TERMS OF SERVICE
Welcome to Nap York, which represents the website, mobile application, products, and services of Nap York Holdings, Inc. and all of its subsidiaries, affiliates, suppliers, etc. (“Nap York,” “Company,” “we,” “us,” or “our”).
1. USE OF OUR SERVICES
Nap York provides Services for its Users to enjoy a nutrition-focused café, a rooftop garden oasis, quiet working spaces, and our signature rest-enabling recharge pods, all of which collectively emphasize health and wellness. At our location(s), we offer Users a plethora of amenities themed for rest, relaxation, and tranquility.
This Agreement is a binding contract between you and the Company, and only in compliance with all applicable local, state, national, and international laws, rules, and regulations. If you do not agree to all of the Terms contained in this Agreement, then you may not use any of the Services. Any use or access to the Services is strictly restricted to Users over the age of 21, and any non-conforming or underage use shall be in violation of this Agreement. If the Company removes or restricts any User from the use of the Services, the Services shall no longer be available to that User.
B. Company Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services for your personal, noncommercial use only and as permitted by the features and limitations of the Services. Company. Company reserves all rights not expressly granted herein in the Services and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reasons. Company reserves the right to refuse service, terminate accounts, terminate your rights to use the Services, remove content, or cancel future use of the Services in its sole discretion.
C. Company Accounts
Your account with the Company gives you access to the Services and functionality that we may establish and maintain in our sole discretion. We may maintain different types of accounts for different types of Users. If you open an account on behalf of a company, organization, or other entity, then “you” includes both you and the entity. You represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Company via a third-party servicer, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You must provide your full legal name when creating your account or we may not be able to provide you any of the Services. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use strong passwords (using a combination of upper and lower-case letters, numbers, and symbols) with your account. You must notify the Company immediately of any breach of security or unauthorized use of your account. The Company will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Services by changing the settings of your account. By providing the Company your email address, you consent to us using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by using the “Unsubscribe” link provided at the bottom of such email messages. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy publically available materials from our website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with the other Company Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users, or for any User’s action or inaction.
In regards to the use of Services at our location(s), you acknowledge that our environment is one of tranquility and relaxation. Therefore, you agree and understand that while you are visiting our location(s) and are using the Services, you will respect our policy of silence and serenity. In light of this policy, you agree and understand that all noise levels are to be kept at an absolute minimum and all devices that emit sound must be silenced or turned off to preserve the peaceful nature of our environment. If you disturb the tranquility of other Users, then Company reserves the right to remove you from its premises. If you do not abide by our Check In/Check Out Policy, and affect other Users’ use of the Services, Company reserves the right to terminate your use of the Services and remove you from its premises.
2. USER CONTENT
Some areas of the Services allow Users to post content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Services “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Services, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Services for any reason or no reason.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current; or (ix) violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
Company reserves the right, but is not obligated, to reject and/or remove any User Content that Company believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Services and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B. Your User Content and Company’s use thereof as contemplated by this Agreement and the Services will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
C. Company may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
D. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Company takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts or sends over the Services. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of User Content.
3. USER CONTENT LICENSE GRANT
By posting any User Content on the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Services and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display, and perform such User Content as permitted through the functionality of the Services and under this Agreement.
4. MOBILE APPLICATION
Company shall make available to the Users an application software to access the Services via a mobile device (“Mobile App”). The Mobile App requires a mobile device that is compatible with the applicable software. Company does not warrant that the Mobile App will be compatible with your mobile device. You may use mobile data in connection with the Mobile App and may incur additional charges from your wireless provider for such services. You agree that you are solely responsible for any such charges. Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile App for one User account on one or more mobile devices owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile, or reverse engineer the Mobile App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Mobile App to any third party or use the Mobile App to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile App; (iv) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Mobile App, features that prevent or restrict use or copying of any content accessible through the Mobile App, or features that enforce limitations on use of the Mobile App; or (v) delete the copyright and other proprietary rights notices on the Mobile App. You acknowledge that Company may from time to time issue updated versions of the Mobile App, and may automatically electronically update the version of the Mobile App that you are using on your mobile device. You consent to such automatic updating on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such updates. Any third-party code that may be incorporated in the Mobile App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile App or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile App (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement. If the Mobile App is being acquired on behalf of the United States Government, then the following provision applies. The Mobile App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile App originates in the United States, and is subject to United States export laws and regulations. The Mobile App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile App and the Services.
Mobile App from Apple App Store. The following applies if you acquire the Mobile App from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and the Company, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
5. OUR PROPRIETARY RIGHTS
Except for your User Content, the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors (including other Users who post User Content to the Services). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services (“Ideas” or “Idea”). By submitting any Idea, you agree that your disclosure is gratuitous and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use any Idea provided without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
6. COMPANY PROPERTY
The Services contain data, information, and other content not owned by you (“Company Property”). You understand and agree that regardless of terminology used, Company Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Company’s sole discretion. Company Property is not redeemable for any sum of money or monetary value from Company at any time. You acknowledge that you do not own the account you use to access the Services, nor do you possess any rights of access or rights to data stored by or on behalf of Company on Company servers, including without limitation any data representing or embodying any or all of your Company Property. You agree that Company has the absolute right to manage, regulate, control, modify and/or eliminate Company Property as it sees fit in its sole discretion, in any general or specific case, and that Company will have no liability to you based on its exercise of such right. All data on Company’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON COMPANY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. COMPANY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON COMPANY’S SERVERS.
7. PAYMENT FOR SERVICES
A. Billing Policy
Certain aspects of the Services may be provided for a fee or other charge. If you elect to use paid aspects of these Services, you agree to the pricing and payment terms, as we may update them from time to time. Company may add new services for additional fees and charges, as well as add or amend fees and charges for existing Services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective following notice of such change to you as provided in this Agreement.
You understand that your use of the Services may result in charges or fees (“Fees”). After you have utilized or received the Services, Company may facilitate the processing of any Fees through a third-party payment processor or its own payment processing system. Fees will be inclusive of applicable taxes where required and Fees paid by you are final and non-refundable, unless otherwise determined by Company. Fees may be due immediately upon reserving, booking, or at conclusion of the Services, whichever is most practical for the Company. We reserve the right to change the Fees and will use commercially reasonable efforts to inform you of any such changes, but you remain fully responsible for any Fees incurred by your use of the Services nonetheless.
You agree to pay any Fees incurred by your use of the Services, including Fees due to cancellation or change, and authorize Company’s third-party payment processor or its own payment processor to charge the credit card you have on file in your account.
Company may offer certain promotions or discounts to you or other Users or all Users that result in changes in Fees. You acknowledge that such promotions shall only affect the Fees applicable to you if such promotion is applicable to you.
E. Payment Information; Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Services must be accurate, complete, and current. You agree to pay all charges incurred by your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions, or other monetary transaction interactions.
Payment shall be in the form you select when you register for the Services, or as subsequently updated as permitted by the Services. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. Any unpaid Fees related to returned or cancelled payments due to a contact or payment information error or omission may lead to suspension of your account and your access to use of the Services until such Fees are paid. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Services. If you dispute any payment made hereunder, you must notify Company in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to so notify Company shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by Company. No other measurements or metrics of any kind shall be accepted by Company or have any effect under this Agreement and you shall have no audit rights hereunder.
Company cares about the integrity and security of your personal information. However, we cannot reasonably guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. Although we will use commercially reasonable efforts to protect and preserve the privacy of your personal information, you acknowledge that you provide your personal information at your own risk.
8. THIRD-PARTY PROMOTIONS AND SERVICES
9. BAGGAGE STORAGE
A User who elects to utilize the baggage storage services (“Storing Party”) offered by Company, acknowledges and agrees that it is leaving its personal bags, luggage, or other items (“Stored Baggage”) in the possession of Company for the sole purpose of storing these items while the Storing Party utilizes the Services of Company at its location(s). Company will only release the Stored Baggage to the Storing Party, through ID verification, unless the Storing Party gives express written consent to release the Stored Baggage to a third party. The Storing Party acknowledge and agrees that Company shall return the stored baggage to the Storing Party in the same condition, in all material respects, as the condition when the Stored Baggage was first checked in. Upon check-out and acceptance of Stored Baggage by Storing Party, the Storing Party shall forever waive any right to a claim for liability or damages of any kind whatsoever against Company, its subsidiaries, affiliates, officers, directors, shareholders, employees, and agents.
The Storing Party represents and warrants to Company that no Stored Baggage shall contain illegal drugs or other substances, illegal drug paraphernalia, weapons, or other contraband of any kind. The Storing Party further acknowledges and agrees that the Storing Party shall defend, indemnify, and hold harmless Company, its subsidiaries, affiliates, officers, directors, shareholders, employees, and agents (collectively “Indemnified Parties”) from and against any claims, costs, damages, expenses, amounts owed to federal, state, or local as penalties or fines, or liabilities of any nature whatsoever, including interest, penalties, court costs, reasonable attorneys’ and other professional advisors’ fees accruing from such damages which are incurred or suffered by any of the Indemnified Parties in connection with or relating to any inaccuracy in the foregoing representation.
In no event shall Company be liable to the Storing Party for any damage, loss, or theft of the Stored Baggage or any items contained therein in excess of two hundred and fifty dollars ($250) per piece of Stored Baggage. Notwithstanding the foregoing, Company shall have no liability to the Storing Party if the Stored Baggage, or any portion thereof (whether a piece of baggage or contents within Stored Baggage) is confiscated by law enforcement, whether in the event of a breach of the Storing Party’s representation and warranty set forth above or otherwise by lawful execution of a search warrant or other lawful means. Any Stored Baggage left for more than fifteen (15) days may be discarded at the election of the Company and Company shall have no liability to the Storing Party in connection with such disposal.
10. LOST OR STOLEN PROPERTY
You understand and agree that you are solely responsible for your personal property and belongings. You must take reasonable precautions to protect your property. The Company does not assume any responsibility or liability for any damaged, lost, stolen, or destroyed property. We encourage you to keep all personal property under observation at all times unless the property is stored in accordance with the Baggage Storage policy above.
You agree to defend, indemnify and hold harmless Company, its officers, managers, employees, agents, licensors, its subsidiaries and other affiliated companies, and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; (vii) any other party’s access and use of the Services with your unique username, password or other appropriate security code; or (viii) any act or omission of yours during your use of the Services.
12. NO WARRANTY
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT THE SERVICES ARE FREE FROM ANY DEFECTS, ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR THAT ANY SUCH DEFECTS OR ERRORS WILL BE CORRECTED IN A TIMELY MANNER OR AT ALL. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE COMPANY SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THESE SERVICES. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Services are controlled and operated from facilities in the United States. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
14. WAIVER AND RELEASE OF LIABILITY
If Company sells to you or provides you with complimentary dietary supplements or over-the-counter drugs, you hereby agree and acknowledge that your receipt of such items from Company is voluntary and based on your express request. You understand that you alone are responsible for deciding which over-the-counter drugs and/or supplements are right for you, and that there are potential risks in taking over-the-counter drugs and/or supplements which may expose you to the risk of personal injuries, illness, property damage, or even death. You knowingly and voluntarily assume all such risks, both known and unknown, even if arising from the negligence of Company or its members, officers, agents, employees, sponsors, volunteers and insurers (“Releasees”), and you assume full responsibility for your participation. Notwithstanding anything herein to the contrary, you hereby agree to forever release Releasees from any and all actions, claims, or demands that you now have, or may have in the future, for injury, death, or property damage against Releasees, whether based on negligent acts or omissions, breach of contract, breach of warranty, strict product liability, or any other legal or equitable theories in connection with your decision to receive dietary supplements or over-the-counter drugs from Company. You understand and agree that this waiver and release of liability constitutes a complete legal release and assumption of risk for yourself, your heirs, personal representatives, spouse, family members, next of kin, successors, executors, administrators, agents and assigns, and you agree to indemnify, defend and hold harmless the Releasees from any suits, claims, demands, damages, judgments, losses, liability, costs or expenses of any nature whatsoever.
15. GOVERNING LAW
You agree that: (i) the Services shall be deemed solely based in New York State; and (ii) the Services shall be deemed passive that do not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York State. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The Parties acknowledge that this Agreement may evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and in conformance with the rules set forth by the American Arbitration Association. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless you and Company agree otherwise. If you are using the Services for commercial purposes, each Party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
17. CLASS ACTION/JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
18. NOTIFICATION OF CHANGES TO THE AGREEMENT
Company may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Services.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
20. ENTIRE AGREEMENT
This Agreement, together with any amendments and any additional agreements you may enter into with Company in connection with the Services, shall constitute the entire agreement between you and Company concerning the Services.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at firstname.lastname@example.org with any question regarding this Agreement.