TERMS OF SERVICE
LUSH PLANT (o/a LUSHPLANT.com, LUSHPLANT.ca, LUSHPLANT.us)
Last Updated: These Terms of Service were last updated on March 1st, 2019
Please read these Terms of Service (the “Terms of Service”) carefully before using www.LUSHPLANT.com, any of our sub/affiliate sites (“Website”) and/or our mobile applications (the “LUSH App”), which are operated by LUSHPLANT
We, LUSHPLANT (“LUSH”, “us”, “we”, “our”), operate the LushPlant websites including but not necessarily limited to: www.lushplant.com, www.lushplant.ca, www.lushplant.us AND mobile application available for download in Apple App Store and Google Play (”Website“, “App” and collectively: “Services”).
We may change the Terms to meet technical, operational and legal requirements. We will post and you can access an up to date copy of our Terms on our Website, and we may send you a notice by email, reasonable time before the changes take effect. You may choose to deny the amended Terms and terminate your account. By continuing to use your account with the Services after the new changes have taken effect, you indicate your agreement to the amended Terms.
We are focused on the design, production and distribution of automated plant growing technology, plant growing rooms and plant growing containers and ancillary products and supplies used for growing plants (each, a “Product” and collectively, “Products”). We conduct direct to consumer retail sales of our global operations through the Website(s) which is our e-commerce platform. Distribution and additional Retail sales channels through independent third party enterprises does also exist. LUSH, LUSHPLANT, LushCONTROL, LushBOX, LushWALL, LushAPP and the corresponding wordmarks and logos are our tradename(s) and the name of our primary products and are brands to which we hold sole and exclusive rights and license.
The Website is an online platform offering for sale our Products and Services. The App is designed to allow a user to upload his growing program, choose a Product to connect with and monitor, manage and control the Product processes. The App also provides a large range of informative and warning notifications, including nutrient and consumable levels, plant accessories purchasing details, including the option to make out of app purchases.
We may modify or enhance our Services, and may offer additional services and features, free-of-charge or subject to additional fees. The additional services and features may be governed by additional or different terms.
Grant of Right
We hereby grant you a non-exclusive, non-transferable, non-commercial, limited, personal, revocable right to access the Services, for the purpose of purchasing our Products and for additional services, as available by our Website and App subject to the Terms herein.
We offer the Services for both registered users and guests. You may visit the Website as a guest, but you must register as a user to purchase the Products or to use any feature offered by the Services.
You may only create and hold one user account. To sign up and login, you must choose a user name and password. We may establish and require additional or different means of identification and authentication for logging-in and accessing the Services.
You must notify us as soon as you become aware of any potential or actual misuse, unauthorized use, of your account. You agree that any person who you directly or implicitly permit to use your password is authorized to act as your agent to use the Services, including purchases on your behalf AND you are responsible for their actions and activity in your account.
We will not be responsible for your failure to provide true, accurate and complete details in the course of the registration process, and for any use or misuse of your account as a result of compromising your details or conveying them to someone else.
You may terminate your account by contacting us via email at: firstname.lastname@example.org. We may require you to verify your identity by sending us additional information, as a condition for terminating your account. Upon completion of processing your request, we will terminate your account.
Subject to these Terms and our discretion, you may renew your registration at any time after your account has been terminated, by completing the registration process again.
Notwithstanding any remedies that may be available to us under any applicable law, we may temporarily or permanently deny, limit, suspend, or terminate your account, remove your uploaded content and take technical and legal measures to keep you off the Services, if we determine in our sole discretion that: (a) you have abused your rights to use the Services; or, (b) you have breached the Terms, or any usage guidelines we may convey to you; or, (c) you violated any applicable law, rule, or regulation; or,(d) you have performed any act or omission which is harmful or likely to be harmful to us, or any other third party, including other users of the Website; or (e) you have taken an action that could compromise our platform, our Service(s) or User Experience.
Acceptable Use of the Services
When using the Services, you agree to abide by any usage guidelines we may convey to you from time to time and by all applicable laws, regulations and rules.
You represent and warrant that: (i) your age is at least 21 OR the legal age of majority in your city, state, province, territory and/or country; (ii) the execution of these Terms and the performance of your obligations hereunder, do not and will not breach any agreement to which you are a party to, or any other legally binding instrument that you are committed to; (iii) when executed and delivered, these Terms will constitute your legal, valid and binding obligation, enforceable against you in accordance with the conditions hereunder;(iv) you will update and correct information you have submitted to the Services and ensure that it is accurate at all times; (v) your Website purchases will be for your own personal use, or as a gift for another person (for avoidance of doubt, the resale of any purchased Product is not permitted); and (vi) any purchase will be subject to the Terms; (vii) You acknowledge and agree that you will retain sole responsibility for ensuring your purchase and use of the Products are compliant with all applicable federal, provincial/state and local laws. LUSH does not condone the use of the Product, its website or application and services, for any illegal activity, and is not responsible for your use of the Product, the websites or Services in contravention of any law, rule or regulation, in addition you warrant to protect and defend LUSH in any and all instances in which legal actions may be required as a result of your use of our Products and/or Services.
You may not access or use the Services –
for or in connection with any activity that constitutes or encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, provincial/state, national, foreign law or industry standard, including, any applicable laws and regulations governing (i) intellectual property, privacy, defamation, fraud, mass email, spam, harassment, obscenity, hate-speech, export control, consumer protection, unfair competition and false advertising or any other deceptive practices; (ii) to upload, post, email, transmit, record, provide a recording or otherwise make available any information and materials that infringe a third party’s right, especially privacy, publicity and intellectual property rights; software viruses, Trojan horses, worms and any other malicious application to computers and networks; (iii) to develop or create a similar or competitive product or service to the Services, (iv) engage in any activity that interferes with or disrupts the proper working of the Services or any activities conducted on the Services; (v) use the Products in violation of applicable laws, rules or regulations;
Except as specifically permitted herein, you agree that you will not directly or indirectly:
- distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Product or the Website in any unauthorized manner;
- use the Product or the Website in any service bureau arrangement;
- copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Product, the Website, or any part thereof in any form or manner or by any means;
- harvest or scrape any content or data from the Product or the Website;
- remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Product or the Website;
- decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Product, the Website, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
- use any means to discover the source code of any portion of the Product or the Website;
- otherwise circumvent any functionality that controls access to or otherwise protects the Product or the Services; or
- permit any third party to engage in any of the foregoing.
Any attempt to do any of the foregoing is a violation of the rights of LUSH and its licensors. If you breach these restrictions, your limited license granted herein will immediately terminate along with your product warranty and any other obligations LUSH may have in your favour will terminate and you may be subject to prosecution and damages.
Without limiting the aforesaid, you may not –
modify any material or content we make available on the Platform, except as expressly permitted under these terms; modify, make derivative works of, disassemble, de-compile, distribute, publicly display, reverse engineer copy, license, sell or re-sell or otherwise exploit any part of the Services; interfere with, burden or disrupt the functionality of the Services;
circumvent, impair or manipulate the operation of the Services; work around or circumvent any technical limitations in the Product or Services or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Product or Services; embed, frame or otherwise link directly to the Website, from any other web-page, application or other resource, without our prior written permission; engage in or attempt to engage in any form of testing, scanning, crawling, scraping, probing, robotic navigating, bulk extracting or hacking the Product or the Services; engage in any false, misleading or deceptive acts or practices involving the Product or Services or your identity, agency or affiliation with any person or entity; breach the security of the Services, or any network or server used by the Services, or identify any security vulnerabilities thereof without our prior knowledge and permission.
We may at any time, at our sole discretion and without prior notice, delete any material from our servers, in whole or in part.
Purchase Terms, Shipping and Return Policy
Our purchase, shipping and return terms are set out in our Purchase Terms available at: www.lushplant.com/legals which are posted on the Website and are incorporated by reference into these Terms. By purchasing our Products, you agree to be subject to those terms.
Privacy and Data protection
Except for Contributed Content (as described below), all rights, title and interest in and to the Product and Services, including any articles, images, audio, video, graphic design, data and its processing and other intellectual property rights, whether registered or not, and any goodwill associated therewith, are owned by, or licensed to us. Unless as expressly provided, these Terms do not grant you any rights with respect to the Product and Services.
LUSH’s trademarks (whether registered or not), name, logo and domain name – are our sole property. You may not use them, or any confusingly similar mark or text, without our prior express written consent.
This section will survive the termination of the Terms.
END USER LICENSE AGREEMENT (EULA)
Subject to your compliance with these Terms and Conditions, we hereby grant you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to download, install, access and use the Website solely on devices that you own or control, for your personal use only, and subject to the limitations set forth below. These Terms and Conditions are limited to the intellectual property rights of LUSH and its licensors and do not include any rights to other intellectual property. We reserve any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Website and LUSH App (the “Service(s)”) comprises a limited license and does not constitute the sale of any software program and/or platform.
Fees. LUSH does not currently charge end users any fees for use of the Services, though we reserve the right to do so in the future if permitted by applicable law. LUSH will notify Users prior to charging any fees for use of the Services.
Use restrictions. Except as specifically permitted herein, you agree that you will not directly or indirectly:
- distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Product or the Services in any unauthorized manner;
- use the Product or the Services in any service bureau arrangement;
- copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Product, the Services, or any part thereof in any form or manner or by any means;
- harvest or scrape any content or data from the Product or the Services;
- remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Product or the Services;
- decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Product, the Services, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
- use any means to discover the source code of any portion of the Product or the Services;
- otherwise circumvent any functionality that controls access to or otherwise protects the Product or the Services; or
- permit any third party to engage in any of the foregoing.
Any attempt to do any of the foregoing is a violation of the rights of LUSH and its licensors. If you breach these restrictions, your limited license granted herein AND warranty AND any other obligations LUSH has to you in your favour shall immediately terminate AND you may be subject to prosecution and damages.
Ownership. The Products or the Services and their respective content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws.
You acknowledge and agree that LUSH and/or its licensors own all right, title and interest in and to the Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto), and that LUSH owns all intellectual property associated with the Product despite your ownership and possession of the Product itself, and you agree not to take any action(s) inconsistent with such ownership interests. You do NOT acquire any rights or licenses under any of LUSH’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these purchase.
Any and all:
- suggestions for correction, change and modification to the Product or the Services and other feedback (including, but not limited to, quotations of written or oral feedback), information and reports your provide to LUSH (“Feedback”); and all
- improvements, updates, modifications or enhancements, whether made, created or developed by LUSH or otherwise relating to the Product or the Services (“Revisions”), are and will remain the property of LUSH. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the business, Product or Service or any of the intellectual property rights associated with the Products, or in any such Feedback or Revisions.
- Feedback and Revisions become the sole and exclusive property of LUSH and LUSH may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim.
You hereby assign to LUSH any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At LUSH’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
User Content License Grant (UCLG)
The Services may provide you various opportunities to submit or post content, including but not limited to reviews, opinions and ratings (collectively, “Contributed Content”) through communication facilities that we may offer, through or in connection with the Services, from time to time. We may require you to have a user account to submit Contributed Content.
You may upload, make available and distribute Contributed Content, subject to any content upload technical and safety guidelines and limitations which will be conveyed to you through the Services and amended from time to time.
You represent and warrant that you will not upload, post, transmit or otherwise make available Contributed Content that is unlawful, harmful, tortuous, threatening, abusive, harassing, hateful, racist, infringing, pornographic, obscene, violent, misleading, defamatory or libellous, invasive of the privacy of another person or violate of any third-party rights.
We may display or give you the option to display your Contributed Content in connection with your personal information.
We do not claim ownership over your Contributed Content. However, when you upload any type of Contributed Content to the Services you represent and warrant that all such Contributed Content is owned by or licensed to you, that you do not violate rights of others, and you grant LUSH and LUSH partners, affiliates and service providers (“LUSH”) permission to use such Contributed Content, for the purposes of providing, developing and marketing the LUSH’s Products and Services. You waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding the Contributed Content.
If you provide us improvements or suggestions relating to LUSH or our Products and Services, you agree that notwithstanding any terms, that LUSH has no obligation to review any such improvements or suggestions or keep them confidential; LUSH will own (and may freely use in any way) the improvements or suggestions for any purpose without restriction and free of any obligation to acknowledge or compensate you.
We respect the rights of our users and any other person. If you believe that your rights are abused on the Services, please send us a written complaint in accordance with these Terms to: email@example.com
We may report any Contributed Content and share user identifiable information, if we believe, in our sole discretion, that such content is illegal, abusive or may violate any third-party rights.
We may remove any Contributed Content if we believe, in our sole discretion, or receives a notice, from a third party, that such content may violate any third-party rights or at the request of a law enforcement authority or it infringe on or is in contravention to the best interest of our business and brand.
Filing a Complaint
At any time, you can contact us at: firstname.lastname@example.org with a complaint about Contributed Content posted on the Platform that harms you. You may file a complaint whether you are a registered user or not. You must provide your identifying details and details regarding the Contributed Content’s subject of your complaint. We may require additional information to process your complaint. We will make reasonable efforts to review your complaint and respond promptly. We will not respond to anonymous complaints.
LUSH and LUSH hosting services implement systems, applications and procedures to secure your information, to minimize the risks of theft, damage, loss of information, or unauthorized access or use of information. These measures provide sound industry standard security. However, although we make efforts to protect your information, we cannot guarantee that our systems will be immune from any wrongdoings, malfunctions, unlawful interceptions or access, or other kinds of abuse and misuse.
Disclaimer of Warranty
The Services are provided to you on an “as is” and “as available” basis, with all faults and without warranty of any kind, and LUSH hereby expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. LUSH does not warrant that: (1) the Services will meet your requirements; (2) operation of the Services will be uninterrupted or virus- or error-free; (3) the Services will operate or be compatible with any other application or any particular system or device; or (4) defects in the Services can or will be corrected. You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your use of the Services and Products, remains solely with you. The Services and Products may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. LUSH is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL LUSH BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF PROFITS, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS OR THE USE OR INABILITY TO USE THE WEBSITE, THE PRODUCTS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LUSH’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS REGARDING USE OR INABILITY TO USE THE WEBSITE, THE PRODUCTS OR THE SERVICES WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF: (1) THE AMOUNTS, IF ANY, YOU PAY TO LUSH UNDER THESE TERMS OF SERVICE FOR USE OF THE WEBSITE; OR (II) ONE HUNDRED DOLLARS ($100.00).
You will indemnify LUSH, and our officers, directors, shareholders, partners, parent companies, employees and affiliates (the “Indemnified Parties”), and hold the Indemnified Parties harmless from and against any and all claims, losses, liabilities, damages, judgments, fines, fees, costs or expenses, taxes or interest or penalty thereon, including without limitation, reasonable attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or in connection with your purchase and/or use of the Products and Services, your breach of these Terms or any applicable law or regulation, your violation of any rights of any third party and your negligence or wilful misconduct.
In addition, we will be entitled to deduct from any amount which we owe to you under these Terms.
This section will survive the termination of the Terms.
Arbitration and class action waiver
Binding arbitration. Any dispute or claim arising in any way from your use of the Product or Services, except for disputes relating to the infringement of our intellectual property rights or the access or use of the Product or the Services in violation of these Terms, will be resolved by binding arbitration, rather than in court. Alternatively, you may assert your claim in small claims court, if your claim qualifies and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
Individual basis. To the fullest extent permitted by applicable law, you and LUSH each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and LUSH each waive any right to a jury trial. As a result, PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.
Arbitration Rules and Governing Laws.
These Terms will be governed by, construed and enforced in accordance with the laws of the Province of Ontario, without regard to conflicts of law principles or provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from these Terms and will have no applicability. Any disputes arising out of or in connection with these Terms will be finally and exclusively settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by a single arbitrator appointed in accordance with the ICC Rules (the “Arbitrator”). The arbitration will take place in Toronto, Ontario, Canada and will be conducted in the English Language.
The arbitration will be conducted on a confidential basis.
Should any award be passed by the Arbitrator, it will be final and binding. Nothing contained herein will prevent us from applying to any court of law in order to obtain injunctions, equitable relief or any equivalent remedy, against you, in order to restrain the breach of any restrictive covenants pursuant to these Terms. The arbitration award will be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement will be kept confidential to the maximum extent possible.
The Arbitrator will render an award within the time frame specified in the ICC Rules. The Arbitrator’s decision will include the essential findings and conclusions upon which the Arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The Arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any ICC filing, administrative and arbitrator fees will be solely as set forth in the ICC Rules.
Right to Counsel.
You have the right to be represented by counsel of your choice. However, you agree that in all events you, not LUSH, will be responsible for all of your counsel’s fees.
In no event will any claim, action or proceeding by you be instituted more than one (1) year after the cause of action arose.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and LUSH each agree to the exclusive jurisdiction of a court of competent jurisdiction located in Toronto, Ontario, Canada, and you and LUSH each agree to submit to the exercise of jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
Governing Law; Jurisdiction
These Terms are governed by the Provincial Law of Ontario, Canada. Any legal claim will take place with the competent courts of Toronto, Ontario, Canada. Your use of the Product and Services may also be subject to other local, provincial, state, national, or international laws. You and LUSH agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
You agree that a breach of these Terms will cause irreparable damages to LUSH for which monetary damages would not be an adequate sole remedy and LUSH will be entitled to equitable relief in addition to any remedies it may have hereunder or at law without posting a bond, other security or proof of damages.
Changes and Availability
We will make efforts to have the Services running efficiently and accessible at all times. However, the Platform’s operation is dependent upon various factors such as software, hardware and communication networks. By their nature, these factors are not fault free.
We do not warrant that the Services will operate in an uninterrupted or error-free manner. Such incidents will not be considered a breach of these Terms.
We may from time to time change the Services’ structure, layout, design or display, as well as the scope and availability of the information and content therein, without giving any prior notice. Changes of this character by their very nature are likely to result in glitches or cause inconvenience. We will not be held responsible for any outcome of these changes, and failures resulting from them but will always make best efforts to remedy the root cause of issues to provide quality service.
Termination of Services’ Operation
We may, at any time and at our sole discretion, discontinue, temporarily or permanently, the operation of the Services, or any part thereof. We will post a notice on the Website thirty (30) days prior to such termination and we may send you a notice by email. At any time, we may block, remove or delete any content from the Services without maintaining any backup copy.
This section will survive the termination of the Terms.
We may contact you and send you notices via email and through the Services. You may contact us at: email@example.com. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twenty four (24 hours) after sending (if sent by email). We may publish – including on the Website – any communications with you, as long as your personal details will not be revealed without your prior consent. All communications between us will be deemed as received after one business day.
No waiver, concession, extension, representation, alteration, addition or derogation from these Terms will be effective unless effected in writing and expressly acknowledged as accepted by us.
You may not assign or transfer your rights or obligations under the Terms. Any attempted or actual assignment or transfer by you will be null and void. We may assign or transfer our rights and obligations under the Terms to any third party, provided that your rights under the Terms are not compromised by such assignment or transfer.
If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of these Terms will remain in full force and effect.
We may change these Terms to meet technical, operational and legal changes. We will post a notice about changes made to these Terms on our Website, and we may send you a notice by email, reasonable time before the changes take effect. You may choose to deny the amended Terms by terminating the Services. By continuing to use the Services after the new changes have taken effect, you indicate your agreement to the amended Terms.
If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms but are for convenience only.