Effective Date: August 29, 2018.
In some instances, both these Terms and separate terms elsewhere on the Service, will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
Company reserves the right, at any time in our sole discretion, to modify, change, or replace any part of these Terms and any applicable Additional Terms under which the Service is offered, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
3. SERVICE USE
The Service contains: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Company; and (iii) other forms of intellectual property (all of the foregoing, collectively Content). All right, title, and interest in and to the Service and the Content is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”), in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
Certain features of the Service may require you to register an account. When registering an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
You may not use the Service unless you are at least thirteen (13) years old.
As a condition of your use of the Service, you warrant to Company that you will not use the Service or Content for any purpose that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Company. In addition, you may not (i) use the Service or Content in any manner which could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service; (ii) obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service; (iii) use the Service or Content for any political or commercial purpose; (iv) harvest any information from the Service or Content; (v) reverse engineer or modify the Service or Content; (vi) interfere with the proper operation of or any security measure used by the Service or Content; (vii) infringe any intellectual property or other right of any third party; (viii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (ix) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
The Service may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
- Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
- Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
- Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
- Conduct or forward surveys, contests, pyramid schemes or chain letters.
- Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
- Restrict or inhibit any other user from using and enjoying the Communication Services.
- Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
- Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
- Violate any applicable laws or regulations.
Company has no obligation to monitor the Communication Services. However, Company reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Company reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Company reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Company's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Company does not control or endorse the content, messages or information found in any Communication Service and, therefore, Company specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Company spokespersons, and their views do not necessarily reflect those of Company.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
Company may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Company’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Company, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
F. Reservation of Rights.
All rights not expressly granted to you are reserved by Company and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
Company does not claim ownership of the materials (including unsolicited ideas, feedback, opinions, suggestions, techniques, images, sounds, videos or other content) (collectively "Submissions") you provide to Company through or relating to the Service (e.g., by posting, uploading, inputting, or submitting such materials). However, providing your Submission, you are granting Company, its affiliated companies and necessary sublicensees the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to use your Submission including, without limitation, the rights to: host, store, copy, distribute, transmit, publish, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms and distributors), publicly display, publicly perform, reproduce, edit, modify, adapt, combine with other materials, translate and reformat your Submission and otherwise use and exploit your Submission in any manner whatsoever, or grant third parties the right to do any of the foregoing, with all or any portion of your Submission, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same; and you further irrevocably grant us the right, but not the obligation, to use and publish your name in connection with your Submission. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
No compensation will be paid with respect to the use of your Submission, as provided herein. Company is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Company's sole discretion. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.
You warrant and represent that you own or otherwise control all of the necessary rights, licenses, consents, and permissions to grant us the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions. You alone, though, retain whatever legally cognizable right, title and interest that you have in your Submission and remain responsible for them.
5. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
A. DMCA Notification.
Company responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
- A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
- Your contact information, including your address, telephone number, and an e-mail address;
- A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
California Dental Association
1201 K Street
Sacramento, CA 95814
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
B. Counter Notification.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
- A physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications in accordance with the DMCA.
6. SHOPPING SITE, SUBSCRIPTIONS, AND PRODUCTS.
The Service includes shopping site pages (the “Shopping Site”) through which products are offered for sale to registered members of the Service. The Shopping Site is available to the public, but purchases are restricted to dental practitioners who are over 18 years of age, are members of the California Dental Association or other participating constituent society of the ADA, and reside in the United States or any of its territories. By using the Shopping Site, you represent and warrant that you are of legal age to form a binding contract with Company and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms, and that you will abide by and comply with the Terms. You represent and warrant that you are only ordering products offered through the Service (“Products”) for your own clinical consumption or for resale to patients of your own dental practice.
All Products on the Shopping Site are offered and sold by third party vendors (“Third Party Vendors”) and not by Company. You understand and agree that the terms and conditions governing the sale or return of any Products to you are set forth in any terms and conditions, guidelines and/or policies of the applicable Third Party Vendor, or as set forth below in the section entitled Terms and Conditions of Sale. Company is not responsible for examining or evaluating the Products, services, or other offerings of any Third Party Vendor. You agree that Company will not be responsible for any loss or damage of any sort relating to your dealings with any Third Party Vendor or any third party provider of Content on the Shopping Site. Third Party Vendors pay Company an administrative fee which does not exceed 3.0% of the purchase price of Products sold on the Shopping Site, except as set forth in the following link.
The Shopping Site allows eligible shoppers as described above to purchase Products in multiple ways: by placing a one-time order for Products (an “Order”), by scheduling a one-time Order for Products to be placed on some date in the future that you may specify (referred to as a “Subscription”), or by scheduling a recurring Order for Products to be placed on a recurring basis (e.g., one-time, weekly, monthly or other regular basis that you specify) (referred to as “an Order and Subscription”). You will receive an email confirming the details of all Orders and Subscriptions placed through the Shopping Site, which will include instructions about how to cancel such Orders and Subscriptions. For a recurring Order and Subscription, your Order and Subscription will continue until you cancel. Specifically, for a recurring monthly Order and Subscription, you will receive notice at least ten (10) calendar days before the scheduled subscription renewal date that includes instructions for cancellation if you don’t want your Order and Subscription to automatically renew. For a recurring weekly Order and Subscription, you will receive notice at least three (3) calendar days before the scheduled subscription renewal date that includes instructions for cancellation if you don’t want your Order and Subscription to automatically renew. You may also change or cancel any Orders or Subscriptions you have placed through the Shopping Site by accessing your member account, clicking on “My Subscriptions” and following the instructions to change or cancel an Order or Subscription. Additional Terms may apply to any changes to or cancellations of Orders or Subscriptions you have placed, including, without limitation, the Sales Terms that appear below.
We do our best to describe every Product offered on our Shopping Site as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Shopping Site is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Company shall have the right to refuse or cancel any Orders in its sole discretion.
TDSC Terms and Conditions of Sale
These terms and conditions of sale (the “Sales Terms”) set forth a legally binding agreement between you and TDSC and/or the applicable Third Party Vendor, and govern the sale, and your purchase, of Products from Third-Party Vendors on the Shopping Site. You shall be referred to herein as “Buyer” and the Third Party Vendor selling Products on the Shopping Site is referred to as “Seller.”
A. ACCEPTANCE. An Order constitutes an offer by Buyer, which is accepted by Seller solely in accordance with the terms set forth herein and on the face of the Order. The Seller is an authorized distributor or direct manufacturer that completes fulfillment of the Order. The Order will be deemed accepted upon receipt of Order acknowledgement unless otherwise noted in writing. In the event of any inconsistency between this Order and any Seller terms and conditions of sale, the following order of precedence governs: (a) first, the Order; and (b) second, any supplier terms and conditions of sale.
B. DELIVERY. Buyer reserves the right to accept early shipments with the Seller accepting adverse performance rating accordingly, without prior consent from Buyer. Freight terms are FOB Destination; title and risk of loss will pass upon delivery of goods at Buyer’s shipping address.
C. RETURNS. Notification to the Seller’s customer service for authorization on product returns can be made within 30 days of the delivery date, in the original, unmarked, unopened, sealed package with a copy of the original invoice, for a full credit or refund. Any defective product can be returned for a full credit or refund. Reference Seller’s terms and conditions of sale for additional information and warranties.
D. PAYMENT. Visa, Master Card, Discover, American Express, PayPal and PayPal Credit will be accepted. All listed prices are in US dollars.
E. ORDER PROCESSING AND SHIPPING. All orders for stocked items will be processed within one business day. Shipments are sent via UPS, FedEx, or USPS. Shipping time will be up to two (2) days for any Buyer in California; and up to three (3) days for any Buyer in the other contiguous United States . Orders for non-stocked items will be processed in one business day and will be delivered within three weeks.
F. BACKORDERS. If an item is out of stock, Seller will send the item as soon as possible; Seller will contact Buyer to notify them of the backorder and will give an estimated delivery date.
G. INSPECTION AND ACCEPTANCE. Buyer shall inspect all shipments of product upon arrival and shall notify TDSC of any over shipments, shortages, defectiveness of product, or other failures to conform to the Order, which are reasonably discoverable within five (5) business days of product delivery. All notifications shall be accompanied by packing slips, inspection reports, and other documents necessary to support Buyer's claims.
H. RX PRODUCTS & CONTROLLED SUBSTANCES. Regulations require Seller to limit the sale of Rx and controlled substances only to registered, licensed healthcare professionals. If you are a new customer or have recently moved, please furnish us with a copy of your updated state DEA registration. For controlled substances, a copy of your DEA registration is needed to verify your shipping address. Please note that all orders for controlled substances are subject to a due diligence review process.
I. APPLICABLE LAW AND DISPUTES. The law of the state of Buyer’s domicile shall govern any dispute arising under or related to this Order.
J. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Seller has complied with and shall comply with all applicable federal, state and local laws and ordinances and all orders, rules and regulations thereunder. Subject to the limitation of liability set forth in Section 12 below, Seller shall save and hold Buyer harmless from and reimburse Buyer for any and all costs, damages and expenses suffered or occasioned to it through any failure of Seller to comply with any laws, orders, rules, regulations and ordinances.
K. WARRANTY. Subject to the Disclaimer, set forth in Section 11 below, Seller warrants that this product is composed of the materials described on the label and free from defects. Additional warranties are specified in attached supplier terms and conditions of sale.
L. CLEARANCE PRODUCT DISCLAIMER.All clearance items are sold as-is and may have shorter shelf lives. All clearance sales are final. Once purchased, no refunds, exchanges or credits are provided. Clearance items are available on a first-come, first-served basis; stock is not guaranteed. Items marked as clearance are not eligible for any additional discounts, coupons or offers.
7. CUSTOMER SUPPORT.
If you have any questions or comments, please email us at firstname.lastname@example.org. You acknowledge that the provision of support is at Company’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: The Dentists Service Company, 1201 K Street, 14th Floor, Sacramento, CA 95814. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8. THIRD PARTY SERVICES
9. SERVICE FEATURES
A. Wireless Features.
B. Location-Based Features.
i. E-mails: You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us at email@example.com the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Company’s ongoing business relations.
ii. Calls: We may call the phone number you provide for transactional and direct marketing purposes. You understand that your consent is not required as a condition of purchase, and that you can opt-out of receiving calls from us at any time by: requesting opt-out during any call you receive from us or contacting us at firstname.lastname@example.org and specifying you want to opt-out of calls. Standard data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Not all phone and/or carriers are supported. Contact your carrier for further details.
Please note that any opt-out by you is limited to the e-mail address, device, or phone number used and will not affect subsequent subscriptions.
10. AGREEMENT TO ARBITRATE DISPUTES AND CHOICE OF LAW
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and Company agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate Company’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Company may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
B. What is Arbitration?
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or Company must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to California is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in Sacramento, CA under California law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
E. Waiver of Class Actions.
You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
G. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Sacramento, California.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, OR SUPPLIERS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. ADVICE RECEIVED VIA THE SERVICESHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
12. LIMITATIONS OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY PARTIES Company BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION,DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) THE USE OF THE SERVICE; (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE , BASED ON CONTRACT, INDEMNIFICATION, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF COMPANY PARTIESHAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
NOTWITHSTANDING THE FOREGOING, THESE DISLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
13. TERMINATION/ACCESS RESTRICTION
Company reserves the right, in its sole discretion, to terminate your access to the Service or any portion thereof at any time, without notice. If you breach any of these Terms, your authorization to use the Service will automatically terminate.
You agree to defend, indemnify and hold harmless the Company Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. Company reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Company’s defense of any claim. You will not in any event settle any claim without the prior written consent of Company.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
15. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
16. GENERAL PROVISIONS.
A. Relationship of the Parties.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this agreement or your use of the Service.
B. Consent or Approval.
No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Submissions, Copyright Infringement, Products, Customer Support, Third Party Services, Service Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
D. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Company may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
E. Complete Agreement; Admissibility; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service.
A printed version of these Terms and applicable Additional Terms, and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and applicable Additional Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
F. International Issues.
Company controls and operates the Service from the U.S., and Company makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
G. Investigations; Cooperation with Law Enforcement.
Company reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Company may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
H. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.