Last Updated: March, 2010
1. LICENSE AND ACCESS TO SITE
Subject to the terms and conditions of this Agreement, Company grants to you a limited noncommercial, nonexclusive, nontransferable revocable license to access and make personal use of the Site. Except as otherwise provided by law, you may not copy, download (other than page caching) or modify the Site, or any portion of it, except with the express written consent of Company.
2. REGISTRATION, PASSWORD AND SECURITY
You represent and warrant that you: (i) are of legally sufficient capacity to form a binding contract; and (ii) are at least 18 years of age. If you register on the Site, you agree to: (a) provide true, accurate and complete information requested on the registration form (“Registration Data”); (b) maintain the accuracy of the Registration Data; and (c) provide a user name and password. You are entirely responsible for the confidentiality and use of your user name and password. You may not use the account, username, or password of someone else at any time. You are responsible for all electronic communications, including account registration and other account holder information, email, financial and other content (“Electronic Communications”) entered through or under your user name and password. Company will act as though any Electronic Communications it receives under your user name and password will have been authorized by you. You agree to notify Company immediately of any unauthorized use of your account, user name, or password..
3. PRODUCT DESCRIPTIONS AND PRICING
Company strives for the Site to be as accurate as possible. However, Company does not represent or warrant that product descriptions or other content on the Site are accurate, complete, reliable, current, or error-free. For example, products included on this Web Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Web Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order. If a product offered on the Site is not as described, your sole remedy is to return it within thirty (30) days of delivery in accordance with Section 5, Returns and Refunds. Despite our best efforts, a small number of the items on our Site may be mispriced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
4. PAYMENT TERMS; INTEREST; ORDERS
Terms of payment are within the Company´s sole discretion, and unless otherwise agreed to by the Company, payment must be received by the Company prior to the Company´s acceptance of an order. Payment for product orders will be accepted via credit card and PayPal. Your order is subject to cancellation by Company at Company´s sole discretion. All amounts due are payable in U.S. dollars. Any amount not paid when due will be subject to a finance charge of one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, for the unpaid balance due. You shall be responsible for any expenses and/or fees (including but not limited to attorneys´ fees), incurred by the Company in collecting past due amounts from you.
5. RETURNS AND REFUNDS
Before returning your order you must receive an RMA #. You may do so by clicking on the “Contact Us” link located on the website and requesting an RMA # by providing your full name and order number.
In order to receive a refund your return must be received by us within 60 days from the order date and with the RMA # provided. Returns received by us without an RMA # and past 60 days from the order date will not be eligible for a refund. Please note this carefully as there are no exceptions.
Our return policy allows refunds for up to 1 opened bottle and all fully sealed bottles per order which can be placed back into inventory. If a bottle has been tampered with or/and is not fully sealed and cannot be placed back into inventory it is considered an opened bottle.
If you have already returned a DrFloras product in the past and received a refund for it, you are not eligible for a future refund on the same product. If you were unsatisfied with a specific product do not purchase it again as you will not receive a refund the second time around.
All returns will be subject to a 20% re-stocking fee. Shipping and Handling fees are non refundable and the customer is responsible for all costs associated with shipping the items back to us.
Refunds are processed back onto the original form of payment within 30 days from the date we received the returned order.
1. All returns must have an RMA #
2. All returns must be received by us within 60 days of the order date
3. We refund for up to 1 opened bottle and all unopened bottles
4. Refunds will not be given for the same product twice
5. Returns are subject to a 20% restocking fee
6. Shipping and Handling fees are non refundable
7. Refunds are processed within 30 days
6. SHIPPING; RISK OF LOSS; TITLE; TAXES
Shipping and handling charges are additional unless otherwise expressly indicated at the time of sale. Shipping dates are estimates only. Risk of loss and title for all items purchased from Company pass to you upon our delivery to the carrier. You are responsible for sales and other taxes associated with all orders. Title to all intellectual property rights will remain with the applicable licensor(s).
8. 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 accompanying data (collectively, “Software”) are deemed to be licensed to you by Company, or its licensors, for your limited, personal, noncommercial, nonexclusive, nontransferable use only. Downloading or using the Software is at your sole risk.
9. USE RESTRICTIONS
Company imposes certain restrictions on your permissible use of the Site. To the maximum extent permitted by law, you represent and warrant that you will not:
- use the Site in connection with any commercial endeavor, unless you have a prior written agreement with Company signed by an officer of Company;
- market or distribute access to the Site or any portion thereof;
- assign; sublicense, sell, lease or otherwise transfer or convey your rights under these Terms;
- violate or attempt to violate any security features of the Site;
- access or attempt to access any content, data, programs or other Company systems not intended for you, or log onto a server or account that you are not expressly authorized to access;
- attempt to probe, scan, or test the vulnerability of the Site or any associated system or network, or to breach security or authentication measures without proper authorization;
- damage, disable, overburden or impair the Site or interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;”
- attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Site;
- attempt to modify, copy, distribute, transmit, display, perform, reproduce, publish, rent, lease, loan, license, or create derivative works based on the Site;
- frame in another web page, use on any other website, transfer or sell any information, software, lists of users, databases, Company IP (as defined below) or other lists, products or services provided through or obtained from the Site, or engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information from the Site;
- use any meta tags or any other “hidden text” utilizing Company´s name or trademarks without the express written consent of Company;
- engage in, encourage others to engage in, or provide instructional information about, conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or any regulation having the force of law, including the Civil Rights Act of 1866, the Fair Housing Act, the Americans with Disabilities Act, and the Equal Credit Opportunity Act;
- harm minors in any way or solicit personal information from or about a minor;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- send email messages or use the Site in any manner which intentionally or unintentionally violates any applicable local, state, national or international law or regulation (including without limitation, policies and laws related to spamming, privacy, obscenity or defamation);
- send email messages or make posts that contain falsified or misleading routing information, a return address that is either invalid or belongs to a third party and is used without permission, a misleading subject line and/or body copy, or promote a fraudulent scheme; and
- upload, download, post, email, transmit or otherwise make available any materials that: (a) are inappropriate, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, offensive, sexually explicit, promote gambling, libelous, invasive of another´s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) contain unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or (e) infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party. You are solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit, or that is provided or transmitted using your user identification. The burden of proving that any content does not violate any laws or third party rights rests solely with you.
You further agree that you will not create links from any website or web page to the Site, except that you are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Site (“Homepage”); provided that (i) the link does not portray Company, or its products or services in a false, misleading, derogatory, or otherwise offensive matter; (ii) except as provided herein, you may not use any Company logo or other proprietary graphic or trademark as part of the link without express written permission; and (iii) the link to the Homepage must be accompanied by a clear and prominent attribution at the point of origin indicating that the link is connected to the Homepage. For example, prominently positioning the “DrFloras®” trademark such that there is clear association between the trademark and the destination of the link would be acceptable. You agree that you will not juxtapose the “DrFloras®” mark and the link with your name or any other material(s) in a manner which might create any confusion that there is any affiliation or association between Company, and you or any other person or entity. If Company, for any reason in its sole and absolute discretion, requests in writing that you remove any link or links to the Homepage, you agree to promptly comply. You agree that if you create any link to the Homepage that you will not employ any technology that results in the placement of content from the Site in a frame and/or a reduced pop-up window and/or any other display mechanism which changes the Site content from how it normally appears in a browser.
Company reserves the right to investigate suspected violations of these Terms. If Company becomes aware of a possible violation, Company may initiate an investigation which may include gathering information from you or companies involved and the complaining party. If Company believes, in its sole discretion, that a violation of these Terms has occurred, it may take responsive action. Such action may include, but is not limited to, temporary or permanent blocking of your access to the Site and/or deleting any materials from Company´s system. Company, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms could also subject you to criminal or civil liability. Company reserves the right to release the contact information of users involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
If you breach these Terms and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Site, you acknowledge that you will have caused substantial harm to Company, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Company $50.00 for each such unsolicited email or other unsolicited communication you send through the Site.
10. HEALTH RELATED INFORMATION
The information contained on the Site is provided for informational purposes only and is not meant to diagnose, cure, prevent or treat any condition, disease or illness, and is not a substitute for the advice, diagnosis or treatment provided by your physician or other qualified health care professional. You should not use the information available on or through the Site, including without limitation, information that may be provided on the Site by healthcare or nutrition professionals featured on the Site (“Featured Professionals”), for diagnosing, curing, preventing or treating any condition, disease or illness, or for prescribing any medication. Individuals with medical conditions should only make nutritional, supplement, and/or exercise changes under the close supervision of their doctor or other qualified health care professional. You should consult your own physician or qualified health care provider regarding the applicability of any information contained on the Site, and any questions or concerns you may have with respect to your symptoms, medical condition or health care decisions. Never disregard professional medical advice or delay in seeking medical advice because of something that you have read on the Site. The exchange of information on the Site with Featured Professionals does not establish a patient-physician relationship. The opinions expressed on the Site by Featured Professionals are those of the Featured Professional only and do not represent the opinions or views of Company. The information and statements contained on the Site have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product packaging prior to use and keep all products out of the reach of children.
You agree that all articles, data, graphics, images, information, messages, music, photographs, software, sound, tags, text, video, or other materials (“Content”), whether publicly posted on the Site or privately transmitted via the Site, are the sole responsibility of the person or entity from which such Content originated. You are solely responsible for all Content that you email, post, transmit, upload or otherwise make available via the Site. Company does not control Content uploaded or otherwise transmitted by you or other users via the Site and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site, you may be exposed to Content that is indecent, offensive or objectionable. Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of, or reliance upon, any Content emailed, posted, transmitted or otherwise made available via the Site.
You acknowledge and agree that: (i) Company may or may not pre-screen Content; (ii) Company and/or its designees shall have the right (but not the obligation) in their sole discretion, at any time, for any reason, with or without notice, to pre-screen, refuse or to remove any Content contained on the Site; (iii) you will take all necessary measures to evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, sufficiency or usefulness of such Content; (iv) you will not rely on any Content contained on, received from or made available via the Site; and (v) you will always use an appropriate level of caution when distributing, posting or otherwise making available any personally identifying Content on the Site about yourself, your children or anyone else.
RELIANCE ON ANY CONTENT MADE AVAILABLE VIA THE SITE, INCLUDING WITHOUT LIMITATION, INFORMATION PROVIDED BY COMPANY, FEATURED PROFESSIONALS, EMPLOYEES, OTHERS APPEARING ON THE SITE OR OTHER USERS, IS SOLELY AT YOUR OWN RISK. COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, FEATURED PROFESSIONALS AND LICENSORS (COLLECTIVELY, “AFFILIATED PARTIES”) SHALL NOT BE LIABLE FOR ANY ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM INFORMATION CONTAINED ON THE SITE.
12. USER CONTENT
Company does not claim ownership of any Content you submit, post, display or otherwise make available to an area of the Site that is intended by Company to be publicly accessible (“User Content”), including without limitation any bulletin boards, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to exchange thoughts and opinions with other members of the public. You hereby: (i) grant to Company, and its affiliates, an irrevocable, non-exclusive, perpetual, royalty-free, sublicensable, transferable, unlimited, worldwide right and license to broadcast, copy, copyright, create derivative works from the User Content and its derivatives, digitize, distribute, edit, execute, exhibit, host, modify, publicly display, publicly perform, publish, reformat reproduce, sell, televise, translate, transmit use and otherwise exploit such User Content (in whole or in part) using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidentiality or other duties on our part or on the part of our assigns; (ii) represent and warrant that you own the rights to the User Content or are otherwise authorized to grant the rights in the User Content set forth herein.
13. USER CONTRIBUTIONS
You agree that: (i) any materials, including but not limited to comments, documents, feedback, ideas, questions, suggestions, original or creative materials or other information, provided by you to Company in the form of emails or submissions to the Site (“Contributions”) shall not be under any obligation of confidentiality, express or implied, with respect to the Contributions; and that you remain solely responsible and liable for your Contributions. You further hereby grant (or warrant that the owner of the Contributions has granted) to Company and our assigns an unlimited, perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Contributions or any ideas, concepts, know-how or techniques associated with the Contributions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidentiality or other duties on our part or on the part of our assigns, and you hereby waive all moral rights, or agree, represent and warrant that all moral rights in the Contributions (including without limitation the rights of paternity, attribution and integrity) are irrevocably waived, in favor of Company and our assigns.
14. THIRD PARTY SERVICES AND SITES
Unless expressly provided otherwise, these Terms govern your use of any and all third party Content. The Site may provide links to other websites or resources. Your business dealings with any third party, third party website or third party content (collectively “Third Party”) found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations, associated with such dealings, are solely between you and such Third Party. Company makes no endorsement or guarantee about the content, goods or services provided by such Third Party. Company shall not be responsible for any loss or damage of any sort incurred as the result of: (i) any dealings or transaction between you and any Third Party or as the result of the presence of such Third Party on the Site; (ii) any insufficiency of or problems with any such Third Party´s background, insurance, credit or licensing; or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you hereby forever release Company, and its Affiliated Parties, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. You hereby expressly waive and relinquish all rights and benefits, if any, arising under the provisions of Section 1542 of the Civil Code of the State of California which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15. STORAGE AND ACCESS
Company may, in its sole discretion: (i) limit the duration and frequency of your access to the Site; and (ii) delete accounts that are inactive for an extended period of time. Company shall have no responsibility or liability for the deletion or failure to store any account, messages, postings, communications or other content maintained or transmitted by the Site.
Company may, in its sole discretion and without prior notice, (i) revise these Terms; (ii) modify the Site; and (iii) discontinue or remove any or all of the Site, or any of its constituent parts, at any time. Company shall post any revision to these Terms, and the revised Terms shall be effective immediately on such posting. You agree to review these Terms and other online policies posted on the Site periodically to be aware of any revisions. Your continued use of any of the Site shall constitute your acceptance of the revised Terms. If you do not agree to any of such changes, you may terminate these Terms and immediately cease all access and use of the Site. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to these Terms.
You acknowledge and agree that Company may at any time in its sole discretion terminate your access to and use of the Site, or any part thereof, with or without notice. You agree that upon termination Company may delete all files and information related to your account, if any, and may bar your access to your account, if any, and the Site.
YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM COMPANY, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF ANY TERMINATION OF THIS AGREEMENT OR TERMINATION OF YOUR ACCESS TO THE SITE, ALL OF WHICH YOU EXPRESSLY WAIVE.
18. PROPRIETARY RIGHTS
The design of the Site and all text, graphics, information, Content, and other material displayed on or that can be downloaded from the Site are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms or with prior written permission of the owner of such material. You agree that as between the parties, Company is the exclusive owner of the Site and all constituent parts, including without limitation, all software code, any Content on the Site (excluding User Content), HTML scripts, the uniform resource locators (URL’s) for the Site, the organization and layout of the Site, all Company trademarks (including without limitation DrFloras®, the DrFloras® logo), trade names, service marks, trade dress and logos, all enhancements and improvements thereto, and derivatives thereof, and all patent, copyright, trademark, trade secret, trade dress and other intellectual property rights therein throughout the world (collectively the “Company IP”). Any goodwill attached to, or generated by, such Company IP is owned exclusively by Company, or its licensors, and shall inure solely to the benefit of Company, or its licensors. Nothing contained herein or on the Site should be understood as granting you any right or license to any of the Company IP, except as expressly granted herein. All rights not expressly granted herein are reserved by Company, or its licensors. Company, or its licensors, retains full and complete title to the Company IP. You shall not: (i) use or copy the Company IP in any manner not specifically set forth herein; (ii) include Company IP in your corporate name, within a domain name or within any part of URL’s; (iii) obtain, use, register, or otherwise acquire any trade names, trademarks, service marks, and/or trade dress that are confusingly similar to Company IP; (iv) have any claim of ownership in the Company IP; or (v) sell, redistribute, transfer, sublicense or reproduce the Company IP, nor may you decompile, reverse-engineer, disassemble, or otherwise convert any of the Company IP to a human-perceivable form These Terms do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. You acknowledge and agree that the Site contains proprietary information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in any sponsor advertisements or information that may have been presented to you through the Site or its advertisers, if any, may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
19. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PROVIDES THE SITE, CONTENT CONTAINED ON THE SITE OR ACCESSIBLE VIA THE SITE, AND THE PRODUCTS AVAILABLE VIA THE SITE “AS IS” AND “AS AVAILABLE” AND THE ENTIRE RISK AS TO ACCURACY, ADVICE, CONTENT, EFFORT, INFORMATION, PERFORMANCE, SATISFACTORY QUALITY, AND TYPOGRAPHICAL ERRORS OR OMISSIONS IS SOLELY WITH YOU, AND COMPANY IS NOT RESPONSIBLE FOR ANY OF THE FOREGOING. THE SITE, CONTENT CONTAINED ON THE SITE OR ACCESSIBLE VIA THE SITE, AND THE PRODUCTS OBTAINED VIA THE SITE, MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. COMPANY, AND ITS AFFILIATED PARTIES: (A) HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONDITIONS OR DUTIES OF EVERY NATURE WHATSOEVER (EXCEPT ANY DUTIES OF GOOD FAITH), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENJOYMENT, NON-INFRINGEMENT, THAT THE PROVISION OR OPERATION OF THE SITE WILL BE TIMELY OR UNINTERRUPTED, ANY OTHER IMPLIED WARRANTIES, AND ANY STATUTORY OR EXPRESS WARRANTIES, AND ANY OTHER WARRANTIES OR DUTIES, INCLUDING BUT NOT LIMITED TO ANY REGARDING ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, DURABILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, FREEDOM FROM VIRUSES, UNINTERRUPTED SERVICE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE; AND (B) MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SITE, CONTENT CONTAINED ON THE SITE OR ACCESSIBLE VIA THE SITE, AND THE PRODUCTS AVAILABLE VIA THE SITE WILL: MEET YOUR REQUIREMENTS, BE ACCURATE, APPROPRIATE, COMPLETE, CORRECT, ERROR-FREE (OR THAT ANY ERRORS WILL BE FIXED), RELIABLE, SECURE, SUFFICIENT, TIMELY, UNINTERRUPTED, VIRUS-FREE, OR WILL MEET YOUR EXPECTATIONS. COMPANY MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SITE, CONTENT CONTAINED ON THE SITE OR ACCESSIBLE VIA THE SITE, AND THE PRODUCTS AVAILABLE VIA THE SITE, IS IN ACCORDANCE WITH APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
20. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, AND ITS AFFILIATED PARTIES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, DISCLOSURE OF CONFIDENTIAL OR OTHER INFORMATION, GOODWILL, USE, CONTENT, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR MISREPRESENTATION), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE OR THE CONTENT CONTAINED ON, OR ACCESSED VIA THE SITE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO VIA THE SITE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR PERSONAL INFORMATION; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (V) PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY REGULATIONS OR CODES, OR MISAPPROPRIATION; (VI) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE OR OTHER WEBSITE(S) YOU ACCESS THROUGH THE SITE, CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, OR (VII) ANY OTHER MATTER RELATING TO THE SITE AND/OR PRODUCTS PURCHASED VIA THE SITE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY DAMAGES THAT YOU MAY INCUR FOR ANY REASON WHATSOEVER, (INCLUDING WITHOUT LIMITATION, ALL DAMAGES REFERENCED IN THIS SECTION 20, AND ALL DIRECT OR GENERAL DAMAGES) IN NO EVENT SHALL THE ENTIRE LIABILITY OF COMPANY, AND ITS AFFILIATED PARTIES, FOR ANY BREACH OF THIS AGREEMENT, OR FOR ANY CAUSE OF ACTION OF ANY NATURE, INCLUDING WITHOUT LIMITATION, TORT (INCLUDING BUT NOT LIMITED TO, INTENTIONAL, NEGLIGENCE, GROSS NEGLIGENCE, PRODUCTS LIABILITY AND/OR STRICT LIABILITY), ANY EXPRESS OR IMPLIED WARRANTY, OR ANY OTHER THEORY) WITH RESPECT TO THE SITE AND/OR PRODUCTS PURCHASED VIA THE SITE, AND YOUR EXCLUSIVE REMEDY AGAINST COMPANY, SHALL BE LIMITED TO THE AMOUNT OF DAMAGES (OTHER THAN DAMAGES EXCLUDED UNDER THIS SECTION 20) ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, UP TO AN AMOUNT WHICH IS THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU FOR THAT PORTION OF THE PRODUCTS THAT CAUSES THE DAMAGE, OR (B) TEN DOLLARS (US $10.00). THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION 20 HAS MATERIALLY INDUCED COMPANY TO ENTER INTO THIS AGREEMENT AND ALLOW YOU ACCESS TO THE SITE.
You agree to defend, indemnify and hold Company, and its Affiliated Parties, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys´ fees) arising from content you submit, post, transmit or otherwise make available through the Site, your use of the Site, your connection to the Site, your violation of the terms of these Terms, or your violation of any third party´s rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of these Terms.
22. CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights or other intellectual property rights, 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) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an email address at which you may be contacted; (e) 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 (f) 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. For this notification to be effective, you must substantially comply with all of the requirements of this section and provide written notice to Company’s designated Copyright Agent at:
c/o Bierman Law Group, APC
1902 Wright Place, 2nd Floor
Carlsbad, California 92008
Fax: (760) 931-9547
23. GENERAL INFORMATION
These Terms constitute the entire agreement between you and Company and governs your use of the Site, superseding any prior agreements between you and Company (including, but not limited to, any prior versions of these Terms) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other Company services or products, third-party content or third-party software. In the event any term contained in these Terms conflicts with any other term contained in any other agreement referenced in these Terms, the terms of this agreement shall control. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of Company.
Consent to Email Communications
You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Assignment; Relationship of Parties; Waiver
You may not assign these Terms or any rights granted herein. Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. You agree that no joint venture, partnership, employment, franchise or agency relationship exists between you and Company as a result of this Agreement or use of the Site. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Company and its successors and assigns. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Governing Law; Venue; Disputes
These Terms are governed exclusively by the laws of the State of California, without reference to its conflicts of law principles, and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby submit to the exclusive personal jurisdiction of, and agree that any controversy, claim or legal proceeding with respect to or arising under these Terms shall be brought in, the United States District Court for the Central District of California or the California state courts located in Los Angeles County, California. You further irrevocably consent to the service of process in any such action or proceeding by the delivery of a copy of such process to you at the address set forth in the Registration Data. You agree that any claim or cause of action arising out of or related to use of the Site or these Terms must be filed within one hundred twenty (120) days after such claim or cause of action arose or be forever barred, without regard to any other limitations period set forth by law or statute. The prevailing party in any claim or proceeding shall be entitled to reimbursement of reasonable attorneys’ and experts’ fees and costs. You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Company shall be entitled, without waiving any additional rights or remedies otherwise available to Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by You. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction. You are solely responsible for your interactions with other users of the Site. Company reserves the right, but has no obligation, to monitor disputes between you and other users of the Site.
You agree to comply with all local laws and rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the aforementioned). Software available in connection with the Site is subject to United States export controls. No Software may be downloaded from the Site or otherwise exported or re-exported in violation of U.S. export laws.
Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of these Terms. The Site is controlled and operated by Company from its facilities in the United States of America. Company makes no representation that any of the Site (including, without limitation, any products or services available on or through the Site) are available or appropriate for use outside of the United States of America. Users who access the Site from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
Company´s performance of these Terms is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of Company’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Company with respect to such use.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
Section Titles; Survival
The section titles in these Terms are for convenience only and have no legal or contractual effect. Sections 9 through 23 of these Terms of Site shall survive any termination of these Terms..
This electronic document and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
310 S. Twin Oaks Valley Rd.
San Marcos, CA 92078