Effective July 1, 2020
c. We may modify the Agreement from time to time by notifying you of such modifications by any reasonable means, including by posting the revised version on the Platform. Your continued use of the Platform after any such changes indicates your acceptance of the modifications. You should check these Website Terms regularly to review the current version. Note that any such modifications will not apply retroactively to any dispute between you and us arising prior to the date on which we posted the revisions or otherwise notified you of the changes.
d. PLEASE NOTE: By entering into this Agreement, you are agreeing that any dispute or claim arising out of or relating to this Agreement or the Platform shall be resolved by final and binding arbitration in accordance with Section 7 of these Website Terms titled “Dispute Resolution”. Please be certain that you understand this requirement and discuss any concerns with your attorney.
2. Cancellation of Access to Platform and Agreement Termination.
a. We reserve the right to restrict or cancel your access to the Platform and its content or any part or feature thereof at any time. We may terminate this Agreement at any time and stop providing the Platform without penalty or liability. We reserve the right to pursue all other available remedies in addition to termination in the event of your breach of this Agreement.
b. This Agreement will become effective upon your first attempt to use or access the Platform, and thereafter will continue until such time as when you no longer use the Platform or the Agreement is terminated as permitted herein. Sections 2 through 7, 9(b), 11, and 12 will survive any termination of this Agreement in accordance with their respective terms.
a. You hereby agree to the use of electronic communication in connection with your use of the Platform (the “Communications”), including the posting of notices by us on the Platform to provide you any notice required hereunder. You further waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable law, which require an original, non-electronic signature or delivery or retention of non-electronic records.
b. Notices to us must be sent in writing to the address shown at the end of these Website Terms. Posting or messaging us on the Platform or a social media platform is not considered a form of providing notice to us hereunder, and you should not rely on or assume that we receive any communications submitted in such manner.
a. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE PLATFORM, AND (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR REPRESENTATIVES, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.
b. We do not represent or warrant that the Platform shall be without interruption, error-free, or completely secure. The Platform is provided on an “as is” basis, “with all faults” and “as available” and your use of the Platform is at your own risk. If you download or upload any content from or to the Platform, you will be solely responsible for any damages incurred.
c. The Platform is not intended to, and does not, constitute legal, professional, or financial advice, is not intended to be a substitute for such advice, and may not be used for such purposes. Always seek the advice of your attorney, tax advisor, financial planner, or other professional advisor with any questions you may have regarding such matters. Our representatives supporting the Platform are not authorized to provide any such advice or make any claims, representations, or warranties on our behalf. No written or verbal statement by our representatives shall supplement or amend this Agreement.
5. Limitations of Liability and Remedies.
a. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND COMPANY’S AFFILIATES DISCLAIM ALL LIABILITY FOR, AND SHALL IN NO EVENT BE RESPONSIBLE FOR, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, GOODWILL, AND THE LIKE) ARISING OUT OF YOUR USE OR INABILITY TO USE THE PLATFORM, OR ANY RELATED CAUSE, INCLUDING BUT NOT LIMITED TO OUR DELAY, ACT, ERROR, OR OMISSION OR THAT OF OUR AGENTS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. If you are dissatisfied with the Platform or the content of the Platform, your sole and exclusive remedy is to discontinue accessing and using the Platform. If you have any other dispute with us arising under this Agreement, you agree to resolve such dispute only in accordance with the Dispute Resolution process set forth in Section 6 hereof.
c. No action in any form arising out of this Agreement or the Platform, excepting only a claim for indemnification, shall be instituted more than one (1) year after the cause of action has arisen.
a. You agree to indemnify and hold Company, our affiliates, and our respective directors, officers, members, shareholders, employees, agents, representatives, contractors, and vendors harmless with respect to any suits, claims, demands, damages, and losses (including reasonable attorneys’ fees and associated court costs) arising out of (i) your breach of this Agreement or any representation or warranty herein contained; (ii), any infringement by you of the copyright or intellectual property rights of any third party; (iii) your use or misuse of the Platform; (iv) your violation of applicable laws, rules or regulations in connection with your use of the Platform; (v) our use and reliance on information or content provided by you pursuant to this Agreement; or (vi) any data or content that you submit, post, or otherwise provide to us, the Platform, or social media platforms.
7. Dispute Resolution.
a. The parties hereby agree that any dispute arising out of or relating to this Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (a “Dispute”) shall be resolved with the procedures set forth herein.
i. Upon written notice of any Dispute, the parties shall promptly attempt to resolve it within sixty (60) days (or such other timeframe as the parties may agree) by negotiation between individuals who have authority to settle the Dispute (the “Negotiation”). All communications, both written and oral, during this Negotiation process are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation process.
ii. Any Dispute not resolved through the Negotiation as set forth herein, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory, shall be resolved by final and binding arbitration in accordance with the applicable rules of the American Arbitration Association (the “AAA Rules”) in effect at the time of the arbitration, and as modified herein. You may obtain information about the American Arbitration Association (“AAA”) and its procedures from the AAA’s website at www.adr.org or by calling them at 1-800-778-7879.
1) The arbitration will be based only on written submissions of the parties and the documents submitted to the AAA relating to the Dispute, unless either party requests that the arbitration be conducted pursuant to the AAA’s in-person, telephonic, or on-line procedures. If the amount involved in the Dispute is less than $5,000, the arbitration will be conducted in the county of your last account address we have on file. If the amount in dispute is $5,000 or more, the arbitration will be conducted in the state of Delaware. The arbitration will be conducted using one arbitrator, unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel.
2) In conducting the arbitration, and in making any award, the arbitrator(s) will be bound by and must strictly enforce the terms of this Agreement, and will not expand, limit, or otherwise modify the terms of the Agreement. The arbitrator(s) will not have the authority to award punitive or exemplary damages or any other damages waived under this Agreement. Each party expressly waives any claims for an award of damages that are excluded under this Agreement.
3) Each party has the right to be represented by an attorney in any arbitration. The arbitrator(s) may award costs and/or attorneys’ fees to the prevailing party.
4) The arbitration will be confidential. Neither party may disclose the existence, content, or results of the arbitration, except to confirm and enforce the award, to its own legal or financial advisors, or as may be required by law.
5) The party initiating arbitration must pay the applicable AAA filing fee when submitting its written request for arbitration to the AAA. Unless otherwise provided for in the AAA Rules, or in the arbitration award, all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator(s), will be divided equally between the parties. The prevailing party may seek to recover from the other party the AAA’s fees and the expenses of the arbitrator(s). If a party selects an in-person, telephonic, or on-line arbitration process, such party must pay its share of any higher administrative fees and costs for the process it selects.
6) Each party understands and agrees that the arbitration shall be final, binding and conclusive upon both parties and their respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. The parties acknowledge that they are hereby waiving their rights to other resolution processes (such as other court action or administrative proceeding). There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these this Agreement as a court would.
7) Each Dispute will be resolved on an individual basis. Each party specifically agrees that each party may bring claims against the other only in its individual capacity, and not as a claimant or class member in any purported class or representative proceeding. This Agreement does not allow class or collective arbitrations even if allowed under the applicable AAA rules. Each party agrees that the arbitrator(s) may not consolidate proceedings for more than one individual’s claims, and may not otherwise preside over any form of a representative or class proceeding (“Class Arbitration Waiver”). Notwithstanding anything else contained herein, the validity and effect of the Class Arbitration Waiver may be determined only by a court and not by an arbitrator. Each party acknowledges that the Class Arbitration Waiver is material and essential to the resolution of any Dispute and is non-severable from this Section 7a. Therefore, if the Class Arbitration Waiver is limited, voided, or otherwise found unenforceable, then the entirety of this Section 7aii (but only this Section 7aii) shall be null and void and in such event if a party chooses to proceed with its claim it must do so in court.
8) Notwithstanding any other provision of this Agreement, the arbitrator(s) may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. No class or representative or private Attorney General theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement.
b. Notwithstanding the foregoing Section 7a, either party may bring an individual action against the other party in small claims court (or comparable court of competent jurisdiction) so long as the only parties to that action are you and us and the total value of the claims made in the action is less than $5,000. Further, nothing herein shall prevent us from enforcing this Agreement, including without limitation terminating the Agreement for your breach or referring your account to a third party for collections. Notwithstanding anything to the contrary herein, neither party is precluded from seeking injunctive relief in any court of competent jurisdiction for equitable remedies.
c. In the event any Dispute proceeds in court rather than through arbitration, for any reason, each party agrees that such Dispute will only be resolved on an individual basis (“Class Action Waiver”). Each party specifically agrees that it may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, to the extent any Dispute proceeds in court rather than through arbitration, for any reason, if not prohibited by applicable law each party waives any right to a jury trial (“Jury Trial Waiver”).
d. This Agreement, including its formation, construction, interpretation, and enforceability, is governed by and shall be construed in accordance with the law of the State of Delaware, without regard to its choice of law rules, except that the arbitration provisions are governed by the Federal Arbitration Act. Unless otherwise agreed, court proceedings arising out of or related to your relationship with us or this Agreement must be in the state of Delaware, provided that a small claims action permitted in Section 7b above may be brought in the jurisdiction of your account address on file with us. Subject to the arbitration requirements in this Section 7, for any court action in connection with this Agreement brought in a jurisdiction consistent with the foregoing sentence, each party agrees to submit to the personal and exclusive jurisdiction of such court and waives any objection as to venue or inconvenient forum. Each party agrees that regardless of any statute or law to the contrary, but not to the exclusion or in lieu of any such statute or law providing for a shorter limitations period, any claim or cause of action arising out of or related to your relationship with us or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
e. YOU UNDERSTAND AND AGREE THAT BY VIRTUE OF THE ABOVE CLASS ARBITRATION WAIVER, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER, YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY, YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY ARBITRATION OR LAWSUIT INVOLVING ANY DISPUTE WITH US ARISING UNDER THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, AND THAT YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
8. Limited License and Conditions for Use of Platform.
a. We grant you a personal, limited, non-exclusive, and revocable license to access and make non-commercial use of the Platform during the term of this Agreement subject to these Website Terms. We reserve any rights not expressly granted in these Website Terms. As a condition of such license, you acknowledge and agree that:
i. all logos, trademarks, copyrighted material, and other intellectual property on the Platform (the “Intellectual Property”) are owned or licensed by us or third parties. The limited license granted by these Website Terms does not convey ownership or other rights in the Intellectual Property;
ii. you will not reproduce, modify, copy, sell, lease, create derivative works from, upload, transmit, or distribute any Intellectual Property, applications, or other information, text, graphics, images, files, or data obtained from the Platform (collectively, the “Content”) without our express prior written permission, except for copies made in the ordinary course of accessing the Platform for your own internal non-commercial use in accordance with these Website Terms;
iii. you will not bypass any operational element or make any attempt to interfere with the proper working of this Platform, server or activities conducted therein or take any action that interferes with, compromises, or adversely affects us, our referral partners, other Platform users, or their respective servers, network, or other systems;
iv. you will not use any data mining bots, plug-ins, or other data gathering and extraction tools, scripts, applications, or methods on this Platform, nor will you attempt to decompile, reverse engineer, modify or disassemble any portion of the Platform or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Platform, or permit or induce the foregoing;
v. you will not alter the Content or use any meta tags or any other "hidden text" or utilize framing techniques to enclose any Intellectual Property or other proprietary information (including images, text, page layout, or form); and
vi. you will not otherwise exceed your limited access to the Platform as authorized by us.
b. This license does not include any resale, sublicensing, or commercial use or exploitation of the Platform or the Content or any downloading or copying of Content for the benefit of another merchant. This Platform or any portion of this Platform may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.
c. You are responsible for maintaining the confidentiality of any access credentials you create or receive in connection with your use of the Platform, and agree to accept responsibility for all activity that occurs using such access credentials. You further agree not to use anyone else's access credentials or otherwise attempt to bypass any security of the Platform.
d. The Platform is intended for viewing and use in the United States. Access or use of the Platform is unauthorized in any jurisdiction that does not give effect to all provisions of these Website Terms.
9. Platform and Social Media Conduct and Content.
a. We may encourage online interactions on social media platforms, including but not limited to on social media accounts that we manage. We reserve the right but disclaim any obligation to monitor the content on social media platforms, and assume no responsibility for content posted on social media platforms. We may delete or refuse any content on social media accounts that we manage in our sole discretion. Any content you post, such as pictures, comments, information, opinions, or any personal information that you make available to other participants on social media platforms, is subject to the terms & conditions and privacy policies of those platforms. Please refer to those social media platforms to better understand your rights and obligations with regard to such content.
c. You agree not to post on or transmit to or from the Platform or any social media account that we manage any material:
I. that is threatening or abusive, racist, defamatory or scandalous, obscene or pornographic, discriminatory, likely to incite hate or dangerous actions, in breach of confidence or privacy, or otherwise inappropriate;
ii. that you do not have the legal right to use;
iii. that constitutes or encourages conduct that would constitute a criminal or civil offense or give rise to criminal or civil liability; or
iv. that could harm the Platform, our systems, or any other user’s systems (such as computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, or other malicious software or harmful data).
10. Links To and From Other Websites, Applications, and Portals.
b. You are granted a limited, revocable, and nonexclusive right during the term hereof to create a hyperlink to the home page of this Platform subject to these Website Terms and the following conditions:
i. you do not replicate any page or Content of this Platform or create a border or browser environment around Content;
ii. you do not use, alter, or remove any Intellectual Property;
iii. you do not state or imply directly or indirectly that we endorse any content on the linked site or the beliefs of the site’s owners or any products or Platform other than our own;
iv. you do not directly or indirectly misrepresent your relationship with us or present incorrect information about us;
v. the linked site does not disparage us, our representatives, or our referral partners or their respective products or Platform or otherwise negatively affect or harm their reputation and goodwill;
vi. you link only from websites that you are authorized to use; and
vii. your website does not contain content that is false, misleading, disparaging, distasteful, offensive, or controversial, infringes the rights of any person, or fails to comply with applicable law; and
viii. you do not use any of our Intellectual Property as part of or in conjunction with a link without our express written permission.
11. Copyright Infringement Take-down Request Procedure Under the Digital Millennium Copyright Act (DMCA).
a. We respect the intellectual property right laws and we expect all users of our Platform to respect our rights and the rights of others under the applicable law. A copyright owner can, under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c), submit a notice to us if they believe that the content on our Platform is infringing. To submit such a copyright infringement notification to us, you will need to send us a written communication to the address shown at the end of these Website Terms. We expect the following information to be included in your notice:
i. The clear identification of the copyrighted work claimed to have been infringed. If the work is not easily attainable through public means (such as if the work was published over a year ago in a paperback magazine that is not easily accessible on the internet), we expect a copy of such work be included in your notice;
ii. A clear identification of the allegedly infringing material, and information reasonably sufficient to permit us to locate the material. If possible, we expect you to provide the URLs in the body of your notification;
iii. Contact information for the complaining party, such as an address, telephone number, and email address at which we may establish contact with such individual; and
iv. If the complaining party is not the owner of the rights allegedly being infringed, a letter signed by the owner authorizing the complaining party to act on behalf of the owner.
a. The parties intend that the applicable Federal statutory laws and the laws of the State of Delaware should be used to interpret and enforce this Agreement.
b. Each provision of this Agreement applies to the fullest extent permitted by applicable law. If any provision of this Agreement is determined by an authority of competent jurisdiction to be invalid or unenforceable in part or in whole for any reason whatsoever, the validity of the remaining provisions or portions thereof shall not be affected thereby and such authority should reform this Agreement to the extent necessary in a manner that comes closest to expressing the intention of the invalid and unenforceable provision while rendering the otherwise unenforceable provision or portion thereof valid and enforceable.
c. Our waiver of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver of any other covenant, condition or promise. Any delay in pursuing any remedy or in insisting upon full performance for any breach or failure of any covenant, condition or promise shall not prevent us from later pursuing any remedies or insisting upon full performance for the same or any similar breach or failure.
d. You may not assign this Agreement without our prior written consent. We may assign this Agreement at any time and without your consent, and upon such assignment we shall be relieved of any and all duties, obligations, and/or liabilities arising from this Agreement. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties hereto.
e. There are no third party beneficiaries to this Agreement. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
f. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
h. This Agreement may be published in a number of languages for information purposes and ease of access by customers. It is only the English version that is the legal basis of the relationship between you and us, and in case of any discrepancy between a non-English version and the English version of this Agreement, the English version shall prevail.
13. Our Contact Information.
Inquiries and written notices required pursuant to this Agreement may be sent to:
PO Box 92
Hopkinton MA 01748