ShopTheFloor Terms of Service
Last updated: September 17, 2017
THIS AGREEMENT GOVERNS THE TERMS OF YOUR USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN YOUR USE OF THE SERVICES UNDER YOUR FREE TRIAL.
1. General: This Agreement is made and entered into by and between You and ShopTheFloor and Balluun, Inc., a Delaware corporation (collectively, the “Site Operator”) for use of thehttps://shopthefloor.com and https://shopthefloor.balluun.com Sites, App and Service (as they are defined below).
1.2 The term “you” and “your” for purposes of these Terms, means both you in your individual capacity, and the company or other business entity whom you represent and on whose behalf you use the Services under actual or apparent authority. By agreeing to these Terms or by using the Site, Services or App, you represent and warrant that you have the authority to represent the company or business entity for whom you are acting.
1.3 In order to use the Site, Services or App you must agree to these Terms. If you do not agree to these Terms, do not use the Site, Services or App. You acknowledge and agree that Site Operator will treat your use of the Site, Services and/or App as acceptance of these Terms from the time of your first use.
1.6 If the terms and conditions of these Terms should conflict with the terms and conditions of the SaaS Subscription Agreement that you enter into with the Site Operator, then the terms and conditions of that SaaS Subscription Agreement shall govern and apply.
2. Account Registration.
2.1 You may browse some areas of the Site and Services anonymously, but in order to use many of the features of the Service, you must register with this Site to create a user account (“Account”). In order to create an Account and become a Registered User, you will be required to provide the following information to the Site Operator: (a) your first and last names; (b) your e-mail address; (c) the name of your company (if applicable); and (d) such other information as Site Operator may request from time-to-time. In addition, if you are creating a Company Profile for your company (i.e., you are the first Registered User to use the Services on behalf of your company), Site Operator reserves the right to approve any and all new Accounts. You should not create a new Company Profile for your company if a Company Profile already exists for your company, unless you believe that it is reasonably necessary to create an additional Company Profile(s) (e.g., you are a large company and wish to have separate Company Profiles for your affiliates, divisions, or for different types of products or services offered by you). However, Site Operator may at its sole discretion refuse to approve a new Company Profile, or may in the future cancel a Company Profile if more than one Company Profile exists for your company, and Site Operator does not believe that there is a reasonable basis for such additional Company Profile(s). By registering to open an Account and where applicable, creating a Company Profile, you hereby agree that Site Operator may include and make your Content (as defined in Section 7.1 below) available as part of the Services and provide such Content to other Registered Users of the Site, Services and App.
2.2 By creating an Account and where applicable, creating a Company Profile, you represent and warrant that: (a) all information you submit in connection with the opening and use of your Account is true, accurate, current, and complete; (b) you have the authority to enter into these Terms and bind the company or other business entity on whose behalf you access the Site and use the Services; (c) the street address you use when registering to use the Services, and where applicable, creating a Company Profile, is the principal place of business of the company or other business entity on whose behalf you access the Site and use the Services; (d) your use of the Site, App or Services does not and will not violate any applicable law, rule or regulation; (e) you will promptly notify Site Operator if your information changes so that Site Operator can update its records and ensure that your information remains current; and (f) you are aged 18 or older; the Services are not intended for persons under 18. We reserve the right to verify the identity of any Registered User, although we have no obligation to do so.
2.3 You are solely responsible for maintaining the security and confidentiality of the information in your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Site Operator immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Site Operator or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else's Account, user name or password at any time and for any reason. You may not assign, sell or transfer your Account, user name or password to any other person. Site Operator is not liable to you or any third party for your failure to comply with your obligations under this paragraph.
2.4 There are two types of memberships- Basic Membership & Premium Membership. While there is no fee for a Basic Membership, we will charge a fee for Premium Memberships (as described in the Site), which provides for various additional functions and tools that are unavailable for Basic memberships. If you elect to purchase a Premium Membership, you agree to pay all applicable fees related to your use of the Services with credit card payments. We may suspend or terminate your Account and/or access to the Services if your payment is late and/or your credit card cannot be processed. By providing Site Operator with your credit card information, you expressly authorize us to charge the applicable fees on said credit card as well as taxes and other charges incurred thereto at regular intervals. Site Operator and the organizations who conduct shows through the Services reserve the right to change prices for Accounts at any time. We do not provide price protection or refunds in the event of promotions or price decreases. We will charge your credit card on the date that we process your order for your Account for the amount that you select- whether you decide to prepay for one year premium membership or in 12 monthly installments. You are liable for paying any and all sales and use taxes applicable to your use of the Services, and you authorize Site Operator to charge your credit card for any such applicable taxes.
3. This section is intentionally omitted.
4. Mobile Applications.
4.1 To use the App you must have a mobile device that is compatible with it. Site Operator does not warrant that the App will be compatible with your mobile device. Site Operator hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the App on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly permitted by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App. You acknowledge that Site Operator may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the App or any copy thereof, and Site Operator and its third party licensors or suppliers retain all right, title, and interest in and to the App (and any copy of the App). Standard carrier data charges may apply to your use of the App.
4.2 The following additional terms and conditions apply with respect to any App that Site Operator provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”): • You acknowledge that these Terms are between you and Site Operator only, and not with Apple, Inc. (“Apple”). • Your use of the iOS App must comply with Usage Rules set forth in Apple’s then-current App Store Terms of Service. • Site Operator, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the iOS App to conform to any warranty. • You agree that Site Operator, and not Apple, is responsible for addressing any claims by you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Site Operator as provider of the iOS App. • You agree that Site Operator, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App. • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. • You agree to comply with all applicable third party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App). • You agree that Apple and Apple’s subsidiaries are third party beneficiaries to these Terms as they relate to your license to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third party beneficiary thereof.
4.3 The following additional terms and conditions apply with respect to any application that Site Operator provides to you designed for use on an Android-powered mobile device (an “Android App”): • You acknowledge that these Terms are between you and Site Operator only, and not with Google, Inc. (“Google”). • Your use of the Android App must comply with Google’s then-current Google Play Terms of Service. • Site Operator, and not Google, is solely responsible for the Android App, the services and content available thereon and the support and maintenance thereof. Google has no obligation or liability to you with respect to the Android App or these Terms.
5. Site Operator's Proprietary Rights. 5.1 You hereby acknowledge and agree that Site Operator (or its licensors) owns all legal right, title and interest in and to the Site, App and Services, including, without limitation, all intellectual property or other proprietary rights which subsist in the Site, App and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Site Operator, all materials on the Site and App, including, but not limited to, graphics, user and visual interfaces, images, software, advertising tools, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site, Services and App and their content (except for your Content) (collectively the “Material”), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site and App, are all owned by Site Operator or its licensors.
5.2 Nothing in these Terms gives you any right to use any of Site Operator’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Site Operator under these Terms are reserved. There are no implied rights.
5.3 Subject to your compliance with these Terms, Site Operator hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, non-sub licensable and non-exclusive license to use the Site, App and Services for your internal business use, for such purposes as permitted and/or specified by Site Operator from time-to-time in any applicable documentation or applicable descriptions. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Site, App and Services as provided by Site Operator, in the manner permitted by these Terms.
5.4 All Material is provided to you “AS IS”. You may access Material for your information and personal use solely as intended through the provided functionality of the Site, App and Services and as permitted under these Terms. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Material for any other purposes without the prior written consent of Site Operator or the respective licensors of the Material. You agree to comply with all applicable laws and regulations in your use of any Material.
6. Service Use Restrictions.
6.1 You hereby represent and warrant that you will not permit or induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site, App or Services or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Services, or any other systems or networks connected to the Site or Services, or to any Site Operator or any third party server, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Services; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Services or any transaction being conducted on the Site or through the Services, or with any other person's use of the Site or Services; (d) breach any security measures implemented on the Site or App or in the Services; (e) track or seek to trace any information on any other person who visits the Site or uses the App or Services; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Site Operator, any Registered User, or any third party in connection with the Services; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Site, App or Services to buy or sell any products or services that fall within the Prohibited Field (defined in Section 6.2 below); (i) use the Site, App or Services for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data, consumer protection, unfair competition, anti-discrimination or false advertising; (j) upload or otherwise process any malicious content to, or through, the Services; or (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to, the App and/or Services, or made available to you in connection with the Site, App and/or Services.
6.2 “Prohibited Field” for purposes of these Terms means any of the following: (a) products or services relating to the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (b) products or services that are racially, religiously or ethnically derogatory, or that promote hatred, violence, discrimination, racial or religious intolerance; (c) sweepstakes, giveaways, lotteries, raffles, or contests; (d) stocks, bonds, investment interests, and other securities; (e) pornographic materials, items that are sexual in nature, or sexually explicit products or services; (f) products or services that do not offer a product or service for sale, such as advertisements solely for the purpose of collecting user information; (g) products or services that are harmful to minors; and (h) other products or services which while not prohibited by applicable law, may be deemed by Site Operator in its sole discretion, as unsuitable or otherwise inappropriate for buying or selling through the Services. 6.3 You hereby agree that you will notify Site Operator if you become aware that the Site, App or Services are being used for or in any Prohibited Field or for any other illegal or unauthorized purpose.
6.4 You are solely responsible for ensuring that your use of the Services, and any products, services, or information that you provide or obtain through using the Services, complies with all applicable laws, rules and regulations of the place from where you access the Services and/or use such products and services.
7. Your Content & License from You.
7.1 You hereby agree that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, graphics (including the logos, trademarks and other identifiers of your brands), images, messages, communications, and other content (collectively “Content”) that you collect, upload, store, transmit, display, publish, disclose, or otherwise use in connection with the Services, and for the consequences of your actions in connection with such Content and your use of the Services, and Site Operator’s use of your Content on your behalf.
7.2 Without limiting the foregoing, your Content includes, without limitation: (a) all information you provide for any Company Profile or Personal Profile; (b) all information you provide on, or in connection with the Site, including without limitation, information concerning the functionality of your products and services and any warranties that you provide in connection therewith, and any other information that you provide to third parties in connection with your use of the Services; (c) personally identifiable information that you collect from third parties in connection with your use of the Services; (d) confidential and/or proprietary information that you obtain from third parties in connection with your use of the Services; and (e) information that you post, display or transmit to your co-workers, Registered Users, and other third parties through message systems, discussion boards, message boards, chat-rooms, or other means of communication made available through the Services.
7.3 You agree that Site Operator has no responsibility to you, any Registered User, or to any other third party in connection with your Content. You are solely responsible for any losses or damage suffered by Site Operator, any Registered User, or any other third party in connection with your Content. You hereby represent and warrant that you will not collect, store, transmit, publish, provide, or otherwise use any Content in connection with the Services that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) is fraudulent or makes fraudulent offers of products or services or involves the purchase or sale, or attempted purchase or sale, of counterfeit, fake or stolen products, or otherwise constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violates, or induces the violation of, any law, rule or regulation, (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising); (d) infringes, misappropriates, or otherwise violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; (f) contains a virus, malicious code or any other harmful component; (g) promotes or endorses discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
7.4 You agree to immediately take down, delete or modify any Content that is stored by you through the Services that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Site Operator. Site Operator may, but is not obligated to, monitor Content made available through the Services. In the event that you elect not to comply with a request from Site Operator to take down, delete or modify certain Content, Site Operator reserves the right to directly take down, delete or modify such Content. Site Operator assumes no liability or responsibility arising from your activities in connection with the Services, including, without limitation, Content that you collect, store, transmit, publish, process, disclose, or otherwise use in connection with the Services.
7.5 Site Operator claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By collecting, submitting, storing, transmitting, publishing, displaying, or otherwise using your Content in connection with the Services, you hereby grant Site Operator (including its third party service providers and contractors) a worldwide, royalty-free, fully-paid-up, non-exclusive, transferable, sub licensable, perpetual, irrevocable license to reproduce, adapt, reformat, modify, perform, display, distribute, translate, create derivative works from, and otherwise use such Content for the purpose of enabling Site Operator to provide the Services, including, without limitation, storing and retrieving the Content, making the Content available through the Services, adapting, reformatting and modifying the Content for technical display and transmission, conforming the Content to the limitation and terms of the Services, and any other use related to the maintenance, provision and improvement of the Site, App and Services (i.e. analytics and data analysis).
7.6 You hereby agree that Site Operator, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your Company Profile and web site) for the purpose of advertising, promoting or publicizing the Site, App or Services.
7.7 Site Operator may use usage patterns, trends and other statistical data derived from your Content and use of the Site, App or Services for purposes of providing, operating, maintaining, or improving the Site, App or Services.
7.8 You acknowledge and agree that Site Operator is not liable in any way to you or any third party, for any third party Content made available to you through the Services, including, without limitation, any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use or reliance on Content. You agree to evaluate and bear all risks and responsibility associated with the use or reliance on any Content that you obtain through your use of the Services.
8. Message and Discussion Boards.
8.1 Site Operator may make message boards and/or discussion boards available to Registered Users to promote and encourage open, honest and respectful communication between Registered Users. All Content, whether publicly posted or privately transmitted through a message board or discussion board on the Site, Services or App, will be the sole responsibility and liability of the posting Registered User. You acknowledge and agree that Site Operator does not control the Content posted or transmitted through any message board or discussion board, and does not guarantee the accuracy, integrity, quality, or suitability of such posted or transmitted Content. Site Operator does not pre-screen Content posted or transmitted through any message board or discussion board. Site Operator may, but is not obligated to, monitor the posting activities of Registered Users and may in its sole discretion, edit or remove any Content and/or restrict a Registered User’s ability to post Content through the message boards and discussion boards. By using any message board or discussion board, you understand that you may be exposed to Content that is offensive, indecent or objectionable, and you use such message boards and discussion boards solely at your own risk and Site Operator has no responsibility or liability to you in connection therewith. You should exercise common sense and appropriate caution before posting any of your own personally identifiable information or other confidential information on any message board or discussion board, as such information will be viewable by any Registered User accessing such board, and Site Operator has no responsibility or liability to you in respect of your decision to make your personally identifiable information or other confidential information publicly available on or through the Site, Services or App.
9.1 If you send or transmit any communications or materials to Site Operator by mail, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site, App or Services, including, without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback is, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Site Operator or its agents, violates any of your rights including, without limitation, moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Site Operator uses such Feedback.
9.2 You hereby assign all right, title, and interest in, and Site Operator is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Site Operator is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
10. Copyright Infringement.
10.1 Site Operator respects the intellectual property and other proprietary rights of others and has a policy of removing Content from the Site, App and Services that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site, App or Services in violation of copyright law, and where appropriate, blocking such user’s access to the Site, App and Services.
10.2 If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on our Site or App, or is being used through the Services, you may submit a notification to us pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit Site Operator to locate such material; (d) information reasonably sufficient to permit Site Operator to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Site Operator’s designated copyright agent to receive notifications of claimed infringement under the DMCA is: Attn: DMCA Agent Balluun, Inc. 1277 Borregas Ave, Suite B Sunnyvale CA, 94089 United States of America Tel: (650) 576-3727 Fax:(650) 745-1030 E-mail:email@example.com
10.3 Only DMCA or other copyright-related notices should be sent to the copyright agent; any other communications sent to the copyright agent will be destroyed.
11. Infringement of Other IP Rights
11.1 Please use the procedure specified in Section 10 above for all DMCA- and other copyright- related notices. Site Operator respects the intellectual property and other proprietary rights of others and has a policy of removing Content from the Site, App and Services that infringes or misappropriates the intellectual property rights of others, and suspending and/or terminating the Account of any user who uses the Site, App or Services in violation of any laws applicable to the protection of intellectual property rights, and where appropriate, blocking such user’s access to the Site, App and/or Services.
11.2 If you are the owner of an intellectual property right, and believe that your intellectual property right is the subject of infringement or misappropriation and appears on our Site or App, or is being used through the Services, you may submit a notification to us by providing our intellectual property rights agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the intellectual property right claimed to have been infringed or misappropriated; (c) identification of the material that is claimed to be infringing or misappropriating or to be the subject of infringing or misappropriating activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Site Operator to locate such material; (d) information reasonably sufficient to permit Site Operator to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you as the owner of the intellectual property right in question, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, the owner of the intellectual property right that is allegedly infringed. Site Operator’s designated intellectual property rights agent to receive notifications of claimed infringement or misappropriation under this Section 11 is: Attn: Copyright Agent Balluun, Inc. 1277 Borregas Ave, Suite B Sunnyvale CA, 94089 United States of America Tel: (650) 576-3727 Fax: (650) 745-1030 E-mail: firstname.lastname@example.org
11.3 Only intellectual property rights-related notices should be sent to the intellectual property rights agent; any other communications sent to the intellectual property rights agent will be destroyed.
12. Services Availability & Support.
12.1 Site Operator will make the Services available to you consistent with the manner in which Site Operator makes the Services generally available to other users of the Services. You acknowledge and agree that the form and nature of the Services, or any individual Service, which Site Operator currently provides may change from time-to-time without prior notice to you. By continuing to use the Services after such changes have been made, you are indicating your acceptance of such changes which Site Operator may make at any time in its sole discretion.
12.2 Site Operator does not make any representations or guarantees regarding uptime or availability of the Services. Site Operator does not guarantee that the Services will meet any particular service level, or that any Payments or other transactions or activities carried out through the Services will be carried out in any specific timeframe. The Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the Services as a result of system failures or force majeure events described in Section 20.6. Site Operator will use commercially reasonable efforts, circumstances permitting, to provide information regarding any such Services interruptions and the restoration of use of, and access to, the Services following any Services interruption, including by information posted on the Site or sent to your registered e-mail address.
12.3 Site Operator may temporarily suspend your access to any portion or all of the Services and your Content if Site Operator reasonably determines that: (a) there is a threat or attack on the Services (including a denial of service attack) or other event that may create a risk to the Services, you or any other Services user; (b) your use of the Services or your Content disrupts or poses a security risk to the Services or any other Services user, may harm Site Operator’s systems or any other Services user, or may subject Site Operator or any third party to liability; (c) you are using the Services for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, App, Services or other Site Operator property in breach of these Terms; (f) you are in default of any payment obligations to Site Operator; or (g) there is an unusual spike or increase in your use of the Services (collectively, "Services Suspensions"). Site Operator will use commercially reasonable efforts, circumstances permitting, to provide written notice of any Services Suspension to you (including via notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption (if any) of the Services following any Services Suspension. Site Operator will have no liability for any damage, liabilities, losses (including, without limitation, any loss of data or profits) or any other consequences that you or any third party may incur as a result of any Services Suspension.
12.4 Site Operator will provide customer service and support to you to the extent such support is generally made available without charge to other users of the Site, Services or App.
13. Exclusion of Warranties.
13.1 YOUR USE OF THE SITE, APP AND SERVICES IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE, APP AND SERVICES ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. SITE OPERATOR, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS, AND THIRD PARTY SERVICE PROVIDERS, AND SITE OPERATOR’S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE “SITE OPERATOR PARTIES”): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SITE, APP, SERVICES, OR PRODUCTS, SERVICES, DATA OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION PRODUCTS AND SERVICES YOU PURCHASE FROM ANY SELLER THROUGH THE SERVICES), WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR ACCURACY, SAFETY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, PRODUCTS AND SERVICES YOU PURCHASE FROM ANY SELLER THROUGH THE SERVICES). YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND ANY PRODUCTS OR SERVICES THAT YOU OBTAIN FROM ANY SELLER, OR PROVIDE TO ANY BUYER, THROUGH THE SERVICES.
13.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND SITE OPERATOR. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SITE OPERATOR OR ANY PERSON ON BEHALF OF SITE OPERATOR SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
13.3 NOTHING IN THESE TERMS, THIS SECTION 13, OR SECTION 14 BELOW, SHALL EXCLUDE OR LIMIT SITE OPERATOR'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
14. Limitation of Liability.
14.1 SUBJECT TO SECTION 13.3 ABOVE, IN NO EVENT WILL SITE OPERATOR OR THE SITE OPERATOR PARTIES BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS (INCLUDING, WITHOUT LIMITATION, ANY LOSS RELATING TO ANY PRODUCT(S) OR SERVICE(S) YOU PURCHASE FROM ANY SELLER, OR SELL TO ANY BUYER, THROUGH THE SERVICES), OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), EVEN IF SITE OPERATOR OR THE SITE OPERATOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 SITE OPERATOR AND THE SITE OPERATOR PARTIES WILL NOT BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY RELATED TO THE SITE, APP OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATING TO ANY PRODUCT(S) OR SERVICE(S) YOU PURCHASE FROM OR SELL TO ANY REGISTERED USER THROUGH THE SERVICES OR APP). IF, NOTWITHSTANDING THE FOREGOING, SITE OPERATOR OR ONE OF THE SITE OPERATOR PARTIES IS FOUND TO BE LIABLE TO YOU, ANY REGISTERED USER, BUYER, SELLER, OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, SITE OPERATOR OR THE RELEVANT SITE OPERATOR PARTY'S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT OF ANY FEES ACTUALLY PAID BY YOU TO SITE OPERATOR DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SITE OPERATOR OR THE RELEVANT SITE OPERATOR PARTY’S LIABILITY; AND (B) FIVE HUNDRED UNITED STATES DOLLARS (US$500).
15.1 You hereby agree to indemnify, defend and hold harmless Site Operator and the Site Operator Parties (each an “Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your use of the Site, App or Services; (b) any breach or alleged breach by you of these Terms or other binding legal obligations; (c) any Content provided by you (including, without limitation, Content provided by you in the form of feedback); (d) any Feedback provided by you; (e) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (f) any damage caused by or alleged to have been caused by you to the Site or Services; or (g) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation, including without limitation, those governing consumer protection, unfair competition, anti-discrimination or false advertising.
15.2 Counsel you select for the defense or settlement of a claim must be consented to by the Indemnified Party(s) prior to counsel being engaged to represent you and the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Site Operator and/or the other Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Site Operator or any other Indemnified Party(s) without the prior written consent of Site Operator and/or the other Indemnified Party(s).
16. Time Limitation.
16.1 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
17. Termination of Services.
17.1 Site Operator reserves the right in its sole discretion to cease or suspend providing all or any part of the Services immediately without any notice to you, if: (a) you breach, or threaten to breach, or are suspected of having breached, these Terms, your Terms of Sale, or any other binding legal obligations; (b) Site Operator is required to do so under any applicable law, rule or regulation; (c) the Services rely on data, services or another business relationship between Site Operator and a third party service provider, and such relationship terminates or changes in such a way that affects Site Operator’s ability to continue providing the Services; (d) continuing to provide the Services could create a substantial economic burden on Site Operator as determined by Site Operator in its sole discretion; (e) continuing to provide the Services could create a security risk or material technical burden as determined by Site Operator in its sole discretion; or (f) Site Operator otherwise determines in it sole discretion, that it no longer wishes to provide the Services, or a portion of the Services.
17.2 Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Services shall continue to apply to you after you cease to use the Services.
17.3 Site Operator may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Site Operator may without limitation, immediately terminate or suspend your use of the Services and access to your Content, if Site Operator believes in its sole discretion that you are violating these Terms, or that you intend to do so.
17.4 Site Operator may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your actual, threatened or suspected violation of these Terms, or any other binding legal obligations, or unauthorized use of the Site, App or Services.
18. Governing Law and Venue.
18.1 These Terms will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Except as set forth below in Section 18.2, the federal and state courts seated in San Mateo County, California, shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Site Operator may seek to enforce any judgment in its favor in any court of competent jurisdiction.
18.2 Notwithstanding the foregoing, Site Operator may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Site Operator for which there is no adequate remedy at law.
18.3 The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Services. Furthermore, these Terms (including without limitation, the Site and Services) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
18.4 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
19. Third Party Web Sites.
19.1 The Site, App and Services may provide links to other web sites that are not owned or operated by Site Operator (“Third Party Web Sites”). Site Operator provides these links to you as a convenience only, and Site Operator does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such Third Party Web Sites.
19.3 Any reference on the Site or App, or through the Services, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Site Operator’s endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.
20. Miscellaneous Terms.
20.1 The failure of Site Operator to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
20.2 If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
20.3 Any notice or other communications by Site Operator relating to the Site, App or Services may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
20.4 These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Site Operator Party and Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
20.5 Site Operator may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, Site Operator’s express prior written consent.
20.6 Site Operator will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, Internet disturbances, or other force majeure event.
20.7 You may not access the Services if you are a direct competitor of Site Operator’s, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.