Terms and Conditions
Use Constitutes Acceptance
Revision of Terms
The Terms may be revised from time to time with or without notice, and the then-current version of the Terms will apply to any transaction or action or omission of you or the Company.
When you visit the Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail 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. Any comments, materials, or letters sent by you to Company, including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), may be deemed by Company to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
LICENSE AND SITE ACCESS
Company hereby grants you, subject to the Terms, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Site and Services. You may not download any portion of the Site or use of any Services other than for your own personal or company use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose. You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may denied in Company’s absolute discretion. Company’s logos product and service names are trademarks of Company. All other trademarks appearing on the Website or in connection with the Products or Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made. You may not attempt to disassemble, decompile, reverse engineer, or otherwise modify or attempt to access the software, related code, or any portion of the Services.
YOUR ACCOUNT AND DATA
You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.
LINKS TO THIRD PARTY SITES
We may link to sites owned or managed by those third parties. Any dispute arising between you and the third party whose website you access via the Site is between you and the third party, and you agree to hold harmless, defend, and indemnify Company from and against any liability or other costs that may arise arising out of or related to a dispute between you and any third party, including attorney fees and court costs.
Company warrants that the Site does not infringe the intellectual property rights of any third party and agree to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party.
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF THE SITE, THE SERVICES, OR ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES, AND YOU AGREE TO HOLD COMPANY FROM AND AGAINST ANY SUCH CLAIMS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE CORRECTNESS OF ANY INFORMATION PROVIDED BY COMPANY’S CUSTOMER SERVICE REPRESENTATIVES. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to you. Any warranties made in the Terms are for your benefit only.
LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR PRODUCTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF $500.00. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the State of Utah.
In case of an action to enforce any rights or conditions of the Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
ENTIRE AGREEMENT; AMENDMENT
The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
No waiver of any provision of the Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of the Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
NO THIRD-PARTY BENEFICIARIES
Nothing in the Terms, express or implied, is intended to confer on any person, other than the parties to the Terms, any right or remedy of any nature whatsoever.
SEVERABILITY; BINDING EFFECT
If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired. The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
Company will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond Company’s reasonable control.
You agree to defend, indemnify and hold Company harmless from and against any cost, expense, fee, judgment, ruling, allegation, governmental action, or claim, including without limitation attorney fees, related to (1) your breach of any of the Terms, (2) any of your acts or omissions in connection with your use of the Site, and (3) any claim by a third party that your use of the Site caused such third party damages of any nature.