Effective May 26, 2022
1. Terms and Conditions. These terms and conditions (these "Terms") shall apply to all orders and purchases of any products (“Products”) and related services (“Services”) through <https://criticalfunctions.com/> (the "Site") by any user of the Site (referred to herein as either “You”, or “Your”).These Terms are subject to change at any time without prior written notice by CriticalFunctions, LLC, a Maryland limited liability company (referred to herein as either "Company," "We," "Us,"or "Our"). These Terms constitute the entire agreement betweenYou and the Company and no proposal, purchase order, work order, terms, conditions or other document provided by You will add to, modify or amend theseTerms, unless the Company expressly agrees to such addition, modification or amendment in a document signed by the Company. Your use of the Site shall constitute Your acceptance of and agreement to any changes therein made.
2. Delivery of Services and Products. By placing an order on Our Site, You are effectively offering to purchase whatever Products and Services You select.We reserve the right to accept or reject any order in Our own discretion. We will only accept or reject an order in its entirety. You will receive a confirming email at the email address that You provide at such time. Either party may terminate these Terms subject to section 15 hereof.
3. Payment Terms. All applicable prices are set forth alongside the Products and Services offered on the Site. Purchases are not refundable except in our discretion asset forth in section 15.4. Such prices are subject to change at any time by Us in Our sole discretion. You are responsible for the prices stated at the time of Your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or use of abona-fide electronic payment provider (i.e., Stripe) and are payable in currency of the United States of America only. By Using any such card or payment provider, You are hereby representing and warranting Your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
4. Compliance with Laws and Client Responsibilities.
4.1 Compliance with Laws. You will at all times comply with all applicable federal, state and local statutes, laws, regulations, ordinances, rules, orders and requirements in effect from time to time that apply to the delivery of any Products andServices by Us. You will secure and pay for all permits, licenses, fees and inspections required by governmental and quasi-governmental agencies and authorities necessary for the proper delivery of any Products and Services by Us.
4.2 Client Responsibilities. You agree to make timely decisions and to timely provide Us with data, complete answers, relevant documents and interviews with your agents, employees, and/or subcontractors as requested by Us (the “Information”). You acknowledge that failure to provide timely Information may result inUs not being able to provide the Products and Services to You in a timely manner or at all. You agree, acknowledge and understand that We can only provide You with the Products and Services to the extent that You provide Us with the Information and that the Products andServices will be inherently limited by the quality and quantity of theInformation You provide to Us.
6. Intellectual Property License/Ownership. You acknowledge and agree that all uses on the Site and in these Terms of the words"sell," "buy," "sale,""resale," "purchase," and the like refer to the purchase or sale of a license only. As such, all Products and Services provided hereunder are offered solely for license, and not actually for sale toYou or any third party. Your use, therefore, shall be subject at all times to the terms of the license agreement applicable to any such Products or Services(including without limitation those terms that pertain to use restrictions, confidentiality obligations, copying, distribution, sublicensing, reverse engineering, and modifications). Additionally,You understand and acknowledge that we, along with any respective third party licensor(s), will remain the sole and exclusive owners of all intellectual property rights incorporated in any such Products or Services (and any related documentation, instructions, or other materials provided therewith), subject toYour limited license to exploit the Products or Services pursuant to the terms hereof and the applicable license agreement(s). For clarification, You will not acquire ownership rights in and to the intellectual property rights incorporated in any purchased Products or Services.
7. Representations & Warranties You represent and warrant to Us as follows: (i) that You have the right to enter any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that You will use the Products and Services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind or these Terms; (iii) that You are buying Products or Services from the Site for solely Your own use, and not for resale or export; (iv) that You will not use the Products or Services to obtain credit, insurance, or any other financial product, or for any financial transaction including but not limited to: any offer or bid to enter into a merger or acquisition, any form of a business combination or joint venture, or any sale of all or substantially all of Your assets; (v) thatYou will not allow any third party to rely upon the Products or Services in any manner or for any purpose; (vi), that You will not sell, gift, license, or transfer any of the Products or Services to any third party; (vii) that You will not use the Products or Services to acquire any license, certification, status or other qualification from any type of accrediting entity including but not limited to any private or governmental agency, association, trade organization, department, division or office; and (viii) that the Information You provide to Us does not contain any untrue statement of material fact or omits a statement of material fact which would make the statements therein misleading.
8. Company's Limited Warranty. We represent and warrant to You that fora period of one (1) year after the purchase of a Product or Service (i) that any of the Products or Services purchased by You on the Site, when used specifically as authorized by Us and without modification thereto, will conform in all material respects to the specifications set forth on the Site; and (ii)that the Products shall be made and the and the Services shall be performed in a workmanlike manner. Notwithstanding the foregoing, this warranty shall not apply when the Products orServices are subject to: negligence, misconduct, misuse, abuse, accident, alteration, repair by anyone other than Us (or one of Our authorized representatives),use by or reliance on the Products or Services by any third party in any manner whatsoever, use with any third party product or service (other than as specifically authorized in advance by Us), or use in violation of any provided-for instructions (including without limitation any license agreement).Notwithstanding the foregoing, any products manufactured by a third party and incorporated in any Products or Services provided hereunder are not covered by this limited warranty. Notwithstanding anything set forth herein to the contrary, Your sole remedy with respect to an alleged breach by Us of Our warranties to You shall be to inform Us, in writing, of Your desire to exercise this limited warranty, along with a sufficiently detailed explanation of Your reason(s), so that We may credit or refund Your purchase price subject toSection 15.4. We reserve the right to verify any such claim pursuant to Our customary procedures in connection therewith. This warranty period is not extended if We have to repair or replace a warranted product or re-perform a warranted service.This limited warranty extends only to You as the original purchaser of Our products and services from Our Site (i.e., and not to any subsequent owner or beneficiary of any Products or Services received hereunder). We shall not be responsible for any untrue statement of material fact or omission of a material fact which would make the statements made therein by You, Your agents, employees and/or subcontractors misleading.
9. Limitation on Warranties. Subject to applicable law and these terms, We make no express or implied warranty whatsoever with respect to the Products or Services purchased through the Site, including without limitation any: (i) warranty of merchantability; (ii) warranty of fitness for a particular purpose; (iii)warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, Usage or trade, or otherwise.
ANY AFFIRMATION OF FACT OR PROMISE MADE BY COMPANY SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE SERVICE OR PRODUCT SHALL CONFORM TO THE AFFIRMATION OR PROMISE. ANY DESCRIPTION OF THE PRODUCTS or services WHICH CONTAINS AN AFFIRMATION OF FACT OR PROMISE IS FORTHE SOLE PURPOSE OF IDENTIFYING THEM AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE PRODUCTS or services SHALL CONFORM TO THE DESCRIPTION. ANY SAMPLE OR MODEL IS FOR ILLUSTRATIVE PURPOSES ONLY AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE WHOLE OF THE PRODUCTS SHALL CONFORM TO THE SAMPLE OR MODEL,AND NO AFFIRMATION OR PROMISE, OR DESCRIPTION, OR SAMPLE OR MODEL SHALL BE DEEMED PART OF THE BASIS OF THE BARGAIN.
10. Sole and Exclusive Remedies/Liability Cap. COMPANY shall not be liable to YOU whether as a result of breach of contract, indemnity, warranty, tort (including COMPANY’s negligence), strict liability, breach of thESE TERMS, or otherwise, for any loss or damage arising out of, or resulting from these terms, or from company’s performance or breach, or from the products or services furnished hereunder. any such liability shall terminate upon the expiration of the warranty specified in section 9 entitled “limitations on Warranties”.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF DATA, BUSINESS, GOODWILL,REPUTATION, REVENUE, PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL,INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. No Third Party Beneficiaries. TheseTerms are for Your sole benefit and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
12. Indemnification. You agree to indemnify, defend and hold harmless Us and Our affiliates, directors, officers, agents, employees and successors, from and against any and all claims, suits, demands, actions, liabilities, losses, damages, investigations, costs and expenses (including reasonable attorneys’ fees and experts’ fees as), in connection with or arising in whole or in part from (i) any negligent or deliberate act, error or omission by You, Your agents, employees and/or subcontractors; (ii) any failure by You, Your agents, employees and/or subcontractors, to comply with any statute, law, regulation, ordinance, rule, order, or requirement of federal, state, county and municipal authorities; and (iii) any and all actions or proceedings charging infringement of any patent, copyright or other intellectual property right of any third party by reason of sale or use of any Products or Services furnished under the Agreement; (iv) any untrue statement of material fact or omission of a material fact by You,Your agents, employees and/or subcontractors; and (v) any breach of theseTerms by You.
13. Remedies. The specific remedies provided for in these Terms are neither exclusive nor mutually exclusive and the parties will be entitled to resort to any such remedies, or any other remedy available to them at law or in equity, or some or all in any combination. Resort to one form of remedy will not constitute a waiver of alternative remedies. No delay or failure to exercise any right or remedy will operate as a waiver thereof, except where specifically provided herein to the contrary. No termination of these Terms by either party by reason of a breach of these Terms by the other party will be deemed to be a release of the liability of such party with respect to such breach or otherwise. No waiver by any party of any rights under the Agreement will be effective unless expressly agreed to in writing by such party.
14. Force Majeure. Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under these Terms, except for Your obligation to pay for Products or Services rendered by Company, when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, roof leakage, rain, flooding, seizure under legal process, embargo, prohibition of import or export of goods, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease(including the COVID-19 virus or similar variants thereof), or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the affected party. Either party hereto will give notice promptly within seven (7) calendar days of the nature and extent of any cause of delay described in this Section. Failure to do so will constitute a waiver of any claim under this Section.
15. Termination of these Terms.
15.1. Termination by Either Party Without Cause. We reserve the right to terminate these Terms, for Our convenience and without cause, at any time by giving written notice to You at Your email address provided to us when You purchasedOur Products and Services (“Notice Email Address”) and any termination will be effective immediately when We send to You the written notice of termination(“Termination”). Notwithstanding any email received by You, We reserve the right to cancel any order once accepted by Us (as evidenced by a confirming email) and terminate Our services to You in Our sole discretion. You can cancel these Terms by sending Us written notice to firstname.lastname@example.org termination will be effective when We send You an email to Your Notice Email Address acknowledging yourTermination. If you terminate, We reserve the right to charge You a service fee of One Hundred Dollars ($100) in addition to the amounts set forth in section 15.4 hereof.
15.2. Termination by Either Party for Breach. If either party (the “Breaching Party”) materially breaches any of its obligations under these Terms and such breach is not cured within fifteen (15) days after prior written notice from the other party (the “Injured Party”), the InjuredParty will have the right to terminate these Terms immediately. The Injured Party will have all rights to recover damages from the Breaching Party, as limited by these Terms, due to such breach, and such rights will survive any termination of these Terms.
15.3. Discontinuation of Services. In the event of any Termination, We will immediately discontinue all Products or Services affected by such Termination and transfer all Services and Products in progress, provided that, upon Your written request, We will complete any uncompleted Services and Products that are in process.
15.4. Payment Upon Termination. Purchases are not refundable except that We may refund to You a prorated amount of the purchase price that reflects the balance of theProducts or Services undelivered or unperformed at the time of Termination. The determination of the amount of any such refund shall be in Our sole and absolute discretion. We will not in any event, however, be liable for any losses, including but not limited to, loss or interruption of business, loss of potential future profits, or for any consequential, indirect, special, punitive or incidental damages, as a result of termination of theseTerms.
16. Relationship of the Parties. The parties agree and acknowledge that the relationship between the parties is solely that of an independent contractor. Neither party is the other party’s employee, agent, partner or co-venturer. Neither You nor any of Your employees, subcontractors or agents shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Company or any entity affiliated with Company. You are solely responsible for complying with all obligations under federal and state law pertaining to its employees, including, without limitation, federal and state withholding, workers’ compensation and unemployment compensation insurance for Your employees and subcontractors.
17. Assignment and Binding Effect. These Terms are personal to You, and You will not assign, delegate or subcontract its rights, duties or obligations under these Terms without Our prior written consent, which consent may be withheld in Our sole, absolute and subjective discretion. We have the right to assign Our rights and obligations under these Terms without Your consent. TheseTerms will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.
18. Governing Law/Jurisdiction. These Terms shall be governed by and construed and enforced in accordance with the laws of the State ofMaryland. Any action, suit, or proceeding arising out of, connected with, or pertaining to these Terms shall be submitted exclusively to the state courts inHoward County, Maryland or, if diversity of jurisdiction exists, to the United States District Court for the District of Maryland, Baltimore Division, and all parties hereto hereby consent to the jurisdiction of such courts and irrevocably waive any objection as to personal jurisdiction, venue, or inconvenient forum. If either party institutes any action or proceeding against the other arising from or relating to the provisions of these Terms, the substantially prevailing party in the action or proceeding is entitled to recover all reasonable costs and attorneys’ fees from the substantially unsuccessful party.
19. Construction. The enumeration and headings of the sections of these Terms are merely for convenience of reference and do not constitute representations or warranties, do not impose any obligations, and have no substantive significance. Unless the context otherwise requires, whenever used in these Terms, the singular will include the plural, the plural will include the singular, and the masculine gender will include the neuter or feminine gender and vice versa. These Terms will be construed without the aid of any canon, custom or rule of law requiring construction against the draftsman and will be construed reasonably to carry out its intent without presumption against or in favor of any party to these Terms. Any reference in these Terms to a “person”means any individual, a partnership, a joint venture, a corporation, a limited liability company, an association, a trust, a group or any other entity or organization, including a government or any department or agency thereof.
20. Partial Validity. If any provision of these Terms is for any reason held invalid or unenforceable by any court of competent jurisdiction, governmental agency or arbiter, such invalidity or unenforceability will not affect any other provision hereof. Any provision of these Terms that is declared invalid or unenforceable in any application will remain in full force and effect as to valid applications, and the offending provision will be deemed to be modified to the minimum extent necessary to make such provision valid and enforceable.
21. Due Authorization. Each party that is a corporation, limited liability company, partnership or other legal entity (the “Representing Party”)represents and warrants to the other party that: (i) the Representing Party is an entity duly formed, validly existing and in good standing under the laws of the jurisdiction in which the RepresentingParty is formed or organized; (ii) the execution, delivery and performance of these Terms are within the power of the RepresentingParty and have been duly authorized by all necessary action of such party;(iii) these Terms are, when accepted by the Representing Party, the valid and binding obligation of the Representing Party enforceable against it in accordance with the terms hereof; and (iv) no consent, approval, authorization, order, filing or registration is required to be obtained by the Representing Party with regard to the execution or performance of these Terms.
22. Notices. Any notice, demand or other communication to be given hereunder to you shall be given by electronic email to the addresses You provided upon purchase of the Products or Services. Any notice to the Company shall be in writing and given by (i) hand delivery, (ii) express overnight delivery service, or (iii) certified or registered mail, return receipt requested, and shall be deemed to have been delivered upon (a) receipt, if sent by electronic mail or if hand delivered, (b) the next business day, if delivered by express overnight delivery service, or (d) the third business day following the day of deposit of such notice with the United StatesPostal Service, if sent by certified or registered mail, return receipt requested. Notices to the Company shall be provided to the following addresses:
Critical Functions, LLC
PO Box 2685
Ellicott City, MD 21041
Attn: Ryan Miller
23. Survival. The termination of these Terms will not terminate the rights and obligations of either party that have accrued on or before the date of termination, or the rights and remedies of either party arising from the breach of these Terms by the other party prior to the date of termination, or any other obligations, duties, rights or remedies hereunder which, by the terms hereof, are intended to survive termination. Without limiting the foregoing, the provisions set forth in Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 20 of these Terms will survive any termination of these Terms and acceptance by You of and payment for all Services and Products contemplated in these Terms.