Terms of Use for EMA Online Professional Development Resources

IMPORTANT! PLEASE READ THE TERMS OF USE CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT. BY ELECTRONICALLY ACCEPTING THE TERMS OF USE, YOU ACKNOWLEDGE AND AGREE THAT YOUR AND YOUR ORGANIZATION’S USE OF THE SERVICES PROVIDED BY THE ENROLLMENT MANAGEMENT ASSOCIATION ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE TERMS OF USE. 

The Enrollment Management Association, Inc. ("EMA") is a nonprofit organization that develops and offers professional development resources via a cloud-based, online platform and through other technology-enabled methods (the "EMA Services"). The Terms of Use for EMA Online Professional Development Resources  (the “Agreement” or “Terms of Use”) set forth below is a legal contract between the Customer that clicks through and accepts the Agreement and EMA regarding the use by Customer and its users of the EMA Services. Customer’s users of the EMA Services are referred to individually as "User" and collectively as "Users".  Customer, as used herein, includes Customer and its Users.  Customer and EMA are individually referred to each as a “Party” and collectively as the “Parties.”

The Customer seeks to subscribe to EMA’s professional development resources offered via a cloud-based, online platform and through other technology-enabled methods. The terms and conditions set forth in this Agreement will apply to Customer’s subscription to the professional development resources provided by EMA. 

In consideration of the mutual promises, covenants, terms, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby recognized and acknowledged by the Parties, and intending to be legally bound hereby, the Parties agree as follows:

1.    DEFINITIONS. Capitalized terms used throughout the Agreement and applicable Order Form shall have the meanings, for purposes of this Agreement and applicable Order Form, provided by the Agreement where the term is defined or otherwise appears in quotation marks.

1.1    The term Affiliate” means any parent, subsidiary or other entity that is owned or controlled by, or under the same management as a Party.

1.2    The term Authorized Persons” means EMA’s employees, contractors, vendors, service providers, agents, attorneys and auditors (including data center providers) who have a need to access, use and process the Personal Data to enable EMA to perform its obligations under this Agreement. All Authorized Persons shall be bound in writing by confidentiality, use and security obligations sufficient to protect Personal Data in accordance with the terms and conditions of this Agreement.

1.3    The term “Integrated Services” means cloud-based software, technology platforms and related third party services required to access and use the EMA Services.  Integrated Services include, but are not limited to Thinkific and Zoom and each have their own terms and conditions beyond those contained in this Agreement.  It is the sole responsibility of Customer and Customer’s Users to understand and comply with the terms and conditions of Integrated Services required to access and use the EMA Services.

1.4    The term “Member” means a member in good standing of EMA.

1.5    The term “Order Form means the page labeled “Order Form” on EMA’s website where the EMA Services are offered, where the Customer can subscribe to the EMA Services, that specifies the contents, specifications and pricing of the EMA Services. Each Order Form shall be incorporated by reference into the terms of this Agreement, whereby the terms and conditions of this Agreement shall apply to such Order Form. 

1.6    The term "Personal Data" means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.  

2.    SUBSCRIPTION SERVICES; USE RIGHTS

2.1    Subscription Services to be Provided by EMA. During the term of this Agreement, EMA will make available and provide to the Customer, via the Integrated Services, the EMA Services identified in the applicable Order Form (the “EMA Services”). The EMA Services include the “PD Learning Pass,” which is available exclusively to Members at the price established by EMA in the Order Form, and “Individual Online Courses” with various titles, covering a variety of subject matter, which are available to Members at a discounted price and non-members at regular price established by EMA in the Order Form.  Customer shall only receive the EMA Services that Customer is eligible to purchase and which Customer accepts and pays for in an Order Form submitted on EMA’s designated website for the EMA Services.  Customer shall have a revocable, nonexclusive, nontransferable, worldwide subscription to the EMA Services, as identified in each applicable Order Form that allows Customer to access and use the EMA Services via the Integrated Services, pursuant to the terms of the Agreement and applicable Order Form and the applicable terms of the Integrated Services.  

2.2    Use Rights. During the term of Customer’s subscription to the EMA Services and subject to the terms of this Agreement and any applicable Order Form, EMA hereby grants to Customer a revocable, worldwide, nonexclusive, nontransferable right to permit Customer’s employees (“Users”) to use the EMA Services to which Customer has subscribed for Customer's professional development purposes and as limited herein. Customer’s use rights are limited to Customer and Customer’s Users and for which Customer has paid in accordance with the pricing and specifications set forth in the applicable Order Form. Said use rights are non-transferable, except in the event of a merger, acquisition, voluntary sale or transfer of substantially all assets by Customer to a transferee which agrees to be bound by all of the terms and conditions of this Agreement. Customer shall not allow any person other than its own employees to Use the EMA Services.  All rights in and to the EMA Services not expressly granted to the Customer herein are reserved to EMA.  The subscription to the “PD Learning Pass” may be used and accessed by all of Customer’s Users.  Subscriptions to “Individual Online Courses” may only be accessed and used by one single User designated by Customer, and the Customer’s designated User is prohibited from sharing their account and prohibited from sharing the content of the Individual Online Course to which Customer has subscribed.

2.3    Use Restrictions. In addition to the use restrictions provided above, Customer shall not, alone, or with another party, knowingly (i) copy, disassemble, reverse engineer, or decompile the EMA Services or any component thereof; (ii) modify, create derivative works based upon, or translate the EMA Services or any component thereof; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the EMA Services, or any part thereof, in any form or format to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.

2.4    Integrated Services.  In order to access the EMA Services, Customer and its Users are required to access and use Integrated Services, including but not limited to Thinkific and Zoom. Customer and/or Customer’s User’s will be required to create and control their own user accounts on each of Thinkific and Zoom to use the EMA Services, and shall be solely responsible for their accounts with such Integrated Services. Each Integrated Service has its own legal terms of use and privacy policy that Customer’s User’s must review and accept in order to access and use the EMA Services provided by EMA. EMA does not control the terms, policies or practices of Integrated Services, and Customer’s Users are advised to read the Privacy Policy and terms and conditions of any Integrated Service to understand their policies and practices.  If for any reason Customer or Customer’s Users reject or object to the terms, policies or practices of any Integrated Service, they may not access or use the EMA Services.  Notwithstanding any other term or condition contained in this or any other Agreement, EMA shall not be liable for any damage or harm caused to a Customer or Customer’s Users arising out of their use of Integrated Services.


4.    OWNERSHIP OF THE SERVICES AND RELATED DATA

4.1    Ownership of the Subscription Services to be Provided. Except for the limited access and use rights expressly provided to Customer under the terms of this Agreement, EMA retains all right, title and interest in and to the EMA Services (not including Integrated Services), including without limitation all incorporated improvements and modifications thereto resulting from Customer’s suggestions or use of thereof. Neither this Agreement, nor any prior agreement, grants Customer any ownership rights in the EMA Services or any of their components. Customer acknowledges and agrees that EMA shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the EMA Services any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer's Users relating to the features, functionality or operation of the EMA Services.

4.2    Use of Personal Data. Personal Data belongs to each of Customer’s Users that it identifies and will be processed by EMA and its Authorized Persons processed in accordance with this Agreement and the EMA Privacy Policy only as necessary to provide the EMA Services. Customer and Customer’s Users hereby grant to EMA, a non-exclusive, fully paid, world-wide right and license to use, copy, transmit, and process Personal Data solely for purposes of facilitating the use of the EMA Services by Customer and its Users. EMA shall not copy, use, transmit, display or process the Personal Data for any purpose except to perform its obligations under this Agreement and the applicable Order Form. EMA shall not under any circumstances sell, lease or license the Personal Data.

6.    FINANCIAL TERMS

6.1    Fees. Customer shall pay EMA the fees specified by EMA for the EMA Services ordered by Customer as reflected on the Order Form submitted to EMA by Customer through its account.  Customer shall not charge its Users or any other person or third party any fees related to Customer’s use or administration of the EMA Services.  Members shall pay the discounted price provided in the Order Form for all Individual Online Courses.  All dollar amounts refer to U.S. dollars. 

6.2    Payment Terms. Unless otherwise noted in the applicable Order Form, Customer shall pay EMA in advance for all fees for Services identified in the Order Form.  EMA Services shall not be provided until the fees are paid.

7.    WARRANTIES AND DISCLAIMER

7.1    Warranties. EMA warrants that EMA owns or otherwise has sufficient rights in the EMA Services to grant Customer and its Users the rights to use the EMA Services as provided herein. Customer must report any material deficiencies in the EMA Services to EMA in writing within thirty (30) days of Customer’s discovery of the defect. Customer’s exclusive remedy for the breach of the warranty above will be for EMA to use commercially reasonable efforts to correct any verified breaches of warranty within a reasonable time of receipt of written notice from Customer detailing the breach and, if EMA is unable or unwilling to remedy such breach within a reasonable time period, Customer may terminate the Agreement and receive a prorated refund of any pre-paid, unused fees for the nonconforming Services. This warranty shall only be effective and enforceable if the Customer has used the EMA Services in accordance with the terms of this Agreement, the specifications and related user documentation for the EMA Services, and the applicable Order Form for the EMA Services.

7.2    Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE WARRANTIES PROVIDED IN SECTION 7.1 OF THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH ANY DESCRIPTION, OR ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. EMA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR CONDITIONS. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, EMA DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICES  WILL MEET CUSTOMER’S OR ITS USERS’ REQUIREMENTS OR EXPECTATIONS, (B) THE QUALITY OF ANY INFORMATION OBTAINED BY CUSTOMER OR ITS USERS THROUGH THE SERVICES  WILL MEET CUSTOMER’S OR ITS USERS’ REQUIREMENTS OR EXPECTATIONS, OR (C) THE COMMUNICATION FACILITIES, INCLUDING, WITHOUT LIMITATION, THE INTERNET, THAT MAKE THE SERVICES AVAILABLE ARE SECURE FROM INTERRUPTION, INTERCEPTION OR CORRUPTION BY THIRD PARTIES. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT AND CONTINUE IN EFFECT. EMA DISCLAIMS ANY AND ALL SUCH WARRANTIES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM EMA SHALL CREATE ANY IMPLIED WARRANTY.

8.    LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY RIGHTS EXPRESSLY SET FORTH IN SECTION 9, OWNERSHIP RIGHTS SET FORTH IN SECTION 4, AND EITHER PARTY’S WILLFUL MISCONDUCT (“EXCLUDED MATTERS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, E.G., CONTRACT, WARRANTY, TORT, MALPRACTICE, AND/OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO EMA PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OR ACT OR OMISSION GIVING RISE TO THE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, OR BUSINESS, LOSS OF USE, OR INTERRUPTION OF BUSINESS, OR OTHER DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  NOTWITHSTANDING ANY OTHER TERMS STATED HEREIN, EMA SHALL HAVE NO LIABILITY WHATSOEVER FOR THE ACTIONS OR OMISSIONS OF CUSTOMER’S USERS RELATED TO THEIR USE OF THE SERVICES OR RELIANCE BY CUSTOMER’S USERS ON ANY INFORMATION OBTAINED THROUGH THE SERVICES.

9.    MUTUAL INDEMNITIES; ENFORCEMENT

9.1     Indemnification by EMA. EMA will (i) defend, at its expense, Customer, its Affiliates, officers, directors, employees, agents, contractors, attorneys, representatives, successors and assigns (collectively, the “Customer Indemnified Parties”) from and against any claims, proceedings, actions or demands (“Claim”) which may be brought against Customer or any of the Indemnified Parties by any third party alleging that Customer’s use of the EMA Services infringes a patent, trademark, moral rights, or copyright, or misappropriates a trade secret; and (ii) indemnify and hold Customer and all Indemnified Parties harmless against all costs (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by EMA, in connection with such Claim. EMA shall assume full conduct of the Claim in the name of Customer, to appoint such legal counsel as EMA may elect, and to litigate, settle or compromise such Claim as EMA may see fit in its sole discretion, provided that EMA will not settle or compromise such Claim on a basis that results in an admission of liability by Customer, or in Customer having to pay any sum of money related to such Claim, unless Customer has first agreed in writing. Customer will fully cooperate with EMA in the defense of the Claim at EMA’s cost. The foregoing obligation of EMA to indemnify Customer shall not apply to the extent that (a) Customer has failed to give prompt written notice to EMA of the Claim resulting in prejudicing the defense; (b) Customer has modified the Service  in a manner that makes the EMA Services infringing where otherwise it would not be; (c) Customer has combined the Service  with other software, products or services in a manner that makes the Service  infringing where otherwise it would not be. Customer may engage separate counsel to monitor the defense at Customer’s sole cost and expense. In the event of a Claim, in addition to its obligations above, EMA shall, at its option (1) modify the EMA Services  with a non-infringing alternative having substantially equivalent performance within a reasonable period of time so that the EMA Services  no longer infringe or misappropriate; (2) obtain a license for Customer to continue to use the EMA Services ; or (3) terminate this Agreement or applicable Order Form and refund to Customer the unused portion of any pre-paid charges or fees, except minimum annual fees paid in advance for Subscription Services. The foregoing, along with EMA’s obligation to defend, indemnify and hold harmless Customer, shall be EMA’s only obligation in the event of a third party claim of a patent, trademark, moral rights, or copyright, or misappropriation of a trade secret arising out of the EMA Services, and Customer’s exclusive remedy.

9.2     Indemnification by Customer. Customer will defend EMA, its Affiliates, officers, directors, employees, agents, contractors, attorneys, representatives, successors and assigns (collectively, the “EMA Indemnified Parties”) from and against any claims, proceedings, actions or demands (“Claim”) which may be brought against EMA or another of the Indemnified Parties by a third party alleging a violation of a third party’s rights arising from the use of the EMA Services or the Integrated Services by Customer or Customer’s Users in violation of the terms of the Agreement and Customer shall indemnify and hold EMA and the Indemnified Parties harmless from and against any and all costs (including reasonable attorneys’ fees) finally awarded against EMA by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Customer in connection with such Claim Customer shall assume full conduct of the Claim in the name of EMA, to appoint such legal counsel as Customer may elect, and to litigate, settle or compromise such Claim as Customer may see fit in its sole discretion, provided that Customer will not settle or compromise such Claim on a basis that results in an admission of liability by EMA, or in EMA having to pay any sum of money related to such Claim, unless EMA has first agreed in writing. EMA will fully cooperate and assist in any such investigation, preparation, and defense. The foregoing obligation of Customer to indemnify EMA shall not apply to the extent that (a) EMA has failed to give prompt written notice to Customer of the Claim resulting in prejudicing the defense. EMA may engage separate counsel to monitor the defense at EMA’s sole cost and expense. 

9.3    Third Party Claims. Each Party shall immediately notify the other Party in writing and provide the other Party with all relevant background facts upon receipt of threatened or actual litigation involving Third Party claims that Customer’s use of the EMA Services allegedly conflicts with, infringes, misappropriates, or otherwise violates rights of a Third Party.

9.4    Enforcement. EMA, at its sole discretion and with counsel of its choosing, may elect to enforce its rights in the EMA Services against any third party that may be infringing, misappropriating, or otherwise violating EMA’s rights therein.

9.5    This section shall survive the termination or expiration of this Agreement.

10.    TERM AND TERMINATION

10.1     Term of Agreement. This Agreement shall take effect on the date it is accepted by Customer (the “Effective Date”) and remain in effect until the earlier of: (i) terminated in accordance with this Section 10, or (ii) expiration or termination of an existing Order Form. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the EMA Services.

10.2    Termination by EMA. EMA may, in its sole discretion, terminate this Agreement and any applicable Order Form upon written notice to Customer:

(i)    immediately if Customer has submitted an Order Form to purchase EMA Services that are available exclusively to Members, or at pricing that is available only to Members, and Customer is not a member in good standing of EMA for any reason;

(ii)    if Customer has submitted an Order Form to purchase EMA Services that are available exclusively to Members and Customer fails to timely pay any membership fees due and owing to EMA either under this Agreement or pursuant to the terms of the EMA Membership Services Agreement within thirty (30) days of written notice by EMA to Member specifying the amounts owed; or

(iii)    immediately if Customer or any of its Users breach the intellectual property provisions of this Agreement or violate the Use Rights or Use Restrictions provided in this Agreement.

10.3    Termination for Cause. In addition to EMA’s rights to terminate as specified above, either Party can terminate this Agreement for cause upon written notice to the other party: 

(i)      if the other party has committed a material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or 

(ii)     upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement. 

10.4     Obligations Upon Termination. Upon termination of this Agreement: 

(i)     EMA shall immediately terminate access to the EMA Services by Customer; and

(ii)    Customer shall immediately pay EMA any undisputed amounts payable or accrued but not yet paid to EMA, including any deferred payments or payments originally to be made over time.

11.    GENERAL PROVISIONS

11.1    Force Majeure.  Neither Party shall be liable for delay or failure in performance of any of its obligations under this Agreement (other than payment obligations) when such delay or failure arises from events or circumstances beyond the reasonable control of such Party, including, without limitation, acts of God, fire, flood, war, explosion, sabotage, terrorism, embargo, civil commotion, acts or omissions of any government entity, supplier delays, communications or power failure that are not caused by EMA or EMA. 

11.2    Relationship of Parties. Notwithstanding any of the foregoing terms of this Agreement or applicable Order Form, neither Party will make any claims, representations or warranties on behalf of the other Party or bind the other Party, and neither Party is authorized to do so by this Agreement or applicable Order Form. The relationship between the Parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither Party will have the right, power or authority to bind or create any obligation, express or implied, on behalf of the other Party.

11.3    Severability. Any provision of this Agreement or applicable Order Form which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. To the extent permitted by applicable law, the Parties hereby waive any provision of law that prohibits or renders unenforceable provisions hereof in any respect.

11.4    Successors. Neither the rights nor the obligations arising under this Agreement or applicable Order Form are assignable or transferable by EMA or Customer without the other Party’s prior written consent, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either Party may freely assign this Agreement in its entirety, upon notice and without the consent of the other Party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. All of the terms, covenants, representations, warranties and conditions set forth in this Agreement and any applicable Order Form will be binding upon and inure to the benefit of and be enforceable by the Parties hereto and their respective successors, assigns and legal representatives.

11.5    Choice of Law, Jurisdiction and Forum Selection. Any controversy, claim or dispute among the Parties hereto arising out of or related to this Agreement or applicable Order Form, which cannot be settled amicably by the Parties, will be brought in the State of New Jersey. The Parties further agree that the laws of the State of New Jersey shall apply to the construction of this Agreement or applicable Order Form and any controversy, claim, or dispute hereunder, and the Parties consent to the exclusive jurisdiction of an appropriate court within the State of New Jersey to hear and decide all such matters.

11.6    Amendment and Waiver. This Agreement may be amended, modified, superseded or cancelled, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the Parties or, in the case of a waiver, by or on behalf of the waiving party. The waiver by any Party at any time or times to require performance under any provision hereof will in no manner effect such Party’s right at a later time to enforce the same provision or provisions.

11.7    Authorized Representative. Customer represents and warrants that the person accepting this Agreement on its behalf is duly authorized by Customer to execute this Agreement.

11.8    Execution. This Agreement and applicable Order Form may be executed by the Parties electronically and shall have the same legal effect as if signed by hand signature of the Parties.  The Agreement shall be deemed pre-signed and executed by EMA by virtue of its electronic acceptance and execution by Customer. The person accepting the Agreement on behalf of Customer represents that they are duly authorized to execute this Agreement and applicable Order Form for and on behalf of Customer.

11.9    Notice. Any notice or other communication to be given or made under or in connection with this Agreement and applicable Order Form shall be in writing and addressed to the representative identified by each Party.


BY CHECKING 'I HAVE READ AND AND AGREE TO THE TERMS OF USE' THE PERSON ACCEPTING THE TERMS OF USE ON BEHALF OF CUSTOMER IS REPRESENTING THAT THEY HAVE THE LEGAL AUTHORITY TO BIND CUSTOMER TO LEGAL AGREEMENTS AND TO ACCEPT THE TERMS OF USE ON BEHALF OF CUSTOMER, THAT CUSTOMER AGREES THAT THE ELECTRONIC ACCEPTANCE OF THE TERMS OF USE SHALL HAVE THE SAME LEGAL EFFECT AS A HAND SIGNATURE OF THE TERMS OF USE BY CUSTOMER AND THAT CUSTOMER IS ACCEPTING THE TERMS OF USE, INCLUDING ALL ORDER FORMS MADE PART OF THE TERMS OF USE.