Last Updated: 06/22/2018
“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.
- Acceptance of Terms
Company provides this Site and the Services provided through the Site, subject to your compliance with the following Terms, as well as any other written agreement(s) between you and us. We reserve the right to change these Terms from time to time with or without notice to you. You acknowledge and agree that it is your responsibility to periodically review this Site and these Terms. Your continued use of this Site and Services after such modifications will constitute acknowledgement and acceptance of the modified 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.
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
You are solely responsible for providing, at your own expense, all equipment and services necessary to access and use the Site and Services, including a computer and any other necessary hardware, Internet access, and payment of service fees associated with such access. 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, including registered users, whether or not User has paid a fee for such access.
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.
To access the Site or some of the resources it offers, including the Services, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current, and complete.
If you choose, or you are provided with, a user name, identification code, password, or any other piece of information as part of our security procedures, you agree that you are responsible for maintaining the security and confidentiality of your password, and that you are fully responsible for all activities or charges that are incurred under your account. You must treat such information as confidential, and you must not disclose it to any third party. You agree to immediately notify Company of any unauthorized use of your user name, identification code, password, or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer, so that others are not able to view or record your password or other personal information.
We have the right to disable any User’s user name, identification code, or password, whether chosen by you or provided by us, at any time, in our sole discretion, for any or no reason, including if, in our opinion, you have failed to comply with any provision of these Terms.
If you choose to purchase one or more of the Services provided on our Sites, you agree to pay all fees associated with the Services.
5.1.1 Pre-paid, Credit Card Terms
Any charges incurred by your purchase or use of the Services will be billed to the credit card we have on file. In the event you sign up for a Service that is ongoing and incurs reoccurring charges, such as a subscription, such charges will be billed in advance of making use of the Service. You agree to provide us with accurate and complete billing information, including valid credit card information, your name, address, and telephone number, and to provide us with any changes in such information within 5 days of the change. You agree to pay any fees associated with your account due to any late or unpaid balances or your failure to provide accurate payment information before the payment is due.
5.2 Overdue Amounts
If, for any reason, your credit card company declines or otherwise refuses to pay the amount owed for the Services you have purchased, you agree Company may, at our option, suspend or terminate performance of Services or delivery of products and may require you to pay any overdue amounts incurred, including any third-party chargeback fees or penalties, by other means acceptable to us. In the event legal action is necessary to collect on balances due, you agree to reimburse Company for all expenses incurred to recover sums due, including attorney fees and other legal expenses.
- Site Conduct, User Contributions, and Other Content
6.1 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 primarily 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 are solely responsible for any comments or posts you leave on the Site. By posting information on the Site, or by otherwise using the Services, any communications service, message board, newsgroup, or other interactive service available on the Site, you agree not to use the Site in any way that:
- advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, violates the rights of others, or violates any applicable federal, state, local, or international law or regulation, including, without limitation, any laws regarding the export of data or software to and from the US or other countries;
- is unlawful, threatening, abusive, harassing, libelous, defamatory, deceptive, fraudulent, tortious, invasive of another’s privacy, obscene, pornographic, or includes graphic descriptions of sexual or violent content;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- exploits, harms, or attempts to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any person or entity;
- advertises or otherwise solicits funds or is a solicitation for goods or services, consists of unsolicited advertising, junk or bulk email (also known as “spam”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- contains any form of malicious code, files, or programs that are designed or intended to disrupt, damage, or limit the functionality of any software, hardware, or telecommunications equipment or otherwise causes damage, or allows you to obtain unauthorized access to any data or other information of any third party;
- harvests or otherwise collects information about others, including e-mail addresses, without their consent;
- contains hyperlinks to other sites that contain content that falls within the scope of this Section;
- advertises any commercial endeavor, including but not limited to offering for sale products or services, or otherwise engages in any commercial activity including but not limited to conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services, except as may be specifically authorized by the Company on this Site;
- solicits funds, advertisers, or sponsors for any purpose;
- breaches the security of, compromises, or otherwise allows access to secured, protected, or inaccessible areas of this Site, or attempts to gain access to other networks or servers via your account on this Site;
- impersonates any person or entity, including without limitation any of our employees or representatives;
- engages in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm the Company, any Affiliates, or users of the Site, or expose any of them to liability.
6.2 User Contributions
The Site may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, blogs, comments, articles, or other communication and interactive features that allow you to post, submit, publish, display, or transmit to other users Content or materials (collectively, “Contributions”) on or through the Site.
All Contributions must comply with the standards set out below (the “Contribution Standards”):
- any Contribution you post to the Site will be considered non-confidential and non-proprietary, and we have the irrevocable right to reproduce, distribute, display, perform, create derivative works from, and otherwise use and disclose to third parties any such material for any purpose, throughout the universe and in perpetuity;
- you represent and warrant that you own or control all rights in, and to, the Contributions, and have the right to grant the Company and its Affiliates the license granted above;
- you represent and warrant that all of your Contributions do, and will, comply with these Terms, and you agree to defend, indemnify and hold harmless the Company, all Affiliates, and licensors for any breach of that representation and warranty;
- you understand and acknowledge that you are responsible for any Contributions you submit or contribute, and you, not the Company, have fully responsibility for such Contributions, including its legality, reliability, accuracy, and appropriateness.
6.3 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.
6.4 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 by any users of the Site.
6.5 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.
From time to time, this Site may include advertisements by Company, Affiliates, or unaffiliated third parties. You may enter into correspondence with, or participate in promotions of, the advertisers showing their products on this Site, subject to their terms and conditions. Any such correspondence or promotions, including the delivery of and the payment for goods and services by those third parties, and any other terms, conditions, warranties, or representations associated with the third party or its goods or services, are solely between you and the third party. Company assumes no liability, obligation, or responsibility for any part of any such correspondence or promotion.
- Communication Services & Data Stored on Our Servers
7.1 Communication Service
Company may make email or other communication services available to users of our Site, either directly or through a third-party provider. Company will not inspect or disclose the contents of private communications except with the consent of the sender or the recipient, or in the narrowly-defined situations provided under the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et. seq., or as other required by law, court, or governmental order.
7.2 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.
7.3 Storage Provided by Us
If you opt to store data of any kind on our servers, you understand and agree to abide by our general practices and limits concerning use of the Services available on our Site, including without limitation the maximum number of days that uploaded Content will be retained, the maximum disk space that will be allotted, the maximum number of times you may access the Site or Services in a given period of time, and other practices and limits that may be instituted from time to time. You agree that Company has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted on or through this Site. You acknowledge that Company reserves the right to remove or terminate user accounts for any or no reason.
- Monitoring, Enforcement, and Termination of Use
8.1 Monitoring and Enforcement
Although Company does not pre-screen, police or monitor comments posted on the Site, Company and our agents reserve the right to:
- remove any and all postings that Company feels do not comply with these Terms and any other rules of conduct for our Site, are otherwise harmful, objectionable, or inaccurate, or for any or no reason, at Company’s sole discretion;
- take any action with respect to any Contributions or other Content that we deem necessary or appropriate in our sole discretion if we believe that such material violates these Terms, infringes any intellectual property right or other right, threatens the personal safety of users of the Site or the public, or could create liability for the Company, any Affiliate, or any third party;
- disclose your identity to any third party who claims that material posted or otherwise contributed by you violates their rights, including without limitation their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site or Services; and
- terminate your access to all or part of the Site or Services for any or no reason, including without limitation, any violation of these Terms.
Company is not responsible for any failure or delay in removing such postings, Contributions, or other Content.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ALL AFFILIATES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY OR ANY AFFILIATE DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
- Intellectual Property
9.1 Ownership of Content
By accepting these Terms, you agree that as among you, Company, and all Affiliates, all Content on this Site not contributed by you 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
9.2 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.
9.3 Use of Software
Company may make certain software available to you from the Site. If you download software from the Site, the software, including all files and images contained in or generated by the software, and any accompanying data (collectively, “Software”) are deemed to be licensed to you by Company, for your personal, noncommercial, home use only. Company does not transfer either the title or the intellectual property rights to the Software, and Company retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos that may appear in the Software are owned by Company or its licensors and you may not copy or use them in any manner.
9.4 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.
9.5 Your Intellectual Property Rights
9.6 DMCA Policy
The Company takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law and have designated our Compliance Officer (identified above) to receive notices of infringement.
In instances where Company is notified of alleged infringing Content through our Copyright Agent, a decision may be made to remove access or disable access to such materials, in compliance with the safe harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c). Company may also make a good faith attempt to contact the person who submitted the affected material so they may make a counter-notification.
9.6.1 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).
In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”), particularly Section 512(c)(3), the written notice (“DMCA Notice”) must include substantially the following:
- your physical or electronic signature;
- identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works;
- identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
- adequate information by which we can contact you, including your name, postal address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in the written notice is accurate; and
- a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you fail to comply with all of the requirements above, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages, including costs and attorneys’ fees, under Section 512(f) of the DMCA.
9.6.2 Counter-Notification Procedures
If you believe that material you posted on the Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our Compliance Officer (identified above). Pursuant to the Section 512(g)(3) of the DMCA, the Counter-Notice must include substantially the following
- your physical or electronic signature;
- an 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 disabled;
- adequate information by which we can contact you, including your name, postal address, telephone number, and e-mail address;
- a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if you reside outside the United States for any judicial district in which the Site may be found, and that you will accept service from the person, or an agent of that person, who provided the Site with the complaint at issue.
The DMCA allows us to restore the removed Content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Site was removed or disabled by mistake or misidentification, you may be held liable for damages, including costs and attorneys’ fees, under Section 512(f) of the DMCA.
9.7 Repeat Infringers
It is our policy, in appropriate circumstances, to disable and/or terminate the accounts of users who are repeat infringers.
10.1 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 PURCHASED OR 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 PRICES AND 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.
10.2 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.
10.3 Changes to Services
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- 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.
- Miscellaneous Provisions
12.1 International Use
Although the Site and Services may be accessible worldwide, Company makes no representation that Content on this Site, or provided through the Services are appropriate or available for use in locations outside the United States. Those who choose to access the Site or use the Services from other locations do so on their own initiative and at their own risk. If you choose to access the Site from outside the United States, you are responsible for compliance with any applicable local, state, territorial, national, federal, or international laws in your jurisdiction, including but not limited to, the taxation of products purchased over the internet. Any offer for any product, Service, and/or information made in connection with the Site is void where prohibited.
12.2 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.
12.4 Limitation on Time to File Claims
12.5 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.
12.6 Force Majeure
In addition to any excuse provided by applicable law, Company shall be excused from liability for non-delivery or delay in delivery of products and Services available through our Site arising from any event beyond our reasonable control, whether or not foreseeable by any party, including but not limited to labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are described above.
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.
12.8 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.
12.9 Entire Agreement
These Terms constitute the entire agreement and understanding between the parties concerning the subject matter hereof, and supersede all prior agreements and understandings of the parties with respect thereto. These Terms may NOT be altered, supplemented, or amended by the use of any other document(s), except as specifically provided for within these Terms. To the extent that anything in or associated with this Site is in conflict or inconsistent with these Terms, these Terms shall take precedence.