Last Updated: September 30, 2013
1. INTRODUCTION AND ACCEPTANCE
2. INTELLECTUAL PROPERTY
3. ACCESS AND USE
- (a) We may offer certain portions of our Services at no charge (e.g., Websites) and others for a one-time fee, on a subscription basis or under any other lawful pricing structure (e.g., mobile Applications). In all instances, our Services are not being sold to you; rather, you are being granted a limited license to use our Services. In addition, the license to use of any of our paid Services does not necessarily transfer across operating systems and/or different equipment (e.g., mobile devices, computers, etc.). For example, unless we specifically tell you otherwise, the use of any of our mobile Applications is limited to the relevant device and/or operating system you are using at the time you purchase the license to use the Application.
- (c) Any software that is made available to view and/or download in connection with our Websites is owned or controlled by us and/or licensors, affiliates and suppliers and is protected by copyright laws and international treaty provisions. Your use of the software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the software. We accept no responsibility or liability in connection with any software owned or controlled by third parties.
- (i) Remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Service Content;
- (ii) Circumvent, disable or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Service Content;
- (iii) Use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Service Content for any purpose (except for that which routinely occurs through the use of bona fide search engines) without our express written permission;
- (iv) Collect or harvest any personally identifiable information or non-personally identifiable information from our Services including, without limitation, user names, passwords, email addresses;
- (v) Solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
- (vi) Attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same;
- (vii) Decompile, reverse engineer, or disassemble any portion of our software or other Service Content, or our Services;
- (viii) Use network-monitoring software to determine architecture of or extract usage data from our Services; 3 Last updated: December 31, 2012
- (ix) Encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity;
- (x) Violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
- (xi) Engage in any conduct that restricts or inhibits any other user from using or enjoying our Services.
- (g) For additional terms applying to contests or sweepstakes conducted by this Website, refer to this Website’s contest or sweepstakes information section, if applicable.
4. USER REGISTRATION & PROMOTIONAL MESSAGES
5. USER CONTENT
- (a) We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
- (b) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
- (c) You represent, warrant, and covenant that you will not submit any User Content that:
- (i) Violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
- (ii) Impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, or otherwise violates any applicable law;
- (iii) Encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law;
- (iv) Is an advertisement for goods or services or a solicitation of funds;
- (v) Includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
- (vi) Contains a formula, instruction, or advice that could cause harm or injury; or
- (vii) Is a chain letter of any kind.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.
- (f) We do not accept or consider, directly or through any employee or agent, unsolicited ideas of any kind, including without limitation, creative content, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images or other work in any form (“Unsolicited Materials”). If you send us Unsolicited Materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them:
- (i) We have no obligation to review any Unsolicited Materials, nor to keep any Unsolicited Materials confidential; and
- (ii) We will own, and may use and redistribute Unsolicited Materials for any purpose, without restriction and free of any obligation to acknowledge or compensate you
- (g) Notwithstanding the generality of the foregoing, we reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising, marketing, promotional, and other commercial purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners, marketing partners, accounts, and third-party service providers (including their downstream users).
- (h) We have the right, but not the obligation, to monitor User
Content. We have the right in our sole discretion and for any reason
whatsoever to edit, refuse to post, remove, or disable access to any
- (i) All requests for service and support for items purchased from us should be made directly to the manufacturer in accordance with their terms and conditions.
- (j) In many instances, Service Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.
- (k) Our Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
- (l) Your correspondence or business dealings with, or participation in contests or promotions of advertisers and other third parties (i.e. entities other than Penfold) found on or through this Website, including payment and delivery of related goods or service, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such party. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the website.
- (b) If you are using our Website on behalf of a business, that business accepts these terms. It will hold harmless, defend and indemnify the Website Parties from any claim, suit or action arising from or related to the use of the Website or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorney’s fees.
8. DISCLAIMER OF WARRANTIES
You expressly agree that use of our Services is at your sole risk. Our Services and Service Content (including software) are provided on an “as is” and “as available” basis without warranty of any kind, either express or implied. Without limiting the foregoing and to the fullest extent permitted by law, the Website Parties disclaim any and all warranties including any:
- (i) warranties that our Services will meet your requirements;
- (ii) warranties concerning the availability, accuracy, security, usefulness, timeliness, or information content of our Services or Service Content;
- (iii) warranties of title, non-infringement, merchantability, or fitness for a particular purpose;
- (iv) warranties for services or goods received through, advertised or accessed through our Services;
- (v) warranties concerning the accuracy or reliability of the results that may be obtained from the use of our Services;
- (vi) warranties that your use of our Services will be sure or uninterrupted; and
- (vii) warranties that errors in our Services or Service Content (including software) will be corrected.
9. LIMITATION ON LIABILITY
- (c) These limitations shall apply to the fullest extent permitted by law. In some jurisdictions limitations of liability are not permitted; in such jurisdictions, some of the foregoing limitations may not apply to you.
11. COPYRIGHT POLICY
- (a) We respect the intellectual property rights of others and expect users to do the same. of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our Websites or hosted on our systems that may be infringing or the subject of infringing activity.
- (b) In accordance with the Digital Millennium Copyright Act of 1998, Title
17 of the United States Code, Section 512 (“DMCA”), we will respond promptly
to claims of copyright infringement that are reported to the agent that we
have designated to receive notifications of claims infringement (our “DMCA
Compliance Officer”). The DMCA Compliance Officer for notice of claims of
copyright infringement on our Website can be reached by clicking the “Contact
Us” link on our Website.
- (c) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our DMCA Compliance Officer with a written notification of claimed infringement that includes substantially the following information:
- (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single Website are covered by a single notification, a representative list of such works at that Website;
- (iii) 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 us to locate the material;
- (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- (v) 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
- (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
12. CHOICE OF LAW; JURISDICTION AND VENUE
13. DISPUTE RESOLUTION & MANDATORY ARBITRATION
- (a) We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at the address provided in the “Contact Us” link on our Website. We will contact you based on the contact information you have provided us.
- (b) If, after thirty (30) days, the parties are unable to resolve any dispute raised under the previous provision, the dispute may only be submitted to arbitration consistent with this section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they instead choose to have any disputes resolved through arbitration.
- (c) We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS directly.
- (d) We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
- (e) Either of us may bring qualifying claims in small claims court. Furthermore, as set forth below, we each agree that any arbitration will be solely between you and us, not as part of a class-wide claim (i.e., not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn't apply and the class-wide dispute must be brought in court.
14. NO CLASS ACTIONS
To the extent permitted by law, we each waive any right to pursue disputes on a class-wide basis; that is, either to join a claim with the claim of any other person or entity, or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.
15. NO TRIAL BY JURY
To the extent allowed by law, we each waive any right to trial by jury in any lawsuit, arbitration or other proceeding.
16. AMENDMENT; ADDITIONAL TERMS
- (a) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.