DIGITAL RIVER, INC. (“DR”) TERMS & CONDITIONS OF SALE (“TERMS OF SALE”)
SCOPE & APPLICATION
THESE TERMS OF SALE APPLY TO ALL PURCHASES YOU MAKE (“PURCHASES”). THROUGH THE DR COMMERCE SOLUTION (THE “DR KIOSK”) FOR THE BLACKBERRY APP WORLD™. THESE CONDITIONS BECOME A BINDING AGREEMENT BETWEEN YOU THE PURCHASER (REFERENCES TO "YOU" OR “YOUR” BEING CONSTRUED ACCORDINGLY), AND US, DR (“WE” “US” OR “OUR” BEING CONSTRUED ACCORDINGLY) IN RELATION TO A SPECIFIC PURCHASE WHEN ACCEPT THESE CONDITIONS PRESENTED TO YOU AT THE TIME OF PURCHASING A PRODUCT THROUGH THE DR KIOSK. PLEASE PRINT OUT A COPY OF THESE CONDITIONS FOR YOUR RECORDS. THESE CONDITIONS MAY ONLY BE ENTERED INTO BY YOU IF YOU ARE OVER THE AGE OF MAJORITY UNDER THE LAWS OF YOUR JURISDICTION. OTHERWISE YOU ARE EXPRESSLY PROHIBITED FROM ENTERING INTO THIS AGREEMENT AND SHOULD HAVE A PARENT OR GUARDIAN ENTER INTO THIS AGREEMENT ON YOUR BEHALF. BY ELECTRONICALLY ACCEPTING THESE CONDITIONS YOU REPRESENT AND WARRANT TO US THAT YOU ARE OVER THE AGE OF MAJORITY UNDER THE LAWS OF YOUR JURISDICTION.
You agree and acknowledge that We will be using third party service providers such as Research In Motion Limited and RIM’s affiliates (collectively “RIM”) and such other third party service providers as we see fit (“Service Provider(s)” ) to provide delivery and ancillary fulfilment services in order to facilitate your Purchases on the DR Kiosk.
OFFER, ACKNOWLEDGMENT AND ACCEPTANCE
An order submitted by You constitutes an offer by You to Us to purchase software and/or other downloadable content (“Products”) available through the DR Kiosk on these Terms of Sale and is subject to our subsequent Acceptance (as defined below). The contract for a particular transaction is concluded at the point where we accept Your offer to purchase any Product the earlier of our accepting Your Payment and our delivering an order confirmation to You, thereby enabling You to download the Product (“Acceptance”).
We may at our sole discretion reject Your order (without liability) if for any reason we are unable to process or fulfil it. If this is the case, no payment will be charged to or deducted from Your authorised payment method, or we will refund any prior payment that You have made for that Product.
We may keep records of documentation relating to all transactions for such period as may be permitted under applicable laws. You should print a copy of all documents related to Your purchases through the DR Kiosk, including without limitation, these Terms of Sale for Your own records. We may, but cannot guarantee, that we will be able to provide You with copies of such documents on Your written request.
YOUR REPRESENTATIONS, RESPONSIBILITIES AND INDEMNIFICATION
You represent that all information provided by You when placing Your order is up-to-date, accurate and complete. You understand and agree that in order to process Your purchase transaction, we will have to obtain from You Your authorized payment method account details and other relevant user details like name, address, device identification and other related information (“Payment Information”), either directly or from Service Providers who are providing delivery and ancillary fulfilment services to DR for the DR Kiosk, and/or from PayPal (if applicable). You further understand and agree that we may also need to disclose Your Payment Information to our Service Providers in order to process Your Purchase(s), and You shall maintain accurate information in such accounts to facilitate the Purchase(s).
You are responsible for maintaining and promptly updating Your account information with Us for accuracy and completeness.
You are responsible for ensuring that any passwords given to You for the purposes of accessing or using the BlackBerry App World ™, DR Kiosk, and/or for making payments for Products remain secure. You are responsible for all activities that occur on or through Your account.
The Products made available through the DR Kiosk are intended for individuals with the necessary capacity and ability to legally consent to the provision of required information and to enter into a contract. You agree to be financially responsible for all of Your use of this DR Kiosk (as well as for use of Your account or log in information by others including without limitation, minors living with You). You agree to supervise all usage by minors of this DR Kiosk under Your name or account.
You agree and represent that You are purchasing the Products for Your own personal use only and not for resale or sub-licensing to any third party.
You shall indemnify Us and our Service Providers against any and all liabilities, claims and costs incurred by or made against Us as a direct or indirect result of Your violation of any terms of these Terms of Sale.
PRICE AND TERMS OF PAYMENT
Prices payable for Products are those in effect as displayed in the BlackBerry App World ™ at the time of Acceptance, unless otherwise expressly agreed.
We reserve the right in our sole discretion to make any updates, modifications and adjustments to the DR Kiosk without prior notice including without limitation to change the available Products, Product descriptions and prices, provided that such changes will only apply to orders that have not been Accepted at the time of the change. If You choose to proceed with Your order, You acknowledge that the Product will be provided in accordance with such modified or changed description or corrected price. Notwithstanding that a Product is displayed on the BlackBerry App World™, it may not be available through the DR Kiosk in all jurisdictions.
All prices are subject to applicable tax depending on Your country of residence or location. You agree that we may obtain information about Your country of residence or location directly or indirectly (including but not limited to such means as PayPal account address information (if applicable), credit card billing address, airtime Service Provider information, and/or device identifier information obtained from our Service Provider(s)) (“Location Information”), and that You will pay any applicable taxes as specified on the BlackBerry App World™ at the time of purchase.
You acknowledge and agree that the BlackBerry App World™ will be hosted by a Service Provider who may obtain Payment Information and/or Location Information about You in order to provide delivery and ancillary fulfilment services for the DR Kiosk thereby facilitating the purchases. You understand that some or all Products may not be available for purchase to persons or entities residing in or located in certain jurisdictions or geographical areas. We reserve the right, in our sole discretion to exclude or otherwise limit the provision of any Product to a person or entity residing in any jurisdiction or geographical area, and to use technologies to identify Your jurisdiction or geographic area in order to facilitate such exclusions or limitations.
We will charge Your authorized payment methods upon or following Acceptance. We reserve the right to verify Your Payment Information and take other steps to validate Your identification or detect and protect against fraud or theft.
DELIVERY AND RISK
Delivery of Products will be by way of enabling You to download each Product directly onto Your BlackBerry Software.
Products will be enabled for download one at a time and each Product download shall constitute a separate contract between You and DR and any defect or deficiency in any one Product shall not entitle You to cancel the remaining Product downloads You have purchased.
Except as otherwise provided in these Terms of Sale, risk of loss of or damage to the Products passes to You on download.
DR Returns Policy for BlackBerry App World ™ (“Returns Policy”)
Subject to any warranty offered by a Product’s supplier (“Vendor”), available return policies or as required by law, all sales of products by DR in the BlackBerry App World™ are considered final, subject to the following:
(a) If DR does not make the Product available for download by You within a reasonable period of time after completion of the purchase, BlackBerry App World ™ customer service will, in it’s sole discretion, either replace Your order (by providing the Product in a manner that allows You to download the product) or arrange for Your purchase price to be refunded.
(b) If, within 90 days of Your purchase, DR or its Service Providers disable the operation of the Product on Your BlackBerry Software (other than for breach of an applicable agreement by You) and do not make available within a reasonable period a replacement to such Product, BlackBerry App World™ customer service will arrange for Your purchase price to be refunded.
(c) If DR is required by the laws applicable in Your jurisdiction to offer additional refund or warranty rights, DR will provide such remedies as required pursuant to such laws and, where permitted, DR may elect to provide one or more alternative remedies (such as refund, credit, re-performance of Services, or re-provision of Products or alternative Products).
If You feel Your authorized mode of payment has been incorrectly debited, You must notify BlackBerry App World™ customer service, within 30 days of Your Purchase, at BlackBerry.com/AppWorld/support.
Returns pursuant to this Returns Policy are managed by BlackBerry App World™ customer service and DR’s Service Providers.
This Returns Policy does not apply in respect of any concerns or issues regarding the operation or performance of Products themselves or rights or remedies pursuant to Vendor Licence Terms or other contracts with software publishers, product manufactures, or other third parties.
PRODUCT LICENSE TERMS
Copies of Products are sold to You along with the right to use the Product subject to, and in accordance with the terms of any end user license agreements or other license terms and conditions included with the Product (“Vendor License Terms”). In addition:
These Terms of Sale give You no right to obtain any source code for a Product and, except to the extent that We are expressly precluded by law from prohibiting these activities, or to the extent that the Vendor License Terms expressly permit these activities, You agree that You will not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble or Reverse Engineer the Product, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. For the purposes of this Agreement, “Reverse Engineer” includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, or “black box” reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
Notwithstanding any term or condition in the Vendor License Terms, (a) You may only download, install and/or use the Products on a BlackBerry Software platform operating on a wireless handheld; (b)in no event shall the Vendor License Terms be binding on, or impose any additional obligations on, DR or its Service Providers; and (c) The Product may not be downloaded, installed and/or used outside of the territory authorized by the applicable Vendor License Terms or as otherwise designated by the Vendor. Our Service Providers, their Affiliates and their respective directors, officers and employees thereof are intended third party beneficiaries for the purpose of this Section 7.1.2.
In the event of any conflict between the Vendor License Terms and the License Terms set out in Section 7.1 above, this Section 7 shall prevail but only to the extent of such conflict.
DR KIOSK SUPPORT, AND VENDOR WARRANTIES AND PRODUCT SUPPORT
DR, or a DR Service Provider, shall provide delivery and ancillary fulfilment services for the DR Kiosk and shall provide front line support for any problems You may encounter in relation to these activities. You may go to the URL specified on BlackBerry App World™ for such support from time to time.
You will have the benefit of the Vendor’s warranty (if any) with the Products supplied. Warranties will vary between Vendors and even between jurisdictions for a particular Vendor. You should refer to the relevant documentation or Vendor License Terms supplied with the Products to find out what support a Vendor is offering on any particular Product and Your rights in relation to support and warranties. Unless agreed otherwise or required by applicable law, any warranties provided in relation to Products only extend to You on the understanding that You are a user and not a reseller of those Products.
DR and its Service Providers do not have any technical expertise on the Products. Except to the extent expressly required by law or Our return policy (if any) for the specific Products, DR and its Service Providers have no obligation to provide any operational or technical support in relation to the Products. Subject to the foregoing and the DR Returns Policy, DR and its Service Providers are not obligated to accept return of, or provide a refund for, any Products for any reason.
All Products specifications, illustrations, drawings, particulars, dimensions, performance data and any other information available through the BlackBerry App World™ or DR Kiosk in relation to any one Product are intended to represent no more than a general description of the Products that are provided and do not constitute a warranty or representation by Us that the Products will conform with the same. You must refer to the Vendor specifications and or warranty documentation provided with each Product to determine Your rights and remedies in relation to the functionality, features, performance or non-performance of each Product. Except to the extent expressly provided by Us in writing, Products are provided hereunder ‘as is’ and “AS AVAILABLE” AND ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. THE PARTIES ALSO AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (“UCITA”) AS ENACTED IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW UCITA IS HEREBY EXCLUDED IN ITS ENTIRETY FROM APPLICATION TO THIS AGREEMENT. The limited warranties set out in the Vendor License Terms (if any) for a Product give You specific legal rights. You may also have other rights that vary by state, province, or country. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the Product to the extent they cannot be excluded as set out above, but can be limited, are hereby limited to ninety (90) days from the date You first installed all or any portion of a Product on BlackBerry Software.
LIABILITY LIMITATION AND DISCLAIMER.
TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL IN THEIR ESSENTIAL PURPOSE: (1) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE PURCHASE PRICE YOU PAID US FOR THE PRODUCT(S) ACQUIRED HEREUNDER AND THAT ARE MOST CLOSELY RELATED TO YOUR DAMAGES; AND (2) WE SHALL NOT BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, LOST SAVINGS OR ANTICIPATED SAVINGS LOST REVENUE., DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH YOUR BLACKBERRY SOLUTION, DOWNTIME COSTS, LOSS OF THE USE OF YOUR BLACKBERRY SOLUTION OR ANY PORTION THEREOF OR OF ANY AIRTIME SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY SERVICES OR THIRD PARTY CONTENT, OR ANY THIRD PARTY PRODUCTS, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR BLACKBERRY SOLUTION INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OF YOUR BLACKBERRY SOLUTION, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF WE, OR OUR SERVICE PROVIDER(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE PRODUCTS ARE INTENDED TO OPERATE ON WIRELESS HANDHELD PRODUCTS OVER WIRELESS NETWORKS WHICH BY THEIR NATURE ARE NOT FAILSAFE. UNLESS THE VENDOR EXPRESSLY INDICATES OTHERWISE IN ITS LICENSE TERMS, THE PRODUCTS ARE NOT SUITABLE FOR USE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. YOU REPRESENT AND WARRANT THAT YOU WILL MAINTAIN ADEQUATE DATA RECOVERY AND BACK-UP SYSTEMS, AND IN THE EVENT OF: (1) USE OR SERVICE INTERRUPTION; OR (2) DIFFICULTIES OR ERRORS IN DATA TRANSMISSION.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY TO YOU IN THE EVENT OF THE PRODUCTS INFRINGING OR BEING ALLEGED TO INFRINGE THE PROPRIETARY RIGHTS OF ANY THIRD PARTY. IF THE PRODUCTS ARE OR MAY BE THE SUBJECT OF PATENT, COPYRIGHT, DATABASE RIGHT, REGISTERED DESIGN, TRADE MARK OR OTHER RIGHTS OF ANY THIRD PARTY, YOU SHOULD REFER TO THE RELEVANT TERMS OF THE PRODUCT VENDOR. FOR THE AVOIDANCE OF DOUBT, SHOULD THERE BE A CONFLICT WITH ANY PROVISION ELSEWHERE IN THIS AGREEMENT, WE ARE ONLY OBLIGED TO TRANSFER TO YOU SUCH RIGHTS OR TITLE IN THE PRODUCTS YOU PURCHASE HEREUNDER AS WE MAY HAVE BEEN GIVEN BY THE VENDOR.
OUR SERVICE PROVIDERS AND THEIR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES THEREOF ARE INTENDED THIRD PARTY BENEFICIARIES FOR THE PURPOSE OF THIS SECTION 8 ENTITLED, “LIMITATION OF LIABILITY AND DISCLAIMER”. EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS SECTION, THE PROVISIONS HEREIN ARE FOR THE BENEFIT OF THE PARTIES AND NOT FOR ANY OTHER PERSON OR ENTITY.
THESE CONDITIONS STATE YOUR SOLE AND EXCLUSIVE REMEDIES AGAINST US.
CONSENTS, CUSTOMS DUTIES & EXPORT
You shall obtain at Your own expense any licence or consent of any government or other authority that is required for the acquisition or use of the Products by You and if necessary produce evidence to Us of such on demand. Failure to do so shall not entitle You to withhold or delay payment for the Product. Any additional expenses or charges incurred by Us resulting from Your failure to comply with this Section shall be paid by You. Products sold to You under these Terms of Sale may be subject to export, import, and use control laws and regulations in the Territory or other relevant jurisdiction where You take delivery, export the Products from, import the Products into, or use the Products in. You are responsible for complying with those laws and regulations and represent and warrant that You will not do anything to breach them. You acknowledge that You are not located in: (i) any country on Canada’s Area Control List; (ii) any country subject to UN Security Council embargo or action; or (iii) any country listed in Country Group E, Supplement No. 1 to Part 740 of the United States Export Administration Regulations and that You are not prohibited from receiving United States exports or United States-origin items. You hereby represent that: (1) to the best of Your knowledge, You are eligible to receive the commodities, software and technical data under applicable law and regulations; (2) You will not use the commodities, software and technical data in the development, production, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or their missile delivery systems, or of materials or equipment that could be used in such weapons or their missile delivery systems, or resell or export to anyone or any entity involved in such activity. You additionally agree that You shall fully indemnify Us and any of our Service Providers for Your failure to comply with this Section.
You may be subject to customs charges, import duties and taxes, levied when the Products reach Your specified destination. Any such additional charges for customs clearance or import duties or taxes must be paid by You. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.
Any notice, request, demand or other communications required or permitted in relation to these Terms of Sale shall be sufficiently given only if given in writing and only if delivered by hand or sent by registered mail (or its equivalent), courier email or facsimile addressed to the latest address and contact details as provided by each party under these Terms of Sale. This will also be the address for service of legal proceedings in the manner prescribed by law. Such notices, requests, demands or other communications (where properly addressed) shall be deemed delivered: (i) upon the date of receipt if delivered by hand, registered mail (or its equivalent) or courier or (ii) on the date of confirmation of receipt by answer-back from the party to whom the notice, request, demand or other communication was given in the case of email or facsimile.
PERSONAL INFORMATION AND YOUR PRIVACY
We will observe applicable data protection laws and will not use any personal information about You collected through the DR Kiosk or in conjunction with Your Purchases that does or can be used to personally identify You (which may include, without limitation, Payment Information, Location Information, email address, telephone number, BlackBerry Software and Product information, wireless handheld identification, airtime Service Provider information, information about the use of the Product in conjunction with BlackBerry Software (“Personal Data”)) other than as required to: take, process or deliver Your order, process or obtain payment, or notify You of the status of Your order; facilitate the renewal of subscriptions for products (if applicable); improve the DR Kiosk; enforce licensing restrictions; remit applicable taxes; notify You of the status of Your Purchases; permit access to websites, keys, access codes or other information, facilitate the provision of the Products, or associated upgrades; security, credit or fraud prevention purposes; register or communicate Your Purchases with any Service Providers who are involved in processing or delivery or ancillary fulfilment services for the Purchases; provide You with effective customer service; or for any purpose related to the billing, activation, provision, maintenance, upgrade, deactivation and/or Your use of the Products in conjunction with BlackBerry Software; and to comply with legal and regulatory requirements or as permitted by law (collectively the “Purposes”). By submitting Your Personal Data and Payment Information in relation to Your Purchases, You consent to such Personal Data and Payment Information being: (a) collected; (b) used; (c) processed; (d) transmitted; and/or (e) disclosed; to, or by, Us, Our Service Providers, or Vendors for the Purposes in accordance with these Conditions. In addition, with Your consent, You may also be contacted by Us or by our Service Provider(s), regarding BlackBerry App World™, special offers, pricing information, newsletters and other promotional activities relating to BlackBerry App World ™.
We reserve the right to take steps we believe are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Sale, including to facilitate remittance of applicable taxes to governmental bodies or fees to Vendors whose Products You have purchased (including but not limited to our right to cooperate with any legal process relating to Your use of the Products and/or a third party claim that Your use of the Products is unlawful and/or infringes that third party's rights). You agree that we have the right, without liability to You, to disclose any Personal Data to tax or law enforcement authorities, government officials, and/or a third party, as we believe is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Sale (including but not limited to our right to cooperate with any legal process relating to Your use of the Products, and/or a third party claim that Your use of the Products is unlawful and/or infringes such third party's rights).
You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over Your rights under these Terms of Sale. Any purported assignment shall be null and void.
We shall not be liable to You nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of Us being prevented, hindered or delayed in the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, terror, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labour disturbance, breakdown of plant or machinery, interruption in the supply of power, Internet communications, or materials and in such event we may elect to cancel Your order and refund any payments made.
You acknowledge that these Terms of Sale shall supersede all previous contracts, agreements and working arrangements whether oral or written, express or implied, between US. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. To the fullest extent permitted under applicable law, we reserve the right to modify these Terms of Sale and You understand and acknowledge that You are required to read the Terms of Sale for each new Product purchase, as these Terms may have changed since Your last Purchase.
No forbearance, delay or indulgence by either You or Us in enforcing any of these Terms of Sale or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
No waiver of any term or condition of these Terms of Sale shall be effective unless made in writing and signed by Us. The waiver of any breach of any Condition shall not be construed as a waiver of any subsequent breach or condition.
If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms of Sale to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
These Terms of Sale will not be affected in other jurisdictions to the extent that such determination or finding has no application; and
In the relevant jurisdiction, the remainder of these Terms of Sale (to the fullest extent permitted by law) will continue in full force and effect.
These Terms of Sale shall be governed by, and construed in accordance with the laws of Minnesota. Each Party hereto consents to the jurisdiction of the courts of the State of Minnesota and irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. The language of any dispute resolution procedure or any proceedings shall be English.