Terms of Use


ACCEPTANCE OF TERMS

Transcription Vendors provides a collection of online resources, including classified ads, forums, and various email services, for transcription customers and Transcriptionists doing transcription work(referred to hereafter as "the Service") subject to the following Terms of Use("YOU")

By using the Service in any way, you are agreeing to comply with the TOU. In addition, when using particular Transcription Vendors services, you agree to abide by any applicable posted guidelines for all Transcription Vendors services, which may change from time to time.

Should you object to any term or condition of the TOU, any guidelines , or any subsequent modifications thereto or become dissatisfied with Transcription Vendors in any way, your only recourse is to immediately discontinue use of Transcription Vendors.

Transcription Vendors has the right, but is not obligated, to strictly enforce the TOU through self-help, community moderation, active investigation, litigation and prosecution.

2. MODIFICATIONS TO THIS AGREEMENT

We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such modifications shall become effective immediately upon the posting thereof. You must review this agreement on a regular basis to keep yourself apprised of any changes. You can find the most recent version of the TOU at:

 http://www.TranscriptionVendors.com/Termsofuse.aspx

Definitions

Unless the context clearly requires otherwise, the following terms used in this Agreement shall be defined as follows:

1.1.

"Agreement", "Service Provider", and "Buyer", respectively, shall have the meanings defined herein above.

1.2.

"Services" shall mean and include the following:

  • Transcription Services
  • Translation Services

1.3.

"Effective Date" shall mean the date first above set forth in the preamble to this Agreement irrespective of the dates when each of the individual parties have executed this Agreement.

1.4.

"Transcription Services" shall mean any transcribing a recorded voice

1.5.

"Translation Services" shall mean translation of any document from one language to another.

1.6.

"Buyer's Obligations" shall mean and include each and every obligation, liability and payment due or payable to or in the future to become due or payable to Seller pursuant to this Agreement and as further described in Section 2.3 below. This shall include, but not be limited to the Buyer's duty to cooperate with Service Provider.

ARTICLE II

Purchase and Sale of Services

2.1.

Services. The Service Provider shall provide any and all services as defined in Section 1.2 above to Buyer in accordance with the terms and conditions of this Agreement.

A.

Start Date. The Service Provider shall commence the provision of Services on the date of registration. ADVANCE \d 5

B.

Target Date. The Service Provider shall attempt to complete Services by the date mentioned in TAT (turnaround time or "Target Date").

2.2.

Buyer's Obligations.

A.

Information Provided. The Buyer agrees to provide certain true, current, complete and accurate information as required by the application process; and maintain and update according to Service Provider's modification procedures the information Buyer provided when purchasing

services as needed to keep it current, complete and accurate. Buyer further acknowledges and agrees that each commitment, warranty, statement or undertaking of any kind contracted in this Agreement is an enforceable obligation under the terms of this Agreement, and that any and all failure shall constitute a breach of the terms of this Agreement.

B.

Prohibited Uses. Buyer represents and warrants that all promotional means used by Buyer will not contain objectionable content (including, but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that Buyer will not mislead others. Buyer agrees to: (i) use ethical and legal business practices, (ii) comply with the terms of this Agreement, and (iii) maintain a privacy policy on Buyer's website. Buyer represents and warrants that Buyer will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. Buyer represents and warrants that Buyer will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Buyer's site content /site visit or by downloadable software applications for which Buyer is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Buyer shall not advertise his or her website on any pornographic or adult content websites. Buyer must conspicuously post Buyer's privacy policy on its website and otherwise make it available to all visitors. Buyer's privacy policy must comply with all laws and regulations regarding the privacy of visitor information, be commercially reasonable, and fully and accurately disclose Buyer's collection and use of visitor information. Buyer must fully and accurately disclose its use of third party technology, use of cookies and options for discontinuing use of such cookies. Buyer shall only use ethical and generally approved well advertising practices and will refrain from any black-hat web marketing practices.

2.3.

Term and Termination. This Agreement shall be effective on the date hereof and shall continue, unless terminated sooner, until the Target Date. Service Provider will own the website upon termination of this contract. Either Party may terminate this Agreement upon notice in writing if:

A.

The other is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do; or

B.

A voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party's assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.

C.

Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

D.

If Buyer purchases services that are sold together as a "bundled" package (e.g., Buyer selects a package that includes both a domain name and a website, as opposed to its purchasing such services separately), termination of any part of the services will result in termination of all services provided as part of the bundled package. Buyer acknowledges and agrees that some or all of the services Buyer purchases or receives from Service Provider may be provided by one or more vendors, contractors or affiliates selected by Service Provider in its sole discretion.

E.

Effect of Termination. Except as otherwise expressly set forth herein, Service Provider will cease charging Buyer's credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by Service Provider, Buyer will not receive any refund for payments already made as of the date of termination, and, Buyer may incur additional fees (in the case of a monthly or annual subscription being paid over time). If termination of this Agreement is due to Buyer's default hereunder, Buyer shall bear all costs of such termination, including any reasonable costs Service Provider incurs in closing Buyer's account. Buyer agrees to pay any and all costs incurred by Service Provider in enforcing Buyer's compliance with this Section. Upon termination, Buyer shall destroy any copy of the materials licensed to Buyer hereunder and referenced herein.

ARTICLE III

Purchase Price: Determination and Payment
3.1. Price.

A.

As consideration for the provision of Services by the Service Provider, the price, as defined below, for the provision of Services is as follows:

 

**New rates and additional turnaround time for your convenience effective
New "Special" turnaround time is 1-2 weeks at an affordable rate.
(Our "Discount" turnaround time is for at least 15 audio uploads at one time.)

General Transcription (Per minute of recorded audio)

Rates for Clear Audio
  Up to 2 Speakers Multiple Speakers
12 Hours $3.00 $3.50
RUSH (1-2 Days) $2.25 $2.75
STANDARD (3-5 Days) $1.50 $1.75
SPECIAL (1-2 Weeks) $1.35 $1.60
DISCOUNT (3-4 Weeks) $1.00 $1.50
Rates for Difficult Audio
12 Hours $3.25 $3.75
RUSH (1-2 Days) $2.75 $3.00
STANDARD (3-5 Days) $2.00 $2.25
SPECIAL (1-2 Weeks) $1.60 $1.85
DISCOUNT (3-4 Weeks) $1.50 $1.75

What We Deem to be Difficult Audio includes:

Audios with background noise
Audios with people speaking over one another
Audios with low-speaking voices that cannot be heard
Audios that have been poorly recorded
Audios which require frequent timestamps
Audios with thick accents
Audios which are verbatim with uhs, ums, stutters and false starts
Audios with medical or scientific terminology which require research

Rate per line of 65 characters including spaces.

 
24 Hours $0.08
4 to 6 hours $0.10
Toll-Free line dictations
24 Hours $0.12
4 to 6 hours $0.15

Note:

  1. Turnaround time calculation begins on the day of job submission (if prior to 6:00 p.m. CST) and DOES include weekends. For example, a RUSH file (1-2 days) uploaded on Friday will be due on Saturday or Sunday.
  2. Your cost is calculated by audio minute or by line of recording in the case of medical transcription.
  3. Transcription Fee: TRANSCRIPTION VENDORS has the right to increase rates at any time without any obligation to announce it to its registered users; however, we will do our best to inform you if there is a rate increase.
  4. Transcription fees will be higher for poor-quality audio; however, we will inform you prior to doing the work if we face any problem and obtain your permission prior to proceeding with transcription of such audio.
  5. Rates for data conversion and Spanish transcription / translation are on their respective page.

3.2.

Payment.

A.

The Buyer agrees to pay the Price to the Service Provider on the following dates as follows:

  1. The Full Feature Price shall be paid (check one):
    • 100% of the transcription fee when uploading files to be completed by Transcription Vendor.

B.

Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by Service Provider to the Buyer under this Agreement and such shall be payable by the Buyer to the Service Provider in addition to all other charges payable hereunder.

C.

Buyer agrees that if the payment is made within 5 days of the completion date of the transcript, Transcription Vendors has the right to charge the credit card on file and email the transcripts to the buyer.

ARTICLE IV

Other Covenants and Agreements

The parties hereto agree to the following additional terms and provisions as a material part of this Agreement.

4.1

Ownership. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the services identified herein are owned by Service Provider or its licensors, and Buyer agrees to make no claim of interest in or ownership of any such Service Provider's Intellectual Property Rights. Buyer acknowledges that no title to the Service Provider's Intellectual Property Rights is transferred to Buyer, and that Buyer does not obtain any rights, express or implied, in the Service Provider or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that Buyer creates any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to Buyer, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Service Provider and all right, title and interest in and to each such Derivative Work shall automatically vest in Service Provider. Service Provider shall have no obligation to grant Buyer any right in any such Derivative Work.

4.2.

Warranty. THE SERVICE PROVIDER REPRESENTS AND WARRANTS THAT IT WILL PERFORM THE SERVICES WITH REASONABLE CARE AND SKILL AND THE SERVICES AND THE MATERIALS PROVIDED BY THE SERVICE PROVIDER TO THE BUYER UNDER THIS AGREEMENT WILL NOT INFRINGE OR VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHT OF ANY THIRD PARTY. BUYER AGREES THAT ITS USE OF OUR SERVICE(S) IS SOLELY AT BUYER'S OWN RISK. BUYER AGREES THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER SERVICE PROVIDER, NOR ITS LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET BUYER'S REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SERVICE PROVIDER OR ITS LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. BUYER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT BUYER'S DISCRETION AND RISK AND THAT BUYER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. SERVICE PROVIDER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF ITS SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BUYER FROM SERVICE PROVIDER OR THROUGH ITS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. BUYER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO BUYER. SERVICE PROVIDER IS NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY BUYER FROM A THIRD PARTY.

4.3.

Limitation of Liability. SUBJECT TO THE BUYER'S OBLIGATION TO PAY THE PRICE TO THE SERVICE PROVIDER, EITHER PARTY'S LIABILITY IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE) ARISING DIRECTLY OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OBSERVANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND EVERY APPLICABLE PART OF IT SHALL BE LIMITED IN AGGREGATE TO THE PRICE OR PRICES PAID BY BUYER UNDER THE TERMS OF THIS AGREEMENT. TO THE EXTENT IT IS LAWFUL TO EXCLUDE THE FOLLOWING HEADS OF LOSS AND SUBJECT TO THE BUYER'S OBLIGATION TO PAY THE PRICE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, GOODWILL, LOSS OF BUSINESS, LOSS OF DATA OR ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER. NOTHING IN THIS CLAUSE 4.3 WILL SERVE TO LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS OWN NEGLIGENCE.

4.4.

Indemnity. Buyer agrees to release, indemnify, defend and hold harmless Service Provider and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of Buyer's warranties, representations and obligations under this Agreement, (b) the Service Provider's services or Buyer's use of such services, including without limitation infringement or dilution by Buyer, or someone else using Service Provider's service(s) from Buyer's computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of Service Provider's operating rules or policies relating to the service(s) provided, (e) any information or data Buyer supplied to Service Provider, including, without limitation, any misrepresentation in Buyer's application, if applicable, (f) the inclusion of meta-tags or other elements in any website created for Buyer or by Buyer via Service Provider's services, or (g) any information, material, or services available on Buyer's licensed Service Provider's website . When Service Provider is threatened with suit or sued by a third party, Service Provider may seek written assurances from Buyer concerning its promise to indemnify Service Provider; Buyer's failure to provide those assurances may be considered by Service Provider to be a material breach of this Agreement. Service Provider shall have the right to participate in any defense by Buyer of a third-party claim related to Buyer's use of any of the Service Provider's services, with counsel of Service Provider's choice at its own expense. We shall reasonably cooperate in the defense at Buyer's request and expense. Buyer shall have sole responsibility to defend Service Provider against any claim, but Buyer must receive Service Provider's prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.

4.5.

Representations and Warranties. Buyer agrees and warrants that: (i) neither Buyer's registration nor use of any of the services, nor the manner in which Buyer intends to use such services, will directly or indirectly infringe the legal rights of a third party, (ii) Buyer has all requisite power and authority to execute this Agreement and to perform its obligations hereunder, (iii) Buyer is of legal age to enter into this Agreement; and (iv) Buyer agrees to comply with all applicable laws and regulations.

4.6.

Severability. Buyer agrees that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.

4.7.

Entire Agreement. Buyer agrees that this Agreement, the rules and policies incorporated by reference in this Agreement are the entire, complete and exclusive agreement between Buyer and Service Provider regarding Service Provider's services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by Buyer for the services.

4.8.

Governing Law. The Parties agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of California, United States of America.

4.9.

Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Service Provider. The remedies of Service Provider under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.

4.10.

Independent Parties. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

4.11.

Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Service Provider, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Service Provider may immediately terminate this Agreement.

4.12.

Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

4.13.

Confidentiality. Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.

4.14.

Non-solicitation: Neither party shall solicit employment from any of the other party's employees whose work relates to this Agreement, during the term of this Agreement and for a period of six months after termination of this Agreement, without the prior written consent of the other party.

4.15.

Notices. Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post, facsimile transmission or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party. Subject to any applicable local law provisions to the contrary, any such communication shall be deemed to have been made to the other Party, if delivered by:

A.

First class post, 2 days from the date of posting;

B.

Hand or by facsimile transmission, on the date of such delivery or transmission; and

C.

Electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail.

4.16.

EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM.
BUYER AGREES THAT SERVICE PROVIDER'S ENTIRE LIABILITY, AND BUYER'S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT BUYER PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL SERVICE PROVIDER, ITS LICENSORS AND CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN SERVICE PROVIDER'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Service Provider and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of Buyer's account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; and (7) loss or liability resulting from the development or interruption of Buyer's website. BUYER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.

4.17.

Marketing Materials. All Marketing materials are to be construed consistently with the terms of this Agreement. Marketing materials shall be subordinate to the terms of this Agreement. Any and all marketing materials that are inconsistent with the terms of this Agreement shall be deemed null and void.

4.18.

Miscellaneous. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity or enforceability of the remainder of this Agreement shall be affected. Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party. This Agreement may not be amended for any other reason without the prior written agreement of both Parties. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other.

   
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