INTERNET SALES AND USER TERMS AND CONDITIONS
THE ENVELOPE COMPANY
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A CUSTOMER, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to purchases of goods and products (the “Goods”) described on this Internet website (the “Site”) by you (“Customer”) from The Envelope Company (“TheEC”), Arizona Envelope Company, an Arizona corporation . By clicking “I accept”, Customer agrees to be bound by and accepts these Terms. If you, as Customer, do not agree to be bound by all of these Terms, please do not use or access this Site. TheEC reserves the right to cancel your Customer account and discontinue providing Goods to you, as Customer, without refund of any moneys paid, should you, as Customer, violate any of these Terms.
1. General Terms Subject to Change. These Terms may change without prior notice at any time, in TheEC’s sole discretion, including, but not limited to, the price(s) of the Goods, and each of them, descriptions, and other e-commerce related information and/or functionality. TheEC reserves the right, its sole discretion, to discontinue this Site or Goods, or any of them, and/or modify the contents of this Site. Customer agrees that TheEC will not be liable to Customer for any such discontinuance or modification of this Site or the Goods, provided that once an order through this Site is made, processed and paid for, TheEC shall provide the Goods that are the subject of such order.
2. Price and Payment Terms Subject to Change. Because TheEC reserves the right, in its sole discretion, to change the price(s) of the Goods, and each of them, at any time, such price(s) are subject to change each time Customer accesses the order page for Goods at this Site. In addition, all payment terms are similarly subject to change by TheEC, in its sole discretion, including without limitation based on Customer’s payment history in connection with this Site and the Goods purchased thereat. Unless and until Customer places an order at this Site, and such order is confirmed, Customer shall have no expectations as to price or payment terms based on previous access to and receipt of information at this Site. In any event, payment must be received by TheEC prior to TheEC’s acceptance and confirmation of an order. Payment for the Goods is to be made by credit card at the time of order, and is not refundable except upon TheEC’s breach of any of its express limited warranties hereunder as to the Goods ordered. Orders are not binding upon TheEC until accepted and confirmed by TheEC.
3. Authorized Use.
(a) Limited License. TheEC grants Customer a limited license to access and make personal use of this Site for legal purposes and uses and that are otherwise permitted by these Terms, namely to review availability and features of Goods at and through this Site, and to place orders, purchase and make payment for Goods at this Site. This license does not include any resale or commercial use of this Site or its contents; any collection and use of any product listings, descriptions or prices; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. Customer shall have the ability to post certain content at this Site upon prompting.
(b) No Modifications or Deep Links. Other than page caching, Customer is not authorized to download or modify this Site or any portion of it. Unless otherwise authorized in writing by TheEC, no user or other third-party is authorized to deep link to any web page contained in this Site (i.e., no links are permitted under any circumstances from third-party web sites to any page of this Site other than this Site’s home page). Such links are expressly prohibited. In addition, no Customer or third party may link to the Site’s home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of the third party website as to the true ownership or sponsorship of this Site and/or as to the existence or lack thereof of some affiliation or other relationship between TheEC and the third party and/or its website.
(c) Posting Restrictions. Neither Customer nor any of Customer’s users may post or transmit through this Site any material that violates or infringes in any way upon the rights of others, which is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, which is inconsistent with the non-religious and non-political purposes of this Site, or which contains advertising or any solicitation with respect to products or services, each as determined by TheEC in its sole discretion. Customer is also prohibited from using this Site in any way that restricts or inhibits any other Site user from using or enjoying this Site. Also, neither Customer nor any of its users shall use this Site for any illegal purpose, including but not limited to, uses in violation of the CAN-SPAM Act of 2003, or in violation of any privacy laws.
(d) No Harmful Materials. Customer shall, and shall cause its users to, refrain from uploading, posting, e-mailing, or otherwise transmitting to or through this Site or to or through any other customer or user at this Site any messages, programs, or other materials (including but not limited to Trojan Horses, malware, spyware, viruses, worms, and the like) that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of or perform any invasive measures upon any computer software or telecommunications equipment.
(e) Customer Responsibility. TheEC may enact and enforce reasonable rules of use as promulgated and amended from-to-time by TheEC regulating the use of this Site by all parties, including without limitation Customer and its users, and Customer agrees to be bound by and to bind each of its users to such rules.
4. Customer Account and Password. Customer shall propose, and TheEC shall approve and assign, a unique username and password to access pages at this Site regarding the Goods available for purchase and to place orders, purchase and make payment for such Goods. Customer shall also have the opportunity to change such passwords from time to time in accordance with TheEC’s security policies. Customer acknowledges and agrees that Customer and the individuals Customer authorizes to access and use this Site and order Goods thereat shall be responsible for maintaining the confidentiality of the usernames and passwords, and to the extent caused by, arising from or attributable to the acts and omissions of Customer, or Customer’s agents, employees, representatives or other parties for whom Customer is legally responsible, Customer shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of this Site, and access to, integrity of and loss of the Customer’s data that can be accessed using Site. If Customer uses or causes anybody to use this Site, Customer agrees to accept responsibility for all activities that occur under Customer’s account or password. TheEC reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its reasonable discretion. Customer’s username, account and password are non-transferable, except upon written agreement by TheEC, and may not under any circumstances be shared. Customer agrees to (a) maintain all equipment necessary for Customer’s access to and use of this Site; (b) maintain the security of Customer’s user identification, password, and any other confidential information relating to Customer’s account at this Site; and (c) take responsibility for all charges resulting from use of Customer’s account at this Site, including unauthorized use prior to Customer’s notifying TheEC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting TheEC to change Customer’s password.
5. Customer Portfolio Data and Content. Customer shall have the sole responsibility to input and maintain portfolio data at this Site. Such data, all of which is incorporated into and integrated with these Terms by this reference, shall under all circumstances include identification of all principles, officers, employees, agents and representatives who are authorized to place orders at and through this Site and to purchase Goods at and through this Site on Customer’s behalf and who have authority to bind Customer to the terms and conditions of such orders and purchases, together with their most recent addresses, telephone numbers and e-mail addresses. Customer shall maintain its own proprietary content provided and utilized in connection with the utilization of this Site (collectively, “Customer Content”), and to test to ensure that Customer Content, including without limitation all portfolio data, is maintained and up to date. TheEC shall exercise reasonable efforts to secure Customer Content, and TheEC shall not maintain, test or alter Customer Content in any way. Except as otherwise expressly in these terms, TheEC does not warrant that any Customer Content shall be maintained or up to date in any manner, and TheEC shall not have any responsibility for any mistaken shipment of Goods due to Customer’s failure to maintain and update Customer Content as appropriate. Specifically, Customer shall remain solely responsible for all errors or problems in Customer Content impacting this Site, or the processing of and delivery under any order placed at or through this Site.
6. Third Party Hosts. Customer acknowledges that certain aspects, features and functions of this Site reside in computing environment(s) of one or more third party hosting companies, including without limitation Amazon Web Services, Inc., Stripe, Inc., and LaneTerralever, LLC, which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by this Site, may render this Site inaccessible or may impair the performance of the computing environment for Customer and/or TheEC’s other customers. In the event of any such use by Customer, TheEC shall so notify Customer, and Customer shall be obligated to put an immediate stop to such use and will notify TheEC, in writing, that it has stopped such use. In the event of Customer’s failure to put an immediate stop to such use, TheEC reserves the right to terminate Customer’s access to this Site, provided that once an order through this Site is made, processed and paid for, TheEC shall provide the Goods that are the subject of such order.
7. Security. TheEC shall exercise commercially reasonable efforts to operate, maintain and provide this Site in good working order and shall establish and maintain commercially reasonable security measures designed to protect Customer from any security breaches at or through this Site. However, TheEC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than TheEC’s commercial negligence or intentional misconduct. Specifically, among other things,
TheEC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any features employed by any third party hosting company, including without limitation the aforementioned Amazon Web Services, Inc., Stripe, Inc., and LaneTerralever, LLC, it being understood and agreed that Customer may not under any circumstances hold TheEC liable therefor and that Customer’s resource therefor shall be limited to the appropriate third party hosting company or companies.
8. Site Operation and Maintenance. TheEC shall use reasonable efforts to maintain this Site in condition and operating order. TheEC shall not be responsible for any inaccessibility of Customer due to scheduled maintenance and upgrades of this Site or any corresponding Internet servers or software. TheEC shall use reasonable efforts to ensure that any period of inaccessibility shall not exceed 48 hours. In the event that this Site becomes inaccessible, or its operation fails in any way, Customer shall give written notification of the inaccessibility or the failure, and in the case of failures, sufficient information to permit replication and analysis. Upon receipt of notice from Customer of any inaccessibility or failure, TheEC shall use reasonable efforts to diagnose the cause of the inaccessibility or failure. Upon completion of the diagnosis, TheEC shall advise Customer of the cause of the inaccessibility or failure and shall use efforts that it considers to be reasonable in its sole discretion, without charge, to restore access to and use of this Site or avoid the failure. Notwithstanding the foregoing, TheEC shall have no obligation to resolve any inaccessibility or failure caused by (a) modification of this Site by anyone other than TheEC, (b) use of this Site for any purpose other than intended, (c) misuse or incorrect use of this Site, or (d) malfunction of any Customer or third party’s computer or any telecommunications services not under the control of TheEC.
9. Third Party Content. This Site contains and may contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively “Content”). TheEC does not control the Content supplied by parties other than TheEC. Any opinions, advice, statements, services, offers, or other information that constitutes part of Content expressed or made available by third parties and not by TheEC are those of the respective authors or distributors and not of TheEC. Neither TheEC, nor any third party, including any customer or any user of this Site, guarantees the accuracy, completeness, or usefulness of any Content not of TheEC, nor its merchantability or fitness for any particular purpose. In many instances, the Content available through this Site, including features and descriptions of certain Goods provided at or through this Site, represents the opinions and judgments of the respective customer, vendor or user not under contract with TheEC. TheEC neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on this Site by anyone other than TheEC and its authorized employees. Under no circumstances shall TheEC be liable for any loss, damage or harm caused by Customer’s reliance on information obtained through this Site, including without limitation information furnished by the aforementioned Amazon Web Services, Inc., Stripe, Inc., and LaneTerralever, LLC, other than information originated by TheEC. It is the responsibility of a Customer to evaluate the information, opinion, advice or other Content made available through this Site by parties other than that originated by TheEC.
10. Links to Other Sites. This Site may reference or link to third-party sites throughout the Internet. TheEC has no control over such third-party sites or the content within them. TheEC cannot and does not guarantee, represent or warrant that the content contained in such third-party sites is accurate, legal or inoffensive. TheEC does not endorse the content of any third-party site, nor does TheEC warrant that they will not contain viruses or otherwise impact Customer’s computer. TheEC does not assume any responsibility or liability for the actions, product, services, and content of all these and any other third parties. If Customer chooses to link to or use a third-party website, Customer should carefully review such third party’s privacy statement and other terms and conditions of use. By using this Site to search for or link to another third-party site, Customer agrees and understands that Customer may not make any claim against TheEC for any damages or losses, whatsoever, resulting from Customer’s use of this Site to obtain search results or to link to another site.
11. Posted Materials. Customer understands and acknowledges that TheEC cannot, does not and will not monitor all material posted or transmitted by customers, users and third party information providers at this Site. Although TheEC has no obligation to review or remove any such content, in general, TheEC reserves the right to remove any content posted at or through this Site at any time for any reason in its sole discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by TheEC in its sole discretion after actual notice of such posting.
12. Confidentiality and Intellectual Property. In connection with these Terms, and Customer’s order of Goods at this Site, TheEC might provide, and Customer might receive, certain “Confidential Information” concerning one or more businesses, products and/or services of TheEC (collectively, the “Businesses”, “Products” and “Services”), which TheEC deems to be highly proprietary and valuable.
(a) Scope of Confidentiality Protection. For the purpose of this Section 12, “Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by TheEC, and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative, successor or assign of TheEC (collectively, the “TheEC Parties”, and each an “TheEC Party”), including without limitation that related to prospective development of the Businesses, Products and/or Services, descriptions, compositions and features of the Businesses, Products and/or Services, operational, logistical, financial, physical, legal and other practical requirements for the Businesses, Products and/or Services, expected financial gains to be realized from the Businesses, Products and/or Services, identities of parties potentially involved with the Businesses, Products and/or Services, including without limitation actual and prospective vendors, contractors, consultants, distributors, suppliers, and other business partners of TheEC related to the Businesses, Products and/or Services, prospective impacts of the Businesses, Products and/or Services, and other information related to the Businesses, Products and/or Services, or TheEC’s ongoing or prospective involvement with the Businesses, Products and/or Services, which is not readily available to the public. For the purpose of this Section 12, “Confidential Information” shall also mean (i) these Terms and the contents hereof, (ii) each order made and processed at this Site and the contents (t)hereof, including without limitation pricing of Goods and payment terms, (iii) all Intellectual Property, as defined in Section 12(b), below, (iv) non-public information related to any and all Businesses, Products and Services, developed, performed or generated by or for TheEC or any of the TheEC Parties, and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of TheEC or any of the TheEC Parties that is not generally known to the public and that, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of TheEC or any of the TheEC Parties. Customer shall disclose the Confidential Information solely as necessary to review availability and features of Goods at and through this Site, and to place orders, purchase and make payment for Goods at this Site, and in relation hereto, and Customer shall consider and utilize the Confidential Information solely for such purposes. Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).
(b) Intellectual Property. All Intellectual Property in any way related to any Confidential Information provided by TheEC or any of the TheEC Parties to Customer is hereby acknowledged to remain in the exclusive possession of TheEC, the applicable
(c) TheEC Party, or the applicable licensor thereof, as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, are hereby fully disclaimed, waived and renounced by Customer in favor of TheEC, the applicable TheEC Party, or the applicable licensor thereof, as appropriate, subject to the limited license provided in Section 3(a), above. For the purposes of this Section 12(b), “Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by TheEC and/or any of the TheEC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”), (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”), (iii) all copyrights and registrations and applications therefor, works of authorship and mask work rights (collectively, “Copyrights”), (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, including customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals of TheEC and/or any of the TheEC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Copyrights or Patents (collectively, “Trade Secrets”), (v) all software, including all source code and open source code, and all related documentation (collectively, “Software”); (vi) all artwork, designs, images or other content displayed, illustrated or otherwise used on or in connection with TheEC’s websites or any websites of any of the TheEC Parties or otherwise used in connection with TheEC or any Businesses, Products and/or Services of TheEC or any TheEC Party (“Content”), and (vii) all other technology and know-how uniquely in the possession of TheEC and/or any of the TheEC Parties.
(d) Restrictions Regarding Intellectual Property. Neither Customer, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, successor or assign of Customer, may apply for a right in, use, or utilize any Intellectual Property for any purpose other than that provided under Sections 3 and 9(a), above, except upon the express written consent of an actually authorized representative of TheEC in the sole and absolute discretion of TheEC, whether or not any Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent Customer may claim any rights, direct, derivative or otherwise, related to any Intellectual Property, other than the limited license provided under Section 3(a), above, Customer hereby disclaims such rights and assigns such rights to TheEC, and Customer agrees to execute, and, in the alternative, hereby grants to TheEC power of attorney to execute and record in Customer’s stead any and all documentation, including without limitation disclaimers and assignments of Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all Intellectual Property referenced in Section 12(b), by TheEC, the applicable TheEC Party, or the applicable licensor thereof, as appropriate. Neither Customer, nor any third party, may market, utilize, reuse or redistribute any Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of TheEC. With the exception of the limited license under Section 3(a), above, no license or other right of any kind in any Intellectual Property is granted or otherwise provided to Customer or any third-party in relation to these Terms or Customer’s use of this Site. Customer may not frame or utilize any framing techniques to enclose any TheEC Intellectual Property or Confidential Information. TheEC may not use any metatags or other hidden text utilizing TheEC’s Intellectual Property. Any unauthorized use terminates the permission or license granted by TheEC under Section 3, above. This Site contains copyrighted material, trademarks and other proprietary information, which may include text, software, photos, video, graphics, music and sound. TheEC owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Customer may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Site’s content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of TheEC. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made.
(e) Restrictions Regarding Disclosure of Confidential Information to Third Parties. Customer shall hold TheEC’s Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall neither: (i) provide, copy, disclose, divulge or otherwise make available the Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of TheEC, in TheEC’s sole discretion; nor (ii) remove or permit to be removed from such Confidential Information any notice indicating the confidential nature of, or TheEC’s proprietary right in and to the Confidential Information. Customer shall exercise at least the same degree of care and protection with respect to TheEC’s Confidential Information that Customer would exercise with respect to Customer’s own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Customer shall take all precautions necessary to ensure that the Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 12. In the event of written consent to disclose Confidential Information to any other party, Customer shall advise that other party of his/her/its obligations with respect to the Confidential Information, have that party acknowledge in writing that the terms and conditions of this Section 12 may be directly enforced by TheEC against him/her/it as a condition to such disclosure, and provide an original of such written acknowledgment to TheEC, if so requested by TheEC, and in any event shall disclose the Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of TheEC, shall ensure that confidentiality notices are included on copies of Confidential Information so provided, and shall account for the return or destruction of the Confidential Information and all reproductions thereof, if so requested by TheEC. In any event, TheEC consents to disclosure of Confidential Information by Customer to Customer’s employees, contractors, consultants and advisers as necessary to review availability and features of Goods at and through this Site, and to place orders, purchase and make payment for Goods at this Site, and in relation hereto, provided such disclosures are subject to the remaining requirements of Sections 12(c) and 12(d) of these Terms.
(f) Ownership of Confidential Information. All Confidential Information, including reproductions thereof, shall be deemed to be and remain the exclusive property of TheEC (or TheEC Party or licensor thereof, as appropriate), and no ownership rights of any kind in and to any of the Confidential Information are transferred hereby, hereunder or in connection herewith to Customer or any third party. Customer acknowledges that Customer does not acquire any such ownership rights by downloading copyrighted material or otherwise using this Site. All rights are reserved.
(g) Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any Confidential Information, which: (i) is or becomes available to the public through no act or omission of Customer or any party in violation of the terms and conditions of this Section 12; (ii) was already known by Customer at the time of the disclosure by TheEC, as evidenced by Customer’s written records existing prior to the date of TheEC’s disclosure; (iii) is lawfully obtained from a person or entity other than TheEC or Customer without any obligation of confidentiality; (iv) is approved for release by TheEC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Sections 12(c) and 12(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving TheEC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Customer first promptly notifies TheEC of the order and permits TheEC to seek an appropriate protective order; or (vii) is developed independently for Customer by personnel not having access to any of TheEC’s Confidential Information.
13. Non-Disparagement. Neither Customer nor any of Customer’s users shall at any time, directly or indirectly through third parties, actively or passively, disparage, question, criticize or otherwise make reference to any of the Goods, or to TheEC or any TheEC Party, or to any actions or failures to act of TheEC or any TheEC Party, or cause others to do so, if the effect of such action(s) reasonably could be anticipated to result in any harm to or adverse impact upon the reputation, business, interests or relations of TheEC or any TheEC Party, or to the morale among the work force of TheEC or any TheEC Party.
14. Injunctive Relief. Customer recognizes and agrees that a breach of any or all of the provisions of Sections 3, 12 and 13, above, will constitute immediate and irreparable harm to TheEC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event Customer attempts or threatens to violate its obligations under such Sections 3, 12 and 13, above, TheEC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches of such Sections 3, 12 and 13.
15. Limited Warranty and Warranty Disclaimers. TheEC WARRANTS ALL GOODS ORDERED AND PROVIDED AT AND THROUGH THIS SITE TO BE REASONABLY FREE OF MATERIAL DEFECT. EXCEPT FOR THIS EXPRESS WARRANTY, AND TO THE EXTENT PERMITTED BY LAW, TheEC HEREBY EXPRESSLY DISAVOWS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, WHETHER ORAL, IN WRITING OR IN ELECTRIC FORM, EXPRESS OR IMPLIED. AMONG OTHER THINGS, NEITHER TheEC NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSEES, EMPLOYEES, OFFICERS, DIRECTORS, ASSIGNEES, OR AGENTS WARRANT THAT THE SITE OR THE INFORMATION PROVIDED VIA THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY STATED HEREIN, THIS SITE AND THE GOODS ARE PROVIDED AS IS, WHEREIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
16. Limitation of Liability. TheEC SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY INFORMATION CONTAINED AT THE SITE THROUGH ACCIDENT OR THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE EVENT OF THEIR RECKLESS OR INTENTIONALLY WRONGFUL CONDUCT, UNDER NO CIRCUMSTANCES SHALL TheEC OR ANY OF TheEC’S SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSEES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS OR ASSIGNEES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING IN ANY WAY FROM ANY GOODS SOLD OR PROVIDED ON, AT OR THROUGH THE SITE OR THE USE OF THE INFORMATION OR THE RESULTS OF THE USE OF THE INFORMATION PROVIDED ON, AT OR THROUGH THE SITE, EVEN IF TheEC IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE EVENT OF TheEC’S RECKLESS OR INTENTIONALLY WRONGFUL CONDUCT, TheEC’S LIABILITY SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE RESPONSIBILITY TO REPLACE ANY MATERIALLY DEFECTIVE GOODS AT TheEC’S EXPENSE OR THE PRICE CUSTOMER PAID FOR ANY GOODS THAT ARE THE SUBJECT OF CUSTOMER’S CLAIM. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
17. Jurisdictional Limitations. NOTE THAT SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THE TWO PRECEDING SECTIONS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING THEREIN MAY NOT APPLY TO YOU. IF CUSTOMER IS A CALIFORNIA RESIDENT, OR IF ANY GOODS ARE TO BE DELIVERED TO CALIFORNIA, THEN BY AGREEING TO THESE TERMS, CUSTOMER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT ANY TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”. THE LIMITATIONS OF LIABILITY IN THESE TERMS SHALL BE CONSIDERED INAPPLICABLE ONLY TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF TheEC SHALL NOT EXCEED THE STATUTORY LIMIT.
18. Force Majeure. TheEC shall not be liable or responsible in any way for any failure or delay in performance or delivery, or for any damage to customer, caused by or attributable to, in whole or in part, any factor beyond TheEC’s control, including without limitation strikes, riots, wars, fires, acts of God, acts of compliance with any law or regulation, acts or omissions of third parties for which TheEC is not legally responsible, and/or any other factor that could be characterized as a force majeure event.
19. Indemnification. Customer agrees to indemnify, defend, and hold harmless CFTF, its directors, officers, employees, assignees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorney’s fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Customer’s representations, warranties, or agreements hereunder; (ii) arises out of Customer’s negligence, willful misconduct, or other breach of these Terms or the terms of any order made at the Site and confirmed; and/or (iii) arises out of Customer’s order, payment for and/or receipt of any Goods, except to the extent arising out of TheEC’s negligence, willful misconduct, breach of express warranty or other breach of these Terms or the terms of any order made at the Site and confirmed.
20. Governing Law. THESE TERMS, AND THE RIGHTS AND OBLIGATIONS HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
21. Dispute Resolution. To the extent that Customer and TheEC are unable to resolve any disputes or controversies arising out of or relating to these Terms or the terms of any order made at the Site and confirmed, or the performance, breach, validity, interpretation or enforcement of these Terms or the terms of any order made at the Site and confirmed, all such disputes and controversies will be submitted to a mediator located in Maricopa County, Arizona prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by Customer and TheEC, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. Mediation shall conclude when both parties sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any dispute or controversy arising out of or related to this these Terms or the terms of any order made at the Site and confirmed cannot be settled by Customer and TheEC informally or through mediation, the matter in controversy or dispute shall be resolved by binding confidential private arbitration before a mutually agreeable arbitrator in Maricopa County, Arizona. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The decision of the arbitrator will be final and binding on the parties to such proceeding. In any arbitration or other proceeding under or in relation to these terms, the prevailing party shall be entitled to reimbursement of such party’s reasonable costs and attorney’s fees. Otherwise, the arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona.
22. Entire Agreement. These Terms, together with the terms of any order made at the Site and confirmed, contain the entire understanding and agreement between TheEC and Customer with respect to the subject matter hereof and supersedes all prior agreements and understandings, express or implied, oral or written, among such parties with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between Customer and TheEC other than those contained herein and in each order made at the Site and confirmed. In the event of any conflict between these Terms and any order made at the Site and confirmed, these Terms shall govern and take precedence.
23. Number and Gender; Captions. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The captions, headings and arrangements used in these Terms are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
24. Invalid Provisions. If any provision of these Terms or the terms of any Order made at the Site and confirmed is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; these Terms and the terms of each Order made at the Site and confirmed shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms and the terms of each Order made at the Site and confirmed shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms or the terms of each Order made at the Site and confirmed, as applicable. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
25. No Waiver. Failure on the part of TheEC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by TheEC of its rights hereunder. Any waiver by TheEC of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit the remedies and rights of the parties hereto under and pursuant to these Terms.
26. Survival. The requirements of Sections 12 through 21 of these Terms shall survive any cancellation or termination of Customer’s account at and access to the Site.
I HAVE READ THESE TERMS, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY. I ACKNOWLEDGE THAT I HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO MY ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH I UNDERSTAND TO BE A PREREQUISITE TO MY ABILITY TO ORDER, PURCHASE AND MAKE PAYMENT FOR GOODS AT AND THROUGH THIS SITE. FINALLY, I UNDERSTAND THAT THESE TERMS, TOGETHER WITH THE TERMS OF ANY ORDER MADE AT THE SITE AND CONFIRMED, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL GOODS I RECEIVE FROM TheEC, WITHOUT REGARD TO THE DATE OR TIMING OF ORDER OF, PAYMENT FOR AND RECEIPT OF SUCH GOODS. I CERTIFY THAT IF I AM UNDER 18 YEARS OF AGE, I HAVE CAUSED MY LEGAL GUARDIAN TO ACCEPT AND AGREE TO THESE TERMS ALONG WITH ME.