TERMS OF SERVICE
Last updated March
15, 2023
TABLE OF CONTENTS
2.
INTELLECTUAL PROPERTY RIGHTS
9.
USER GENERATED CONTRIBUTIONS
12.
MOBILE APPLICATION LICENSE
15.
THIRD-PARTY WEBSITES AND CONTENT
20.
MODIFICATIONS AND INTERRUPTIONS
28.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
29.
CALIFORNIA USERS AND RESIDENTS
These Terms of Service constitute a legally
binding agreement made between you, whether personally or on behalf of an
entity (“you”) and Develop Venture LLC & Wooder Ice LLC,
doing business as PhillyConnective ("PhillyConnective", “we”, “us”, or
“our”), concerning your access to and use
of the http://www.phillyconnective.com website
as well as any other media form, media channel, mobile website or mobile
application related, linked, or otherwise connected thereto (collectively, the
“Site”). We are registered in Texas, United States and
have our registered office at 2025 Guadalupe Street, Suite
260, Austin, TX 78705. You
agree that by accessing the Site, you have read, understood, and agree to be
bound by all of these Terms of Service, including the User
Agreement posted on the Site, which are incorporated into these Terms
of Service. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN
YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE
IMMEDIATELY.
Supplemental terms and conditions or documents that may be
posted on the Site from time to time are hereby expressly incorporated herein
by reference. We reserve the right, in our sole discretion, to make changes or
modifications to these Terms of Service at any time and for any
reason. We will alert you about any changes by updating the “Last updated” date
of these Terms of Service, and you waive any right to receive specific
notice of each such change. Please ensure that you check the applicable Terms
every time you use our Site so that you understand which Terms apply. You will
be subject to, and will be deemed to have been made aware of and to have
accepted, the changes in any revised Terms of Service by your
continued use of the Site after the date such revised Terms of
Service are posted.
The information provided on the Site is not intended for
distribution to or use by any person or entity in any jurisdiction or country
where such distribution or use would be contrary to law or regulation or which
would subject us to any registration requirement within such jurisdiction or
country. Accordingly, those persons who choose to access the Site from other
locations do so on their own initiative and are solely responsible for
compliance with local laws, if and to the extent local laws are applicable.
The Site is not tailored to comply with industry-specific
regulations (Health Insurance Portability and Accountability Act (HIPAA),
Federal Information Security Management Act (FISMA), etc.), so if your
interactions would be subjected to such laws, you may not use this Site. You
may not use the Site in a way that would violate the Gramm-Leach-Bliley Act
(GLBA).
The Site is intended for users who are at least 18 years
old. Persons under the age of 18 are not permitted to use or register
for the Site.
2. INTELLECTUAL PROPERTY
RIGHTS
Unless otherwise indicated, the Site is our proprietary
property and all source code, databases, functionality, software, website
designs, audio, video, text, photographs, and graphics on the Site
(collectively, the “Content”) and the trademarks, service marks, and logos
contained therein (the “Marks”) are owned or controlled by us or licensed to
us, and are protected by copyright and trademark laws and various other
intellectual property rights and unfair competition laws of the United States,
international copyright laws, and international conventions. The Content and
the Marks are provided on the Site “AS IS” for your information and personal
use only. Except as expressly provided in these Terms of Service, no part
of the Site and no Content or Marks may be copied, reproduced, aggregated, republished,
uploaded, posted, publicly displayed, encoded, translated, transmitted,
distributed, sold, licensed, or otherwise exploited for any commercial purpose
whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site, you are
granted a limited license to access and use the Site and to download or print a
copy of any portion of the Content to which you have properly gained access
solely for your personal, non-commercial use. We reserve all rights not
expressly granted to you in and to the Site, the Content and the Marks.
By using the Site, you represent and warrant that: (1) all
registration information you submit will be true, accurate, current, and
complete; (2) you will maintain the accuracy of such information and
promptly update such registration information as
necessary; (3) you
have the legal capacity and you agree to comply with these Terms of
Service; (4) you are not a minor in the jurisdiction in which you
reside; (5) you
will not access the Site through automated or non-human means, whether through
a bot, script or otherwise; (6) you
will not use the Site for any illegal or unauthorized purpose; and (7) your
use of the Site will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate,
not current, or incomplete, we have the right to suspend or terminate your
account and refuse any and all current or future use of the Site (or any
portion thereof).
4. USER REGISTRATION
You may be required to register with the Site. You agree to
keep your password confidential and will be responsible for all use of your
account and password. We reserve the right to remove, reclaim, or change a
username you select if we determine, in our sole discretion, that such username
is inappropriate, obscene, or otherwise objectionable.
We accept the following forms of payment:
- Visa
- Mastercard
- American Express
- Discover
- PayPal
You may be required to purchase or pay a fee to access some
of our services. You agree to provide current, complete, and accurate purchase
and account information for all purchases made via the Site. You further agree
to promptly update account and payment information, including email address,
payment method, and payment card expiration date, so that we can complete your
transactions and contact you as needed. We bill you through an online billing
account for purchases made via the Site. Sales tax will be added to the price
of purchases as deemed required by us. We may change prices at any time. All
payments shall be in U.S. dollars.
You agree to pay all charges or fees at the prices then in
effect for your purchases, and you authorize us to charge your chosen payment
provider for any such amounts upon making your purchase. If your
purchase is subject to recurring charges, then you consent to our charging your
payment method on a recurring basis without requiring your prior approval for each
recurring charge, until you notify us of your cancellation.
We reserve the right to correct any errors or mistakes in
pricing, even if we have already requested or received payment. We also reserve
the right to refuse any order placed through the Site.
We offer a 10-day free trial to new users who register
with the Site. The account will be charged according to the user’s chosen
subscription at the end of the free trial.
All purchases are non-refundable. You can cancel your subscription
at any time by logging into
your account. Your cancellation will take effect at the end of the current paid
term.
If you are unsatisfied with our services, please email us
at [email protected].
You may not access or use the Site for any purpose other
than that for which we make the Site available. The Site may not be used in
connection with any commercial endeavors except those that are specifically
endorsed or approved by us.
As a user of the Site, you agree not to:
9. USER GENERATED CONTRIBUTIONS
The Site may invite you to chat, contribute to, or
participate in blogs, message boards, online forums, and other functionality,
and may provide you with the opportunity to create, submit, post, display,
transmit, perform, publish, distribute, or broadcast content and materials to
us or on the Site, including but not limited to text, writings, video, audio,
photographs, graphics, comments, suggestions, or personal information or other
material (collectively, "Contributions"). Contributions may be
viewable by other users of the Site and through third-party websites. As such,
any Contributions you transmit may be treated as non-confidential and
non-proprietary. When you create or make available any Contributions, you
thereby represent and warrant that:
Any use of the Site in violation of the foregoing violates
these Terms of Service and may result in, among other things,
termination or suspension of your rights to use the Site.
10. CONTRIBUTION LICENSE
By posting your Contributions to any part of the
Site or making Contributions accessible to the Site by linking your
account from the Site to any of your social networking accounts, you
automatically grant, and you represent and warrant that you have the right to
grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive,
transferable, royalty-free, fully-paid, worldwide right, and license to host,
use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle,
archive, store, cache, publicly perform, publicly display, reformat, translate,
transmit, excerpt (in whole or in part), and distribute such Contributions
(including, without limitation, your image and voice) for any purpose,
commercial, advertising, or otherwise, and to prepare derivative works of, or
incorporate into other works, such Contributions, and grant and authorize
sublicenses of the foregoing. The use and distribution may occur in any media
formats and through any media channels.
This license will apply to any form, media, or technology
now known or hereafter developed, and includes our use of your name, company
name, and franchise name, as applicable, and any of the trademarks, service
marks, trade names, logos, and personal and commercial images you provide. You
waive all moral rights in your Contributions, and you warrant that moral rights
have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You
retain full ownership of all of your Contributions and any intellectual
property rights or other proprietary rights associated with your Contributions.
We are not liable for any statements or representations in your Contributions
provided by you in any area on the Site. You are solely responsible for your
Contributions to the Site and you expressly agree to exonerate us from any and
all responsibility and to refrain from any legal action against us regarding
your Contributions.
We have the right, in our sole and absolute discretion, (1)
to edit, redact, or otherwise change any Contributions; (2) to re-categorize
any Contributions to place them in more appropriate locations on the Site; and
(3) to pre-screen or delete any Contributions at any time and for any reason,
without notice. We have no obligation to monitor your Contributions.
11. GUIDELINES FOR REVIEWS
We may provide you areas on the Site to leave reviews or
ratings. When posting a review, you must comply with the following criteria:
(1) you should have firsthand experience with the person/entity being reviewed;
(2) your reviews should not contain offensive profanity, or abusive, racist,
offensive, or hate language; (3) your reviews should not contain discriminatory
references based on religion, race, gender, national origin, age, marital
status, sexual orientation, or disability; (4) your reviews should not contain
references to illegal activity; (5) you should not be affiliated with
competitors if posting negative reviews; (6) you should not make any
conclusions as to the legality of conduct; (7) you may not post any false or
misleading statements; and (8) you may not organize a campaign encouraging
others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole
discretion. We have absolutely no obligation to screen reviews or to delete
reviews, even if anyone considers reviews objectionable or inaccurate. Reviews
are not endorsed by us, and do not necessarily represent our opinions or the
views of any of our affiliates or partners. We do not assume liability for any
review or for any claims, liabilities, or losses resulting from any review. By
posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide,
royalty-free, fully-paid, assignable, and sublicensable right and license to
reproduce, modify, translate, transmit by any means, display, perform, and/or
distribute all content relating to reviews.
12. MOBILE APPLICATION LICENSE
Use License
If you access the Site via a mobile application, then we
grant you a revocable, non-exclusive, non-transferable, limited right to
install and use the mobile application on wireless electronic devices owned or
controlled by you, and to access and use the mobile application on such devices
strictly in accordance with the terms and conditions of this mobile application
license contained in these Terms of Service. You shall not: (1) except as
permitted by applicable law, decompile, reverse engineer, disassemble, attempt
to derive the source code of, or decrypt the application; (2) make any
modification, adaptation, improvement, enhancement, translation, or derivative
work from the application; (3) violate any applicable laws, rules, or
regulations in connection with your access or use of the application; (4)
remove, alter, or obscure any proprietary notice (including any notice of
copyright or trademark) posted by us or the licensors of the application; (5)
use the application for any revenue generating endeavor, commercial enterprise,
or other purpose for which it is not designed or intended; (6) make the
application available over a network or other environment permitting access or
use by multiple devices or users at the same time; (7) use the application for
creating a product, service, or software that is, directly or indirectly,
competitive with or in any way a substitute for the application; (8) use the
application to send automated queries to any website or to send any unsolicited
commercial e-mail; or (9) use any proprietary information or any of our
interfaces or our other intellectual property in the design, development,
manufacture, licensing, or distribution of any applications, accessories, or
devices for use with the application.
The following terms apply when you use a mobile application
obtained from either the Apple Store or Google Play (each an “App Distributor”)
to access the Site: (1) the license granted to you for our mobile application
is limited to a non-transferable license to use the application on a device
that utilizes the Apple iOS or Android operating systems, as applicable, and in
accordance with the usage rules set forth in the applicable App Distributor’s
terms of service; (2) we are responsible for providing any maintenance and
support services with respect to the mobile application as specified in the
terms and conditions of this mobile application license contained in
these Terms of Service or as otherwise required under applicable law,
and you acknowledge that each App Distributor has no obligation whatsoever to
furnish any maintenance and support services with respect to the mobile
application; (3) in the event of any failure of the mobile application to
conform to any applicable warranty, you may notify the applicable App
Distributor, and the App Distributor, in accordance with its terms and
policies, may refund the purchase price, if any, paid for the mobile
application, and to the maximum extent permitted by applicable law, the App
Distributor will have no other warranty obligation whatsoever with respect to
the mobile application; (4) you represent and warrant that (i)
you are not located in a country that is subject to a U.S. government embargo,
or that has been designated by the U.S. government as a “terrorist supporting”
country and (ii) you are not listed on any U.S. government list of prohibited
or restricted parties; (5) you must comply with applicable third-party terms of
agreement when using the mobile application, e.g., if you have a VoIP
application, then you must not be in violation of their wireless data service
agreement when using the mobile application; and (6) you acknowledge and agree
that the App Distributors are third-party beneficiaries of the terms and
conditions in this mobile application license contained in these Terms of
Service, and that each App Distributor will have the right (and will be deemed
to have accepted the right) to enforce the terms and conditions in this mobile
application license contained in these Terms of Service against you
as a third-party beneficiary thereof.
13. SOCIAL MEDIA
As part of the functionality of the Site, you may link your
account with online accounts you have with third-party service providers (each
such account, a “Third-Party Account”) by either: (1) providing your
Third-Party Account login information through the Site; or (2) allowing us to
access your Third-Party Account, as is permitted under the applicable terms and
conditions that govern your use of each Third-Party Account. You represent and
warrant that you are entitled to disclose your Third-Party Account login
information to us and/or grant us access to your Third-Party Account, without
breach by you of any of the terms and conditions that govern your use of the
applicable Third-Party Account, and without obligating us to pay any fees or
making us subject to any usage limitations imposed by the third-party service
provider of the Third-Party Account. By granting us access to any Third-Party
Accounts, you understand that (1) we may access, make available, and store (if
applicable) any content that you have provided to and stored in your
Third-Party Account (the “Social Network Content”) so that it is available on
and through the Site via your account, including without limitation any friend
lists and (2) we may submit to and receive from your Third-Party Account
additional information to the extent you are notified when you link your
account with the Third-Party Account. Depending on the Third-Party Accounts you
choose and subject to the privacy settings that you have set in such
Third-Party Accounts, personally identifiable information that you post to your
Third-Party Accounts may be available on and through your account on the Site.
Please note that if a Third-Party Account or associated service becomes
unavailable or our access to such Third-Party Account is terminated by the
third-party service provider, then Social Network Content may no longer be
available on and through the Site. You will have the ability to disable the
connection between your account on the Site and your Third-Party Accounts at
any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE
PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR
AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. We make no effort to
review any Social Network Content for any purpose, including but not limited
to, for accuracy, legality, or non-infringement, and we are not responsible for
any Social Network Content. You acknowledge and agree that we may access your
email address book associated with a Third-Party Account and your contacts list
stored on your mobile device or tablet computer solely for purposes of
identifying and informing you of those contacts who have also registered to use
the Site. You can deactivate the connection between the Site and your
Third-Party Account by contacting us using the contact information below or
through your account settings (if applicable). We will attempt to delete any
information stored on our servers that was obtained through such Third-Party
Account, except the username and profile picture that become associated with
your account.
You acknowledge and agree that any questions, comments,
suggestions, ideas, feedback, or other information regarding the Site
("Submissions") provided by you to us are non-confidential and shall
become our sole property. We shall own exclusive rights, including all
intellectual property rights, and shall be entitled to the unrestricted use and
dissemination of these Submissions for any lawful purpose, commercial or otherwise,
without acknowledgment or compensation to you. You hereby waive all moral
rights to any such Submissions, and you hereby warrant that any such
Submissions are original with you or that you have the right to submit such
Submissions. You agree there shall be no recourse against us for any alleged or
actual infringement or misappropriation of any proprietary right in your
Submissions.
15. THIRD-PARTY WEBSITES AND CONTENT
The Site may contain (or you may be sent via the Site)
links to other websites ("Third-Party Websites") as well as articles,
photographs, text, graphics, pictures, designs, music, sound, video,
information, applications, software, and other content or items belonging to or
originating from third parties ("Third-Party Content"). Such
Third-Party Websites and Third-Party Content are not investigated, monitored,
or checked for accuracy, appropriateness, or completeness by us, and we are not
responsible for any Third-Party Websites accessed through the Site or any
Third-Party Content posted on, available through, or installed from the Site,
including the content, accuracy, offensiveness, opinions, reliability, privacy
practices, or other policies of or contained in the Third-Party Websites or the
Third-Party Content. Inclusion of, linking to, or permitting the use or
installation of any Third-Party Websites or any Third-Party Content does not
imply approval or endorsement thereof by us. If you decide to leave the Site
and access the Third-Party Websites or to use or install any Third-Party
Content, you do so at your own risk, and you should be aware these Terms
of Service no longer govern. You should review the applicable terms and
policies, including privacy and data gathering practices, of any website to
which you navigate from the Site or relating to any applications you use or
install from the Site. Any purchases you make through Third-Party Websites will
be through other websites and from other companies, and we take no
responsibility whatsoever in relation to such purchases which are exclusively
between you and the applicable third party. You agree and acknowledge that we
do not endorse the products or services offered on Third-Party Websites and you
shall hold us harmless from any harm caused by your purchase of such products
or services. Additionally, you shall hold us harmless from any losses sustained
by you or harm caused to you relating to or resulting in any way from any
Third-Party Content or any contact with Third-Party Websites.
16. U.S. GOVERNMENT RIGHTS
Our services are “commercial items” as defined in Federal
Acquisition Regulation (“FAR”) 2.101. If our services are acquired by or on
behalf of any agency not within the Department of Defense (“DOD”), our services
are subject to the terms of these Terms of Service in accordance with
FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If our
services are acquired by or on behalf of any agency within the Department of
Defense, our services are subject to the terms of these Terms of Service in
accordance with Defense Federal Acquisition Regulation (“DFARS”) 227.7202-3. In
addition, DFARS 252.227-7015 applies to technical data acquired by the DOD. This
U.S. Government Rights clause is in lieu of, and supersedes, any other FAR,
DFARS, or other clause or provision that addresses government rights in
computer software or technical data under these Terms of Service.
We reserve the right, but not the obligation, to: (1)
monitor the Site for violations of these Terms of Service; (2) take
appropriate legal action against anyone who, in our sole discretion, violates
the law or these Terms of Service, including without limitation, reporting
such user to law enforcement authorities; (3) in our sole discretion and
without limitation, refuse, restrict access to, limit the availability of, or
disable (to the extent technologically feasible) any of your Contributions or
any portion thereof; (4) in our sole discretion and without limitation, notice,
or liability, to remove from the Site or otherwise disable all files and
content that are excessive in size or are in any way burdensome to our systems;
and (5) otherwise manage the Site in a manner designed to protect our rights
and property and to facilitate the proper functioning of the Site.
18. PRIVACY POLICY
We care about data privacy and security. Please review our
Privacy Policy: phillyconnective.com/privacy. By
using the Site, you agree to be bound by our Privacy Policy, which is
incorporated into these Terms of Service. Please be advised the Site is
hosted in the United States. If you access the Site from any other
region of the world with laws or other requirements governing personal data
collection, use, or disclosure that differ from applicable laws
in the United States, then through your continued use of the Site, you
are transferring your data to the United States, and you agree to
have your data transferred to and processed in the United States.
These Terms of Service shall remain in full force
and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF
THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION
AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING
BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON,
INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR
COVENANT CONTAINED IN THESE TERMS OF SERVICE OR OF ANY APPLICABLE LAW
OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR
DELETE YOUR ACCOUNT AND ANY CONTENT OR
INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE
DISCRETION.
If we terminate or suspend your account for any reason, you
are prohibited from registering and creating a new account under your name, a
fake or borrowed name, or the name of any third party, even if you may be
acting on behalf of the third party. In addition to terminating or suspending
your account, we reserve the right to take appropriate legal action, including
without limitation pursuing civil, criminal, and injunctive redress.
20. MODIFICATIONS AND
INTERRUPTIONS
We reserve the right to change, modify, or remove the
contents of the Site at any time or for any reason at our sole discretion
without notice. However, we have no obligation to update any information on our
Site. We also reserve the right to modify or discontinue all or part of the
Site without notice at any time. We will not be liable to you or any third
party for any modification, price change, suspension, or discontinuance of the
Site.
We cannot guarantee the Site will be available at all
times. We may experience hardware, software, or other problems or need to
perform maintenance related to the Site, resulting in interruptions, delays, or
errors. We reserve the right to change, revise, update, suspend, discontinue,
or otherwise modify the Site at any time or for any reason without notice to
you. You agree that we have no liability whatsoever for any loss, damage, or
inconvenience caused by your inability to access or use the Site during any
downtime or discontinuance of the Site. Nothing in these Terms of
Service will be construed to obligate us to maintain and support the Site
or to supply any corrections, updates, or releases in connection therewith.
These Terms of Service and your use of the Site
are governed by and construed in accordance with the laws of the
State of Texas applicable to agreements made and to
be entirely performed within the State of Texas, without regard to
its conflict of law principles.
Informal Negotiations
To expedite resolution and control the cost of any dispute,
controversy, or claim related to these Terms of Service (each
"Dispute" and collectively, the “Disputes”) brought by either you or
us (individually, a “Party” and collectively, the “Parties”), the Parties agree
to first attempt to negotiate any Dispute (except those Disputes expressly
provided below) informally for at least thirty (30) days before
initiating arbitration. Such informal negotiations commence upon written notice
from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a
Dispute through informal negotiations, the Dispute (except those Disputes
expressly excluded below) will be finally and exclusively resolved by binding
arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE
RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced
and conducted under the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") and, where appropriate, the AAA’s
Supplementary Procedures for Consumer Related Disputes ("AAA Consumer
Rules"), both of which are available at the AAA website www.adr.org. Your
arbitration fees and your share of arbitrator compensation shall be governed by
the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer
Rules. The arbitration may be conducted in person, through the submission
of documents, by phone, or online. The arbitrator will make a decision in
writing, but need not provide a statement of reasons unless requested by either
Party. The arbitrator must follow applicable law, and any award may be
challenged if the arbitrator fails to do so. Except where otherwise required by
the applicable AAA rules or applicable law, the arbitration will take place
in US, Texas. Except as otherwise provided herein, the Parties may
litigate in court to compel arbitration, stay proceedings pending arbitration,
or to confirm, modify, vacate, or enter judgment on the award entered by the
arbitrator.
If for any reason, a Dispute proceeds in court rather
than arbitration, the Dispute shall be commenced or prosecuted in
the state and federal courts located in __________, and the
Parties hereby consent to, and waive all defenses of lack of personal
jurisdiction, and forum non conveniens with respect
to venue and jurisdiction in such state and federal courts. Application of
the United Nations Convention on Contracts for the International Sale of Goods
and the Uniform Computer Information Transaction Act (UCITA) are excluded from
these Terms of Service.
In no event shall any Dispute brought by either Party
related in any way to the Site be commenced more than one (1) years
after the cause of action arose. If this provision is found to be illegal
or unenforceable, then neither Party will elect to arbitrate any Dispute
falling within that portion of this provision found to be illegal or
unenforceable and such Dispute shall be decided by a court of competent
jurisdiction within the courts listed for jurisdiction above, and the Parties agree
to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to
the Dispute between the Parties individually. To the full extent permitted by
law, (a) no arbitration shall be joined with any other proceeding; (b) there is
no right or authority for any Dispute to be arbitrated on a class-action basis
or to utilize class action procedures; and (c) there is no right or authority
for any Dispute to be brought in a purported representative capacity on behalf
of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not
subject to the above provisions concerning informal negotiations and binding
arbitration: (a) any Disputes seeking to enforce or protect, or concerning the
validity of, any of the intellectual property rights of a Party; (b) any
Dispute related to, or arising from, allegations of theft, piracy, invasion of
privacy, or unauthorized use; and (c) any claim for injunctive relief. If this
provision is found to be illegal or unenforceable, then neither Party will
elect to arbitrate any Dispute falling within that portion of this provision
found to be illegal or unenforceable and such Dispute shall be decided by a
court of competent jurisdiction within the courts listed for jurisdiction above,
and the Parties agree to submit to the personal jurisdiction of that court.
23. CORRECTIONS
There may be information on the Site that contains
typographical errors, inaccuracies, or omissions, including descriptions,
pricing, availability, and various other information. We reserve the right to
correct any errors, inaccuracies, or omissions and to change or update the
information on the Site at any time, without prior notice.
24. DISCLAIMER
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS.
YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT
THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY
WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY
FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM
YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL
INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION
TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH
MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY
ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE,
OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A
THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE
APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A
PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN
YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE
OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD
USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
25. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR
AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING
LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE
OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS
OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE
LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX
(6) MONTH PERIOD PRIOR TO ANY CAUSE
OF ACTION ARISING OR __________. CERTAIN
US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED
WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS
APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY
TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
26. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless,
including our subsidiaries, affiliates, and all of our respective officers,
agents, partners, and employees, from and against any loss, damage, liability,
claim, or demand, including reasonable attorneys’ fees and expenses, made by
any third party due to or arising out of: (1) your Contributions; (2)
use of the Site; (3) breach of these Terms of Service; (4) any breach of
your representations and warranties set forth in these Terms of Service;
(5) your violation of the rights of a third party, including but not limited to
intellectual property rights; or (6) any overt harmful act toward any other
user of the Site with whom you connected via the Site. Notwithstanding the
foregoing, we reserve the right, at your expense, to assume the exclusive
defense and control of any matter for which you are required to indemnify us,
and you agree to cooperate, at your expense, with our defense of such claims.
We will use reasonable efforts to notify you of any such claim, action, or
proceeding which is subject to this indemnification upon becoming aware of it.
27. USER DATA
We will maintain certain data that you transmit to the Site
for the purpose of managing the performance of the Site, as well as data
relating to your use of the Site. Although we perform regular routine backups
of data, you are solely responsible for all data that you transmit or that
relates to any activity you have undertaken using the Site. You agree that we
shall have no liability to you for any loss or corruption of any such data, and
you hereby waive any right of action against us arising from any such loss or
corruption of such data.
28. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us
emails, and completing online forms constitute electronic communications. You
consent to receive electronic communications, and you agree that all
agreements, notices, disclosures, and other communications we provide to you
electronically, via email and on the Site, satisfy any legal requirement that
such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC
SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF
NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR
VIA THE SITE. You hereby waive any rights or requirements under any statutes,
regulations, rules, ordinances, or other laws in any jurisdiction which require
an original signature or delivery or retention of non-electronic records, or to
payments or the granting of credits by any means other than electronic means.
29. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved,
you can contact the Complaint Assistance Unit of the Division of Consumer
Services of the California Department of Consumer Affairs in writing at 1625
North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone
at (800) 952-5210 or (916) 445-1254.
30. MISCELLANEOUS
These Terms of Service and any policies or
operating rules posted by us on the Site or in respect to the Site constitute
the entire agreement and understanding between you and us. Our failure to
exercise or enforce any right or provision of these Terms of
Service shall not operate as a waiver of such right or provision.
These Terms of Service operate to the fullest extent permissible by
law. We may assign any or all of our rights and obligations to others at any
time. We shall not be responsible or liable for any loss, damage, delay, or
failure to act caused by any cause beyond our reasonable control. If any
provision or part of a provision of these Terms of Service is
determined to be unlawful, void, or unenforceable, that provision or part of the
provision is deemed severable from these Terms of Service and does
not affect the validity and enforceability of any remaining provisions. There
is no joint venture, partnership, employment or agency relationship created
between you and us as a result of these Terms of Service or use of
the Site. You agree that these Terms of Service will not be construed
against us by virtue of having drafted them. You hereby waive any and all
defenses you may have based on the electronic form of these Terms of
Service and the lack of signing by the parties hereto to execute
these Terms of Service.
31. CONTACT US
In order to resolve a complaint regarding the Site or to
receive further information regarding use of the Site, please contact us at: