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Terms & Conditions

Effective Date: June 10, 2012

IMPORTANT!  PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY BEFORE USING THE SITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, MANDATORY ARBITRATION OF DISPUTES, LIMITATION OF LIABILITY AND YOUR INDEMNITY TO US.  BY ACCESSING OR USING THIS SITE, YOU AGREE TO THESE TERMS.  IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS SITE.

About These Terms

These Terms govern your use of this web site and its associated services (the “Site”) regardless of how you access or use it.  Capwell & Co. and/or its affiliates, subsidiaries and related entities (“C&C,” “we,” “our,” or “us”) owns and operates this Site.  These Terms also apply to interactive features, widgets, applications, content or downloads that are owned and/or operated by C&C, are available through the Site or that interact with the Site and post these Terms.  These Terms do not apply to any other web site or any offline activities by C&C (unless specifically stated).

By accessing, browsing, or using the Site, you agree to all the terms and conditions of these Terms, and any additional terms that govern certain registrations, products or services offered via the Site that you take advantage of or participate in, which are presented in conjunction with such registrations, products or services (“Additional Terms”).  The Additional Terms are incorporated by reference into these Terms.  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

In addition, please review the Site’s Privacy Policy, which explains our information collection practices, such as the types of information we collect regarding visitors to the Site and how we may use that information.  By using the Site, you acknowledge and accept the Site’s Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy.  By using the Site, you further agree that C&C may change, alter, or modify the settings or configurations on your Internet Device (defined below) in order to allow for or optimize your use of the Site.

Table of Contents

 

  1. Account Registration
  2. Terms Applicable For Purchases on the Site
  3. Ownership and Rights to Use Site Content
  4. Content You Submit
  5. Site and Content Use Restrictions
  6. Linked-To Websites; Advertisements; Dealings with Third Parties
  7. Linking Policy
  8. Wireless
  9. Items Available for Download
  10. Disclaimer of Warranties
  11. Limitation of Liability/Waiver of Unknown Claims
  12. Indemnification
  13. Governing Law, Jurisdiction, Arbitration, No Class Actions and Waiver of Injunctive Relief
  14. Termination and Modifications
  15. Location of Site and Territorial Restrictions
  16. Updates to Terms
  17. Miscellaneous
  18. Questions

 

1.         Account Registration

This Site may allow you to register for an account (“Account”) that can be used to take advantage of certain features or services provided on the Site.  If you elect to register for an Account on the Site, you must complete the applicable registration form to create your Account with a unique username and password.  The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Site Content (defined below) or participate in certain features of the Site that are available to Account holders.  By registering for an Account with the Site or otherwise providing us with information (e.g., when purchasing a product as a guest), you represent and warrant that the information you provide on the registration form is true, complete and accurate, and acknowledge that it is your responsibility to keep registration and credit card information (if any) current.  You also agree that –

  • your username is only for your personal use, that you will not sell, transfer or assign your Account, and that you will not allow others to use your Account or your username or password to access the Site under any circumstances;
  • you are responsible for maintaining the confidentiality of your username and password, and for notifying C&C at privacy@capwell.com if you believe there is or may have been a compromise of your username or password, or any unauthorized use of your Account; and
  • you are fully responsible for all transactions and other activities that are undertaken using your username or password, including unauthorized use, until you terminate your Account or notify C&C that your username or password has been lost, stolen or otherwise compromised.

C&C reserves the right to terminate your Account or otherwise deny you access, in its sole discretion, for any reason without notice and without liability.

 

  1. Terms Applicable For Purchases on the Site

 

A.        Generally.  To purchase any goods and/or services on our Site, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence.  Prior to the purchase of any goods or services on our Site, you must provide a valid credit card number or debit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration; and (v) any activation numbers or codes needed to charge your card.  By submitting that information, you hereby agree that you authorize our credit card payment processor to charge your card within thirty (30) days of credit card authorization.  All sales of products and services are final.  All charges from those sales are non-refundable.  For each product or service that you order on the Site, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order.  C&C will automatically bill your credit card or other form of payment submitted as part of the order process for such price.  Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering. 

 

B.        Methods of Payment, Credit Card Terms and Taxes.  All payments must be made by Visa, MasterCard, Discover or American Express.  We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy.  Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not this Terms of Use to determine your rights and liabilities as a cardholder.  You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so.  YOU, AND NOT C&C, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY.  You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred.  Unless you notify C&C of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes.  If C&C does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by C&C or its agents.  Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products.  You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes.  C&C shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.

 

C.        Order Acceptance Policy.  Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell.  C&C reserves the right at any time after receipt of your order to accept or decline your order for any reason.  C&C further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item.  Your order will be deemed accepted by C&C upon our delivery of products or services that you have ordered.  We may require additional verifications or information before accepting any order.  Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.  Do not assume that a cancellation or change of an order you have placed with C&C has been effected until you receive a confirmation from C&C via email or the Site.  As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.

 

D.        No Responsibility to Sell Mispriced Products or Services.  We do our best to describe every item, product or service offered on this Site as accurately as possible.  However, we are human, and therefore we do not warrant that specifications or pricing on the Site is complete, accurate, reliable, current, or error-free.  In the event of any errors relating to the pricing or specifications of any item, product or service, C&C shall have the right to refuse or cancel any orders in its sole discretion.  If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge.

 

E.         Modifications to Prices or Billing Terms.  C&C RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.

F.         Return Policy.  All purchase transactions are subject to C&C’s return policy in effect at the time of purchase.  For reference, the current form of C&C’s return policy is available Here. [Insert Link To Return Policy]. We may modify our return policy from time to time so you should check these each time prior to making a purchase.

3.         Ownership and Rights to Use Site Content

A.        Content.  The Site contains a variety of: (1) materials and other items relating to C&C and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, opinions, directories, guides, graphics, photographs, illustrations, images, video and audio clips, music, sounds, scripts, advertising and promotional materials, data, files, software, compilations, designs, technology, graphical interface, instructions, overall “look and feel” and the compilation, assembly, and arrangement of the materials of the Site and any and all copyrightable material (including source and object code), and (2) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of C&C, and the domain names and URLs associated therewith, whether registered or unregistered, and (3) other forms of intellectual property (all of the foregoing collectively and individually are referred to as “Site Content”).

B.        Ownership.  The Site (including past, present, and future versions) and the Site Content are owned or controlled by C&C and our licensors and certain other third parties.  All right, title, and interest in and to the Site Content available via the Site is the property of C&C or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible.  C&C owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Site Content on the Site. 

C.        License.  Subject to your strict compliance with these Terms and any Additional Terms, C&C grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Site Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an “Internet Device”) for your personal, non-commercial use only.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Site Content, and (ii) may be immediately suspended or terminated for any reason, in C&C’s sole discretion, and without advanced notice or liability.  In some instances, we may permit you to have greater access to and use of Site Content, subject to certain Additional Terms. 

D.        Rights of Others.  In using the Site, you must respect the intellectual property and other rights of C&C and others.  Your unauthorized use of Site Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  C&C respects the intellectual property rights of others.  If you believe that your work has been infringed by means of an improper posting or distribution of it via the Site, then please see Section 6 below.

4.         Content You Submit

A.        User-Generated Content.

(i)        General.  C&C may now or in the future offer visitors to the Site the opportunity to e-mail, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”).  C&C may do this through blogs, e-mail and other communications functionality.  Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.

(ii)       Non-Confidentiality of Your User-Generated Content.  Except as otherwise described in the Site’s posted Privacy Policy [LINK] or any Additional Terms, you agree that: (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) C&C does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.  Upon C&C’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that the Internet may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content. 

In your communications with C&C, please keep in mind that C&C does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, books, scripts, screenplays, etc. (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Site are deemed User-Generated Content and licensed to us as set forth below.  In addition, C&C retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  C&C’s receipt of your Unsolicited Ideas and Materials is not an admission by C&C of their novelty, priority, or originality, and it does not impair C&C’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.   

(iii)     License to C&C of Your User-Generated Content.  Except as otherwise described in any Additional Terms (such as a contest official rules), which govern the submission of your User-Generated Content), you hereby grant to C&C, and you agree to grant to C&C, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services.  In order to further effect the rights and license that you grant to C&C to your User-Generated Content, you also hereby grant to C&C, and agree to grant to C&C, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4(A)(iii).

(iv)      Representations and Warranties Related to Your User-Generated Content.  Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant C&C the rights to it that you are granting by these Terms and any Additional Terms, all without any C&C obligation to obtain consent of any third party and without creating any obligation or liability of C&C; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to C&C’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms or any Additional Terms, or cause injury or harm to any person. 

5.         Site and Content Use Restrictions

A.        Site Use Restrictions.  You agree that you will not: (i) aside from the purchase of goods or services offered for sale by C&C or its affiliates, use the Site for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any C&C trademarks or trade names; (iii) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to C&C; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (v) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, C&C, or other users of the Site; (vi) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Site Content, or the User-Generated Content; or (vii) otherwise violate these Terms or any Additional Terms. 

B.        Content Use Restrictions.  You also agree that, in using the Site Content: (i) you will not monitor, gather, copy, or distribute such Site Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Site Content (including any images, text, or page layout); (iii) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Site Content; (iv) you will not use such Site Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Site Content; (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use or exploit such Site Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of C&C or, in the case of Site Content from a licensor, the owner of the Site Content; and (vii) you will not insert any code or product to manipulate such Site Content in any way that adversely affects any user experience.

C.        Availability of Site and Site Content.  C&C may immediately suspend or terminate the availability of the Site and Site Content (and any elements and features of them) for any reason, in C&C’s sole discretion, and without advance notice or liability. 

D.        Reservation of All Rights Not Granted as to Site Content and Site.  These Terms and any Additional Terms include only narrow, limited grants of rights to Site Content and to use and access the Site.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by C&C and its licensors and other third parties.  Any unauthorized use of any Site Content or the Site for any purpose is prohibited.

6.         Linked-To Websites; Advertisements; Dealings with Third Parties

A.        Linked Websites; Advertisements.  The Site may contain links, as part of third-party ads on the Site or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with C&C.  C&C may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and C&C does not assume any obligation to review any Linked Websites.  C&C does not endorse, approve, or sponsor any Linked Websites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, C&C is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites.  Finally, C&C will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party hyperlinked sites.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites.  C&C disclaims all liability in connection therewith.

B.        Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Linked Websites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  C&C disclaims all liability in connection with therewith.

7.         Linking Policy

C&C grants you the revocable permission to link to the Site; provided, however, that your web site, or any third party websites that link to the Site: (a) must not imply that C&C or the Site are endorsing or sponsoring it or its products, unless C&C has given its prior written consent; (b) must not present false information about, or disparage, tarnish, or otherwise, in C&C’s sole opinion, harm C&C or its products or services; (c) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in C&C’s sole opinion); and (d) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms.  By linking to the Site, you agree that you do and will continue to comply with the above linking requirements.  Notwithstanding anything to the contrary contained in these Terms, C&C reserves the right to prohibit linking to the Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.

8.         Wireless

A.        Wireless Features.  The Site may offer certain features and services that are available to you via your wireless Internet Device.  These features and services may include the ability to access the Site’s features and upload content to the Site, receive messages from the Site, and download applications to your wireless Internet Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features.  Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance.  Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device.  You should check with your carrier to find out what plans are available and how much they cost.  Contact your carrier with questions regarding these issues.

B.        Terms of Wireless Features.  You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Internet Device regarding us or other parties.  Further, we may collect information related to your use of the Wireless Features.  If you have registered via the Site for Wireless Features, then you agree to notify C&C of any changes to your wireless contact information (including phone number) and update your accounts on the Site to reflect the changes. 

9.         Items Available For Download

Any items that we make available for download or use from the Site and/or our servers (the “Downloadable Items”) are the copyrighted work of C&C or its licensors or suppliers.  Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items.  Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items.  WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS.  Note that if you install certain applications that may be available via the Site, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.

 

10.       Disclaimer of Warranties

 

THE SITE, INCLUDING, WITHOUT LIMITATION, THE SITE CONTENT, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.  TO THE FULLEST EXTENT PERMISSIBLE BY LAW, C&C AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “C&C PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE SITE CONTENT ON OR PROVIDED THROUGH THE SITE; (C) THE DOWNLOADABLE ITEMS; (D) USER-GENERATED CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM C&C OR VIA THE SITE.  IN ADDITION, THE C&C PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

 

THE C&C PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE C&C PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE.  THE C&C PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE C&C PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.  SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.

 

BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.

 

11.       Limitation of Liability/Waiver of Unknown Claims

A.        LIMITATIONS OF LIABILITY.  UNDER NO CIRCUMSTANCES WILL THE C&C PARTIES BE LIABLE TO YOU FOR ANY LOSS OR  DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR  DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITE; (B) THE SITE CONTENT; (C) THE DOWNLOADABLE ITEMS; (D) USER-GENERATED CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE C&C PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITE’S TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE C&C PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE).  IN NO EVENT WILL THE C&C PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES, COUNTRIES, PROVINCES AND TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  IN NO EVENT WILL THE C&C PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00 USD).

 

YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR RISK.  IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OF THE SITE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE OR THE SITE CONTENT.

 

B.        WAIVER OF UNKNOWN CLAIMS.  BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

12.       Indemnification

You agree to defend (if requested by C&C), indemnify and hold harmless the C&C Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User-Generated Content; (b) your use of the Site or activities in connection with the Site; (c) your breach or anticipatory breach of these Terms or any Additional Terms; (d) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your Internet Device used to access the Site, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or entity or defames any person; (f) any misrepresentation made by you; or (g) the C&C Parties’ use of your information that you submit to us (including your User-Generated Content)  (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by the C&C Parties in the defense of any Claims and Losses.  Notwithstanding the foregoing, the C&C Parties retain the exclusive right to settle, compromise and pay any and all Claims and Losses.  The C&C Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.   You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a C&C Party.

 

13.       Governing Law, Jurisdiction, Arbitration, No Class Actions and Waiver of Injunctive Relief

We hope we never get into any disputes with you but just in case, here are some things that would apply:

 

A.        GOVERNING LAW/JURISDICTION.  THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.  YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN KENT COUNTY, RHODE ISLAND AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN KENT COUNTY, RHODE ISLAND FOR ANY SUCH LEGAL PROCEEDING.  ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

 

B.        Arbitration.  You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to the Site or these Terms not otherwise resolved between you and C&C will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to C&C’s intellectual property rights, including any such rights C&C claims that may be in dispute, shall only be subject to arbitration if C&C’s President agrees in writing to have such subject to arbitration. However, before either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, and the proposed resolution.  We will send notice to you based on the contact information you have provided us and notice to us must be sent to: Capwell & Co., 35 Onset Street, Warwick, RI  02888, Attn: Business & Legal Affairs.  C&C and you agree to make attempts to resolve any dispute.  If the parties cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the dispute to formal arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service.  In arbitration, there is no judge or jury and review is limited.  However, just as a court would, the arbitrator must honor the terms and conditions in these Terms and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court.  If an in-person hearing is required, the arbitration hearing will be conducted in Providence, Rhode Island (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it.  The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires C&C to pay a greater portion of such fees in order for the arbitration provision to be enforceable, C&C shall have the discretion to elect to pay such fees and proceed to arbitration.  You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or http://www.jamsadr.com.  Discovery shall be permitted pursuant to the applicable arbitration rules.  The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based.  The award shall be enforceable by any court with jurisdiction over the parties. Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.

 

C.        No Class Actions.  To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Site will be resolved individually, without resort to any form of class action.

 

D.        WAIVER OF INJUNCTIVE RELIEF.  IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY C&C (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF C&C.

 

14.       Termination and Modifications

A.        Termination.  C&C reserves the right to terminate your access to and use of the Site, in its sole discretion, without notice and liability, including, without limitation, if C&C believes your conduct fails to conform with these Terms.  C&C also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Site or C&C.  Any violation, or potential violation, of these Terms may be referred to law enforcement authorities. 

 

B.        Modifications.  C&C reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Site Content available on the Site, without limitation, in whole or in part, including the cessation of all activities associated with the Site, with or without notice.  You agree that C&C will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any part thereof. 

 

What happens upon Termination?  Upon termination of your access to the Site, or upon demand from C&C, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Site, including links to the Site; and (b) destroy all Site Content obtained from the Site.

 

15.       Location of Site and Territorial Restrictions

 

A.        Location of Site.  The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject C&C to any registration requirement within such jurisdiction or country.  C&C controls and operates the Site from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in other locations.  Anyone using or accessing the Site from other locations does so on his or her own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable.  We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.

 

B.        Software.  Software related to or made available by the Site may be subject to United States export controls.  Thus, no software from the Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading any software related to the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. 

 

16.       Updates to Terms

C&C reserves the right to modify or add to these Terms or any Additional Terms, at any time without prior notice (“Updated Terms”).  You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the home page of the Site, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms.  Therefore, you should review these Terms and any Additional Terms before using the Site.  The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.

17.       Miscellaneous

These Terms cannot be changed or terminated orally.  Any failure of C&C to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.  No waiver by C&C of any provision of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of C&C.  C&C may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of C&C.  If any provision of these Terms is held to be illegal, invalid, or unenforceable, then the provision will be deemed severable from the Terms and will not affect the validity and enforceability of any remaining provisions.  The section titles in these Terms are inserted only as a matter of convenience and have no legal or contractual effect.  You agree that these Terms will not be construed against C&C by virtue of having drafted them.  C&C reserves the right to deny access to all or part of the Site to you or any person in its sole discretion without notice or liability of any kind.  Any violation of these Terms may be referred to law enforcement authorities.  These Terms, together with any Additional Terms and Rules, constitutes the entire understanding and agreement between you and C&C and supersedes any and all prior or inconsistent understandings relating to the Site and your use of the Site and services provided by the Site.

18.       Questions

If you have questions about these Terms, you may contact us at terminator@capwell.com or Capwell & Co., 35 Onset Street, Warwick, RI  02888.