THESE TERMS AND CONDITIONS APPLY TO ALL PURCHASES OF PRODUCTS OR SERVICES FROM THIS SITE. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOUR PURCHASES, INCLUDING SECTION 10 WHICH GOVERNS HOW DISPUTES BETWEEN US SHALL BE HANDLED.
This Lexmark site located at https://www.lexmark.com/en_us.html (this “Site”) is owned and operated by Lexmark International, Inc. and may be used to sell you products and/or services by Lexmark International, Inc. and its subsidiaries (collectively, "Lexmark” “We” or “Us”). The following terms and conditions govern Your use of this Site and the purchase of products and/or services by you (“Customer” or “You” or “Your”) through this Site. By placing an order on the Site, You are indicating Your consent to contract electronically and Your acceptance of the following terms and conditions (the "Terms and Conditions" or “Agreement”). These Terms and Conditions constitute the entire agreement between You and Lexmark as to their subject matter and these supersede and replace all prior and contemporaneous oral and written agreements. These Terms and Conditions may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both You and Lexmark.
These Terms and Conditions shall apply to online offers, acceptances and or contracts of sale made and or entered into between Lexmark and You, accessing the Site and the purchase of products (“Products”) and or services (“Services”) by You through the Site. Lexmark shall not be bound by any conflicting terms and conditions You may use unless expressly accepted by Lexmark and writing. By clicking the relevant box included in the Site when You are placing an order, You agree to be bound by these Terms and Conditions.
Any prices, quotations and descriptions made or referred to on this Site are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to Lexmark’s express acceptance of Your order (as described below.) Promotional offers and prices are for a limited time.
While Lexmark makes every effort to ensure that Products or Services appearing on the Site are available, Lexmark cannot guarantee that all Products or Services are in stock or immediately available when You submit Your order. Lexmark may reject or cancel Your order without liability if Lexmark is unable to process or fulfill it. Lexmark will refund any prior payment that You have made for that Product or Service.
An order submitted by You on this Site constitutes an offer by You to Us to purchase Products or Services in Your shopping basket based on these Terms and Conditions and is subject to Lexmark’s subsequent acceptance.
Prior to such acceptance, an automatic e-mail confirmation of Your order will be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of Your order.
Our acceptance of Your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching Your order for Product or commencing Services and accepting Your credit card or other payment ("Acceptance”).
We may keep records of orders received, acknowledgements, acceptances and other contract records for a reasonable period after Acceptance. We may be able to provide You with copies on written request. Please contact the Lexmark Customer Support Hotline for any such request. However, Your order is subject to the Terms and Conditions in effect at the time You place Your order. You must make sure to retain a copy of all such documents and these Terms and Conditions for Your own records.
Terms of payment are within Lexmark's sole discretion, and unless otherwise agreed to by Lexmark, payment must be received by Lexmark prior to Lexmark's acceptance of an order. Payment for the Products or Services through this Site will be made by the payment method(s) as provided on the Site by Lexmark. Lexmark may invoice parts of an order separately. Your order is subject to cancellation by Lexmark, at Lexmark's sole discretion. Lexmark's standard pricing policy for Lexmark-branded Products applies to all orders. Lexmark is not responsible for pricing, typographical, or other errors in any offer by Lexmark and reserves the right to cancel any orders resulting from such errors.
Payment for the Products and/or Services shall be made by You by the payment methods indicated prior to submission of Your order to Lexmark. Lexmark reserves the right to offer You only certain methods of payment for the requested delivery. For example, Lexmark reserves the right to carry out the delivery requested by You only against certain methods of payment in order to secure the credit risk according to the respective credit worthiness. Lexmark may use a third party payment processor to process payment for the Products and/or Services. Processing of payment is subject to any additional terms, conditions, and policies of the payment processor which You may read and acknowledge during the payment process available under HTTPS: www.braintreepayments.com. Lexmark reserves the right to change or add third party payment processors.
Invoices will be sent by email in PDF format to the email address provided by You when placing the order. Lexmark may invoice parts of an order separately.
You represent that information provided by You when placing Your order is up-to-date, materially accurate and is sufficient for Lexmark to fulfill Your order.
You are responsible for maintaining and promptly updating Your account information with Us for accuracy and completeness and keeping such information (and any passwords given to You for the purposes of accessing the Site and/or purchasing Products and/or Services) secure against unauthorized access.
Unless agreed otherwise or required by applicable law, any warranties provided in relation to Products or Services only extend to You on the understanding that You are a user and not a reseller of those Products or Services.
No warranty, commitment or any other obligation should ever be assumed by You on Lexmark’s behalf or on behalf of a Product manufacturer, or Product or Service licensor or supplier without Lexmark’s express prior written consent.
Lexmark will only ship Products purchased from the Site to locations within the United States or an APO/FPO address. Delivery timescale or dates specified on the Site, in any order acknowledgement, acceptance or elsewhere are estimates only. While Lexmark endeavors to meet such timescales or dates, Lexmark does not undertake to dispatch Products and/or commence Services by a particular date or dates and shall not be liable to You in respect of delays or failure to do so.
Delivery shall be to a valid address within the United States or its territories as submitted by you and subject to Acceptance ("Delivery Address"). You must check the Delivery Address on any acknowledgement or acceptance Lexmark provides and notify Lexmark without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
If You refuse or fail to take delivery of Products provided in accordance with these Terms and Conditions, any risk of loss or damage to the Products shall nonetheless pass and be without prejudice to any other rights or remedies Lexmark may have.
Lexmark shall be entitled to immediate payment in full for the Products or Services delivered and either to effect delivery by whatever means Lexmark considers appropriate or to store Products at Your risk;
You shall be liable to pay on demand all costs of Product storage and any additional costs incurred as a result of such refusal or failure to take delivery;
Lexmark shall be entitled thirty (30) days after the date of Your refusal or failure to take delivery to dispose of Products in such manner as Lexmark, in its sole discretion, determines and may set off any proceeds of sale against any sums due from You.
Where Lexmark delivers Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle You to repudiate the contract as a whole nor to cancel any subsequent installment.
Save as otherwise provided in these Terms and Conditions, title and all rights, risks and rewards of ownership including but not limited to risk of loss of or damage to the Products, passes to You on shipment of the Product from Lexmark or its agent. You must notify Lexmark within twenty-one (21) days of the date of Your invoice or acknowledgement if You believe any part of Your purchase is missing, wrong or damaged. Unless You provide Lexmark with a valid and correct tax exemption certificate applicable to Your purchase of Product and the Product ship-to location, You are responsible for sales and other taxes associated with the order. See “Order Help” for further requirements on the tax exemption process.
Lexmark reserves the right to withhold deliveries until full payment in the event of any payment default by You, charge default interest at the legal rate, assess late charges, and recover any other losses resulting from Your default.
Prices, delivery costs and payment terms are as stated on this Site at the time of Your order. Lexmark, in its sole discretion, may offer you time-limited discounts. Lexmark reserves the right to change the information, products, services and or prices published on the Site at any time. However these changes will not affect orders for which You have already received an acceptance from Lexmark.
Where any Product supplied is or includes software ("Software"), this Software is licensed by Us or by the relevant licensor/owner subject to the relevant end-user license agreement or other license terms included with Software ("License Terms") and/or the Product. In addition:
Such Software may not be copied, duplicated, sublicensed, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered, combined with any other software, and You may not otherwise create derivative works from the Software, save to the extent that
(i) This is permitted in the License Terms, or
(ii) Applicable law expressly mandates such a right which cannot legally be excluded by contract.
Save to the extent provided for in any applicable License Terms, where any Software is delivered to You in a stand-alone basis (for example on a CD-ROM and not embedded on a Product), Your rights of return and/or to a refund under these Terms and Conditions and any applicable Returns Policy do not apply in the event that You open the Software shrink-wrap and/or break the license seal and/or use the Software.
Except to the extent expressly provided by Us in writing, under relevant License Terms, and to the extent permitted by applicable law, Software is provided 'as is' without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description, and Lexmark does not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining Your rights against a manufacturer, licensor or supplier of the Software.
TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT LEXMARK IS AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE
(1) LEXMARK’S AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCTS AND/OR SERVICES YOU ORDERED AND THAT ARE DIRECTLY RELATED TO YOUR DAMAGES AND
(2) LEXMARK SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
THE LIMITED WARRANTIES APPLICABLE TO LEXMARK PRODUCTS CAN BE FOUND AT www.lexmark.com OR IN THE DOCUMENTATION LEXMARK PROVIDES WITH LEXMARK-BRANDED PRODUCT. LEXMARK MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-LEXMARK BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY LEXMARK "AS IS" AND ANY THIRD-PARTY WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY LEXMARK. LEXMARK MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN LEXMARK'S APPLICABLE LEXMARK-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. LEXMARK-BRANDED WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND LEXMARK IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL LEXMARK RECEIVES PAYMENT IN FULL. LEXMARK MAY REQUEST CANCELLATION OF THIRD-PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE OR SUPPORT IF LEXMARK DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.
You shall indemnify Lexmark against any and all liabilities, claims and costs incurred by or made against Lexmark as a direct or indirect result of Lexmark performing Services or carrying out any work on or to the Products where this has been done to Your (or Your representative's) specific requirements or specifications causing an infringement or alleged infringement of any proprietary rights of any third party or any other damages or alleged damages.
Lexmark’s obligation to You with respect to claims of third parties arising out of or relating to any Lexmark Products purchased by You from this Site shall be limited to those obligations contained in Lexmark’s statement of limited warranty included with every Product, except that to the maximum extent legally permitted, whether or not Lexmark has been advised of the possibility of such damages, and whether or not the limited remedies described fail of their essential purpose, in no event shall Lexmark be liable for any lost profits, lost savings, incidental damages, or consequential damages.
EXCEPT AS EXPRESSLY STATED OTHERWISE IN THE STATEMENT OF LIMITED WARRANTY INCLUDED WITH A PRODUCT, LEXMARK MAKES NO EXPRESS WARRANTIES OR REPRESENTATIONS AND DISCLAIMS FOR ANY PRODUCT OR SERVICE ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THESE TERMS AND CONDITIONS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.
Please note that our Privacy Notice is subject to change. To keep up to date with changes to the Privacy Notice, please read it before each order You make from the Site.
Lexmark's return policy can be found at https://www.lexmark.com/en_us/order-help.html. You agree to the terms of such return policy. You must contact Us directly before You attempt to return any Product to obtain a Return Material Authorization Number for You to include with Your return. You must return Product to Us in the original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return instructions and policies provided by Lexmark, Lexmark is not responsible for Product that is lost, damaged, modified or otherwise processed for disposal or resale. At Lexmark's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing. Products returned to Lexmark outside the applicable warranty period or for which Lexmark has not expressly consented to a return will not be eligible for credit. Should You make an unauthorized return of Product to Lexmark, You acknowledge and agree Lexmark has no obligation to return it to You or provide any credit to You relating to such return. You acknowledge and agree Lexmark shall have the right to recycle and/or otherwise dispose of such Product.
Lexmark's policy is one of ongoing update and revision. Lexmark may revise and discontinue Products or Services at any time without notice to You and this may affect availability of Product or Services saved in Your online "cart."
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND LEXMARK, ITS AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, ASSIGNS, AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS PARAGRAPH, "LEXMARK") ARISING FROM OR RELATING TO THESE TERMS AND CONDITIONS, THEIR INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS WHICH RESULT FROM THESE TERMS AND CONDITIONS (INCLUDING, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT PARTIES TO TERMS AND CONDITIONS), LEXMARK'S ADVERTISING, OR ANY RELATED PURCHASE SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) OR JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the dispute or controversy between Customer and Lexmark. IN ANY DISPUTE, NEITHER CUSTOMER NOR LEXMARK SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution provision shall not be enforced. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Lexmark will be responsible for paying any individual consumer's arbitration fees. If Customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY CLAIM UNDER THESE TERMS AND CONDITIONS. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. For information on AAA or JAMS, contact the following: American Arbitration Association, 335 Madison Avenue, 10th Floor, New York, NY 10017, www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352-5267, www.jamsadr.com.
You shall not assign, transfer, charge or make over or purport to assign, transfer, charge or make over Your rights under these Terms and Conditions. Lexmark shall have the right to subcontract the performance of its obligations under these Terms and Conditions to any third parties.
Lexmark shall not be liable to You nor held in breach of these Terms and Conditions for any loss or damage which may be suffered by You as a direct or indirect result of Lexmark being prevented, hindered or delayed, in whole or in part, in the performance by reason of any circumstances beyond Lexmark’s reasonable control including, but not limited to, any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, pandemic or epidemic, strike, lock-out, trade dispute or labor disturbance default of suppliers or sub-contractors, breakdown of plant or machinery, interruption in the supply of power or materials, failure of a utility service or transport or telecommunications network or the internet, and in such event Lexmark may, in its sole discretion, elect to cancel Your order and refund any payments made.
You acknowledge that these Terms and Conditions supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us. These Terms and Conditions prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. 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, Lexmark reserve the right to modify these Terms and Conditions upon prior written notice to You with effect for the future - subject to Your right to reject, by way of written notice, Lexmark’s modifications to these Terms and Conditions with respect to any orders for which Acceptance, but not yet fulfillment, has occurred.
Lexmark Products and/or Services are subject to export laws. Once Lexmark has delivered the Products or provided the Services to you, you are responsible for complying with all export regulations if you ship Lexmark Products and/or Services to countries outside of the United States.
No waiver of any term or condition of these Terms and Conditions shall be effective unless made in writing and signed by Us. The failure to exercise, delay in exercising or any other waiver of any right, power, or remedy provided by these Terms and Condition shall not be construed as a waiver of any right, power, or remedy arising as a result of any subsequent breach of that provision or any other provision of these Terms and Conditions.
f for any reason Lexmark determines or a court of competent jurisdiction finds that any provision or portion of these Terms and Conditions to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
These Terms and Conditions 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 and Conditions (to the fullest extent permitted by law) will continue in full force and effect.
Additional terms and conditions may be included with the Products and/or Services purchased on this Site, and You hereby consent to be governed by any and all of such additional terms unless You return the Product, unused, within thirty (30) days of purchase, and, concurrently with such return, notify Lexmark in writing of Your non-acceptance, or with respect to any Service purchased on the Site, You refuse such Service.
You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that You are buying only for Your own internal use only, and not for resale or export.
The construction validity and performance of these Terms and Conditions shall be governed by the law of the Commonwealth of Kentucky and both Customer and Lexmark submit to the exclusive jurisdiction of Fayette County, Kentucky in the event of legal proceedings arising from any dispute;
The language of any dispute resolution procedure or any proceedings will be English.
Lexmark reserves the right to change these Terms and Conditions at any time. If Lexmark makes such changes, Lexmark will post the revised Terms and Conditions here, along with the date of the revision. Any changes will apply only from the date of the revision. Amended dispute resolution provisions will not apply to any dispute of which the parties had actual notice as of the date of the change.
All text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software owned by Lexmark International, Inc. (and the compilation of such content), is the property of Lexmark International, Inc., the Site and/or their content suppliers and is protected by United States and international copyright laws.
All marks, graphics, logos, page headers, button icons, scripts, service names, data compilations, and software not owned by Lexmark International, Inc. are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Lexmark International, Inc., the Site or their content suppliers. Neither the Site nor any materials from the Site may be copied, reproduced, modified, republished, uploaded, posted, transmitted, distributed in any form or by any means, or otherwise exploited for any commercial purpose without the prior written permission of Lexmark International, Inc.
IMPORTANT! THIS LEXMARK PARTNERNET WEB SITE (THIS “SITE”) IS PASSWORD PROTECTED. YOU MAY ONLY USE THIS WEB SITE IF YOU HAVE BEEN GRANTED SPECIFIC ACCESS BY LEXMARK INTERNATIONAL, INC., 740 West New Circle Road, Lexington, Kentucky 40550, USA ("LEXMARK"), BY ISSUANCE OF A LOGIN ID AND PASSWORD. ANY OTHER USE OF OR ACCESS TO THIS SITE IS STRICTLY PROHIBITED.
You agree that you will not misuse or abuse account access and passwords. Your right to use the Site is not transferable. You agree that you (i) will not use the Site password of another party, (ii) will not share your password with any other party, and (iii) will take all reasonable precautions to protect its secrecy. You agree to accept responsibility for all activities that occur under your account or password.
2. Customizable Marketing Materials.
2.1. If you are authorized to modify and/or distribute certain Marketing Materials (collectively, the “Customizable Marketing Materials”) from this Site, you agree to comply with the following terms and conditions when modifying or distributing such Customizable Marketing Materials:
2.2. Any Marketing Materials that are available through the Site for download, modification and/or distribution is the copyrighted work of Lexmark and/or its licensors. Subject to the terms and conditions of this Agreement, Lexmark grants you a personal, nonexclusive, non-transferable license, to publish and distribute the Marketing Materials to current or potential customers in connection with sale or offer for sale of Lexmark products.
2.3. Any use of the Marketing Materials is prohibited except in accordance with this Agreement.
2.4. Except for Customizable Marketing Materials, you may not create derivative works Marketing Materials.
2.5. Although it is not obligated to do so, in the event Lexmark provides or makes available any error corrections or updates to the Marketing Materials, you agree to provide, such error corrections or updates to current and potential customers in accordance with Section 4.5.
2.6. Lexmark reserves the right to terminate your future right to distribute the Marketing Materials without liability to you or your customer in the event Lexmark, in its sole opinion, believes (i) the Marketing Materials distribution is not in accordance with this Agreement; (ii) an infringement claim appears likely or is made about the Marketing Materials; or (iii) Lexmark decides at its sole discretion to suspend the use of all or a particular Marketing Material.
3. Your Content.
3.1. You acknowledge and agree that any and all information, data, images, text, photographs, fonts, typefaces, illustrations, graphics, audio clips, works of authorship, video clips, trademarks or other content you use in Customizable Marketing Materials ("Content") is your sole responsibility, and you will be solely responsible for any damage to any party resulting therefrom. This means that you, and not Lexmark, are entirely responsible for your Content. Under no circumstances will Lexmark be liable in any way for any Content, including, but not limited to, any errors or omissions in any such Content, for any loss or damage of any kind incurred relating in any way to the use of any such Content incorporated into the Customizable Marketing Materials, for any claims of intellectual property infringement or misappropriation related to any Content.
3.2. Protected Data Warranty. You represent and warrant that you have obtained and will maintain compliance with applicable laws, including relevant data protection laws and data privacy laws, for the use, processing and transfer of Content provided to Lexmark under this Agreement. You warrant that you will not provide any personal data to Lexmark other than data required for Lexmark to grant access to the Site by issuing a login (“Limited Personal Data”). If providing any Limited Personal Data to Lexmark, you represent and warrant that you have obtained all requisite consents from data subjects, have provided data subjects all information required by applicable laws with respect to such Limited Personal Data, have obtained any necessary authorizations from competent authorities, and particularly accept and confirm that Lexmark may control, collect, process and store such Limited Personal Data.
4. Intellectual Property.
4.1. The Marketing Materials available on this Site, other than your Content (defined above) are owned by Lexmark and/or its licensors and suppliers and are protected by copyright, trademark, patent and/or other intellectual property laws, and any unauthorized use of the Marketing Materials may violate these laws. Except as expressly provided herein, Lexmark and its licensors and suppliers do not grant any other express or implied rights to access, distribute or use the Marketing Materials.
4.2. The trademarks, logos, and service marks ("Marks") displayed on this Site are the property of Lexmark or other third parties. You are not permitted to use the Marks without the prior written consent of Lexmark or such third party that may own the Marks. Lexmark and the Lexmark logo are the trademarks or registered trademarks of Lexmark in the United States and/or other countries. All other trademarks are the property of their respective owners.
4.3. Except as otherwise approved in writing in advance of use by Lexmark in each instance, you will not in any manner adopt, use or incorporate Lexmark’s company name, any Mark, the name of any Lexmark product or service, or any element of any of the foregoing in or as your name, the name of any your products or services or a domain name. Your right to use any of the foregoing as approved by Lexmark will immediately terminate upon the expiration or termination of an applicable Schedule or this Agreement, and in such event, you will immediately cease such use. This Section 4.3 shall survive any termination of this Agreement.
5. Protection and Security.
5.1. You represent that your employees having access to the Marketing Materials are or shall be party to written agreements acknowledging a duty to protect all of Lexmark’s confidential materials contained in the Marketing Materials.
5.2. You shall keep the Marketing Materials (including archival copies, if any) in a secure environment and shall take all steps reasonably necessary to protect electronic copies of the Marketing Materials, or any part thereof, from unauthorized release or modification.
5.3. You agree that the terms and conditions of this Agreement and any information concerning Lexmark pricing or information directed to partners is not in the public domain and constitutes confidential information regardless if so marked.
5.4. Except as expressly permitted by this Agreement, you shall: (i) not disclose any Confidential Information to third parties, and (ii) exercise the same degree of care that it uses to protect its own confidential information, but no less than reasonable care, to keep confidential the confidential information. You will immediately notify Lexmark in writing in the event of any disclosure or loss of Lexmark’s confidential information.
5.5. You expressly agree that a breach of this Sections 5 will cause irreparable harm to Lexmark and that Lexmark shall be entitled to injunctive relief, without the necessity of showing actual damages or posting a bond or other security, against any copying, transfer or distribution of Marketing Materials containing Lexmark confidential information.
Unless your other Lexmark Agreement(s) provide(s) otherwise, Lexmark may terminate this Agreement and access to this Site with or without cause at any time.
7. No Warranty; Disclaimers.
7.1. THIS SITE AND ALL MARKETING MATERIALS CONTAINED HEREIN ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTY OF ANY KIND. LEXMARK MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THIS SITE, ITS OPERATIONS, CONTENTS, INFORMATION OR THE MARKETING MATERIALS CONTAINED HEREIN. LEXMARK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF A THIRD PARTY'S RIGHTS. YOU SHALL NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF LEXMARK.
7.2. You understand and agree that Lexmark may, in its sole and absolute discretion, modify or discontinue offering any Marketing Materials on this Site at any time with or without notice or edit or delete information appearing on this Site.
8. Limitation of Liability.
IN NO EVENT SHALL LEXMARK, ITS AFFILIATES, OR ITS SUPPLIERS AND LICENSORS, BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT LEXMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE USE OF THIS SITE, DOWNLOADING AND/OR USE OF ANY MARKETING MATERIALS, OR OF ANY SITE REFERENCED OR LINKED TO FROM THIS SITE. OUR LIABILITY FOR ACTUAL DAMAGE FROM ANY CAUSE WILL BE LIMITED TO CHF 50,000 (FIFTY THOUSAND SWISS FRANCS). HOWEVER, NOTHING IN THIS AGREEMENT SHALL RESTRICT OR EXCLUDE OUR LIABILITY ARISING OUT OF (A) DEATH OR PERSONAL INJURY, (B) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR (C) ANY OTHER LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
By using this Site, you agree to indemnify Lexmark, its parent company, subsidiaries, and affiliated entities-, and each of their directors, officers, agents and employees ("Lexmark Indemnified Parties") and hold them harmless from and against any and all claims, regulatory actions, damages, liabilities, fines, penalties, costs and expenses, including attorney's fees, arising from or related to your violation of this Agreement or use of the Marketing Materials or this Site. By using this Site, you hereby release the Lexmark Indemnified Parties from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to this Site.
10. Service Interruptions.
You understand and agree that the unavailability of the downloading and other services provided by the Site may occur from time to time. Lexmark agrees to exercise reasonable care to prevent such occurrences, however, under no circumstances will Lexmark be held liable for any financial or other damages due to such unavailability except as may be otherwise provided in an applicable Lexmark Agreement.
11. Order of Precedence; Modification.
In the event of any conflict between any such Lexmark Agreement and these Terms and Conditions, the Lexmark Agreement shall take precedence to the extent of such conflict with respect to your use of this Site and Marketing Materials covered by the Lexmark Agreement. If you do not agree to this Agreement, you should not make any use of this Site or access or download any Marketing Materials. If you breach any of the terms and conditions of this Agreement, your authorization to use this Site automatically terminates, and to the extent you are not an end user, you must immediately destroy and/or discontinue the use of any downloaded or printed Marketing Materials. Lexmark reserves the right to change this Agreement without notice to you. Your use of the Site is subject to the most current version of the Agreement posted on the Site at the time of such use, and you should read the current Agreement each time that you access the Site.
12. Agreement to Contract Electronically; Authority to Contract.
13. Miscellaneous Law, Venue.
The laws of the Commonwealth of Kentucky, United States of America, shall govern the interpretation of this Agreement and any claims arising hereunder, regardless of choice of laws principles of any other jurisdiction. The parties hereby submit to the exclusive jurisdiction and venue of the State and Federal courts of Fayette County, Kentucky for any action or legal proceeding related to or arising under this Agreement and waive any objections based on forum non conveniens. The UN Convention on Contracts for the International Sale of Goods shall not apply. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence with respect to your use of this Site. Lexmark’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
14. FURTHER MARKETING SERVICES BY LEXMARK.