“Bialik Breakdown Parties” means Bialik Breakdown or its affiliates, or their respective shareholders, directors, officers, employees, contractors, agents, representatives, or their respective successors and/or assigns, each being a “Bialik Breakdown Party.” “Website Elements” means each of the Website, Content, Services, For-Purchase Items, User Content, and any other element on or relating to the Website, and “Website Element” means any of the foregoing.
YOU AGREE THAT BY USING THIS WEBSITE YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO THESE TERMS.
IF YOU ARE UNDER 18 YEARS OF AGE, YOUR PARENT OR GUARDIAN MUST AGREE ON YOUR BEHALF TO ENTER INTO THESE TERMS AND BE BOUND, AND BIND YOU, BY THESE TERMS. IF YOU ARE UNDER 18 YEARS OF AGE, AND YOUR PARENT OR GUARDIAN HAS NOT AGREED TO BE BOUND BY THESE TERMS ON YOUR BEHALF, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE
IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE.
- Website Access: For purposes of these Terms, “Content” includes any text, message, data, photograph, image, graphic, information, audio/video files or other material on the Website and the related trademarks, service marks, logos, insignias and other intellectual property contained therein. As between you and Bialik Breakdown, the Content on the Website (excluding any User Content as defined below), is owned by or licensed to Bialik Breakdown , subject to copyright and other intellectual property rights under the law. Without limitation, this includes the Bialik Breakdown brand name, as well as any and all Bialik Breakdown trademarks and service marks used on or by the Website. Content also includes the “look and feel” of the Website (including its design, layout, color combinations, button shapes and other graphical elements). Content on the Website is provided to you “as is” for your information in connection with your use of the Services. Bialik Breakdown grants you a limited, revocable, nonexclusive, non-transferable right to access the Website and Content and utilize certain Services for your own personal use only, and not to modify the Website, or any portion thereof (other than as expressly permitted by Bialik Breakdown). Except as expressly stated in these Terms, you are not granted any right or license, by implication, estoppel, or otherwise, in or to any patent, service mark, trademark, copyright, or proprietary right of Bialik Breakdown or any third party, in connection with your use of the Website and any Content provided by Bialik Breakdown or any third party on the Website. Elements of the Website, including page headers, custom graphics, logos, sounds, images and button icons, are protected by trade dress and other state and federal laws and may not be copied or imitated in whole or in part. Violation of these Terms, including without limitation modification or use of Content on the Website for any purpose other than those permitted in these Terms, shall result in the automatic termination, without notice to you, of your license to access the Website and utilize the Services, and also may constitute the infringement of Bialik Breakdown’s copyright, service mark, trademark and/or other rights. You shall not attempt to access any other Bialik Breakdown’s systems, programs or data that are not made available for public use.
- Restrictions on Use of Website: You agree that in connection with your use of the Website, you will not do any of the following:
- Share your User ID or account information with anyone.
- Circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Website or the Content.
- Copy, reproduce, republish, upload, post, transmit, or distribute in any way any Content without Bialik Breakdown’s written permission, other than as expressly allowed by Bialik Breakdown.
- Transmit through the Website any software or other materials that contain any malware, viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a harmful or destructive nature.
- Use any data scraping, mining, robots, spiders, or similar data gathering and extraction methods within the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents without Bialik Breakdown’s prior written consent.
- Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Website.
- Use any meta tags or any other “hidden text” utilizing Bialik Breakdown’s name or any substantially similar name without Bialik Breakdown’s express written consent.
- Request more than 500 pages of the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
- Request more than 10 media or other documents available for download from the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
- Take any action that imposes or may impose (in Bialik Breakdown’s sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure.
- Duplicate or create multiple user accounts in an attempt to circumvent our security and privacy measures and policies.
- “Frame” or “mirror” any part of the Website.
- Remove any copyright, trademark or other proprietary rights notices contained on the Website.
- Use the Website or Content for any unlawful purpose.
- Post User Content on or through the Website that includes any “Prohibited Content” as defined below. “Prohibited Content” includes, but is not limited to, any User Content that: (i) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (ii) is bigoted, hateful, or racially or otherwise offensive; (iii) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; (iv) is harmful or can reasonably be expected to be harmful to any person or entity; (v) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them; (vi) infringes or violates any right of a third party including right of privacy, right of publicity, copyright, patent, trademark, service mark, trade secret or other proprietary or contractual rights; (vii) is commercial, business-related or solicits or advertises or offers to sell any products or services, whether or not for profit; (viii) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Website or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Website; (ix) does not generally pertain to the designated topic or theme of the relevant application, public forum or blog; (x) violates any specific restrictions applicable to the application, public forum or blog; or (xi) is antisocial, disruptive, or destructive, including “spamming,” “flooding,” and “trolling” as those terms are commonly understood and used on the Internet.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEBSITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR ANY OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
- Limitations on Services: You acknowledge that Bialik Breakdown may establish limits concerning use of the Services and reserves the right at any time to modify or discontinue the Services (or any part thereof), with or without notice, including but not limited to the functionality or hours of availability, the equipment needed for its access or use, or its pricing. Bialik Breakdown shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
YOU ACKNOWLEDGE THAT BIALIK BREAKDOWN IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF ANY OF SERVICES. You acknowledge that any limitations on Services will not be cause for a refund for any of Bialik Breakdown’s Services or For-Purchase Items.
- Termination of Services: Notwithstanding anything contrary in these Terms, Bialik Breakdown reserves the right, without notice and in its sole discretion, to suspend or terminate your ability to use the Website (which would include deleting or deactivating your account, blocking your email or IP address, and/or blocking or preventing your future access to and use of the Website). You agree that Bialik Breakdown shall not be liable to you or any third party for any suspension or termination of your access to the Website. Further, you agree not to attempt to use the Website after said suspension or termination unless you have received prior written permission from Bialik Breakdown. Upon any termination, you must promptly destroy all Content downloaded or otherwise obtained from this Website, as well as all copies of such Content, whether made under these Terms or otherwise.
- Website Content. This Website is owned and operated by Bialik Breakdown. All right, title and interest in and to the Content provided on this Website (excluding any User Content), including but not limited to information, documents, logos, graphics, sounds, page headers, button icons, service marks, trade dress, trademarks and images are owned either by Bialik Breakdown or by third party authors, developers, or vendors and licensed to Bialik Breakdown (“Third Party Providers”). Except as otherwise expressly provided by Bialik Breakdown, none of the Content may be republished, reproduced, uploaded, displayed, posted, distributed, or transmitted, in any way, including without limitation on any other website or in a networked computer environment, and nothing on this Website shall be construed to confer any license under any of Bialik Breakdown’s intellectual property rights, whether by implication, estoppel, or otherwise. You further acknowledge that you do not acquire any ownership rights by using the Website, the Content or User Content provided by any third party. Any rights not expressly granted herein to you are hereby reserved by Bialik Breakdown.
- Copyrights. All Website design, graphics, and the selection and arrangement thereof, are owned by Bialik Breakdown. Copyright © 2020, MAGIC AND STICKS, LLC ALL RIGHTS RESERVED.
- Trademarks. Bialik Breakdown’s logo, and all images and text, and all page headers, custom graphics and button icons are service marks, trademarks and/or trade dress of Bialik Breakdown. All other trademarks, service marks, product names and company names or logos cited herein are the property of their respective owners. The trademarks, logos, and service marks displayed on the Website (collectively the “Trademarks”) are the registered and unregistered trademarks of Bialik Breakdown, Bialik Breakdown’s licensors and suppliers, and others. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks without the express written permission of Bialik Breakdown, Bialik Breakdown’s licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Bialik Breakdown will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
- User Content. Bialik Breakdown does not claim any ownership rights in the Content that you post on or through the Website (collectively “User Content”). Bialik Breakdown may host reviews, message boards, blog feeds, and other forums (collectively, “Forums”) on the Website, through which you may be able to post certain User Content. After posting your User Content to the Website, you continue to retain any such rights that you may have in your User Content, subject to the license herein. By displaying or publishing (“posting”) any User Content on or through the Website, you hereby grant to Bialik Breakdown and its designees an assignable license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such User Content solely on or through the Website or other Bialik Breakdown websites, including without limitation distributing part or all of the User Content in any media formats and through any media channels now known or hereafter devised, in Bialik Breakdown’s sole discretion. This license shall be non-exclusive, irrevocable, fully-paid and royalty-free, sublicensable, worldwide, and perpetual. None of the User Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and Bialik Breakdown will not be liable for any use or disclosure of any User Content. If Bialik Breakdown does decide, in its sole discretion, to attribute User Content to you, you hereby grant Bialik Breakdown the right to use your user name with respect to such attribution, and waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your user name. Bialik Breakdown may reject, refuse to post or delete any User Content for any or no reason, including User Content that in the sole judgment of Bialik Breakdown violates these Terms or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Bialik Breakdown assumes no responsibility for monitoring the Website for inappropriate User Content or conduct. If at any time Bialik Breakdown chooses, in its sole discretion, to monitor the Website, Bialik Breakdown nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the user submitting any such User Content. You are solely responsible for the User Content that you post on or through the Website, and any material or information that you transmit to other parties and for your interactions with other parties (including but not limited to Third Party Providers). Bialik Breakdown is and shall be under no obligation to pay to user any compensation for any User Content; or to respond to any User Content.
- Forums. Information on our Forums may be provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with Bialik Breakdown. You acknowledge that there may be a large volume of information available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, offensive, indecent, objectionable, obscene, threatening, harassing or encourages any such conduct, or that otherwise violate the restrictions on User Content set forth in these Terms, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Bialik Breakdown Parties with respect thereto. Bialik Breakdown neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Website or Forums by third parties, whether such third parties are visitors to the Website, contributing Users, or otherwise. The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Bialik Breakdown. Bialik Breakdown is not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will Bialik Breakdown Parties be liable for any loss or damage caused by your reliance on such information obtained through the Website. If notified by a user of User Content that allegedly does not conform to these Terms, Bialik Breakdown may in its sole discretion investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Content.
- Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any Content, including without limitation any User Content, infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of 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 owner of an exclusive right that is allegedly infringed.
Bialik Breakdown’s designated Copyright Agent to receive notifications of claimed infringement is: DMCA@Bialikbreakdown.com
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Bialik Breakdown’s customer service at firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
- Making Purchases.
- You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases.
- The sale of certain For-Purchase Items and Services may be regulated by certain state, county and city laws or regulations. You acknowledge that complying with such laws is your responsibility, and YOU AGREE NOT TO HOLD US LIABLE FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR COMPANY’S FAILURE TO NOTIFY YOU OF, OR PROPERLY APPLY, ANY LAW.
- You represent and warrant that all information you provide, including but not limited to all information concerning your name, address, credit card number, and other identifying information of any nature will be true, complete and correct, and that you will update all information as it changes. You agree that you will only use credit cards belonging to you or an affiliated company. You further agree that you will not attempt to conceal your identity by using multiple Internet Protocol (“IP”) addresses or email addresses to use or to purchase Company products or services. You grant Company the right to provide third parties with any information you submit for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
- Pricing and Fees.
- Prices posted on the Website represent the fees which are payable to the Company for your purchase of For-Purchase Items, or use of and/or access to certain Services and/or Content. You agree to pay all charges to your account, including applicable taxes which Company elects to invoice and collect, in accordance with billing terms in effect at the time a charge is made. We reserve the right to institute new fees or charges effective upon notice on the Website. When prompted to do so, you must provide us with valid payment information. If payments cannot be processed or are returned for any reason, we reserve the right either to suspend or terminate your order, thereby terminating all further obligations by Bialik Breakdown.
- All applicable taxes which, as now existing or implemented by future law, Company may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods shall be paid by you to Company or the applicable taxing authority upon demand by Company. To the extent you fail to remit payment of taxes in accordance with the preceding sentence, you hereby authorize Company to charge your credit card, or other payment account on file, the full amount to be paid to applicable taxing authorities, to the extent that such taxes may be lawfully collected from or charged to the account of Company. COMPANY SHALL NOT BE OBLIGATED TO, BUT MAY IN ITS DISCRETION, MAKE SUCH DEMAND AS PART OF COMPANY’S TRANSACTION RECEIPT OR INVOICE, AND IN ANY EVENT, YOU SHALL AT ALL TIMES BE SOLELY RESPONSIBLE FOR THE REPORTING AND PAYMENT OF ALL APPLICABLE TAXES IN CONNECTION WITH THE PURCHASE OF FOR-PURCHASE ITEMS.
- Warranty Matters and Liability of Bialik Breakdown. No representations or warranties, express or implied, are given regarding the Website Elements, or your use of the Website Elements. Bialik Breakdown’s liability is limited strictly to amounts actually paid by you to Bialik Breakdown in connection with the purchase of Services and For-Purchase Items. If you are not satisfied with our service please contact our customer service department at email@example.com. Without limiting the generality of the foregoing, you agree that use of the Website Elements is entirely at your own risk. Bialik Breakdown assumes no responsibility for errors or omissions in the Website Elements or any Third Party Website.
- The Website Elements are provided on an “AS IS” or “AS AVAILABLE” basis, without any warranties of any kind. Bialik Breakdown does not warrant the quality, accuracy, functionality, performance, merchantability, security, reliability, completeness, or timeliness of the Website Elements or any other information, text, graphics, links or other items contained within the Website Elements. To the fullest extent permitted by law company disclaims any warranties for and does not assume any responsibility for any incompleteness, errors, security, reliability, timeliness, viruses, harmful components or effects, vulnerabilities, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of Website Elements, or any other information, text, graphics, links or other items contained within the Website Elements or any Third Party Website, or any other services or goods received or purchased through or advertised on the Website, or accessed through any links on the Website. All express and implied warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law. Your use of the Website Elements or any Third Party Website is entirely done so at your own risk.
- More specifically with respect to For-Purchase Items, or any other products sold by Third Party Website linked from the Website, Bialik Breakdown expressly disclaims all warranties, express, implied or statutory with respect to such For-Purchase Items or other products, including, without limitation, warranties of merchantability and fitness for a particular purpose and any warranties arising from trade usage, course of dealing or course of performance. By placing an order with Bialik Breakdown, you hereby affirm that you have not relied upon the skill or judgment of Bialik Breakdown or any of Bialik Breakdown’s agents, employees or representatives to select or furnish goods or materials for any particular purpose, and the sale is made without any warranty by Bialik Breakdown that the material is suitable for any particular purpose.
- Limitations of Liability:
- Under no circumstances shall Bialik Breakdown Parties be liable to you or any third party under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Website Elements, any Third Party Website, or any product or service purchased through any Third Party Website, for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if Bialik Breakdown has been advised of the possibility of such damages) resulting from any aspect of your use of any of the foregoing, whether the damages arise from use or misuse of any of the foregoing, from inability to use any of the foregoing, or the interruption, suspension, modification, alteration, or termination of any Website Element. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with any Website Element or any links on the Website, as well as by reason of any information received through or advertised in connection with the Website Elements or any links on the Website. These limitations shall apply to the fullest extent permitted by law.
- To the extent that the foregoing limitations on liability in Section 14(a) above are limited or restricted by law, your sole and exclusive remedy and company’s absolute limit of liability in connection with any lawsuit, claim or cause whatsoever directly or indirectly relating to or arising out of or relating in any way to the Website Elements, whether based on contract, tort or any other legal theory of recovery, shall in all cases be strictly limited to the price paid by you directly to Bialik Breakdown in connection with such access to or use of the Website Elements.
- You acknowledge and agree that, if the limitations of liability set forth in Section 14.1 above are limited or restricted by law, shall be your sole remedy even if such remedy fails in its essential purpose for any reason whatsoever, and in no event shall company be liable for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if company has been advised of the possibility of such damages), to you or any third party.
- Bialik Breakdown shall not be liable for any failure for any reason, in whole or in part, beyond Bialik Breakdown’s reasonable control, including, but not limited to, production schedules of Bialik Breakdown’s suppliers, unavailability of materials, labor disturbances, acts of God, earthquake, fire, flood, weather, terrorism or transportation difficulties.
- Essential Basis of Bargain. YOU ACKNOWLEDGE THAT BIALIK BREAKDOWN HAS SET ITS PRICES AND PROVIDED ACCESS TO OR USE OF THE WEBSITE, AND/OR ANY OTHER WEBSITE ELEMENT IN RELIANCE OF THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 11-13, AND THAT THE SAME FORM AN ESSENTIAL BASIS UPON WHICH THESE TERMS ARE ESTABLISHED, AND UPON WHICH BIALIK BREAKDOWN HAS PROVIDED TO YOU ACCESS TO AND USE OF THE WEBSITE ELEMENTS. YOU AGREE THAT THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 13-15 WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- Promotional Offers, Contests and Sweepstakes: Bialik Breakdown may from time to time offer participation in promotional offers, contests and sweepstakes on our Website. Your participation in these offers, contests and sweepstakes is governed by the express rules applicable to each such offer, contest or sweepstakes.
- Technical Support Issues: If you encounter a technical problem when attempting to print or otherwise access your completed form, or some other problem you may encounter in attempting to utilize our Services and/or Content, Bialik Breakdown’s customer service representatives may be able to assist you with your problem.
- Ability to Accept Terms of Service. You affirm that you are 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Website Terms, and to abide by and comply with these Website Terms. If you are under 18 years of age, then please do not use the Website. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
- Questions: If you have any questions, comments or complaints regarding these Terms or the Website, feel free to contact us at firstname.lastname@example.org.
- Technical Support Issues. If you encounter a technical problem when attempting to print or otherwise access your completed form, or some other problem you may encounter in attempting to utilize the Website, Company’s customer service representatives may be able to assist you with your problem. If you contact Company’s customer service representatives and request that a customer service representative assist you, the Company will not be liable for any technical problems that may persist or arise with your Mobile Device (or other computing device) after doing so.
- Inaccuracy. From time to time there may be information on the Website that contains typographical errors, inaccuracies, or omissions. Company may correct errors, inaccuracies, or omissions and change or update information at any time without notice. Company apologizes for any inconvenience this may cause you. Notwithstanding anything else herein, you are not entitled to rely on any error, inaccuracy, or omission, and as such relate to quotations, pricing, or other aspects of Transactions, you hereby authorize Company to charge the correct amounts to your account in each instance.
- Construction. For purposes of these Terms: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices to, these Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.
- No Third-party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. Except with respect to Authorized User who agree to be bound by these Terms, these Terms, and the duties and obligations arising under it, may not be assigned by User. Company may freely assign these Terms.
- Modifications and Updates of these Terms and Acceptance. The agents, employees and contractors of Company are not authorized to make modifications to these Terms, or to make any additional representations, commitments, or warranties binding on Company. Company reserves the right to modify, add, alter or otherwise update these Terms from time to time, and you are highly encouraged to review these Terms from time to time. Each time you use the Website, the current version of these Terms will apply. In the event of any modification to or update of these Terms, Company will provide notice to you in accordance with these Terms. You can determine whether these Terms have been revised since your last use of the Website by referring to the “Last Updated” legend at the bottom of these Terms. Please read these Terms carefully. Your use of the Website after any modification to or update of these Terms constitutes your acceptance to be bound by these Terms in the form it then exists, including any modifications or updates. If at any time you do not accept all the terms and conditions contained herein, you must immediately discontinue use of the Website and contact Company regarding your voluntary termination of these Terms.
- You warrant, represent and agree that, by accessing and/or using the Website, Content and/or any User Content, you (i) do so with knowledge of any and all rights that you may have with respect to the provisions of these Terms, (ii) have carefully read and considered these Terms and fully understand its contents and the significance of its contents, (iii) are consenting to these Terms of your own informed and free will, based upon such party’s own judgment and without any coercion or fear of retaliation, and (iv) you have been afforded the opportunity to obtain independent legal advice with respect to these Terms.
- Governing Law. These Terms and the relationship between you and Company shall be governed by the laws of the State of California without regard to any conflicts of laws principles. Further, to the extent the arbitration provisions of these Terms are void, unenforceable, or inapplicable, you agree that all actions or proceedings arising in connection with your use of the Website and these Terms shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. The aforementioned choice of venue is intended to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between you and Company with respect to or arising out of these Terms in any jurisdiction other than that specified in this Section. You hereby waive any right you may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulate that the State and Federal courts located in the County of Los Angeles, State of California shall have in personam jurisdiction and venue over you for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to your use of the Website or these Terms. You hereby authorize and accept service of process sufficient for personal jurisdiction in any action against you as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to (i) the use of the Website or any Website Element, or (ii) these Terms, must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that these Terms shall not be construed against the drafting party, i.e., Company.
- Equitable Relief. In addition, in the event of a breach of these Terms by you, the Company will, in addition to all other remedies available to it, be entitled to equitable relief by way of a temporary restraining order, or preliminary or permanent injunction and any other legal or equitable remedies. This provision will not be construed as a waiver of the rights which the Company may have for damages under these Terms or otherwise, and all of the Company’s rights and remedies will be unrestricted.
- No Non-US Representations. Company makes no representation with respect to the laws of nations other than the United States, or that the Website, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to purchase, install, and/or use the Website do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. By using the Website, visitors from outside of the United States of America acknowledge these Terms and all matters related to the Website are subject to the laws and regulations of the United States of America, subject to the governing law herein, and waive any claims that may arise under their own national laws.
- Questions. If you have any questions, comments or complaints regarding these Terms or the Website, feel free to contact us at email@example.com.
- Notice for California Users. Under California Civil Code Section 1789.3, California users of the Website are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Export Regulation. The Website may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, attempt to export, re-export or release the Website to, or make the Website accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Website available outside the US.
- Severability. If any non-material provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, the terms of these Terms shall govern.
- Conflicting Terms. If you have been provided with a non-English translation of these Terms, the English language version will govern your relationship with Company, and will control in the event of a conflict. Any translation is provided, is provided solely for your convenience. In the event of a conflict between the terms of these Terms and any work order, the terms of these Terms control. In the event of any conflict between the terms of these Terms and any amendment, addendum, or other modification to the Agreement promulgated or published by Company, then the terms of the other document will control with respect to the applicable matters.
- Consent to Phone and Email Contact, Notice, and Related Matters.
- Company may call or text you or authorize others to call or text you on Company’s behalf using any number you provide to Company for any purpose. This consent shall supersede your registration of such number on any state or federal “do not call” lists. You are responsible for charges for incoming text messages on your phone. You may however, opt out of calls marketing Company’s services by notifying Company of your request to not be contacted by phone for marketing purposes. You agree that Company may monitor or record your telephone conversations with Company (whether Company calls you, or you call Company). If you do not wish your telephone conversations with Company to be monitored or recorded, you should conduct your communications with Company via email. Company may email you or authorize others to email you on Company’s behalf using any address you provide to Company for any purpose, including marketing of Company’s services. Similar to the phone marketing opt-out, you may opt out of receiving marketing and promotional emails by emailing your request to Company.
- You authorize Company to provide required notices to you on Company’s website, in or on any bill or invoice provided to you, via email, or by any other communication permitted under applicable law. Company may ask you to provide consents or authorizations, including by electronic means including email or via the Website. Given the nature of the Website, any such electronic agreement using your User ID and/or PIN shall operate as your direct consent or authorization, and you agree that Company rely on such consent or authorization. Upon Company’s request, you will provide Company with a current email address that you regularly check so that Company may provide notices and communications to you at that address. If you stop using that email address, you will provide Company with a new address for such purposes.
- Binding Arbitration.
- EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, AS SET FORTH BELOW.
- Any dispute between the parties to these Terms, any dispute between you and Company, as well as any controversy or claim arising out of or relating to these Terms or the Website (in each case, a “Dispute”)) will be settled by arbitration before a single arbitrator administered by the American Arbitration Association under its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in these Terms. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Disputes presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Disputes, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement. The arbitration shall be governed by the state law or federal law applicable to each specific claim brought, with the exception that arbitrability shall be determined by the arbitrator and governed in primary conformity with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and, secondly, any state arbitration act.
- The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
- To ensure timely resolution of disputes, the party initiating arbitration must do so within the statute of limitations (deadline for filing) provided by applicable law pertaining to the Dispute, subject to any shorter period of time set forth in these Terms which is intended to shorten the applicable statute of limitations. The failure to initiate arbitration within this time limit will bar any such claim.
- The arbitration will be conducted in Los Angeles County, California, before a neutral arbitrator. The arbitration will have jurisdiction to determine the arbitrability of any claim. The arbitrator shall have the authority to grant all monetary or equitable relief (including, without limitation, ancillary costs and fees) available under state and federal law. The award rendered by the arbitrator shall be in writing, setting forth the essential findings and conclusions upon which the award is based. The award may be entered and enforced by any court having jurisdiction thereof. These Terms and its enforcement shall be governed by the law of the state of California and any discovery shall be permitted in accordance with the Federal Arbitration Act and any applicable state arbitration act, subject to AAA Rules.
- YOU AND COMPANY AGREE THAT YOU MAY BRING CLAIMS, AS APPLICABLE, AGAINST THE COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the trier of fact may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
- The exceptions to the Dispute resolution provisions of this Section 38 are: (a) actions by Company for equitable relief; and (b) any other claim where an agreement to arbitrate is unenforceable under applicable law and not preempted by the FAA. To the extent that either party has the right to seek assistance from, file charges with, or participate in investigations and proceedings of any federal, state or local agency, such rights are not precluded by this dispute resolution provision, but this dispute resolution provision does operate as a waiver of any additional personal monetary recovery if related to any Dispute. In the event of any administrative or judicial action by any agency or third party that adjudicates any Dispute, neither Company, nor you, shall be permitted to receive a double recovery.
- Except in the discretion of Company in the event that confidentiality would prevent the deduction by Company of payment to you pursuant to any award, the parties agree to keep confidential, and will not disclose to any person, except as otherwise required by law, the existence of any controversy covered by this dispute resolution process, the referral of any such controversy to arbitration or the status or resolution thereof.
- Severability. In the event that any portion of this Section 38 is deemed illegal or unenforceable under applicable law, and not preempted by the FAA, such provision shall be severed and the remainder of the provisions of this Section 38 will be given full force and effect.