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Andale User Agreement

Welcome to the ANDALE, Inc. web site (the "Site"). This user agreement specifies the terms and conditions under which ANDALE, Inc. agrees to provide you with access to the Site. If you want to access the Site to centralize access to online marketplaces or other external Web sites ("Marketplaces"), track your sales and purchases, create and store advertisements or use the other services we provide (collectively, "Services") you must accept this user agreement ("Agreement") in its entirety, including all of its terms and conditions.

We may amend this Agreement at any time by posting the amended terms and conditions on the Site. Unless otherwise indicated, all amended terms shall automatically be effective fourteen (14) days after they are initially posted on the Site, and your continued use of our Services indicates your acceptance of the amended terms. You are responsible for reviewing and becoming familiar with any changes. This agreement was last revised on June 14, 2005. ANDALE, in its sole discretion, may add, delete, or modify some or all of the features of the Site or Services at any time.

1. Eligibility; Registration.

1.1 Use of the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Services are not available to minors. Further, the Services are not available to parties whose use of the Services has been suspended or terminated.

1.2 To use the Services, you must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. You shall provide current, complete and accurate registration information (including email address and credit card information), and then update the information as required to keep the registration information current, complete and accurate.

1.3 As a subscription service, Andale may require you to provide account identification / authentication information for multiple payment alternatives including, but not limited to, credit card, debit card, automatic deduction from your bank account, and bill payment services such as PayPal and Billpoint. By providing such payment alternatives to Andale, you are explicitly authorizing Andale to charge one or more of these payment sources to pay for your use of the Services. It is important to keep your registration information current, complete and accurate, especially your email address and your payment information.

2. Passwords and Security.

You shall at all times maintain the confidentiality of your user names and passwords. If you are a corporation, partnership or other legal entity, you may allow employees to use user names and passwords, provided that you are responsible for all activity and all charges by such employees. Permitting use of the Services by a third party is prohibited and is a violation of this Agreement. If there is a breach of security through your account, you must immediately change your password and also notify us at agree@andale.com. You will be liable for any unauthorized use of the Services until you notify us of the security breach.

3. Fees and Payment Terms.

3.1 The fees are set forth in the Fee Schedule and Payment Terms, which are incorporated by reference. Changes to fees and payment terms are effective immediately unless otherwise indicated, and it is your responsibility to check for any changes. You agree to pay us for using our services in accordance with our then current Fee Schedule. All fees are payable in U.S. Dollars unless stated otherwise and will not be treated as paid until actually received by Andale in same-day and freely available funds.

3.2 Andale fees are in addition to any fees charged by eBay or any other marketplace. The majority of Andale's products are billed on a monthly subscription basis, and not on a usage basis. This means that you must close your account or remove the pay products if you wish to stop incurring fees. If you stop using the account but do not close it, you will continue to be charged. Products are billed based on full calendar months and are not prorated. If at any time overage fees are incurred for exceeding the allowed usage on your subscription plan, those fees will remain due, even if the plan is upgraded to encompass that higher usage level.

3.3 A finance charge equal to the lesser of: (i.) one and one-half percent (1.5%) per month, but not less than $15 in the aggregate; or (ii.) the maximum amount permitted by applicable law, shall be payable on all past-due balances. Failure to pay any amounts when due may, in Andale's sole discretion, result in your account being suspended or terminated. In additional to all other amounts payable in respect of the Services you will also be responsible for any collection and enforcement costs Andale incurs.

3.4 Any claims for refunds or other adjustments to charges on your account must be submitted in writing. Any claim must be submitted within 60 days of the date such charges are placed on your account. The only exception on the 60-day limit is for Andale Checkout fee credit requests for non-paying bidders. These credit requests are only accepted after having been submitted to the marketplace via the Andale Refund Manager and must be submitted in writing no later than 30 days after the marketplace credit has been approved.

4. User Conduct.

4.1 You agree to comply with all applicable laws, statutes, ordinances and regulations related to use of the Services. You may not use our Services engage in fraud or other illegal activity, or to infringe the intellectual property rights of others. If you would like to review our copyright policy, or believe that one of our users has infringed on your copyrighted materials, please visit our Copyright Policy for further instructions.

4.2 You agree to comply with the terms and conditions of all agreements you have with third parties, including providers of Marketplaces, as such terms and conditions relate to use of the Services including, without limitation, terms and conditions related to types of items that may be sold or restrictions on concurrent sales.

4.3 You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction conducted on the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or limits our ability to provide the Services. You agree that you will not collect, copy, reproduce, alter, modify, create derivative works, or publicly display any content or information (except for Your Materials) from the Site without the prior expressed written permission of ANDALE or the appropriate third party. You agree that you will not use any robot, spider, or other automatic device or routine to access or interface with the Site.

5. Your Materials.

5.1 "Your Materials" is defined as any information, data, text, graphics, photographs, images or other materials you provide (directly or indirectly) to us or other users of the Services. For example, Your Materials include information you submit to Marketplaces that we obtain via the Services (such as, Marketplace email addresses, user ids and passwords). You are solely responsible for Your Materials, and we act as a passive means for your online storage, distribution and publication of Your Materials.

5.2 Your Materials (or any items included therein): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, deceptive practices, or securities transactions); (e) shall not be defamatory, libelous, unlawfully threatening or unlawfully harassing; (f) shall not be obscene, contain child pornography; and (g) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; (h) shall not violate the terms and conditions of any agreements you have with third parties, including providers of Marketplaces, as such terms and conditions relate to your use of the Services; (i) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information.

5.3 You shall only use the space allocated to you in the "Image Library" for storing images used in advertisements placed through the Services.

5.4 By entering into this Agreement and providing Your Materials to ANDALE, you grant ANDALE a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right (including a waiver of any applicable moral rights) to exercise the copyright and publicity rights you have in Your Materials, in any existing or future media now known or not currently known, solely for purposes related to providing the Services ("License"). You represent and warrant that you have the authority to grant the License and that the holder of any intellectual property or other proprietary rights in Your Materials has licensed, assigned or waived such holder's rights to the extent necessary to grant the License.

5.5 Any communications or materials you transmit to ANDALE by electronic mail or otherwise or post in a public area of the Site may be used by us or our affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, we, and our affiliates, are free to use any ideas, concepts, know-how or techniques contained in any such communication for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products using such information.

5.6 By using the Services, you authorize ANDALE to access Third-Party Marketplaces with which you have usage agreements, on your behalf, to retrieve and post information and materials necessary to provide the Services to you, and you hereby appoint ANDALE as your agent for this limited purpose. You hereby permit ANDALE to use such retrieved information and materials to accomplish the foregoing, and to communicate with your customers on your behalf. You hereby acknowledge that our Services may or may not provide all the information and functionality that you could obtain directly from the Marketplaces.

5.7 ANDALE reserves the right to access, monitor, remove, or disable access to any of Your Materials at any time in its sole discretion.

5.8 Andale will archive Your Material based on the following schedule:

  • Archive closed listings older than 180 days
  • Archive closed orders older than 180 days
  • Archive Feedback data older than 120 days
  • Archive seller deleted images, ads and inventory older than 30 days
  • Archive data for users that have cancelled their services 90 days from the cancellation date

6. Andale Stores inclusion in Andale Plaza

6.1 To be included in Andale Plaza, your Andale Store must support only transactions that are completed through Andale Checkout. Linking to a third-party site to complete transactions is not allowed.

6.2 Andale Stores selling materials adult, sexually oriented in nature, or otherwise not appropriate for minors (individuals under 18 years of age) may not be listed in Andale Plaza unless and until ANDALE creates a special category ("Mature Audiences category") expressly for this purpose.

6.3 Violations of this policy may result in a range of actions, including:
  • Andale Store removal from the Andale Plaza
  • Limits on account privileges
  • Account suspension

6.4 Considerations for Removal from the Andale Plaza In considering whether to remove an Andale Store from Andale Plaza, we consider the overall content of the Store, including pictures and text. For example, if any item description leads us to believe the content of the listing is adult in nature as defined by this policy, that Store will be removed. Please note that blocking the "risqué" parts of an image will not exempt the item from these standards. This applies to all forms of media including drawings, paintings, photographs, sculpture and carvings, and comics (both still and animated).

6.5 What will ANDALE treat as "adult" or "sexually oriented" material? "Adult" or "sexually-oriented" material includes, but is not limited to:

  • Any visual representation of human genitals presented in such a manner as to suggest sexual activity.
  • Any visual representation of any form of sexual intercourse involving humans.
  • Any materials which require that individuals be eighteen (18) or older (depending on the jurisdiction) to view or purchase those materials.
  • Any materials clearly designed to sexually arouse the viewer/reader, including adult anime and hentai items.
  • Any items which, because of their nature or because of the item description, appear to be designed for use in sexual/adult activity, including items used for bondage or S & M activities.
  • Any items which depict human sexual characteristics in a degrading fashion.
  • Any item that portrays frontal nudity will normally be treated as "adult" material, with limited exceptions (see "Andale Stores containing nudity outside the Mature Audiences category")
  • Certain adult novelty items. Such items may include various types of toys, collectibles, or food items in the shape of genitalia primarily intended for adult buyers. These are not permitted outside of the Mature Audiences category. Some examples of such items are soaps, certain food items (such as pasta or candy), key chains and vibrators
  • Items with profanity in the title, unless it is part of the item's actual title (such as with some CDs or movie titles)
  • Certain items described with the term "erotic" or that appear to be otherwise designed to arouse the viewer

6.6 Additional restrictions for the Mature Audiences category
Andale Store users are expected to follow all applicable laws relating to the sale of pornographic material. There are two basic categories of pornographic material that are not permitted on Andale Plaza (in any category) as follows.

  • Child pornography. Child pornography is illegal, and the possession or sale of such materials violates the law in many countries, including the United States. To protect our users, recognizing that images of nude children often raise legal concerns, ANDALE has made a policy decision that it will not permit the listing of any item that depicts nude minors (under 18 years of age). Listings of such material, even if described as nude "teens," "children," "youngsters," or "nudist," are not permitted.
  • Obscenity. Obscene materials are not permitted on Andale Plaza, as they violate laws in the United States and many other countries. While obscenity is not easy to define and depends on the standards in your community, ANDALE prohibits items depicting bestiality, rape sex, incest, or sex with graphic violence or degradation.

In addition, Andale Stores with any of the following will not be permitted in Andale Plaza, regardless of category:

  • Offering PayPal as a payment option for items that violate PayPal's Acceptable Use Policy (see their policy for more information)
  • Descriptions depicting penetration or oral sexual acts and graphic portrayals of human genitalia
  • Images portraying graphic sexual activity or graphic portrayals of human genitalia
  • Hidden camera videos and amateur videos containing adult/sexual activity
  • Listing descriptions depicting graphic violence and/or obvious bodily injury
  • Listing descriptions featuring bodily fluids
  • Necrophilia
  • Listing titles which represent any of the above and what is covered under our existing policy
  • Descriptions or titles that describe an item as XX or above
  • Profanity, including but not limited to any extraneous use of profane terms in the title or description when it is not a part of a product title
  • Used underwear - including but not limited to, boxer shorts, panties, briefs, athletic supporters
  • Services that include, as part of the service, any sexual/adult activity
  • Listings that suggest that the item was stolen or somehow created in an inappropriate manner (e.g. listings of nude photos that claim that the images were stolen from a local photo store or taken from a secret camera are not permitted)

All Andale "Materials" rules (see Section 5) still apply within the Mature Audiences category

6.7 International access to Andale Plaza's Mature Audiences category
Andale Plaza is accessible by persons in almost every country in the world. Many countries have laws regulating adult material that are stricter than those in the United States, and the law regulating the sale of such items through the Internet across national borders is not settled. ANDALE is concerned that some items listed in the Mature Audiences area might raise legal issues in some of these countries, and for protection of its users does not allow our international users to access the adult portion of the site.

6.8 Andale Stores containing nudity outside the Mature Audiences category
Nudity in Andale Stores that are listed in Andale Plaza is generally not permitted outside the Mature Audiences category, with the following exceptions:

  • Media - With regard to media, nudity is permitted to the extent it constitutes a small and insignificant part of a catalog, book, periodical, or other work, which is not, as a whole, primarily devoted to sexual matters. Movies with PG, PG-13, R and NC-17 ratings and pre-1980 Playboy, Playgirl and Penthouse magazines are permitted, but no photographs depicting nudity are allowed in these listings. Unrated media/movies must state that they are intended for all audiences and viewable by minors.
  • Artwork: With regard to artwork, nudity is permitted to the extent it is part of a piece of art that may be considered fine art-such as certain paintings, carvings, figurines and other similar materials. Examples include, but are not limited to, Michelangelo's David, certain (but not all) vintage pin-up art, a Renaissance-style painting of a nude female, and paintings like Raphael's, or nude cherubs in the form of human infants. In the photography categories and other art listings that are in fact photography (including certain vintage pin-ups), full frontal nudity is not allowed unless the item is "fine art" (done by a professional and exhibiting characteristics of professional artwork) that is not intended to arouse the viewer and the listing has no reference to sex or eroticism. Andale Stores with items that are in violation of the above guidelines may be moved to the Mature Audiences category or removed from Andale Plaza.
  • Collectibles: With regard to collectible postcards, pin-up photos and animation, topless and suggestive images are permitted only on items created before 1970, where the item description clearly states the approximate year of publication. Andale Stores with items that are posted in violation of the above guidelines may be moved to the Mature Audiences category or removed from Andale Plaza.
  • Other items - With regard to other items, nudity will be allowed to the following extent:
    1. Images with see-through or scantily-clad clothing are permitted provided genitals/areola/nipples are not exposed.
    2. BMX XXX and other similar video games are permitted.
  • In circumstances where nudity is permitted:
    • There must be no more than two photographic images of nudity in the listing
    • There must be no images portraying graphic sexual activity or graphic portrayals of human genitalia

7. ANDALE and Third-Party Intellectual Property.

7.1 Other than Your Materials, all content included or available on the Site, such as advertisements, text, graphics, logos, button icons, images, audio clips and software, is the property of ANDALE and/or third parties and is protected by copyrights, trademarks or other intellectual and proprietary rights. The compilation (meaning the collection, arrangement and assembly) of all content on the Site is the exclusive property of ANDALE and/or its licensors, suppliers and distributors and is protected by copyrights or other intellectual and proprietary rights. All software used on the Site is the property of ANDALE and/or its software suppliers or distributors and is protected by copyrights, patents or other intellectual and proprietary rights.

7.2 Subject to the terms and conditions of this Agreement, ANDALE grants a limited license to you to make personal use of the Site and the Services only for their intended purposes. This license expressly excludes any resale of the Site and the Services, making any derivative of the Site or the Services, the collection and use of other users' email addresses or other materials (for example, advertisements), or any data extraction or data mining whatsoever, except with the express consent of the owner of such materials. You may not repost or otherwise reuse advertisements that you create using the Services other than through the Site.

7.3 ANDALE retains all right, title, and interest in and to its trademarks, service marks and trade names worldwide (collectively, the "Marks"). You shall only use ANDALE's Marks with the express permission of ANDALE and then only in the manner authorized. Under no circumstances may you alter, modify, or change ANDALE's Marks.

8. Suspension and Termination.

Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access to the Site and Services if you breach any of the terms of this Agreement or if you take any actions that, in our sole judgment, may cause legal liability for or claims against you, our users, or us. In the event ANDALE suspends or terminates your access to the Site or Services, you acknowledge that you may be denied any further access to Your Materials.

9. Privacy.

ANDALE is committed to protecting your privacy and we will only use and disclose Your Materials in accordance with our then current Privacy Policy which is incorporated herein by reference.

10. Warranty Disclaimer.

THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ANDALE AND OUR SUPPLIERS OR DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. ANDALE AND OUR SUPPLIERS OR DISTRIBUTORS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WITHOUT LIMITATION:
(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
(B) THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ANDALE OR OUR SUPPLIERS OR DISTRIBUTORS.
Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not fully apply to you. You may also have other legal rights which vary from state to state.

11. General Release.

11.1 BECAUSE ANDALE AND OUR SUPPLIERS OR DISTRIBUTORS ARE NOT INVOLVED IN DEALINGS BETWEEN OUR USERS OR BETWEEN OUR USERS AND MARKETPLACE USERS, IF A DISPUTE ARISES BETWEEN YOU AND ANOTHER PARTY, YOU RELEASE ANDALE (AND ITS AGENTS AND EMPLOYEES, SUPPLIERS AND DISTRIBUTORS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. FURTHER, YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 (OR ANY OTHER SIMILAR STATUTE) WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR A THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

11.2 YOU ACKNOWLEDGE AND AGREE THAT ANDALE IS NOT RESPONSIBLE FOR THE AVAILABILITY OF MARKETPLACES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH MARKETPLACES. YOU AGREE THAT ANDALE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS.

11.3 YOU ACKNOWLEDGE AND AGREE THAT ANDALE DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR INFORMATION PROVIDED BY OTHER USERS WHICH IS MADE AVAILABLE ON THE SITE. YOU MAY FIND OTHER USER'S INFORMATION TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU AGREE THAT ANDALE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH INFORMATION.

12. Limitation of Liability.

UNDER NO CIRCUMSTANCES WILL ANDALE OR OUR SUPPLIERS AND/OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, CONTENT, FILES, PROFIT OR GOODWILL, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. THE AGGREGATE LIABILITY OF ANDALE AND OUR SUPPLIERS OR DISTRIBUTORS UNDER THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000). Some states do not allow the limitation of liability, so the foregoing limitation may not apply to you.

13. Indemnity.

You hereby agree to, at your own expense, indemnity, defend and hold ANDALE and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to the Site; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against ANDALE arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; or (e) your use, or ANDALE's provision, of the Services or use of your account by any third party. ANDALE will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on ANDALE's behalf without the prior written consent of ANDALE.

14. Notices.

ANDALE shall provide notice to you via email to the email address you provide in your registration information. Such notice shall be deemed given 24 hours after it is sent, or earlier if actually received by you earlier. Alternatively, ANDALE may choose to provide notice to you via certified or registered mail to the mailing address you provide in your registration information. In such case, notice shall be deemed given 3 days after the date of mailing. You shall provide notice to ANDALE via email to agree@andale.com, or a copy sent via certified or registered mail to Andale, Inc., Attn: Customer Service, 440 N. Wolfe Road, Sunnyvale, CA 94085.

15. Termination.

Notwithstanding the notice provision above, you may terminate this Agreement at any time by: 1) signing into the account you would like to cancel, 2) clicking the Billing link beneath and to the left of the My Andale tab, 3) then clicking on the Close Account button at the bottom of the page. During this process, you may be asked to contact Andale via telephone during normal business hours to complete the termination and to ensure that the termination process is completed quickly and effectively. If you were registered for any paid services, your last bill from Andale will be for the month in which you have canceled the service. ANDALE, in its sole discretion, may terminate this Agreement or suspend or terminate your access to the Site or the Services immediately without notice for any reason including, without limitation, for your infringement of the intellectual property rights of others. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity and the general provisions.

16. General.

This Agreement is not assignable, transferable or sublicensable by you without ANDALE's prior written consent, and any such conveyance shall be null and void. ANDALE may assign this Agreement in whole or in part. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the California State and U.S. federal courts having within their jurisdiction the location of ANDALE's principal place of business. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree and acknowledge that you are not entering into this agreement in reliance on any statements or representations other than those set forth herein. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement shall control.

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