1.AGREEMENT TO TERMS
TheseTerms and Conditions of Supply and Purchase constitute a legally bindingagreement made between you, whether personally or on behalf of an entity(“you”) and Koloni, Inc. ("Company", “we”, “us”, or “our”),concerning your access to and use of the http://www.koloni.io website, theKoloni Partner website and associated links, as well as any other media form,media channel, mobile website or mobile application related, linked, orotherwise connected thereto (collectively, the “Site”). We are registered inIllinois, United States and have our registered office at 158 Touhy Ct, DesPlaines, IL 60018. You agree that by accessing the Site, you have read,understood, and agree to be bound by all of these Terms and Conditions ofSupply and Purchase, including the Terms and Conditions, EULA, Disclaimerposted on the Site, which are incorporated into these Terms and Conditions ofSupply and Purchase. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONSOF SUPPLY AND PURCHASE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITEAND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplementalterms and conditions or documents that may be posted on the Site from time totime are hereby expressly incorporated herein by reference. We reserve theright, in our sole discretion, to make changes or modifications to these Termsand Conditions of Supply and Purchase from time to time. We will alert youabout any changes by updating the “Last updated” date of these Terms andConditions of Supply and Purchase, and you waive any right to receive specificnotice of each such change. Please ensure that you check the applicable Termsevery time you use our Site so that you understand which Terms apply. You willbe subject to, and will be deemed to have been made aware of and to haveaccepted, the changes in any revised Terms and Conditions of Supply andPurchase by your continued use of the Site after the date such revised Termsand Conditions of Supply and Purchase are posted.
Theinformation provided on the Site is not intended for distribution to or use byany person or entity in any jurisdiction or country where such distribution oruse would be contrary to law or regulation or which would subject us to anyregistration requirement within such jurisdiction or country. Accordingly,those persons who choose to access the Site from other locations do so on theirown initiative and are solely responsible for compliance with local laws, ifand to the extent local laws are applicable.
TheSite is not tailored to comply with industry-specific regulations (HealthInsurance Portability and Accountability Act (HIPAA), Federal InformationSecurity Management Act (FISMA), etc.), so if your interactions would besubjected to such laws, you may not use this Site. You may not use the Site ina way that would violate the Gramm-Leach-Bliley Act (GLBA).
TheSite is intended for users who are at least 18 years old. Persons under the ageof 18 are not permitted to use or register for the Site.
2.INTELLECTUAL PROPERTY RIGHTS
Unlessotherwise indicated, the Site is our proprietary property and all source code,databases, functionality, software, website designs, audio, video, text,photographs, and graphics on the Site (collectively, the “Content”) and thetrademarks, service marks, and logos contained therein (the “Marks”) are ownedor controlled by us or licensed to us, and are protected by copyright andtrademark laws and various other intellectual property rights and unfaircompetition laws of the United States, international copyright laws, andinternational conventions. The Content and the Marks are provided on the Site“AS IS” for your information and personal use only. Except as expresslyprovided in these Terms and Conditions of Supply and Purchase, no part of theSite and no Content or Marks may be copied, reproduced, aggregated,republished, uploaded, posted, publicly displayed, encoded, translated,transmitted, distributed, sold, licensed, or otherwise exploited for anycommercial purpose whatsoever, without our express prior written permission.
Providedthat you are eligible to use the Site, you are granted a limited license toaccess and use the Site and to download or print a copy of any portion of theContent to which you have properly gained access solely for your personal,non-commercial use. We reserve all rights not expressly granted to you in andto the Site, the Content and the Marks.
Byusing the Site, you represent and warrant that: (1) all registrationinformation you submit will be true, accurate, current, and complete; (2) youwill maintain the accuracy of such information and promptly update suchregistration information as necessary; (3) you have the legal capacity and youagree to comply with these Terms and Conditions of Supply and Purchase; (4) youare not a minor in the jurisdiction in which you reside; (5) you will notaccess the Site through automated or non-human means, whether through a bot,script or otherwise; (6) you will not use the Site for any illegal or unauthorizedpurpose; and (7) your use of the Site will not violate any applicable law orregulation.
Ifyou provide any information that is untrue, inaccurate, not current, orincomplete, we have the right to suspend or terminate your account and refuseany and all current or future use of the Site (or any portion thereof).
Youmay be required to register with the Site. You agree to keep your passwordconfidential and will be responsible for all use of your account and password.We reserve the right to remove, reclaim, or change a username you select if wedetermine, in our sole discretion, that such username is inappropriate,obscene, or otherwise objectionable.
5.FEES AND PAYMENT
Weaccept the following forms of payment:
- American Express
Youmay be required to purchase or pay a fee to access some of our services. Youagree to provide current, complete, and accurate purchase and accountinformation for all purchases made via the Site. You further agree to promptlyupdate account and payment information, including email address, paymentmethod, and payment card expiration date, so that we can complete yourtransactions and contact you as needed. We bill you through an online billingaccount for purchases made via the Site. Sales tax will be added to the priceof purchases as deemed required by us. We may change prices at any time. Allpayments shall be in U.S. dollars.
Youagree to pay all charges or fees at the prices then in effect for yourpurchases, and you authorize us to charge your chosen payment provider for anysuch amounts upon making your purchase. If your purchase is subject torecurring charges, then you consent to our charging your payment method on arecurring basis without requiring your prior approval for each recurringcharge. Yearly fees made by you to us may not be cancelled early for anyreason, no refunds or exchanges are allowed. We reserve the right to correctany errors or mistakes in pricing, even if we have already requested or receivedpayment. We also reserve the right to refuse any order placed through the Site.
Allpurchases are non-refundable. You can cancel your subscription at any time bycontacting us using the contact information provided below. Your cancellationwill take effect at the end of the current paid term.
Ifyou are unsatisfied with our services, please email us at email@example.com orcall us at (850) 930-9062.
Wemay include software for use in connection with our services. If such softwareis accompanied by an end user license agreement (“EULA”), the terms of the EULAwill govern your use of the software. If such software is not accompanied by aEULA, then we grant to you a non-exclusive, revocable, personal, andnon-transferable license to use such software solely in connection with ourservices and in accordance with these Terms and Conditions of Supply andPurchase. Any Software and any related documentation is provided “as is”without warranty of any kind, either express or implied, including, withoutlimitation, the implied warranties of merchantability, fitness for a particularpurpose, or non-infringement. You accept any and all risk arising out of use orperformance of any Software. You may not reproduce or redistribute any softwareexcept in accordance with the EULA or these Terms and Conditions of Supply andPurchase.
Youmay not access or use the Site for any purpose other than that for which wemake the Site available. The Site may not be used in connection with anycommercial endeavors except those that are specifically endorsed or approved byus.
Asa user of the Site, you agree not to:
Systematicallyretrieve data or other content from the Site to create or compile, directly or indirectly,a collection, compilation, database, or directory without written permissionfrom us.
Trick,defraud, or mislead us and other users, especially in any attempt to learnsensitive account information such as user passwords.
Circumvent,disable, or otherwise interfere with security-related features of the Site,including features that prevent or restrict the use or copying of any Contentor enforce limitations on the use of the Site and/or the Content containedtherein.
Disparage,tarnish, or otherwise harm, in our opinion, us and/or the Site.
Useany information obtained from the Site in order to harass, abuse, or harmanother person.
Makeimproper use of our support services or submit false reports of abuse ormisconduct.
- Usethe Site in a manner inconsistent with any applicable laws or regulations.
- Engagein unauthorized framing of or linking to the Site.
- Uploador transmit (or attempt to upload or to transmit) viruses, Trojan horses, orother material, including excessive use of capital letters and spamming(continuous posting of repetitive text), that interferes with any party’suninterrupted use and enjoyment of the Site or modifies, impairs, disrupts,alters, or interferes with the use, features, functions, operation, ormaintenance of the Site.
- Engagein any automated use of the system, such as using scripts to send comments ormessages, or using any data mining, robots, or similar data gathering andextraction tools.
- Deletethe copyright or other proprietary rights notice from any Content. Attempt toimpersonate another user or person or use the username of another user.
- Uploador transmit (or attempt to upload or to transmit) any material that acts as apassive or active information collection or transmission mechanism, includingwithout limitation, clear graphics interchange formats (“gifs”), 1×1 pixels,web bugs, cookies, or other similar devices (sometimes referred to as “spyware”or “passive collection mechanisms” or “pcms”).
- Interferewith, disrupt, or create an undue burden on the Site or the networks orservices connected to the Site.
- Harass,annoy, intimidate, or threaten any of our employees or agents engaged inproviding any portion of the Site to you.
- Attemptto bypass any measures of the Site designed to prevent or restrict access tothe Site, or any portion of the Site.
- Exceptas permitted by applicable law, decipher, decompile, disassemble, or reverseengineer any of the software comprising or in any way making up a part of theSite.
- Exceptas may be the result of standard search engine or Internet browser usage, use,launch, develop, or distribute any automated system, including withoutlimitation, any spider, robot, cheat utility, scraper, or offline reader thataccesses the Site, or using or launching any unauthorized script or othersoftware.
- Usea buying agent or purchasing agent to make purchases on the Site. Make anyunauthorized use of the Site, including collecting usernames and/or emailaddresses of users by electronic or other means for the purpose of sendingunsolicited email, or creating user accounts by automated means or under falsepretenses.
- Usethe Site as part of any effort to compete with us or otherwise use the Siteand/or the Content for any revenue-generating endeavor or commercialenterprise.
9.USER GENERATED CONTRIBUTIONS
TheSite may invite you to chat, contribute to, or participate in blogs, messageboards, online forums, and other functionality, and may provide you with theopportunity to create, submit, post, display, transmit, perform, publish,distribute, or broadcast content and materials to us or on the Site, includingbut not limited to text, writings, video, audio, photographs, graphics, comments,suggestions, or per information or other material (collectively,"Contributions"). Contributions may be viewable by other users of theSite and through third-party websites. As such, any Contributions you transmitmay be treated as non-confidential and non-proprietary. When you create or makeavailable any Contributions, you thereby represent and warrant that:
- Thecreation, distribution, transmission, public display, or performance, and theaccessing, downloading, or copying of your Contributions do not and will notinfringe the proprietary rights, including but not limited to the copyright,patent, trademark, trade secret, or moral rights of any third party.
- Youare the creator and owner of or have the necessary licenses, rights, consents,releases, and permissions to use and to authorize us, the Site, and other usersof the Site to use your Contributions in any manner contemplated by the Siteand these Terms and Conditions of Supply and Purchase.
- Youhave the written consent, release, and/or permission of each and everyidentifiable individual person in your Contributions to use the name orlikeness of each and every such identifiable individual person to enableinclusion and use of your Contributions in any manner contemplated by the Siteand these Terms and Conditions of Supply and Purchase.
- YourContributions are not false, inaccurate, or misleading.
- YourContributions are not unsolicited or unauthorized advertising, promotionalmaterials, pyramid schemes, chain letters, spam, mass mailings, or other formsof solicitation.
- YourContributions are not obscene, lewd, lascivious, filthy, violent, harassing,libelous, slanderous, or otherwise objectionable (as determined by us).
- YourContributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- YourContributions are not used to harass or threaten (in the legal sense of thoseterms) any other person and to promote violence against a specific person orclass of people.
- YourContributions do not violate any applicable law, regulation, or rule.
- YourContributions do not violate the privacy or publicity rights of any thirdparty.
- YourContributions do not violate any applicable law concerning child pornography,or otherwise intended to protect the health or well-being of minors.
- YourContributions do not include any offensive comments that are connected to race,national origin, gender, sexual preference, or physical handicap. YourContributions do not otherwise violate, or link to material that violates, anyprovision of these Terms and Conditions of Supply and Purchase, or anyapplicable law or regulation.
Anyuse of the Site in violation of the foregoing violates these Terms andConditions of Supply and Purchase and may result in, among other things,termination or suspension of your rights to use the Site.
Byposting your Contributions to any part of the Site, you automatically grant,and you represent and warrant that you have the right to grant, to us anunrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable,royalty-free, fully-paid, worldwide right, and license to host, use, copy,reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store,cache, publicly perform, publicly display, reformat, translate, transmit,excerpt (in whole or in part), and distribute such Contributions (including,without limitation, your image and voice) for any purpose, commercial,advertising, or otherwise, and to prepare derivative works of, or incorporateinto other works, such Contributions, and grant and authorize sublicenses ofthe foregoing. The use and distribution may occur in any media formats andthrough any media channels.
Thislicense will apply to any form, media, or technology now known or hereafterdeveloped, and includes our use of your name, company name, and franchise name,as applicable, and any of the trademarks, service marks, trade names, logos,and personal and commercial images you provide. You waive all moral rights inyour Contributions, and you warrant that moral rights have not otherwise beenasserted in your Contributions.
Wedo not assert any ownership over your Contributions. You retain full ownershipof all of your Contributions and any intellectual property rights or otherproprietary right associated with your Contributions. We are not liable for anystatements or representations in your Contributions provided by you in any areaon the Site. You are solely responsible for your Contributions to the Site andyou expressly agree to exonerate us from any and all responsibility and torefrain from any legal action against us regarding your Contributions.
Wehave the right, in our sole and absolute discretion, (1) to edit, redact, orotherwise change any Contributions; (2) to re-categorize any Contributions toplace them in more appropriate locations on the Site; and (3) to pre-screen ordelete any Contributions at any time and for any reason, without notice. Wehave no obligation to monitor your Contributions.
11.MOBILE APPLICATION LICENSE
Ifyou access the Site via a mobile application, then we grant you a revocable,non-exclusive, non-transferable, limited right to install and use the mobileapplication on wireless electronic devices owned or controlled by you, and toaccess and use the mobile application on such devices strictly in accordancewith the terms and conditions of this mobile application license contained inthese Terms and Conditions of Supply and Purchase. You shall not: (1) except aspermitted by applicable law, decompile, reverse engineer, disassemble, attemptto derive the source code of, or decrypt the application; (2) make anymodification, adaptation, improvement, enhancement, translation, or derivativework from the application; (3) violate any applicable laws, rules, orregulations in connection with your access or use of the application; (4)remove, alter, or obscure any proprietary notice (including any notice ofcopyright or trademark) posted by us or the licensors of the application; (5)use the application for any revenue generating endeavor, commercial enterprise,or other purpose for which it is not designed or intended; (6) make theapplication available over a network or other environment permitting access oruse by multiple devices or users at the same time; (7) use the application forcreating a product, service, or software that is, directly or indirectly,competitive with or in any way a substitute for the application; (8) use theapplication to send automated queries to any website or to send any unsolicitedcommercial e-mail; or (9) use any proprietary information or any of ourinterfaces or our other intellectual property in the design, development,manufacture, licensing, or distribution of any applications, accessories, ordevices for use with the application.
Appleand Android Devices
Thefollowing terms apply when you use a mobile application obtained from eitherthe Apple Store or Google Play (each an “App Distributor”) to access the Site:(1) the license granted to you for our mobile application is limited to anon-transferable license to use the application on a device that utilizes theApple iOS or Android operating systems, as applicable, and in accordance withthe usage rules set forth in the applicable App Distributor’s terms of service;(2) we are responsible for providing any maintenance and support services withrespect to the mobile application as specified in the terms and conditions ofthis mobile application license contained in these Terms and Conditions ofSupply and Purchase or as otherwise required under applicable law, and youacknowledge that each App Distributor has no obligation whatsoever to furnishany maintenance and support services with respect to the mobile application;(3) in the event of any failure of the mobile application to conform to anyapplicable warranty, you may notify the applicable App Distributor, and the AppDistributor, in accordance with its terms and policies, may refund the purchaseprice, if any, paid for the mobile application, and to the maximum extentpermitted by applicable law, the App Distributor will have no other warrantyobligation whatsoever with respect to the mobile application; (4) you representand warrant that (i) you are not located in a country that is subject to a U.S.government embargo, or that has been designated by the U.S. government as a“terrorist supporting” country and (ii) you are not listed on any U.S.government list of prohibited or restricted parties; (5) you must comply withapplicable third-party terms of agreement when using the mobile application,e.g., if you have a VoIP application, then you must not be in violation oftheir wireless data service agreement when using the mobile application; and(6) you acknowledge and agree that the App Distributors are third-partybeneficiaries of the terms and conditions in this mobile application licensecontained in these Terms and Conditions of Supply and Purchase, and that eachApp Distributor will have the right (and will be deemed to have accepted theright) to enforce the terms and conditions in this mobile application licensecontained in these
Youacknowledge and agree that any questions, comments, suggestions, ideas,feedback, or other information regarding the Site ("Submissions")provided by you to us are non-confidential and shall become our sole property.We shall own exclusive rights, including all intellectual property rights, andshall be entitled to the unrestricted use and dissemination of theseSubmissions for any lawful purpose, commercial or otherwise, withoutacknowledgment or compensation to you. You hereby waive all moral rights to anysuch Submissions, and you hereby warrant that any such Submissions are originalwith you or that you have the right to submit such Submissions. You agree thereshall be no recourse against us for any alleged or actual infringement ormisappropriation of any proprietary right in your Submissions.
13.THIRD-PARTY WEBSITES AND CONTENT
TheSite may contain (or you may be sent via the Site) links to other websites("Third-Party Websites") as well as articles, photographs, text,graphics, pictures, designs, music, sound, video, information, applications,software, and other content or items belonging to or originating from thirdparties ("Third-Party Content"). Such Third-Party Websites andThird-Party Content are not investigated, monitored, or checked for accuracy,appropriateness, or completeness by us, and we are not responsible for anyThird-Party Websites accessed through the Site or any Third-Party Contentposted on, available through, or installed from the Site, including thecontent, accuracy, offensiveness, opinions, reliability, privacy practices, orother policies of or contained in the Third-Party Websites or the Third-PartyContent. Inclusion of, linking to, or permitting the use or installation of anyThird-Party Websites or any Third-Party Content does not imply approval orendorsement thereof by us. If you decide to leave the Site and access theThird-Party Websites or to use or install any Third-Party Content, you do so atyour own risk, and you should be aware these Terms and Conditions of Supply andPurchase no longer govern. You should review the applicable terms and policies,including privacy and data gathering practices, of any website to which younavigate from the Site or relating to any applications you use or install fromthe Site. Any purchases you make through Third-Party Websites will be throughother websites and from other companies, and we take no responsibilitywhatsoever in relation to such purchases which are exclusively between you andthe applicable third party. You agree and acknowledge that we do not endorsethe products or services offered on Third-Party Websites and you shall hold usharmless from any harm caused by your purchase of such products or services.Additionally, you shall hold us harmless from any losses sustained by you orharm caused to you relating to or resulting in any way from any Third-PartyContent or any contact with Third-Party Websites.
14.U.S. GOVERNMENT RIGHTS
Ourservices are “commercial items” as defined in Federal Acquisition Regulation
(“FAR”)2.101. If our services are acquired by or on behalf of any agency not withinthe Department of Defense (“DOD”), our services are subject to the terms ofthese Terms and Conditions of Supply and Purchase in accordance with FAR 12.212(for computer software) and FAR 12.211 (for technical data). If our servicesare acquired by or on behalf of any agency within the Department of Defense,our services are subject to the terms of these Terms and Conditions of Supplyand Purchase in accordance with Defense Federal Acquisition Regulation(“DFARS”) 227.7202-3. In addition, DFARS 252.227-7015 applies to technical dataacquired by the DOD. This U.S. Government Rights clause is in lieu of, andsupersedes, any other FAR, DFARS, or other clause or provision that addressesgovernment rights in computer software or technical data under these Terms andConditions of Supply and Purchase.
Wereserve the right, but not the obligation, to: (1) monitor the Site forviolations of these Terms and Conditions of Supply and Purchase; (2) takeappropriate legal action against anyone who, in our sole discretion, violatesthe law or these Terms and Conditions of Supply and Purchase, including withoutlimitation, reporting such user to law enforcement authorities; (3) in our solediscretion and without limitation, refuse, restrict access to, limit theavailability of, or disable (to the extent technologically feasible) any ofyour Contributions or any portion thereof; (4) in our sole discretion andwithout limitation, notice, or liability, to remove from the Site or otherwisedisable all files and content that are excessive in size or are in any wayburdensome to our systems; and (5) otherwise manage the Site in a mannerdesigned to protect our rights and property and to facilitate the properfunctioning of the Site.
Werespect the intellectual property rights of others. If you believe that anymaterial available on or through the Site infringes upon any copyright you ownor control, please immediately notify us using the contact information providedbelow (a
“Notification”).A copy of your Notification will be sent to the person who posted or stored thematerial addressed in the Notification. Please be advised that pursuant toapplicable law you may be held liable for damages if you make materialmisrepresentations in a Notification. Thus, if you are not sure that materiallocated on or linked to by the Site infringes your copyright, you should considerfirst contacting an attorney.
18.TERM AND TERMINATION
TheseTerms and Conditions of Supply and Purchase shall remain in full force andeffect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESETERMS AND CONDITIONS OF SUPPLY AND PURCHASE, WE RESERVE THE RIGHT TO, IN OURSOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THESITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON ORFOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION,WARRANTY, OR COVENANT CONTAINED IN THESE TERMS AND CONDITIONS OF SUPPLY ANDPURCHASE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE ORPARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATIONTHAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
Ifwe terminate or suspend your account for any reason, you are prohibited fromregistering and creating a new account under your name, a fake or borrowedname, or the name of any third party, even if you may be acting on behalf ofthe third party. In addition to terminating or suspending your account, wereserve the right to take appropriate legal action, including withoutlimitation pursuing civil, criminal, and injunctive redress.
19.MODIFICATIONS AND INTERRUPTIONS
Wereserve the right to change, modify, or remove the contents of the Site at anytime or for any reason at our sole discretion without notice. However, we haveno obligation to update any information on our Site. We also reserve the rightto modify or discontinue all or part of the Site without notice at any time. Wewill not be liable to you or any third party for any modification, pricechange, suspension, or discontinuance of the Site.
Wecannot guarantee the Site will be available at all times. We may experiencehardware, software, or other problems or need to perform maintenance related tothe Site, resulting in interruptions, delays, or errors. We reserve the rightto change, revise, update, suspend, discontinue, or otherwise modify the Siteat any time or for any reason without notice to you. You agree that we have noliability whatsoever for any loss, damage, or inconvenience caused by yourinability to access or use the Site during any downtime or discontinuance ofthe Site. Nothing in these Terms and Conditions of Supply and Purchase will beconstrued to obligate us to maintain and support the Site or to supply anycorrections, updates, or releases in connection therewith.
TheseTerms and Conditions of Supply and Purchase and your use of the Site aregoverned by and construed in accordance with the laws of the State of Iowaapplicable to agreements made and to be entirely performed within the State ofIowa, without regard to its conflict of law principles.
Toexpedite resolution and control the cost of any dispute, controversy, or claimrelated to these Terms and Conditions of Supply and Purchase (each"Dispute" and collectively, the “Disputes”) brought by either you orus (individually, a “Party” and collectively, the “Parties”), the Parties agreeto first attempt to negotiate any Dispute (except those Disputes expresslyprovided below) informally for at least thirty (30) days before initiatingarbitration. Such informal negotiations commence upon written notice from oneParty to the other Party.
Ifthe Parties are unable to resolve a Dispute through informal negotiations, theDispute (except those Disputes expressly excluded below) will be finally andexclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THISPROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. Thearbitration shall be commenced and conducted under the Commercial ArbitrationRules of the American Arbitration Association ("AAA") and, whereappropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes("AAA Consumer Rules"), both of which are available at the AAAwebsite www.adr.org. Your arbitration fees and your share of arbitratorcompensation shall be governed by the AAA Consumer Rules and, whereappropriate, limited by the AAA Consumer Rules. The arbitration may beconducted in person, through the submission of documents, by phone, or online.The arbitrator will make a decision in writing, but need not provide astatement of reasons unless requested by either Party. The arbitrator mustfollow applicable law, and any award may be challenged if the arbitrator failsto do so. Except where otherwise required by the applicable AAA rules orapplicable law, the arbitration will take place in Polk, Iowa. Except asotherwise provided herein, the Parties may litigate in court to compelarbitration, stay proceedings pending arbitration, or to confirm, modify,vacate, or enter judgment on the award entered by the arbitrator.
Iffor any reason, a Dispute proceeds in court rather than arbitration, theDispute shall be commenced or prosecuted in the state and federal courtslocated in Polk, Iowa, and the Parties hereby consent to, and waive alldefenses of lack of personal jurisdiction, and forum non conveniens withrespect to venue and jurisdiction in such state and federal courts. Applicationof the United Nations Convention on Contracts for the International Sale ofGoods and the Uniform Computer Information Transaction Act (UCITA) are excludedfrom these Terms and Conditions of Supply and Purchase.
Inno event shall any Dispute brought by either Party related in any way to theSite be commenced more than one (1) years after the cause of action arose. Ifthis provision is found to be illegal or unenforceable, then neither Party willelect to arbitrate any Dispute falling within that portion of this provisionfound to be illegal or unenforceable and such Dispute shall be decided by acourt of competent jurisdiction within the courts listed for jurisdictionabove, and the Parties agree to submit to the personal jurisdiction of thatcourt.
TheParties agree that any arbitration shall be limited to the Dispute between theParties individually. To the full extent permitted by law, (a) no arbitrationshall be joined with any other proceeding; (b) there is no right or authorityfor any Dispute to be arbitrated on a class-action basis or to utilize classaction procedures; and (c) there is no right or authority for any Dispute to bebrought in a purported representative capacity on behalf of the general publicor any other persons.
Exceptionsto Informal Negotiations and Arbitration
TheParties agree that the following Disputes are not subject to the aboveprovisions concerning informal negotiations and binding arbitration: (a) anyDisputes seeking to enforce or protect, or concerning the validity of, any ofthe intellectual property rights of a Party; (b) any Dispute related to, orarising from, allegations of theft, piracy, invasion of privacy, orunauthorized use; and (c) any claim for injunctive relief. If this provision isfound to be illegal or unenforceable, then neither Party will elect toarbitrate any Dispute falling within that portion of this provision found to beillegal or unenforceable and such Dispute shall be decided by a court ofcompetent jurisdiction within the courts listed for jurisdiction above, and theParties agree to submit to the personal jurisdiction of that court.
Theremay be information on the Site that contains typographical errors,inaccuracies, or omissions, including descriptions, pricing, availability, andvarious other information. We reserve the right to correct any errors,inaccuracies, or omissions and to change or update the information on the Siteat any time, without prior notice.
THESITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OFTHE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENTPERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTIONWITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACYOR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TOTHE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS,MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY ORPROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO ANDUSE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERSAND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STOREDTHEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE,(5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TOOR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS INANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS ARESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLEVIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITYFOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THESITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED INANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BERESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTYPROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICETHROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT ANDEXERCISE CAUTION WHERE APPROPRIATE.
24.LIMITATIONS OF LIABILITY
INNO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENT LIABLE TO YOU OR ANYTHIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OFDATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THECONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER ANDREGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THEAMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANYCAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOTALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OFCERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVEDISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONALRIGHTS.
Youagree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates,and all of our respective officers, agents, partners, and employees, from andagainst any loss, damage, liability, claim, or demand, including reasonableattorneys’ fees and expenses, made by any third party due to or arising out of:(1) your Contributions; (2) use of the Site; (3) breach of these Terms andConditions of Supply and Purchase; (4) any breach of your representations andwarranties set forth in these Terms and Conditions of Supply and Purchase; (5)your violation of the rights of a third party, including but not limited tointellectual property rights; or (6) any overt harmful act toward any otheruser of the Site with whom you connected via the Site. Notwithstanding theforegoing, we reserve the right, at your expense, to assume the exclusivedefense and control of any matter for which you are required to indemnify us,and you agree to cooperate, at your expense, with our defense of such claims.We will use reasonable efforts to notify you of any such claim, action, orproceeding which is subject to this indemnification upon becoming aware of it.
Wewill maintain certain data that you transmit to the Site for the purpose ofmanaging the performance of the Site, as well as data relating to your use ofthe Site. Although we perform regular routine backups of data, you are solelyresponsible for all data that you transmit or that relates to any activity youhave undertaken using the Site. You agree that we shall have no liability toyou for any loss or corruption of any such data, and you hereby waive any rightof action against us arising from any such loss or corruption of such data.
27.ELECTRONIC COMMUNICATIONS, TRANSACTIONS,
Visitingthe Site, sending us emails, and completing online forms constitute electroniccommunications. You consent to receive electronic communications, and you agreethat all agreements, notices, disclosures, and other communications we provideto you electronically, via email and on the Site, satisfy any legal requirementthat such communication be in writing. YOU HEREBY AGREE TO THE USE OFELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONICDELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED ORCOMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirementsunder any statutes, regulations, rules, ordinances, or other laws in anyjurisdiction which require an original signature or delivery or retention ofnon-electronic records, or to payments or the granting of credits by any meansother than electronic means.
28.CALIFORNIA USERS AND RESIDENTS
Ifany complaint with us is not satisfactorily resolved, you can contact theComplaint Assistance Unit of the Division of Consumer Services of theCalifornia Department of Consumer Affairs in writing at 1625 North MarketBlvd., Suite N 112, Sacramento, California 95834 or by telephone at (800)952-5210 or (916) 445-1254.
TheseTerms and Conditions of Supply and Purchase and any policies or operating rulesposted by us on the Site or in respect to the Site constitute the entireagreement and understanding between you and us. Our failure to exercise or enforceany right or provision of these Terms and Conditions of Supply and Purchaseshall not operate as a waiver of such right or provision. These Terms andConditions of Supply and Purchase operate to the fullest extent permissible bylaw. We may assign any or all of our rights and obligations to others at anytime. We shall not be responsible or liable for any loss, damage, delay, orfailure to act caused by any cause beyond our reasonable control. If anyprovision or part of a provision of these Terms and Conditions of Supply andPurchase is determined to be unlawful, void, or unenforceable, that provisionor part of the provision is deemed severable from these Terms and Conditions ofSupply and Purchase and does not affect the validity and enforceability of anyremaining provisions. There is no joint venture, partnership, employment oragency relationship created between you and us as a result of these Terms andConditions of Supply and Purchase or use of the Site. You agree that theseTerms and Conditions of Supply and Purchase will not be construed against us byvirtue of having drafted them. You hereby waive any and all defenses you mayhave based on the electronic form of these Terms and Conditions of Supply andPurchase and the lack of signing by the parties hereto to execute these Termsand Conditions of Supply and Purchase.
Inorder to resolve a complaint regarding the Site or to receive furtherinformation regarding use of the Site, please contact us at:
DesPlaines, IL 60018