Terms of Service

These Terms of Service form a binding agreement (this “Agreement”) between Midwest LLC d/b/a Concrete Pumpers Network, an Iowa limited liability company (“CPN”) and the person or entity identified in your CPN Account and/or on Invoice(s) for use of our Resources and Services (“Customer” or “You”).

BY CLICKING BELOW OR CONTINUING TO USE OUR RESOURCES OR SERVICES AFTER THESE TERMS HAVE BEEN PRESENTED TO YOU, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CPN WILL NOT AND DOES NOT LICENSE THE RESOURCES TO CUSTOMER AND YOU MUST NOT DOWNLOAD OR USE THE RESOURCES.

THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND US ARE RESOLVED. IN PARTICULAR, SECTION 16 CONTAINS AN ARBITRATION AGREEMENT THAT MAY REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. IN ADDITION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT IN ANY CLASS OR REPRESENTATIVE PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Authorized Users” means those individuals who are officers, employees, or agents of Customer and who have been authorized by CPN to use the Resources and Services in accordance with this Agreement.

“CPN Account” means a registered user account you create on our website to access the Resources and the Services we provide.

“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the receiving party without restriction on use or disclosure prior to receipt of such information from the disclosing party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the receiving party; (c) is developed by the receiving party independently of, and without reference to, any Confidential Information of the disclosing party; or (d) is received by the receiving party from a third party who is not under any obligation to the disclosing party to maintain the confidentiality of such information.

“Customer Documents” means manuals, documents, and other content created for Customer’s own use through customization of the Resources made available to Customer under this Agreement.

“Fees” means the fees, excluding taxes thereon, paid or required to be paid by Customer for the Services and the license to Resources granted under this Agreement.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Invoice(s)” means the order for the Resources or Services granted under this Agreement, together with all documentation reflecting the Fees to be paid by Customer.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Resources” means the manuals, templates, documents, recordings, downloads, and other content offered by CPN.

“Services” means the services provided by CPN under this Agreement, which may include customization of Resources, in-person or virtual trainings, and consulting.

“Third Party” means any Person other than CPN, Customer or its Authorized Users.

“Updates” means any updates or corrections to the Resources that CPN generally makes available free of charge to all customers.

License Grant and Scope. Subject to and conditioned upon Customer's compliance with all terms and conditions in this Agreement, including the payment of all Fees due hereunder, CPN hereby grants Customer:
1. a non-exclusive, non-sublicensable, non-transferable license, during the Term and solely by and through its Authorized Users, to access, download, copy and use the Resources for Customer’s own use, including for the creation of Customer Documents, solely as set forth in this Agreement and the Resources; and
2. a non-exclusive, perpetual, non-sublicensable, transferable license, during and after the Term, to CPN’s Intellectual Property Rights in and to the Resources, solely to the extent necessary for use and enjoyment of the Customer Documents created by or for Customer during the Term of this Agreement. For the avoidance of doubt, the foregoing license does not and shall not permit the access, use, or enjoyment of CPN’s Resources, nor the creation of new Customer Documents based upon said Resources, after the expiration or termination of this Agreement.
Use Restrictions. Customer shall not, and shall require its Authorized Users not to, directly or indirectly:
1. use, copy, modify, or create derivative works of the Resources beyond the scope of the license granted herein;
2. provide any other Person with access to or use of the Resources or the Services;
3. permit the use of Customer Documents for the benefit of any Third Party;
4. provide CPN any false name, contact information, or other information requested in order to register a CPN Account;
5. register a CPN Account or access or use the Resources through “bots” or other automated methods;
6. share login credentials;
7. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Resources, including any copy thereof;
8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Resources to any Third Party for any reason not permitted under this Agreement;
9. use the Resources or Services in violation of any law, regulation, or rule; or
10. use the Resources or Services for purposes of developing a competing product or service, or any other purpose that is to CPN's commercial disadvantage.
Responsibility for Use of the Resources. Customer is responsible and liable for all uses of the Resources through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Resources by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Resources, whether such access or use is permitted by or in violation of this Agreement.
Updates. CPN may develop and provide Updates in its sole discretion, and Customer agrees that CPN has no obligation to develop any Updates. Customer further agrees that all Updates will be deemed part of the Resources subject to all terms and conditions of this Agreement.
Consulting Services.
1. CPN shall provide the Services to Customer as described in the Invoices and in accordance with the terms and conditions of this Agreement. The Invoices set forth a description of the Services and, if applicable, any deliverables, any criteria for completion, and any timeline or project milestones.
2. CPN shall perform the Services using personnel who are suitably skilled, experienced, and qualified to perform the Services, as determined in CPN’s sole and reasonable discretion.
3. CPN shall comply with all rules, requirements, and policies of Customer that are communicated to CPN in writing.
4. Customer shall cooperate with CPN in all matters relating to the Services. Customer shall provide reasonable access to Customer’s premises and information as may reasonably be requested by CPN for the purposes of performing the Services. Customer shall respond reasonably promptly to CPN requests for direction, information, approvals, authorizations, or decisions.
Confidentiality. CPN and Customer each agree not to disclose or otherwise make available Confidential Information provided to it under this Agreement to any Third Party without the prior written consent of the disclosing party; provided, however, that the receiving party may disclose the Confidential Information to its officers, employees, consultants, and legal advisors who have a “need to know,” who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this 7. CPN and Customer each agree to use Confidential Information only for the purposes of performing its obligations under this Agreement or, in the case of Customer, to make use of the Services and Resources. CPN and Customer each agree to promptly notify the disclosing party in the event it becomes aware of any loss or disclosure of any of the Confidential Information. If the receiving party becomes legally compelled to disclose any Confidential Information, the receiving party shall provide: prompt written notice of such requirement (where legally permitted) so that the disclosing party may seek, at its sole cost and expense, a protective order or other remedy; and reasonable assistance, at the disclosing party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
Intellectual Property Rights. Customer acknowledges and agrees that the Resources are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Resources under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. CPN and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Intellectual Property Rights arising out of or relating to the Resources, except as expressly granted to the Customer in this Agreement. Customer shall use commercially reasonable efforts to safeguard all Resources from infringement, misappropriation, theft, misuse, or unauthorized access. Customer shall promptly notify CPN if Customer becomes aware of any infringement of CPN's Intellectual Property Rights and fully cooperate with CPN in any legal action taken by CPN to enforce its Intellectual Property Rights.
Payment of Fees.
1. Customer agrees to pay all Fees set forth in Invoice(s) made available to Customer. Unless otherwise stated in an Invoice, all Fees are payable in advance and are non-refundable. Any renewal of the license hereunder shall not be effective until the Fees for such renewal have been paid in full.
2. All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes imposed on CPN’s income. Where required, CPN will collect those taxes on behalf of the taxing authority and remit those taxes to the taxing authority.
3. Fees may be based upon the scope of permissions to access or use Resources, the nature and timing of Services, and/or other factors identified on Invoice(s) issued to Customer. If Customer exceeds its permitted usage, Customer acknowledges and agrees it will pay additional Fees for all excess usage.
4. Except as may be set forth in the applicable Invoice(s), CPN may change the effective price of its Resources and Services at any time, and all such changes shall become effective thirty (30) days after CPN provides notice to Customer.
Term and Termination.
1. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Invoice(s) or until earlier terminated as set forth herein (the “Term”).
2. Customer may terminate this Agreement by ceasing to use and disabling access to the Resources by Authorized Users, including without limitation by cancelling Customer’s registered CPN Account.
3. CPN may terminate this Agreement, effective upon written notice to Customer, if Customer materially breaches this Agreement or any of CPN’s terms, conditions, or policies made available to Customer, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after CPN provides written notice thereof.
4. CPN may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Customer shall cease using and accessing the Resources and Services. No expiration or termination shall affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, nor shall expiration or termination entitle Customer to any refund. Notwithstanding the foregoing, provided that Customer has paid all Fees due under this Agreement, the perpetual license set forth in Section 2(b) shall survive the expiration or earlier termination of this Agreement.
Representations and Warranties.
1. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iii) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2. CPN represents, warrants, and covenants to Customer that CPN will perform the Services using personnel of required skill, experience, and qualifications, and in a professional and workmanlike manner. CPN further represents, warrants, and covenants that, subject to Customer’s compliance with the terms and conditions of this Agreement (including the obligation to provide complete and accurate information and make timely payment of Fees), CPN’s Services in adapting or customizing Resources for Customer’s use shall be delivered in accordance with the then-effective American Society of Mechanical Engineers (ASME) standards and manufacturer recommendations made available to CPN and in effect as of the time of delivery. The foregoing shall not apply to the extent that any deviation from said standards or recommendations arises out of or relates to any incomplete or inaccurate information provided by or on behalf of Customer.
3. Customer represents, warrants, and covenants to CPN that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer’s Confidential Information and all other documents and data provided by or through Customer so that, as received by CPN, they do not and will not infringe, misappropriate, or otherwise violate any rights of any third party or violate any applicable law.
Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 12, THE SERVICES AND RESOURCES ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CPN, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE RESOURCES AND OTHER PROVIDED SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CPN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE RESOURCES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. CPN FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIALS AND RESELLER SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE OF RESOURCES AND CUSTOMER DOCUMENTS, INCLUDING WITHOUT LIMITATION ENSURING THEY MEET ALL OF CUSTOMER’S REQUIREMENTS AND ALL LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
1. IN NO EVENT WILL CPN OR ANY OF ITS LICENSORS OR SERVICE PROVIDERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE RESOURCES OR SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CPN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. IN NO EVENT WILL CPN’S, INCLUDING ANY OF ITS LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CPN PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SPECIFIC SERVICES OR RESOURCES THAT IS OR ARE THE SUBJECT OF THE CLAIM.
3. THE LIMITATIONS SET FORTH IN THIS SECTION 14 SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification
1. CPN shall indemnify, defend, and hold harmless Customer, its Authorized Users, and its officers, directors, employees, agents, and successors (each, a “Customer-Indemnitee") from and against any and all Losses incurred by a Customer-Indemnitee resulting from any Action by a Third Party (other than an affiliate of a Customer-Indemnitee) that Customer’s or an Authorized User’s use of the Resources in accordance with this Agreement infringes or misappropriates such Third Party’s United States Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
  1. any materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including without limitation any third-party components or CPN's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by CPN;
  2. access to or use of the Resources in combination with any other materials or service not provided by CPN;
  3. modification of the Resources other than by or on behalf of CPN;
  4. failure to timely implement any modifications, Updates, or enhancements made available to Customer by or on behalf of CPN; or
  5. act, omission, or other matter for which Customer owes a defense or indemnification.
2. Customer shall indemnify, defend, and hold harmless CPN, its affiliates and subcontractors, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “CPN-Indemnitee") from and against any and all Losses incurred by the CPN-Indemnitee resulting from any Action by a Third Party (other than an affiliate of a CPN-Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
  1. any materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including without limitation any third-party components or CPN's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by CPN;
  2. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
  3. gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of any of them, in connection with this Agreement.
3. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 15 will not relieve the Indemnitor of its obligations, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
4. If any component of the Resources are, or in CPN’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Third Party’s Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Resources is enjoined or threatened to be enjoined, CPN may, at its option and sole cost and expense:
  1. obtain the right for License to continue to use the Resources materially as contemplated by this Agreement;
  2. modify or replace the Resources, in whole or in part, to seek to make the Resources non-infringing, while providing materially equivalent features and functionality; or
  3. by written notice to Customer, terminate this Agreement with respect to all or part of the Resources and require Customer to immediately cease any use of the Resources, in which case CPN may at its sole discretion provide Customer a pro-rata refund of any Fees pre-paid by Customer for the then-remaining portion of the Term.
Governing Law and Agreement to Arbitrate.
1. All matters arising out of or relating to this Agreement, the Resources, or the Services shall be governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule.
2. If there is a claim or dispute between us arising from or related in any way to the Resources or this Agreement, either you or we may require the claim or dispute be resolved through binding arbitration before a neutral party instead of a lawsuit or other resolution in court. This includes all past, present, and future claims, including claims that arose before this provision became effective. If either party requires the claim or dispute to be resolved through arbitration, it will be subject to arbitration even if the other party does not agree. This arbitration provision will apply irrespective of whether the claim or dispute arises under contract, tort, statute, or any other basis. Such claim or dispute shall be arbitrated on an individual basis and not in a class action. You and we waive any right to arbitrate disputes as part of a class action. If a class action lawsuit is initiated against us, you agree that this provision applies to such action and if we require claims covered by the class action to be arbitrated, you will withdraw from or agree to dismissal of the class action and allow your claim to be arbitrated on an individual basis.
3. Either of us may require arbitration of a claim or dispute even if one of us has already initiated legal action related to the claim or dispute. The arbitration may be required and initiated by: (i) making written demand for arbitration on the other party; (ii) initiating an arbitration proceeding against the other party; or (iii) filing a motion to compel arbitration in a court in which litigation has already begun. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall take place by remote proceedings. Each party shall be responsible for its filing fees, costs, and attorneys’ fees in any arbitration unless the arbitrator awards attorney fees under applicable law or agreement. More information about the AAA rules and procedures is available at www.adr.org or by phone at (800) 778-7879. This arbitration provision and any arbitration conducted under it are governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and are not subject to any state law related to arbitration.
4. A claim filed against either you or us in small claims court in Alaska is excluded from this arbitration requirement as long as the claim remains in small claims court as an individual claim and not a class action. In addition, no claim is subject to this arbitration requirement if you are an active-duty armed service member.
Miscellaneous
1. In no event shall CPN be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond CPN's reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or internet connectivity.
2. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Invoice(s) or to such other address as may be designated by a party from time to time in accordance with this Section 17.
3. This Agreement, together with the Invoice(s), and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Customer and CPN with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
4. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without CPN's prior written consent, which consent CPN may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which CPN's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 17 is void. CPN may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
5. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
6. CPN reserves the right to modify the Resources, its pricing, or the terms of this Agreement at any time upon notice. No amendment, modification, or supplement by Customer shall be effective unless in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
7. If any term or provision of this Agreement is 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 in any other jurisdiction.
8. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Invoice(s) referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth herein.
9. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

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