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How to Sell a Business

90%

Up to 90% of the business owner's net worth is tied up in the business

75%

For lack of planning approximately 75% of businesses never sell

66

There are 66 potential obstacles to the successful sale of a business.

TERMS OF USE

September 28, 2012

PLEASE READ THESE TERMS OF USE BEFORE ACCESSING OR USING THE HPSB WEBSITE, THE HPSB NEWSLETTER, AND/OR ANY HPSB PRODUCTS AND SERVICES.

The How to Plan and Sell a Business website (www.howtoplanandsellabusiness.com) (the “HPSB Website”) is owned and managed by Biz Owner Communications, LLC (“BOC”). BOC exists to provide sponsored information, content, products, services and other materials, including the “How to Sell A Business Newsletter” (the “HPSB Newsletter"), to business owners on topics relevant to the sale of a business.   

BOC provides the HPSB Website, the HPSB Newsletter, and other information, content, products, services and materials available at or through the HPSB Website (collectively the “HPSB Products and Services”), for your personal non-commercial use only and subject to your compliance with this Terms of Use Agreement (this “Agreement”).  Please read this Agreement carefully before accessing or using the HPSB Website, the HPSB Newsletter, and/or any of the HPSB Products and Services.  Your access and use of the HPSB Website, the HPSB Newsletter, and/or of any HPSB Products and Services constitutes your acceptance to be bound by the terms and conditions of this Agreement without limitation, qualification or change by you.  If at any time you do not accept all the terms and conditions of this Agreement, which may be modified by BOC at any time in its discretion and without direct notice, you must immediately discontinue use of the HPSB Website, the HPSB Newsletter, and the HPSB Products and Services.  

In this Agreement, “we”, “us” or “our” refer to BOC, and “you” or “your” refer to each visitor, user, customer or subscriber of the HPSB Website, the HPSB Newsletter and/or the HPSB Products and Services.    

   

1.    Access to the HPSB Website is Free

Because the HPSB Website is independently sponsored, access to and use of the HPSB Website, the HPSB Newsletter, and the HPSB Products and Services are available without charge. However, in order to have full access to all features and content at the HPSB Website, you must become and remain an email subscriber to the HPSB Newsletter.  There is no charge for this email subscription.  Even if you elect not to become an email subscriber to our HPSB Newsletter, you will still have access to limited or truncated content at the HPSB Website concerning general topics of interest to business owners.   

          

2.   Subscribing to the HPSB Newsletter is Free

Because the HPSB Newsletter is independently sponsored, there is no charge for your email subscription to the HPSB Newsletter.

To subscribe to the HPSB Newsletter, you must provide your email address along with other requested information on our electronic subscription form (click here to access a subscription form).  When we receive your completed subscription form, we will send confirmation to the email address you provided and you can then confirm your subscription to the HPSB Newsletter by clicking on the prompts in that email. We will then send you an account password which will only be needed to allow you to change or update your email address and other HPSB account information.  If you forget your HPSB account password, clicking on the applicable link, Manage Subscription, at the bottom of each HPSB Website web page will enable us to send a new password to your email address on file with us.

It is very important that the email address we have on file for you be kept up-to-date at all times and that all other information you provide in connection with your subscription is current, complete and accurate.  It is your responsibility to maintain the currency, completeness, and accuracy of your subscription data and any loss caused by your failure to do so is your responsibility. Without your current email address on file, BOC can’t send you the HPSB Newsletter and other timely and important information about your HPSB account.  If you fail to maintain a current viable email address, or if you submit and/or maintain information that is out of date, incomplete or inaccurate, we may reject or cancel your email subscription to the HPSB Newsletter and terminate your access to and use of subscriber-only content available at the HPSB Website. 

 

3.   Privacy Policy

BOC has developed a Privacy Policy in order to inform you of its practices with respect to the collection, use, disclosure and protection of personal information. You can find the Privacy Policy, which is incorporated into this Agreement, by clicking here, and by using the HPSB Website and/or any HPSB Products and Services, and/or by subscribing to the HPSB Newsletter, you agree to the terms of the Privacy Policy.

 

4.   User Communication Services

The HPSB Website may contain bulletin board services, news groups, forums, blogs and/or other message or communication facilities ("Communication Services") designed to enable you to communicate with others. You agree to use the Communication Services only to submit or post messages and material that are proper and, when applicable, related to the particular Communication Service. You are also prohibited from submitting to, posting or transmitting through the HPSB Website, via any Communications Services or otherwise, any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. Content that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" is prohibited.  You may not use a false or unauthorized email address or postal address, impersonate any person or entity, or otherwise mislead as to the origin of your posted content.

Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties are those of the respective authors or distributors and not of BOC, nor any of its officers, directors, employees, or agents. You acknowledge that BOC does not pre-screen all content, but that BOC and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any content that is made available via the Communication Services. Without limiting the foregoing, BOC and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable, as we determine in our discretion. You specifically agree that BOC is not responsible for any content sent using and/or included in the HPSB Website or any Communications Services by any third party.

 

5.   Copyright and Restrictions

The HPSB Website contains proprietary material of BOC (or material that other suppliers have licensed to BOC for its use) which is protected by copyright and other laws respecting proprietary rights.  BOC retains all rights in the material and media, including (without limitation) all copyright and other proprietary rights worldwide in all media.

Except as expressly permitted in the terms of our Use of Content (Reprints) and Linking Policies below, you may not use BOC proprietary material except as expressly permitted under this Agreement and under applicable U.S. copyright laws.  Any routine and/or systematic redistribution of any portion of the materials licensed herein is expressly prohibited.

End users who are duly authorized may access www.howtoplanandsellabusiness.com for individual use, i.e., may view the information on screen; may download small portions of the information to a computer disk for personal convenience and later reference; and may print paper copies of small portions for personal use only.

The rights granted herein are an expansion of the rights granted under applicable U.S. copyright laws and do not include any rights to reproduce in its entirety any portion of BOC proprietary material, whether contained in the HPSB Website, the HPSB Newsletter, the HPSB Products and Services, or otherwise. Except as expressly permitted in the terms of our Use of Content (Reprints) and Linking Policies below, no part of BOC’s proprietary materials may be duplicated in any medium or format beyond the express terms of this Agreement without prior written authorization from BOC. Any use not authorized by this Agreement is prohibited and is not a fair use under U.S. copyright law.

You acknowledge and agree that the information (and the licensed materials contained therein) is highly proprietary in nature and that unauthorized copying, transfer or use may cause BOC and/or its suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. You agree that any breach of this provision by you, or any subscriber or end-user, may be enforced by BOC and/or any of its suppliers, by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies.

You agree that any supplier of any portion of the licensed materials may enforce its rights against you, even though that supplier is not a party to this Agreement.

Except as expressly permitted in the terms of our Use of Content (Reprints) and Linking Policies below, you may not and may not permit others to: reproduce, publish, distribute, sell, or otherwise access or use any material retrieved from or contained in or on the HPSB Website in any manner whatsoever that may infringe any copyright or proprietary interest of BOC; distribute the information contained in and/or the HPSB Website to other users not duly authorized to access the HPSB Website; distribute, rent, sublicense, lease, transfer or assign the information or this Agreement; de compile, disassemble, or otherwise reverse-engineer the HPSB Website or information contained in or on the HPSB Website or any software contained therein, or alter, translate, modify, or adapt it to create derivative works. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.

If you breach any provision of this Agreement, BOC may immediately terminate this Agreement and all licenses granted hereunder without prior notice and in addition to any other available rights and remedies.

 

Use of Content (Reprints) and Linking Policies

Use of Content (Reprints)

For those who follow our policies, we are normally pleased to provide permission to use our content.

Beyond widely recognized Fair Use(http://www.copyright.gov/fls/fl102.html) guidelines defined by U.S. copyright law, any other reproduction of BOC content requires our written permission.

Brief quotations of the HPSB Website’s contents, except content provided by third parties, are encouraged as long as they include attribution and a direct link to the HPSB Website (http://howtoplanandsellabusiness.com) or the exact URL of the source page (preferred). All other rights are reserved worldwide. “Brief quotation” is defined as one or a few sentences and may not exceed two paragraphs in length.  Although utilizing brief quotations does not require written permission, we would appreciate an email to  useofcontent@howtoplanandsellabusiness.com informing us where our content is being utilized.  Brief quotations from Third Party Content (as defined below) on the HPSB Website requires written permission.

Extensive or regular use of content from the HPSB Website without permission, even if attributed, are a violation of this policy and of applicable copyright law.  Brief quotations that are unattributed are also a violation of this policy and applicable copyright law.

To obtain permission to utilize Third Party Content from the HPSB Website, or for more extensive use of our content, including reprints of entire articles, please contact us by email at  useofcontent@howtoplanandsellabusiness.com with the following information: 1) your name; 2) your title; 3) your email address; 4) your phone number; 5) your company's name; 6) your company's address; 7) your company's website URL; 8) describe the specific content from our website or newsletters that you wish to utilize; 9) describe your intended use of our content; 10) describe the nature of your publication; and 11) state that you have read and agree to the 11 conditions below.

Your request for permission must include a statement that, if permission is provided, you agree to the following conditions:

  1. You must publish or reprint the content as written.  You cannot change content or the title of the article in any way.  The intent, substance or interpretation of the content used should not be modified without specific approval in writing from BOC.  However, for our newsletters, you are not required to use our images but we prefer you use them because we do require you to utilize the wording next to the images.  You are not required to use the following standardized sections of our newsletters: the brief review of the previous issue and preview of the current issue, the two sections of favorite quotes, the Overcome the Power of Inertia section, the Next Issue section, the Newsletter Articles Sequentially section or the Visit Our Website section.
  2. You must provide full attribution for the content to BOC.  We prefer the following notice but will accept another version as long as it contains the same basic information:
    © 2012, Biz Owner Communications, LLC. Used with permission of Biz Owner Communications, LLC www.howtoplanandsellabusiness.com.  The specific URL for this content is www.howtoplanandsellabusiness.com/(rest of URL).
  3. You must agree to establish all links within our content so that they are active/linkable with no syntax changes.  You are not allowed to include the rel = nofollow tag in your HREF statements.
  4. Unless an exception is provided in writing, use of our content should not be presented in such a manner that implies affiliation or endorsement of your company's products, services, publications or website.
  5. You must not reprint any article from the HPSB Website that is to be used in any pop up ads or unsolicited email.
  6. You are not allowed to reprint any author’s photo related to the HPSB Website.
  7. Unless an exception is provided in writing, you are not allowed to sell any of our content or charge others to view any content you publish or reprint with our permission.
  8. You are not allowed to use any content from our site in video or audio form.
  9. You are not allowed to translate our content to any other language.  You may not create derivative work from any of our content.
  10. When you utilize our content and it is published in electronic format, you agree to notify us by email at  useofcontent@howtoplanandsellabusiness.com of how we can access and view the use of the content.  If your use is in a format that does not enable us to easily access it electronically, you agree to mail one copy to Biz Owner Communications, LLC, 12430 Tesson Ferry Road #124, St. Louis, MO 63128.
  11. You acknowledge that BOC has the sole right to revoke permission at any given time for any reason provided you're given 48 hours written notice via email or via fax or via telephone or via U.S. mail. If you're unreachable, you also agree that we may contact your web hosting provider to reach you and serve this notice. Upon receiving notice from us, you will have 24 hours to immediately remove content you received from BOC and must provide us with a written reply indicating that you have complied with our request in order to mitigate further action against you and your business to enforce this covenant.

Use of Content (Framing Restrictions)

BOC is concerned about the integrity of the HPSB Website when it is accessed in a manner solely determined by third parties or viewed in a setting solely created by third parties. Specifically, BOC is concerned with activities such as bringing up or presenting content of the HPSB Website within another website ("framing"). In this regard, without limiting the provisions contained in our Terms of Use, you may not frame any web page from the HPSB Website, except with our express written permission. Further, you may not archive, cache, or mirror any HPSB Website web page or portions of a web page. To request permission to reprint, frame, or redistribute any howtoplanandsellabusiness.com content, please see the section above titled Use of Content (Reprints) and Linking Policies.

Linking to the HPSB website

You may link to content in the HPSB Website for informational purposes only as long as you agree to these conditions:

  • Use a textual URL only.
  • Do not attribute a link on your website to the HPSB Website and then link somewhere else.
  • Do not write and link to a summary of the HPSB Website content which exceeds Fair Use(http://www.copyright.gov/fls/fl102.html) guidelinesPlease familiarize yourself with the section above titled Use of Content (Reprints) and Linking Policies.
  • Do not frame or use any framing techniques to enclose any of BOC's content.  See the section above titled Use of Content (Framing Restrictions).
  • Unless an exception is provided in writing, you may not imply affiliation or endorsement of your company and/or its products, services, publications or website.

We reserve the right to request the removal of any links from your site. All such requests must be granted immediately.

Third Party Content

The HPSB website may include content that is supplied by companies or individuals that are not affiliated with BOC ("Third Party Content"). On the HPSB Website, the source of all Third Party Content is clearly and prominently identified. The Third Party Content is protected by copyright pursuant to applicable United States copyright laws and international treaties and is owned or licensed by the Third Party Content provider(s) credited.

BOC has not been involved in the preparation, adoption or editing of Third Party Content and does not explicitly or implicitly endorse or approve such content.

While BOC makes every attempt to provide accurate and timely information to serve the needs of users, neither BOC nor the Third Party Content providers guarantee its accuracy, timeliness, completeness or usefulness, and are not responsible or liable for any such content, including any advertising, products, or other materials on or available from third party sites. The Third Party Content is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any Third Party Content without seeking appropriate advice on your particular facts and circumstances from professional advisors in your state. BOC and its owners and the Third Party Content providers expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this Website.  You will use Third Party Content only at your own risk. THE THIRD PARTY CONTENT IS PROVIDED ON AN "AS-IS" BASIS. THE THIRD PARTY CONTENT PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

THE THIRD PARTY CONTENT PROVIDERS AND THEIR PARENTS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS OR EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE THIRD PARTY CONTENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Copyright Infringement

BOC respects the intellectual property rights of third parties, and complies with the terms of the Digital Millennium Copyright Act (DMCA) regarding such rights. By submitting any material or photographs through the HPSB Website, you are granting permission to have this material posted on the HPSB Website, and are representing that you are the rightful owner of the submitted material, and that no one else may claim rights to this material. BOC reserves the right to remove access to infringing material. Such actions do not affect or modify any other rights BOC may have under law or contract. You can find our procedures for providing notice of alleged copyright infringement below.

Procedure for Making Claim of Copyright Infringement

If you believe that your work has been copied in a way that constitutes copyright infringement, you should send written notification thereof, in accordance with the provisions of the Digital Millennium Copyright Act, to our Designated Agent, who can be reached as follows:

By mail:

DMCA Designated Agent
Biz Owner Communications, LLC
12430 Tesson Ferry Road #124
St. Louis, MO  63128
By Email: useofcontent@howtoplanandsellabusiness.com

Pursuant to 17 U.S.C. § 512(c), to be effective, the Notification must include the following:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BOC to locate the material.
  • Information reasonably sufficient to permit BOC to contact the complaining party, such as an address, telephone number, and, if available, an email address.
  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process.

 

6.   User Code of Conduct

In accessing and using the HPSB Website, subscribing to the HPSB Newsletter, and/or accessing or using any HPSB Products and Services, you agree that you will not:

  • Deliver any unsolicited advertisement, promotional materials, junk email, bulk email (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes (unless it is on a page that explicitly states that such postings are allowed on that page).
  • Deliver any unlawful (according to local, state, federal, or international law or regulation) postings to or through the HPSB Website, or any postings which advocate illegal activity.
  • Deliver, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, harassing, hateful or otherwise objectionable.
  • Deliver, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of religion, race, ethnicity, sexual orientation, gender, age, or disability.
  • Deliver, or provide links to, any postings containing defamatory, false or libelous material.
  • Deliver any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or publicity.
  • Deliver any posting that you do not have a right to make available under law or contractual or fiduciary relationships.
  • Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another.
  • Manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you deliver.
  • Deliver any posting containing personal information, such as phone numbers, social security numbers, account numbers, addresses or employer references.
  • Use the HPSB Website and/or any Products and Services in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of the HPSB Website, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment.
  • Attempt to gain unauthorized access to the HPSB Website, any related website, other accounts, computer system, or networks connected to the HPSB Website, through hacking, password mining, or any other means.
  • Obtain or attempt to obtain any materials or information through any means not intentionally made available through the HPSB Website, including harvesting or otherwise collecting information about others such as email addresses.
  • Use Web-accelerated browsers or products (including but not limited to NetJet, NetSonic, MSIECrawler and Teleport-Pro), or other applications that are capable of copying large portions of content from the HPSB Website.  BOC may detect the use of these systems through live log file analysis and will ban any future use by offenders.
  • Use robots and crawlers, or similar technology, without following the robot guidelines (found at http://www.robotstxt.org). BOC will work to detect robots violating these guidelines and we will ban any offenders. If you are using a robot/crawler to check BOC links, it must operate according to the robot guidelines (see above). Do not leave new robots unattended and allow a minimum of 1 minute between automated requests.
  • Use any device, software or routine or the like to interfere or attempt to interfere with any HPSB Website functionality.
  • Take any action that imposes an unreasonable or disproportionately large load on the HPSB Website infrastructure.
  • Use any email addresses appearing on the HPSB Website for purposes not relating specifically to the HPSB Website.
  • Access the HPSB Website by any means other than through the interface that is provided by BOC, or attempt or access any area of the HPSB Website to which your access is not authorized.
  • Reverse engineer, reverse assemble or otherwise attempt to discover any source code relating the HPSB Website, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.


7.   Accuracy and Availability of Information

Facts and information at the HPSB Website, in the HPSB Newsletter and/or in any HPSB Products and Services are believed to be accurate at the time they were placed. Changes to such facts and information may be made at any time without prior notice. All data provided on the HPSB Website, in the HPSB Newsletter and/or in any HPSB Products and Services is to be used for information purposes only. The information contained on the HPSB Website and pages within, is not intended to provide specific legal, financial or tax advice, or any other advice, whatsoever, for any individual or company and should not be relied upon in that regard. The services described on this website are only offered in jurisdictions where they may be legally offered. Information provided in our website is not all-inclusive, and is limited to information that is made available to BOC and such information should not be relied upon as all-inclusive or accurate.

The information contained in the HPSB Website, in the HPSB Newsletter and/or in the HPSB Products and Services is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in the HPSB Website, in the HPSB Newsletter, and/or in the HPSB Products and Services without seeking appropriate advice on your particular facts and circumstances from professional advisors in your state. The author, BOC and its owners expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of the HPSB Website.

 

8.  Links to Third Party Sites

The HPSB Website may contain links to websites, applications or other services operated by third-parties, including, without limitation, the sites of our sponsors or other contributing authors (the “Linked Sites”).  BOC does not endorse the content on any Linked Sites and is not responsible for the content of any Linked Sites or any websites framed within the HPSB Website, or third-party advertisements on the HPSB Website, and we do not make any representations regarding their content or accuracy. Any transaction that you conduct at a third-party website will be between you and the party providing that website. This means that BOC is not your agent and is not a party to any transaction at a Linked Site. If you choose to access any third-party site (including any Linked Site), you do so at your own risk, and your use of that site is subject to its own terms of use and privacy policy, which you should review. The presence of a link to a third-party site (including any Linked Site) does not constitute or imply BOC’s endorsement, sponsorship, or recommendation of the third party or of the content, products, or services contained on, or available through, the site.

 

9.   Software and Downloads Available Through the HPSB Website

Any software that is made available to access, use, view and/or download in connection with the HPSB Website (“Software”), including applications, podcasts, audio streaming, or video streaming, is owned or controlled by BOC, one or more companies commonly owned by or with BOC, and/or their licensors and suppliers, and is protected by copyright laws and international treaty provisions. Your use of the Software is limited to private, non-commercial use and is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software. BOC accepts no responsibility or liability in connection with any Software owned or controlled by third parties.

 

10.   International Use/U.S. Export Controls

Accessing materials on the HPSB Website by certain persons in certain countries may not be lawful, and BOC makes no representation that materials on the HPSB Website are appropriate or available for use in locations outside the United States. If you choose to access the HPSB Website from outside the United States, you do so at your own risk and initiative, and are responsible for compliance with any applicable local laws.

The United States controls the export of any software downloadable from the HPSB Website. No software or any other materials associated with the HPSB Website may be downloaded or otherwise exported or re-exported to countries or persons prohibited under export control laws, including but not limited to countries against which the United States has embargoed goods, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from the HPSB Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.

 

11.   Third-Party Merchants; Advertisements, Sponsorships, Co-Promotions and Other Partnerships

The HPSB Website may enable you to order and receive products, information and services from businesses that are not owned or operated by BOC. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services or information, opinion or advice ordered or received from such businesses are solely between you and such businesses. BOC does not endorse, warrant, or guarantee such products, information, or services, and is not liable for the accuracy, completeness, or usefulness of such information or the quality of availability of such products or services. BOC will not be a party to or in any way responsible for monitoring any transaction between you and third-party providers of such products, services, or information, or for ensuring the confidentiality of your credit card information. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility and are not part of the fee, if any, charged for any HPSB Products and Services. 

BOC may display advertisements for the goods and services of a third party on the HPSB Website, including in connection with co-promotions, sponsorships and other similar partnership arrangements. BOC does not endorse or represent and is not responsible for the safety, quality, accuracy, reliability, integrity or legality of any such goods or services advertised, promoted or displayed on the HPSB Website or in any HPSB Products and Services, including in the HPSB Newsletter.

 

12.   Your Additional Representations and Warranties

You represent and warrant to BOC that: (a) you possess the legal right and ability to enter into this Agreement; (b) all information submitted by you to BOC, including through the HPSB Website, is true and accurate; (c) you will be responsible for all use of your email address and other login information (if any) even if such use was conducted without your authority or permission; (d) you are at least 18 years old; and (e) you will not use the HPSB Website for any purpose that is unlawful or prohibited by this Agreement.

 

13.   LIMITATION OF DAMAGES AND LIABILITY 

IN NO EVENT SHALL BOC OR ANY COMPANY COMMONLY OWNED BY OR WITH BOC OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, MEMBERS, SHAREHOLDERS OR OTHER AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO (i) loss of goodwill, business, revenue, profits, use, data, business opportunity, or other economic advantage; (ii) your inability to use, unauthorized use of, performance or non-performance of the HPSB Website; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the HPSB Website or any information, software, products, services, and related graphics obtained through the HPSB Website, including in the HPSB Newsletter; (vi) any transactions entered into through the HPSB Website; (vii) any property damage including damage to your device or computer system caused by viruses or other harmful components, during or on account of access to or use of the HPSB Website or any site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the HPSB Website, the HPSB Newsletter, and/or any HPSB Products and Services.

THESE LIMITATIONS SHALL APPLY REGARDLESS OF HOW ANY ALLEGED DAMAGES ARISE, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORTIOUS ACTION, OR ARISING OUT OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE HPSB WEBSITE OR MATERIALS AVAILABLE FROM OR THROUGH THE HPSB WEBSITE, EVEN IF BOC OR ANY COMPANY COMMONLY OWNED BY OR WITH BOC OR THEIR AGENTS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF THIS LIMITATION OF LIABILITY, OR THE EXCLUSION OF REPRESENTATIONS AND WARRANTIES BELOW, IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE MAXIMUM LIABILITY OF BOC AND/OR ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND/OR ANY OF THEIR AGENTS FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO U.S. $100.00.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

 

14.   DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR USE OF, AND RELIANCE ON, ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THE HPSB WEBSITE, THE HPSB NEWSLETTER AND/OR ANY HPSB PRODUCTS AND SERVICES (INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT) IS AT YOUR OWN RISK.  THE HPSB WEBSITE AND ALL CONTENT, SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS, AND OTHER MATERIALS CONTAINED WITHIN OR AVAILABLE THROUGH OR FOUND AT THE HPSB WEBSITE AND/OR IN THE HPSB NEWSLETTER OR ANY HPSB PRODUCTS AND SERVICES (INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS", “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND BY BOC OR ANY COMPANY COMMONLY OWNED BY OR WITH BOC OR THEIR AGENTS.  BOC AND ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND THEIR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE HPSB WEBSITE OR THE INFORMATION, CONTENT OR MATERIALS INCLUDED ON OR THROUGH THE HPSB WEBSITE (INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT). TO THE FULLEST EXTENT PERMITTED BY LAW, BOC AND ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND THEIR AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, INFORMATIONAL CONTENT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD-PARTIES. BOC AND ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND THEIR AGENTS MAKE NO REPRESENTATION OR WARRANTY THAT THE HPSB WEBSITE WILL BE AVAILABLE OR ACCESSIBLE AT ANY PARTICULAR TIME OR WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE HPSB WEBSITE AND/OR ITS SERVER WILL BE FREE OF VIRSUES AND/OR OTHER HARMFUL COMPONENTS.  BOC AND ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND THEIR AGENTS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY MATERIAL OF ANY KIND CONTAINED WITHIN THE HPSB WEBSITE FOR ANY PURPOSE, INCLUDING SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHIC CONTENT.  BOC AND ANY COMPANY COMMONLY OWNED BY OR WITH BOC AND THEIR AGENTS ARE NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS IN TRANSMISSIONS OR RECEIPTS OF ANY INTERACTIVE SERVICES, OR ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.

 

15.   Indemnification.  You agree to indemnify, defend and hold harmless BOC and any company commonly owned by or with BOC and their respective officers, directors, managers, employees, members, shareholders and other agents from and against any and all claims, causes of action, liabilities, damages, losses or expenses (including reasonable attorneys' fees and costs) arising out of or in any way related to your breach of any provision of this Agreement or any warranty you provide herein, or otherwise arising in any way out of your access to or use of the HPSB Website, the HPSB Newsletter, or the HPSB Products and Services.  You agree to cooperate fully with BOC and any company commonly owned by or with BOC and their agents in asserting any available defenses in connection with a claim subject to indemnification by you under this Agreement.  

 

16.   Governing Law; Dispute Resolution.  This Agreement is governed by the laws of the State of Missouri, without regard to principles of conflict of laws.

To the extent you have in any manner violated or threatened to violate the intellectual property rights of BOC and/or any company commonly owned by or with BOC, then BOC and/or such commonly owned company may seek injunctive or other appropriate relief in any state or federal court in the State of Missouri, and you consent to exclusive jurisdiction and venue in such courts.

Any other disputes will be resolved as follows:

If a dispute arises under this Agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in St. Louis County, Missouri. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.

If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration in St. Louis County, Missouri, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.

By using the HPSB Website, you expressly agree that your rights and obligations shall be governed by and interpreted in accordance with the laws of the State of Missouri, excluding its choice of law rules.  Any legal action or proceeding relating to your access to or use of or any other matter relating to the HPSB Website or any Materials shall be instituted in the Circuit Courts of St. Louis County, Missouri or the United States District Courts for the Eastern District of Missouri.  We and you agree exclusively and irrevocably to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal proceeding or action.  These Terms of Use expressly exclude and disclaim the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to any transaction conducted through or otherwise involving the HPSB Website.

 

17. Consent to Electronic Notices and Other Communications

You agree that all of your transactions relating to the HPSB Website may, at our option, be conducted electronically, including any that we are otherwise required to provide in "writing". For example, we may send you notice via postings at the HPSB Website or via email to any email address that you provide to us during subscription to the HPSB Newsletter.  If you do not wish to deal with us electronically, you should not access or use the HPSB Website, subscribe to the HPSB Newsletter, access or use any other HPSB Products and Services or otherwise enter into this Agreement. If applicable law now or later requires us to communicate with you non-electronically, we reserve the right to charge a fee for doing so. Notice will be deemed given 24 hours after the email is sent, unless (for email) we are notified that the email address is invalid.

 

18. Print a Copy for Your Records

You agree to print or make an electronic copy of this Agreement (and any amendment from time to time) and retain it in your records. You also agree to make a copy of any other information that we deliver to you in writing.

 

19. Modification/Termination

BOC may modify the provisions of this Agreement at any time in its absolute discretion. When BOC changes the terms of this Agreement, BOC will endeavor to notify you by email or online postings on the HPSB Website. The changes will also appear in this Agreement. Please review this Agreement periodically for changes.  If you do not agree to be bound by the modified terms of this Agreement, you should not use or access the HPSB Website again and you should not continue your subscription to the HPSB Newsletter. By subscribing to the HPSB Newsletter and/or by otherwise using the HPSB Website or any other HPSB Products and Services, you are agreeing to be bound by the terms of this Agreement as modified at any time or from time to time by BOC.

BOC may terminate your subscription to the HPSB Newsletter and/or terminate or suspend your use or access to all or part of the HPSB Website and/or any other HPSB Products and Services, with or without notice, for any conduct that BOC, in its sole discretion, believes is in violation of this Agreement, any applicable law, or for any act which is harmful to the interests of another user, service provider, or BOC, or for any other reason whatsoever. Applicable sections of this Agreement will survive any termination or expiration of this Agreement.

BOC reserves the right, in its sole discretion, to modify, suspend, or terminate the HPSB Website, the HPSB Newsletter, the HPSB Products and Services, and/or any portion thereof, and/or your account, password, subscription to or use of the HPSB Website, the HPSB Newsletter and/or any HPSB Products and Services, or any portion of any of the foregoing, at any time for any reason with or without notice to you.

Termination of your account, subscription and/or access and use rights removes your authorization to use the HPSB Website, the HPSB Newsletter, and the HPSB Products and Services. In the event of termination, you will still be bound by your obligations under this Agreement, including the warranties made by you, and by the disclaimers and limitations of liability. Additionally, BOC and any company commonly owned by and with BOC and their agents shall not be liable to you or any third party for any termination of your access to the HPSB Website, the HPSB Newsletter and/or any HPSB Products and Services.

 

20. Assignment

You agree not to assign your rights under this Agreement without the written consent of an authorized representative of BOC in a non-electronic record, and any assignment without BOC’s consent will be voidable at BOC’s option. This Agreement will inure to the benefit of and bind the parties' respective successors and permitted assigns.

 

21. Entire Agreement; Severability; No Waiver

This Agreement (including all documents incorporated by reference) is the entire agreement between the parties for its subject matter and supersedes all prior and contemporaneous communications between the parties. No term of this Agreement may be waived by BOC except in a signed, non-electronic writing signed by an authorized representative of BOC.

 

22. General

If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that its remaining provisions will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible. 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. You agree that no joint venture, partnership, employment or agency relationship exists between you and BOC and/or any company commonly owned by or with BOC as a result of this Agreement or your use of the HPSB Website, the HPSB Newsletter or any other HPSB Products and Services.

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