allow SPARTA SERVICES LLC to contact Buyer’s customers and end users regarding Products.

9.5 Indemnification: Buyer will indemnify, defend, and hold SPARTA SERVICES LLC harmless from and against any and all liabilities, losses, and damages (including but not limited to, reasonable attorney’s fees, and costs of establishing rights to indemnification) for any claim including: (i) breach by Buyer of any warranty, representation, or covenant under these Terms and Conditions; (ii) breach or violation by Buyer of any agreement with a Vendor or the rights of a Vendor, respectively; (iii) non-compliance with requirements of these Terms and Conditions; (iv) claims arising from Buyer’s negligence or willful misconduct; (v) claims arising from (1) SPARTA SERVICES LLC’s compliance with Buyer’s designs, specifications or instructions; (2) modifications of any Product by anyone other than SPARTA SERVICES LLC; or (3) use or sale of Products in combination with other products or in violation of the Vendor’s applicable specifications and/or documentation.

10. GENERAL

 

10.1 Entire Agreement: These Terms and Conditions, along with (i) the terms and conditions on any SPARTA SERVICES LLC invoice, (ii) the terms and conditions of the SPARTA SERVICES LLC credit application, and (iii) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and SPARTA SERVICES LLC, constitute the entire agreement of the parties with respect to all sales by SPARTA SERVICES LLC to Buyer, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the parties. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed amendment or addendum to these Terms and Conditions; and (2) these Terms and Conditions. 

            Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any party. No other agreement, statement or promise modifies these Terms and Conditions unless it is in writing and signed by both parties. Any SPARTA SERVICES LLC waiver or default of one or more of these Terms and Conditions is not a waiver of the remaining Terms and Conditions or of any future defaults. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights.

 

10.2 Governing Law and Venue: These Terms and Conditions and all claims arising out of or related to these Terms and Conditions will be governed solely by the internal laws of the State of Washington, including without limitation applicable federal law, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws.  The Buyer consents to the personal and exclusive jurisdiction of the federal and state courts of King County, Washington.  This paragraph governs all claims arising out of or related to the Terms and Conditions, including without limitation tort claims.

10.3 Force Majeure: SPARTA SERVICES LLC is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Buyer, operational disruptions, man-made or natural disasters, acts of war or terrorism, government interference, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, riot, unavailability of labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures).

10.4 Data Protection and Personal Information: Buyer acknowledges that customer and end user personal information is necessary for customers and end users to access or use certain Products. Buyer agrees to provide such personal information as requested by the Vendor to both SPARTA SERVICES LLC and the Vendor. Buyer represents and warrants that Buyer, will comply with applicable data protections laws, including providing notice and properly obtaining the consent of the customer or end user to provide said personal information to SPARTA SERVICES LLC and the Vendor for the purpose of fulfilling the transaction.

10.5 Trademarks: Buyer will not use SPARTA SERVICES LLC’s name, logos, trademarks, or other intellectual property rights without SPARTA SERVICES LLC’s written consent. Buyer grants SPARTA SERVICES LLC the limited right to use its logos and trademarks in any marketing and promotional materials associated with these Terms and Conditions.

10.6 Accurate Information: Buyer represents and warrants that the information provided in any documents to SPARTA SERVICES LLC will be true and correct in all material respects and contains all information necessary so that the information is not materially misleading. Buyer acknowledges that SPARTA SERVICES LLC is relying on the accuracy of the information provided by Buyer.

10.7 Assignment and Survival of Obligations: Buyer may not assign these Terms and Conditions without SPARTA SERVICES LLC’s prior written consent. SPARTA SERVICES LLC may, without Buyer’s consent, assign these Terms and Conditions, including all its amendments, attachments and addenda, and its rights and obligations to its successors, assigns or a purchaser of all or substantially all of its assets. All benefits of these Terms and Conditions will enure to the benefit of the assignee. All obligations under these Terms and Conditions that by their nature extend beyond termination, including without limitation all monetary obligations of either party to the other under these Terms and Conditions, will survive termination, remain in effect and bind all successors and assigns.

10.8 Independent Contractors: The parties will act as independent contractors in the performance of these Terms and Conditions and neither party shall act as agent for or partner of the other party.

10.9 Confidentiality: Each party acknowledges that during performance of its obligations pursuant to these Terms and Conditions, it may obtain certain information specifically marked as confidential or proprietary. Each party hereby agrees that all such information disclosed to it by the other party, its parent, affiliates, subsidiaries, whether before or after the effective date, shall be and was received in strict confidence, shall be used only for purposes of these Terms and Conditions, and shall not be disclosed without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond either party’s reasonable control. This confidentiality requirement shall survive for a period of one (1) year after the date of such disclosure.

10.10 Attorney’s Fees: Notwithstanding any other provisions of these Terms and Conditions, in the event Buyer brings any action, the prevailing party in such action shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action, whether in pretrial, trial, arbitration, appeal in any proceeding including bankruptcy, or in any action to enforce a judgment or award.