You
and the Site agree that we may access, store, process, and use any
information and personal data that you provide following the terms of
the Privacy Policy and your choices (including settings).
By
submitting suggestions or other feedback regarding the Site, you agree
that we can use and share such feedback for any purpose without
compensation to you.
We
do not assert any ownership over your Contributions. You retain full
ownership of all of your Contributions and any intellectual property
rights or other proprietary rights associated with your Contributions.
We are not liable for any statements or representations in your
Contributions provided by you in any area on the Site. You are solely
responsible for your Contributions to the Site and you expressly agree
to exonerate us from any and all responsibility and to refrain from any
legal action against us regarding your Contributions.
MOBILE
APPLICATION LICENSE
If
you access the
Site via a mobile application, then we grant you a
revocable, non-exclusive,
non-transferable, limited right to install and use
the mobile application on
wireless electronic devices owned or controlled by
you, and to access and use
the mobile application on such devices strictly in
accordance with the terms
and conditions of this mobile application license
contained in these Terms of Use.
You shall not: (1) except as permitted by applicable
law, decompile, reverse engineer, disassemble,
attempt to derive
the source code of, or decrypt the application; (2)
make any modification,
adaptation, improvement, enhancement, translation,
or derivative work from the
application; (3) violate any applicable laws, rules,
or regulations in
connection with your access or use of the
application; (4) remove, alter, or
obscure any proprietary notice (including any notice
of copyright or trademark)
posted by us or the licensors of the application;
(5) use the application for
any revenue generating endeavor, commercial
enterprise, or other purpose for
which it is not designed or intended; (6) make the
application available over a
network or other environment permitting access or
use by multiple devices or
users at the same time; (7) use the application for
creating a product,
service, or software that is, directly or
indirectly, competitive with or in
any way a substitute for the application; (8) use
the application to send
automated queries to any website or to send any
unsolicited commercial e-mail;
or (9) use any proprietary information or any of our
interfaces or our other
intellectual property in the design, development,
manufacture, licensing, or
distribution of any applications, accessories, or
devices for use with the
application.
Apple
and Android Devices
The
following
terms apply when you use a mobile application
obtained from either the Apple
Store or Google Play (each an “App Distributor”) to
access the Site: (1) the
license granted to you for our mobile application is
limited to a
non-transferable license to use the application on a
device that utilizes the
Apple iOS or Android operating systems, as
applicable, and in accordance with
the usage rules set forth in the applicable App
Distributor’s terms of service;
(2) we are responsible for providing any maintenance
and support services with
respect to the mobile application as specified in
the terms and conditions of
this mobile application license contained in these
Terms of Use or as otherwise
required under applicable law, and you acknowledge
that each App Distributor
has no obligation whatsoever to furnish any
maintenance and support services
with respect to the mobile application; (3) in the
event of any failure of the
mobile application to conform to any applicable
warranty, you may notify the
applicable App Distributor, and the App Distributor,
in accordance with its
terms and policies, may refund the purchase price,
if any, paid for the mobile
application, and to the maximum extent permitted by
applicable law, the App
Distributor will have no other warranty obligation
whatsoever with respect to
the mobile application; (4) 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; (5) you must comply with applicable
third-party terms of agreement
when using the mobile application, e.g., if you have
a VoIP application, then
you must not be in violation of their wireless data
service agreement when
using the mobile application; and (6) you
acknowledge and agree that the App
Distributors are third-party beneficiaries of the
terms and conditions in this
mobile application license contained in these Terms
of Use, and that each App
Distributor will have the right (and will be deemed
to have accepted the right)
to enforce the terms and conditions in this mobile
application license
contained in these Terms of Use against you as a
third-party beneficiary
thereof.
You
acknowledge and agree that any questions, comments, suggestions,
ideas, feedback, or other information regarding the Site
("Submissions") provided by you to us are non-confidential and shall
become our sole property. We shall own exclusive rights, including
all intellectual property rights, and shall be entitled to the
unrestricted use and dissemination of these Submissions for any
lawful purpose, commercial or otherwise, without acknowledgment or
compensation to you. You hereby waive all moral rights to any such
Submissions, and you hereby warrant that any such Submissions are
original with you or that you have the right to submit such
Submissions. You agree there shall be no recourse against us for any
alleged or actual infringement or misappropriation of any
proprietary right in your Submissions.
Our
services are “commercial items” as defined in Federal
Acquisition Regulation (“FAR”) 2.101. If our services are
acquired by or on
behalf of any agency not within the Department of Defense
(“DOD”), our services
are subject to the terms of these Terms of Use in accordance
with FAR 12.212
(for computer software) and FAR 12.211 (for technical data). If
our services are acquired by or on
behalf of any agency within the Department of Defense, our
services are subject
to the terms of these Terms of Use in accordance with Defense
Federal
Acquisition Regulation (“DFARS”) 227.7202‑3.
In addition, DFARS 252.227‑7015
applies to technical data acquired
by the DOD. This U.S. Government Rights clause is in lieu of,
and supersedes,
any other FAR, DFARS, or other clause or provision that
addresses government
rights in computer software or technical data under these Terms
of Use.
We
reserve the
right, but not the obligation, to: (1) monitor the Site for
violations of
these Terms of Use; (2) take appropriate legal action against anyone
who, in
our sole discretion, violates the law or these Terms of Use,
including without
limitation, reporting such user to law enforcement authorities; (3)
in our sole
discretion and without limitation, refuse, restrict access to, limit
the
availability of, or disable (to the extent technologically feasible)
any of
your Contributions or any portion thereof; (4) in our sole
discretion and
without limitation, notice, or liability, to remove from the Site or
otherwise
disable all files and content that are excessive in size or are in
any way
burdensome to our systems; and (5) otherwise manage the Site in a
manner
designed to protect our rights and property and to facilitate the
proper
functioning of the Site.
We
care about data privacy and security. By using
the Site, you agree to be bound by our Privacy
Policy posted on the Site, which is incorporated
into these Terms of Use. Please be advised the
Site is hosted in
the United States
. If you access the Site from any other
region of the world with laws or other
requirements governing personal data collection,
use, or disclosure that differ from applicable
laws in
the United States
, then through your continued use of the
Site, you are transferring your data to
the United States
, and you agree to have your data
transferred to and processed in
the United States
.
These
Terms of Use shall remain in full force and effect while you use the
Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE
RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR
LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING
CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO
REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY
REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF
USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR
USE OR PARTICIPATION IN THE SITE OR DELETE
YOUR
ACCOUNT AND
ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME,
WITHOUT WARNING, IN OUR SOLE DISCRETION.
If
we terminate
or suspend your account for any reason, you are prohibited from
registering and
creating a new account under your name, a fake or borrowed name,
or the name of
any third party, even if you may be acting on behalf of the
third party. In
addition to terminating or suspending your account, we reserve
the right to
take appropriate legal action, including without limitation
pursuing civil,
criminal, and injunctive redress.
MODIFICATIONS AND
INTERRUPTIONS
We
reserve the right to change, modify, or remove the contents of the
Site at any time or for any reason at our sole discretion without
notice. However, we have no obligation to update any information on
our Site. We also reserve the right to modify or discontinue all or
part of the Site without notice at any time. We will not be liable
to you or any third party for any modification, price change,
suspension, or discontinuance of the Site.
We
cannot guarantee
the Site will be available at all times. We may experience hardware,
software,
or other problems or need to perform maintenance related to the
Site, resulting
in interruptions, delays, or errors. We
reserve the right to change, revise, update, suspend, discontinue,
or otherwise
modify the Site at any time or for any reason without notice to you.
You agree that we have no liability
whatsoever for any loss, damage, or inconvenience caused by your
inability to
access or use the Site during any downtime or discontinuance of the
Site. Nothing in these Terms of Use will be
construed to obligate us to maintain and support the Site or to
supply any
corrections, updates, or releases in connection therewith.
These
Terms of Use and your use of the Site are governed by and construed
in accordance with the laws of
the State
of
Arizona
applicable
to agreements made and to be entirely performed within
the State of
Arizona
, without regard to its conflict of law principles.
To expedite resolution
and control the cost of any dispute, controversy, or claim related to
these Terms of Use (each "Dispute" and collectively, the “Disputes”)
brought by either you or us (individually, a “Party” and collectively,
the “Parties”), the Parties agree to first attempt to negotiate any
Dispute (except those Disputes expressly provided below) informally for
at least
thirty (30) days before initiating arbitration. Such informal
negotiations commence upon written notice from one Party to the other
Party.
If the Parties are unable to
resolve a Dispute through informal negotiations, the Dispute (except those Disputes
expressly excluded below) will be finally and exclusively resolved by binding
arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO
SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted
under the Commercial Arbitration Rules of the American Arbitration Association
("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer
Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA
website www.adr.org. Your arbitration fees and your share
of arbitrator compensation shall be governed by the AAA Consumer Rules and, where
appropriate, limited by the AAA Consumer Rules.
If such
costs are determined by the arbitrator to be
excessive, we will pay all arbitration fees and expenses.
The arbitration may be conducted in person,
through the submission of documents, by phone, or online. The arbitrator will make a
decision in writing, but need not provide a statement of reasons unless requested by
either Party. The arbitrator must follow applicable law, and any award may be
challenged if the arbitrator fails to do so. Except where otherwise required by the
applicable AAA rules or applicable law, the arbitration will take place in
Maricopa,
Arizona
. Except as otherwise provided herein, the Parties may litigate in court to
compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate,
or enter judgment on the award entered by the arbitrator.
If for any
reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be
commenced or prosecuted in the state and federal
courts located in
Maricopa
,
Arizona
, and the Parties hereby consent to, and waive all defenses of
lack of personal jurisdiction, and forum non conveniens with respect to venue and
jurisdiction in such
state and federal courts
. Application of the United Nations Convention on Contracts for the
International Sale of Goods and the Uniform Computer Information Transaction Act
(UCITA) are excluded from these Terms of Use.
In no event shall any Dispute
brought by either Party related in any way to the Site be commenced more than
one (1) years after the cause of action arose. If this provision is found to be
illegal or unenforceable, then neither Party will elect to arbitrate any Dispute
falling within that portion of this provision found to be illegal or
unenforceable and such Dispute shall be decided by a court of competent
jurisdiction within the courts listed for jurisdiction above, and the Parties
agree to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to the
Dispute between the Parties individually. To the full extent permitted by law, (a) no
arbitration shall be joined with any other proceeding; (b) there is no right or
authority for any Dispute to be arbitrated on a class-action basis or to utilize class
action procedures; and (c) there is no right or authority for any Dispute to be brought
in a purported representative capacity on behalf of the general public or any other
persons.
Exceptions to
Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not
subject to the above provisions concerning informal negotiations and binding
arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity
of, any of the intellectual property rights of a Party; (b) any Dispute related to, or
arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use;
and (c) any claim for injunctive relief. If this provision is found to be illegal or
unenforceable, then neither Party will elect to arbitrate any Dispute falling within
that portion of this provision found to be illegal or unenforceable and such Dispute
shall be decided by a court of competent jurisdiction within the courts listed for
jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that
court.
CORRECTIONS
There may be information on the Site that contains
typographical errors, inaccuracies, or omissions, including descriptions, pricing,
availability, and various other information. We reserve the right to correct any errors,
inaccuracies, or omissions and to change or update the information on the Site at any
time, without prior notice.
DISCLAIMER
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU
AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE
FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN
CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR
COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND
WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR
INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY
NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY
UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL
INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR
CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR
THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6)
ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY
KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE
MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH
THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY
BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE
FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR
SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY
ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE
APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO
EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD
PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR
PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER
DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR
LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM
OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO
THE AMOUNT PAID,
IF ANY, BY YOU TO US
DURING THE SIX
(6) MONTH PERIOD PRIOR TO ANY
CAUSE OF ACTION ARISING
.
CERTAIN US
STATE LAWS AND INTERNATIONAL
LAWS DO NOT ALLOW
LIMITATIONS ON IMPLIED
WARRANTIES OR THE EXCLUSION
OR LIMITATION OF CERTAIN
DAMAGES. IF THESE LAWS APPLY
TO YOU, SOME OR ALL OF THE
ABOVE DISCLAIMERS OR
LIMITATIONS MAY NOT APPLY TO
YOU, AND YOU MAY HAVE
ADDITIONAL RIGHTS.
INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including
our subsidiaries, affiliates, and all of our respective officers, agents, partners, and
employees, from and against any loss, damage, liability, claim, or demand, including
reasonable attorneys’ fees and expenses, made by any third party due to or arising out
of:
(1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your
representations and warranties set forth in these Terms of Use; (4) your violation of
the rights of a third party, including but not limited to intellectual property rights;
or (5) any overt harmful act toward any other user of the Site with whom you connected
via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to
assume the exclusive defense and control of any matter for which you are required to
indemnify us, and you agree to cooperate, at your expense, with our defense of such
claims. We will use reasonable efforts to notify you of any such claim, action, or
proceeding which is subject to this indemnification upon becoming aware of it.
USER DATA
We will maintain certain data that you transmit to the Site for
the purpose of managing the performance of the Site, as well as data relating to your
use of the Site. Although we perform regular routine backups of data, you are solely
responsible for all data that you transmit or that relates to any activity you have
undertaken using the Site. You agree that we shall have no liability to you for any loss
or corruption of any such data, and you hereby waive any right of action against us
arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND
SIGNATURES
Visiting the Site,
sending us emails, and completing online forms constitute electronic communications.
You consent to receive electronic communications, and you agree that all agreements,
notices, disclosures, and other communications we provide to you electronically, via
email and on the Site, satisfy any legal requirement that such communication be in
writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS,
AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF
TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any
rights or requirements under any statutes, regulations, rules, ordinances, or other
laws in any jurisdiction which require an original signature or delivery or
retention of non-electronic records, or to payments or the granting of credits by
any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you
can contact the Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N
112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916)
445-1254.
MISCELLANEOUS
These Terms of Use and any policies or operating rules posted
by us on the Site or in respect to the Site constitute the entire agreement and
understanding between you and us. Our failure to exercise or enforce any right or
provision of these Terms of Use shall not operate as a waiver of such right or
provision. These Terms of Use operate to the fullest extent permissible by law. We may
assign any or all of our rights and obligations to others at any time. We shall not be
responsible or liable for any loss, damage, delay, or failure to act caused by any cause
beyond our reasonable control. If any provision or part of a provision of these Terms of
Use is determined to be unlawful, void, or unenforceable, that provision or part of the
provision is deemed severable from these Terms of Use and does not affect the validity
and enforceability of any remaining provisions. There is no joint venture, partnership,
employment or agency relationship created between you and us as a result of these Terms
of Use or use of the Site. You agree that these Terms of Use will not be construed
against us by virtue of having drafted them. You hereby waive any and all defenses you
may have based on the electronic form of these Terms of Use and the lack of signing by
the parties hereto to execute these Terms of Use.
CONTACT US
In order
to resolve a complaint regarding the Site or to receive further information
regarding use of the Site, please contact us at:
Whitebark LLC
Phoenix
, AZ
85050
United States
Phone: (818) 381-9087
billing@whitebark.net