Terms of Service

Last modified: April 17, 2024

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY BEFORE ACCESSING OR USING OUR WEBSITE.  

THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

Acceptance of the Terms of Use

These terms of use are entered into by and between You and On3 Media Inc. (“Company“, “we” or “us“). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use“), govern your access to and use of on3.com, including any content, functionality and services (collectively, the “Services”) offered on or through on3.com (the “Website“), whether as a guest or a registered user.

Please read the Terms of Use carefully before you start to use the Services. By using the Website or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, our Privacy Policy, and our DMCA Policy, incorporated herein by reference. If you do not want to agree to these Terms of Use, the Privacy Policy or Copyright Policy, you must not access or use the Website. 

This Website is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website. See our Privacy Policy for more information about contacting On3 Media Inc. if you believe we have collected information from a child under 18.

Changes to the Terms of Use

You can review the most current version of the Terms of Use at any time on this page. We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice prior to the date the change is posted on the Website. 

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page frequently, so you are aware of any changes, as they are binding on you. 

Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

You are responsible for both:

  • Making all arrangements necessary for you to have access to the Website.
  • Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete. You agree that all information you provide to register with this Website or otherwise, including but not limited to through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You are responsible for maintaining the confidentiality of your account information and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your username or password

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including, if, in our opinion, you have violated any provision of these Terms of Use.

Intellectual Property Rights

The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only, except expressly agreed otherwise in writing. Unless expressly agreed otherwise in writing, You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.

Unless expressly agreed otherwise in writing, you must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website. 

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

Trademarks

The Company name, the terms, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.

Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). 
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To transmit, or procure the sending of, any advertising or promotional material without our prior written consent,, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail or screen names addresses associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

  • Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Website.
  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website. 
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.

Third Party Contributions

You and other visitors to the Website may participate in interactive features on the Website (the “Interactive Services”) which include, but are not limited to, posting or submitting reviews, comments, suggestions, ideas, or other information (collectively, “User Contributions”). Participation in the Interactive Services is permitted so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.”  You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content.

 The Company reserves the right (but not the obligation) to remove or edit User Contributions, but does not regularly review posted content. Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose. 

You and third parties may be permitted to upload certain software (including machine images), data, text, audio, video, images or other content (“Third Party Content”) to community areas of the Website. You acknowledge that (a) the Company has not tested or screened Third Party Content, (b) you use any Third Party Content is at your sole risk, and (c) Third Party Content may be subject to separate license terms as determined by the person posting such content.

You understand and acknowledge that you are responsible for any Third Party Content you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. You represent and warrant that you own or otherwise control all of the rights to the content, including any Third Party Content, that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify the Company for all claims resulting from content you supply. The Company has the right but not the obligation to monitor and edit or remove any activity or content. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Website.

Copyright Infringement

If you believe that any User Contributions violate your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers. 

Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, timeliness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. 

We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction.

Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material. 

Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. 

Other Terms and Conditions

Additional terms and conditions may also apply to specific portions, services or features of the Website. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

Linking to the Website and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent. 

This Website may provide certain social media features that enable you to:

  • Link from your own or certain third-party Website to certain content on this Website.
  • Send e-mails or other communications with certain content, or links to certain content, on this Website.
  • Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party Website.

You may use these features solely as they are provided by us and, solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

  • Establish a link from any website that is not owned by you.
  • Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
  • Link to any part of the Website other than the homepage.
  • Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion. 

Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party Website linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such Website.

Modifications to The Service and Prices

All prices, discounts, and promotions posted on the Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. To the extent that we are required by law to charge and collect taxes on products that we sell, such taxes are charged based on the tax laws applicable to the location to which the order is being shipped or delivered. At checkout, all appropriate taxes will be added to the order total. The tax amount displayed during checkout is an estimate of the tax applicable to your order. This amount may vary slightly from the actual amount of tax payable in connection with your order due to different tax rates which apply as a result of the origin and destination of the item(s) being purchased, as well as other factors. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

We reserve the right at any time to modify or discontinue one or all of the Website (or any part or content thereof) without notice at any time. We further reserve the right to modify our customer loyalty program, including, but not limited to, the method of earning points, the value of points, the ability to earn points, and the redemption of points. 

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Website.

Subscription Products

The Subscription Products include all or portions of the website On3.com and their mobile sites, and tablet and mobile apps that are offered for a subscription fee. You are not necessarily required to purchase anything to use the Subscription Products. If you do not purchase a subscription, however, your access to the Subscription Products may be limited or restricted.

We reserve the right to modify the content, type and availability of any Subscription Product at any time. Additionally, we reserve the right to change or terminate any offered subscriptions or promotions at any time.

Subscription

a. Auto-renewing Subscription. Your Subscription Products, which may start with a discounted rate, will auto-renew at the end of the billing cycle stated at the time of your order (“Billing Period”) at the then-current rate  unless and until you cancel your subscription or it is terminated by On3 Media.

b. Differing Subscriptions/Promotions. We may offer various types of subscriptions, including subscriptions to different services and special promotions. Any materially different terms from those described in these Terms of Service will be disclosed at the time of purchase or in other communications made available to you. You can find details regarding your subscription by visiting your account management page at https://www.on3.com/my/settings/. We reserve the right to change or terminate any offered subscriptions or promotions at any time.

Billing

a. Payment Method. You can pay for your subscription with a major credit card (“Payment Method”).  If your payment is unsuccessful by reason of insufficient funds, expiration, or otherwise, you remain responsible for any uncollected amount.

b. Recurring Billing. By placing an order for a Subscription Product, you authorize us to charge you the subscription fee then in effect at the beginning of each Billing Period to your Payment Method. For example, you authorize us to charge your Payment Method the promotional rate disclosed on the subscription screen in the initial Billing Period (if applicable) and the regular subscription rate in subsequent Bill Periods. We reserve the right to change the timing of our billing, in particular, in the event your Payment Method has not successfully settled. If your Payment Method is declined for a recurring payment of your subscription fee, provide us a new Payment Method promptly or your subscription will be canceled.

You acknowledge that the amount charged each Billing Period may vary for reasons that may include price changes or changing your subscription, and you authorize us to charge your Payment Method for such varying amounts each Billing Period.

c. Price Changes. We reserve the right to change subscription fees at any time. We will notify you of any changes if the regular fee for your subscription changes from what was stated at the time of your initial order. You will have an opportunity to cancel your subscription. If you do not cancel your subscription 24 hours prior to the renewal, you will be charged the new subscription fee at your next Billing Period.

d. Billing Period. We will charge the subscription fee at the commencement of your subscription, and then automatically at the start of each recurring Billing Period thereafter unless and until your subscription is canceled.

Cancellations and Refunds

a. Cancellations. You can cancel your subscription at any time by going to your account management page. You must cancel your subscription at least 24 hours before it renews each Billing Period to avoid billing of the next Billing Period’s subscription fees to your Payment Method. Accordingly, when you cancel, you cancel only future charges associated with your subscription, and you will not receive a refund for the current Billing Period. Your cancellation will become effective at the end of your current Billing Period, and you will continue to have access to your subscription for the balance of the Billing Period. In the unlikely event that a renewal charge is applied after you have submitted a cancellation request, we will promptly issue a refund.

b. Refunds. Payments are non-refundable, and there are no refunds or credits for partially used Billing Periods. 

Premium Ad-Free Subscription Tier

In addition to our standard Subscription Products, we offer a Premium Ad-Free Subscription tier for users who wish to enjoy On3.com without the interruption of banner ads. Below are the details regarding this tier:

a. Premium Ad-Free Subscription. If you elect to upgrade to our Premium Ad-Free Subscription, you will experience the removal of regular banner ads that are dynamically inserted across the website. Please note that the Premium Ad-Free Subscription pertains exclusively to the elimination of standard dynamic banner advertising. It does not extend to other forms of advertising and sponsorship content that may be present on the site. These include but are not limited to:

  •    Hard-coded sponsorships that are integrated into the content layout.
  •    Video advertisements that may be part of our video content offerings.
  •    Podcast advertisements that are incorporated within our podcast series.
  •    Custom ad units that are specifically designed for special content pieces.
  •    Special sponsorships that may be featured on certain sections of the site or during specific events.

Your Premium Ad-Free Subscription does not affect the placement, frequency, or existence of these other advertising formats. We reserve the right to modify the terms of the Premium Ad-Free Subscription, the types of advertisements it excludes, and the availability of the subscription tier at any time.

Upgrading to Our Ad-Free Subscription: A Guide to Prorated Billing

1. Ad-Free Tier Pricing
Standard Rate: The ad-free subscription is offered at a fixed rate, which is clearly displayed during checkout. This rate remains consistent, irrespective of any previous special offers or subscription plans you might have availed.

2. Concluding Promotional Offers
Transition from Promotions: Opting for the ad-free upgrade means ending any active promotional offers. Post-upgrade, the standard rate of the ad-free tier will apply.

3. Understanding Prorated Credits
Credit for Unused Subscription: If you still have time remaining on your current subscription, we calculate its unused value and apply it as a credit. This credit reduces the cost of upgrading, ensuring you pay only for the net difference.

Illustrative Examples

  • Example 1:
    • Initial Subscription: Paid $49.99 for a yearly plan.
    • Usage and Remaining Duration: 83 days used, 282 days remaining.
    • Credit Calculation: Daily rate is $0.14 ($49.99/365). Credit for unused days (~282) is approximately $39.
    • Upgrade Cost: Standard ad-free tier price is $149, minus $39 credit, leading to a final upgrade cost of $110.
  • Example 2:
    • Initial Subscription: Paid $99.99 for a yearly plan.
    • Usage and Remaining Duration: 45 days used, 320 days remaining.
    • Credit Calculation: Daily rate is about $0.27 ($99.99/365). Credit for unused days (~320) is approximately $86.40.
    • Upgrade Cost: Standard ad-free tier price is $199.99, minus $86.40 credit, resulting in a final upgrade cost of $113.59.

4. Tax Considerations
Tax Implications: The final amount may be subject to local tax laws and rates. The actual cost might vary accordingly.
Billing Statement: Your final invoice will reflect these taxes, itemized for clear understanding.

E-Sign Disclosure and Consent

By purchasing a Subscription Product and/or clicking on the box at account opening, you consent to receive notices, disclosures, agreements, policies, receipts, confirmations, transaction information, account information, other communications, and changes or updates to any such documents electronically (collectively, the “Electronic Messages”). You agree that the Electronic Messages will satisfy any legal communication requirements, including that such communications be in writing.

Accuracy of Billing and Account Information

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. We are not responsible for failure to receive an order or technical problems that may hinder the efficacy of an order.

Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

Geographic Restrictions

We make no representations or warranties that the Websites is appropriate or available for use in your country of origin. Visitors who choose to access the Websites do so at their own initiative and are responsible for compliance with any and all local laws and regulations that may apply to such access. 

Disclaimer of Warranties

We do not guarantee, represent or warrant that your use of the Websites will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of the Websites will be accurate or reliable.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITE LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.

Force Majeure

We will not be liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of customer or any of its representatives, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses. The Websites may be temporarily unavailable from time to time for maintenance or other reasons.

Termination

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Use are effective unless and until terminated by either you or us.

You may terminate these Terms of Use at any time by notifying us that you no longer wish to use the Websites or when you cease using the Websites.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Use, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to the Websites (or any part thereof).

Governing Law and Jurisdiction

All matters relating to the Websites and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

Dispute Resolution and Arbitration

YOU AND COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Section 12. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.

You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR COMPANY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. 

Waiver and Severability

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect. 

Entire Agreement

The Terms of Use, our Privacy Policy, Copyright Policy, and End User License Agreement, and Services Agreement, if applicable, constitute the sole and entire agreement between you and Company with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website. Each of the above listed agreements is incorporated herein in its entirety by reference. 

Your Comments and Concerns

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