“Company”, “us”, “our”, and “we” refers to SmackLab Marketing and Social Media LLC, D.B.A. Wayward Kind.
“Site” refers to waywardkind.com and the associated websites and sub-sites.
“Content” refers to the contents, features, and functionality of the Site, including but not limited to all information, software, text, communications, postings, published works, photos, displays, images, video and audio, and the design, selection and arrangement thereof, and any other material that can be viewed by users on our Site.
“Affiliates” refers to all Company owners, officers, directors, subsidiaries, affiliated companies, licensees, assigns, service providers, partners, suppliers, sponsors, advertisers, and any persons or entities involved in creating, producing, or delivering this Site, content, or Services available on this Site.
“Services” refers to any Content, functionality, products, and services offered or provided through the Site.
“User” and “you” refer to anyone accessing, browsing, interacting with, or otherwise using this Site or the Services.
2. Notices and Contact Information
Company has designated a Compliance Officer to receive all notices, questions, comments, and requests pertaining to, or under, these Terms. Such inquiries must be sent to:
Attn: Compliance Officer
8779 Highwood Drive
San Diego, CA 92119
Or if by email:
You must include your name, address, email address, the nature of the communication, and any other relevant information specified by these Terms when you contact us.
3. Acceptance of Terms
BY ACCESSING, BROWSING, INTERACTING WITH OR USING THIS SITE AND SERVICES ON THIS SITE, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER, YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. If you do not meet all of these requirements, you must not access or use the Site.
THESE TERMS ARE EFFECTIVE IMMEDIATELY, IF YOU DO NOT AGREE TO THESE TERMS, PLEASE EXIT THE SITE AND DO NOT ATTEMPT TO ACCESS OR USE ANY PART OF THIS SITE OR THE SERVICES.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS SITE, PRODUCTS, OR SERVICES AVAILABLE ON THIS SITE OR THESE TERMS IS TO CEASE USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES.
THE COMPANY RESERVES THE RIGHT TO CHANGE THESE TERMS AT ANY TIME AND FOR ANY REASON, AT THE COMPANY’S DISCRETION. YOU AGREE TO PERIODICALLY REVIEW THESE TERMS FOR ANY CHANGES. CONTINUED USE OF ANY PART OF THIS SITE OR THE SERVICES FOLLOWING CHANGES TO THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF ANY CHANGES TO THE TERMS.
4. Access to Site
4.1 No Guarantee
Although Company works hard to provide quality Services, you understand and acknowledge that Company cannot promise or guarantee specific results from using the Site or Services. We reserve the right to withdraw or amend this Site, and any Services or Content we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site or Services is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the Site or Services, to users.
4.2 Temporary Interruptions
You understand and agree that temporary interruptions of the Site or Services may occur as normal events that are out of our control. You also understand and agree that Company has no control over the third-party networks or services that Company may use to provide you with the Site or Services. You agree that the Services available on this Site are provided “AS IS” and that Company assumes no responsibility for the timeliness, deletion, misdelivery, or failure to store any User communications or personalization settings.
5. Site Conduct, User Contributions, and Other Content
5.1 Site Conduct and Prohibited Uses
The owner of the Site is based in the state of California in the United States. We provide this Site for use by persons located in the United States. We make no claims that the Site or any of its Content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. Users are responsible for compliance with local, state, federal, national, international, or other applicable laws, rules, and regulations in the User’s jurisdiction.
You agree not to use the Site in any way that:
5.2 Linking to the Site
You may link to our Site homepage, provided you do so in a way that is fair and legal and does not damage or take advantage of our reputation, but you must not establish a link in such a way as to suggest any form of association with, or approval or endorsement by the Company or any Affiliates where none exists. You must not establish a link from any website that is not owned by you. The Site must not be framed on any other site, nor may you create a link to any part of the Site other than the homepage. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
5.3 No Endorsement
Any Content or opinions uploaded, expressed, or submitted to the Site, and all articles and responses to questions and other Content, other than the Content provided by the Company, are solely the opinions and the responsibility of the person or entity submitting them and do not necessarily reflect the opinion of the Company. Company neither endorses nor assumes any liability for any material uploaded or submitted by users on any part of the Site. Company is not responsible, or liable to any third party, for the content or accuracy of any materials posted to the Site.
5.4 Third-Party Sites and Information
The Site may redirect or link to other Company or Affiliates’ sites on the Internet, or may otherwise include references to information, products or services made available by unaffiliated third parties. While Company makes every effort to work with trusted, reputable providers, from time to time such sites may contain information, material, or policies that some may find inappropriate or personally objectionable. You understand that Company is not responsible for the accuracy, completeness, decency, or legality of content hosted by Affiliates’ or other third party sites, nor is Company responsible for errors or omissions in any references made on those sites. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by Company or any Affiliates, or provide any warranty of any kind, either express or implied.
6. Spam Prevention
Company may use automated tools or techniques to protect our customers and other Users from mass unsolicited mailings (also known as “spam”) and/or other types of malicious or harmful content. However, such tools or techniques are not perfect, and Company is not responsible for cases where legitimate communications are accidentally blocked, or unsolicited communications get through to your Company supplied email account.
7. Intellectual Property
7.1 Ownership of Content
By accepting these Terms, you agree that as among you, Company, and all Affiliates, all Content on this Site is the sole property of Company, Affiliates, our licensors, or other providers of such material, and is protected by any and all intellectual property and/or other proprietary rights available within the United States and any applicable jurisdiction. Nothing in these Terms grants you any claim of ownership in any Content.
In addition, you acknowledge that many custom graphics, icons, logos, and service names are registered trademarks, trademarks, or service marks of Company or its Affiliates. All other trademarks or service marks are property of their respective owners. Nothing in these Terms grants you any claim of ownership or right to use any trademark, service mark, logo, and/or the name of Company, its Affiliates, or any third party.
Furthermore, certain of the ideas, software, and processes incorporated into the Services available on this Site maybe protected by patents or may have patent applications pending in the United States and foreign jurisdictions. Nothing in these Terms grants you any claim of ownership in any patents or patent applications.
All contents of Site or Services may be subject to Copyright of Company.
7.2 Limitations on Use of Content
You may not copy, reproduce, modify, adapt, prepare derivatives of, republish, upload, post, transmit, distribute, display, perform, or otherwise use any Content from this Site in any form or by any means whatsoever, beyond the uses expressly provided for in these Terms, without prior written permission from Company. Any unauthorized use of any Content violates our intellectual property interests and could result in criminal or civil penalties.
7.3 No warranty for Third-Party Infringement
Neither Company nor any Affiliates warrant or represent that your use of Content displayed on, or obtained through this Site will not infringe the rights of third parties. Your use of any such materials is at your own risk.
7.4 Your Intellectual Property Rights
7.5 Reporting Claims Of Copyright Infringement
If you believe any materials accessible on or from this Site infringe your copyright, you may request removal of those materials, or access thereto, from the Site by submitting written notification to our Compliance Officer (identified above).
Your written notice must include substantially the following:
If you fail to comply with all of the requirements above, your notice may not be effective.
8.1 No Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL CONTENT AND SERVICES AVAILABLE ON OR THROUGH THIS SITE, AND THE SITE ITSELF, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT (A) THE CONTENT, SERVICES, OR SITE WILL MEET YOUR REQUIREMENTS, (B) THE CONTENT, SERVICES, OR SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONTENT, SERVICES, OR SITE WILL BE EFFECTIVE, ACCURATE, OR RELIABLE, OR (D) THE QUALITY OF ANY CONTENT OR SERVICES OBTAINED BY YOU FROM THE SITE, WHETHER FROM COMPANY, AFFILIATES, OR ANY OTHER THIRD PARTIES, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THIS SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. COMPANY MAY MAKE CHANGES TO THE CONTENT AND SERVICES AVAILABLE ON OR THROUGH THIS SITE, INCLUDING THE DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME AND WITHOUT NOTICE. THE CONTENT OR SERVICES AVAILABLE ON OR THROUGH THIS SITE MAY BE OUT OF DATE, AND COMPANY MAKE NO COMMITMENT TO UPDATE SUCH CONTENT OR PRODUCTS.
THE USE OF THE SITE OR SERVICES, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY PRODUCTS OR CONTENT THROUGH THIS SITE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
8.2 Third-Party Transactions
Through your use of the Site, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any products or services provided by any third party, including, but not limited to the purchase terms, payment terms, warranties, and guarantees relating to such transactions, are agreed to solely between the provider of such goods or services and you.
COMPANY MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH A THIRD PARTY, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY SERVICES OR CONTENT AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY AFFILIATES.
8.3 Changes to Services
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. Limitation of Liability & Indemnification
IN NO EVENT SHALL COMPANY OR ANY AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFIT LOSS, WHETHER OR NOT COMPANY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY SITE REFERENCED OR LINKED TO FROM THIS SITE.
FURTHER, COMPANY SHALL NOT BE LIABLE IN ANY WAY FOR PROMISES MADE BY AFFILIATED OR UNAFFILIATED THIRD PARTIES REGARDING OUR SERVICES OR CONTENT, OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS WITH SUCH THIRD PARTY THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD COMPANY AND ALL AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES THAT MAY ARISE FROM YOUR ACTS, OMISSIONS, USE OR MISUSE OF THIS SITE. COMPANY RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
10. Miscellaneous Provisions
If you have any issue or dispute with the Company, you agree to first contact the Compliance Officer and attempt to resolve the dispute with us informally. If we are not been able to resolve the dispute with you informally, both parties agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.
Unless both parties agree otherwise, the arbitration will be conducted in San Diego, California. Each party will be responsible for paying their respective AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Site.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
10.2 Governing Law and Venue
These Terms and any dispute or claim arising out of, or related to, them, their subject matter or their formation, in each case, including non-contractual disputes or claims, shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule, whether of the State of California or any other jurisdiction.
Any legal suit, action, or proceeding brought by you and arising out of or related to these Terms or the Site, shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, as applicable, located in the City of San Diego and County of San Diego; however, we retain the right to bring any suit, action or proceeding against you for breach of these Terms in your state or country of residence or any other relevant state or country, in our sole discretion. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to Company must be sent to our Compliance Officer (identified above). You agree to allow us to submit notices to you either through the email address you provided, or to the address we have on record. Any notices or communication under these Terms will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by U.S. mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by an email that is either confirmed as received or replied to.
10.4 Limitation on Time to File Claims
10.5 No Resale Right
You agree not to sell, resell, lease, lend, license, reproduce, duplicate, copy, modify, adapt, create derivative works from, display, perform, transmit, broadcast, distribute, or otherwise use for any commercial purposes any portion of this Site, your ability to access this Site, or Services provided through this Site.
If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
10.7 No Waiver
Any failure by us to enforce or exercise any provision of these Terms or related rights shall not constitute a waiver of that right or provision.