This agreement (“Agreement”) is entered into between Winterlake Communications, Inc. (“Us”, “We” or “Our”) and you (“You” or “Your”). In order to use the website (“Site”), You must accept the terms and conditions stated below.
Description of the Site.
The Site is a publicly accessible website which enables You to access information and order products and services (“Services”).
Acceptance of Terms.
Your Acceptance of These Terms. You agree that this Agreement forms a legally binding agreement between You and Us relating to Your ability to use the Site. By: (i) checking the Accept box at the end of this Agreement; or (ii) using the Site, You agree to all of the terms and conditions set forth in this Agreement. You agree to use the Site only for lawful purposes permitted under this Agreement and in accordance with applicable law in Your relevant jurisdiction. If You do not agree to all of the terms and conditions, You may not use the Site. You may not access the Site if You are barred or restricted from accessing the Site under the laws of any country in which You are a resident or from which You access the Site.
Age Requirement. By using this Site, You certify that You are at least 18 years of age. If You are between 13 and 18 years of age, Your parent or legal guardian must accept the terms of this Agreement and agree to be bound by this Agreement. If You are accepting this Agreement on behalf of someone between 13 and 18 years of age, You understand and agree that You, as the parent or legal guardian, are fully responsible for such person’s actions, including, without limitation, all legal liability and financial obligations such person may incur.
Your Right to Use the Site.
Access to the Site. Subject to the terms set forth in this Agreement, We grant to You a non-exclusive, worldwide, non-transferable, and terminable license to use the Site.
Proprietary Rights. You acknowledge and agree that the Site contains proprietary Services and confidential information that belongs to Us or Our licensors. You agree that the Services and confidential information are protected by laws, including, but not limited to, laws relating to patents, copyrights, trademarks, trade secrets, other proprietary and intellectual property rights, unfair competition, and privacy (collectively, “Proprietary Rights”).
Content. You understand and agree that all information, including, but not limited to, text, graphics, pictures, audio, video, links, addresses, data, functionality, Services, and other materials (“Content”) that You obtain through the Site (collectively, “Content”) is the responsibility of the entities who post such Content and not Our responsibility (unless it is Our Content). We do not control all Content available through the Site nor do We have any obligation to review, refuse, or remove any Content available through the Site. We do, however, reserve the right to remove any Content from the Site at any time in Our sole discretion for any reason. You understand and agree that You may be exposed to materials and Content that You may find offensive, indecent, or objectionable, and agree that You use the Site at Your sole risk.
Accurate Information. You agree to provide accurate, current and complete information concerning Your account and to use reasonable efforts to maintain and promptly update the information to keep it accurate, current, and complete. You agree that if You provide information that is intentionally inaccurate, not current or incomplete in a material way, or We have reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, We have the right to suspend or terminate Your use of the Site, any portion thereof, or any products, services, or other benefits You receive from Us relating to the Site.
Payments and Taxes. All sales are final and will be billed to your payment source immediately upon placement of Your order with Us. If We provide for any delayed payment arrangement (which We will determine in Our sole discretion), all such payments are due within fourteen (14) calendar days. Returns may only be made for defective equipment and products. All payments due are in United States Dollars unless otherwise indicated. We accept PayPal (please contact Us for additional methods of payment). You authorize Us to bill the payment source You provide to Us for all applicable fees. If Your payment source is declined at any time (including, but not limited to situations where We seek authorizations or charge attempts), We may make up to two (2) attempts to reprocess Your payment source. We reserve the right to charge interest on all of Your past due accounts. Interest shall accrue at the rate of one and one-half percent per month or the highest maximum rate permitted by law, whichever is less, from the date such payment was due until fully satisfied. We reserve the right to suspend or cancel Your User Account. You are responsible for all of Our reasonable expenses (including attorneys’ fees) incurred by Us relating to collection activities associated with Your past due accounts. You are responsible for all taxes associated with Your use of the Site. If We are required to collect or pay any taxes relating to Your use of the Site, You will be charged for all such taxes. If You are tax exempt, You must provide Use with a valid tax exempt certificate authorized from the appropriate taxing authority.
Your Obligations Concerning Behavior.
No Reverse Engineering. You understand and agree that the rights granted to You are provided on the condition that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, publicly display, retransmit, publicly sell, lease, or transfer the Site or any part thereof or likewise attempt to discover any source code, modify the Site in any manner or form, or use unauthorized modified versions of the Site, including (without limitation) for the purpose of building a similar or competitive product or Site or for the purpose of obtaining unauthorized access to the Site. You agree not to access the Site by any means other than the interfaces that We provide to You. You are expressly prohibited from sublicensing Your right to use the Site to any third party or from permitting any Person other than You to use the Site under Your User Account.
Unacceptable Behavior. You also agree not to, in anyway in connection with the Site: i.impersonate any person or entity or falsely state or otherwise misrepresent Your identity or affiliation with any person or entity, or misrepresent any third-party’s identity or affiliation with any person or entity; ii.engage in any illegal, disruptive, or destructive acts including, without limitation, “trolling,” “flaming,” “flooding,” or “spamming” (such terms have common meanings within the context of the internet), or cause any unnecessary network usage or violate any service provider’s or carrier’s terms of service; iii.solicit or collect personal data including telephone numbers, addresses, last names, or e-mail addresses of other users; iv.perform any action that impermissibly results in charges or has an impact on any other user, service provider, or carrier; and v.provide any link to or web address of a website that contains material that would violate the terms of this Agreement.
Content Provided by You. You understand and agree that You relinquish all right, title, and interest in all information, postings, materials, contributions, likenesses, ratings, reviews, media, and any other content posted or provided by You on the Site relating to the Services, Site, or anything related thereto, You have no expectation of any ownership interest therein, and that We may use the aforementioned for any purpose without your consent.
You understand and agree that You will provide to Us, and We may provide to You certain information, some of which may be considered to be “Confidential Information.” Confidential Information will remain the sole and exclusive property of the party disclosing the Confidential Information and may not be disclosed to any third-party without the prior written consent of the party disclosing the Confidential Information. We agree to protect Your Confidential Information in the same manner We protect the confidentiality of similar information and data of Our own, and at all times We will exercise no less than a reasonable degree of care. Similarly, You agree to protect Our Confidential Information in the same manner You protect the confidentiality of similar information and data of Your own, and at all times, You will exercise no less than a reasonable degree of care. Items will not be deemed to be Confidential Information: (i) if they are available to the public; (ii) if they are rightfully received from a third-party who is not in breach of any obligation of confidentiality to You or Us, as applicable; (iii) if they are independently developed by You or Us without use of the Confidential Information; (iv) if they are known to You or Us at the time they are disclosed (other than under a separate confidentiality obligation); or (v) if they are produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of the same. The Site (including any ancillary goods or services) shall at all times be Our Confidential Information, including following any termination of this Agreement. We may use Your information (including Your Confidential Information): (a) to communicate with You; (b) to evaluate Your use of the Site, the Services You obtain via the Site, and any information You provide to Us; (c) to improve any products and services provided by or associated with the Site; and (d) in connection with any lawful purpose relating to the Site.
Disclosure of Certain Services. You authorize Us to send electronic and other transmissions (pursuant to any additional instructions that You may give to Us from time to time) of any current and future data that is loaded into the Site to those persons to whom You have authorized Us to disclose such data, provided such sending or transmitting of such data is, in Our discretion, commercially feasible.
Access and Security.
Your Responsibilities. You are responsible for: (i) certain aspects relating to the security of the Site, including, but not limited to Your access, user names, passwords, and the facilities You utilize to interact with the Site; (ii) all of Your activities that occur through or in connection with the Site; (iii) any act or omission by You relating to access to and use of the Site; and (iv) implementing security and other policies and procedures necessary to limit access to the Site, including, but not limited to, the maintenance of the confidentiality of all usernames and passwords. You agree to immediately notify Us of any attempted or actual unauthorized access or use of the Site and/or any other breaches of security. You acknowledge and agree that We will not be liable, directly or indirectly, for any acts or omissions by You, including any damages of any kind incurred as a result of Your acts or omissions. If You suspect or become aware of: (i) any loss of Your passwords; or (ii) any attempted or actual unauthorized access to Your accounts, You must immediately notify Us at firstname.lastname@example.org.
Transmissions and Processing of Services. You understand that the technical processing and transmission of Your electronic communications is fundamentally necessary to Your use of the Site. You expressly consent to Our interception and storage of Your electronic communications and/or Your data. You understand that Your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Us. You understand that changes to Your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks and devices. You understand that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that We are not responsible for any electronic communication and/or Your data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Us.
Reasons for Suspension. We will not monitor any Content or any Services, however, We reserve the right to remove any Content or Services, and suspend any access to the Site, as We may determine in Our sole discretion. Circumstances under which We may remove or suspend any Services, Content, portions of the Site, or Your access to the Site include, but are not limited to, violation of the terms of this Agreement (including, but not limited to, the Other Agreements), overly or unsubstantiated defamatory, inflammatory or damaging comments, abuse of the Site, virus or malware concerns, notification of possible infringement of another’s rights, privacy concerns, compliance with laws and under circumstances when We are assisting law enforcement.
Modifications to the Site. You understand and agree that We reserve the right to modify, suspend or discontinue any part or all of the Site at anytime and that We will not be liable to You (or to any third-party) for doing so, even if such modifications make it more difficult or impossible for You to interact with the Site or any Services You have ordered, acquired or paid for.
Our Obligations. You understand and agree that We may, without notice to You, access, preserve, and disclose any information provided by You (including, but not limited to details relating to Your User Account) if required to do so by law, or if, in Our reasonable judgment, such is reasonably necessary to: (a) comply with Your requests for assistance with the Site; (b) comply with legal process; or (c) address claims from third parties that any of the Services You have acquired or Your Content (or portions thereof) violate their rights.
Termination of Your Account.
Termination by You. You may cancel Your use of the Site at any time by providing notice to Us.
Termination by Us. You understand and agree that We may immediately terminate Your right to use the Site without notice to You under certain circumstances, including: i.breaches of this Agreement or Other Agreements; ii.requests by law enforcement, government agencies or court order; iii.security and technical issues or problems; iv.non-payment of any fees owed by You; or v.extended periods of inactivity.
Effects of Termination. You understand and agree that We will not be liable to You or any third party for any termination of Your right to use the Site. Upon termination, We may remove or delete any comments, reviews, ratings, or other information You have provided. We will have no further obligation to grant You any access to or use of the Site.
Links and Dealings with Outside Parties. We have no control over any links or other resources available to You via the Site. Your interaction with any third parties via the Site are solely between You and such parties. We are not responsible for the availability of such external resources, and do not endorse any content, advertising, products, or other materials on or available from such resources. We do not warrant any such third-party providers or any of their products or services. Any exchange of data or other interaction between You and a third-party provider, and any purchase or use by You of any product or service offered by such third-party provider, is solely between You and such third-party provider. You agree that We will not be liable, directly or indirectly for any loss or damage of any kind or nature arising out of or related to, or incurred in reliance upon, any such interactions, links, resources or content.
Your Indemnification of Us. You will indemnify, defend, and hold Us harmless from and against all liabilities, damages, and costs (including, but not limited to, reasonable attorneys’ fees and all settlement costs) arising out of or related to a third party claim regarding: (i) Your (or anyone using Your User Account) infringement or misappropriation any Proprietary Rights; (ii) any of Your acts or omissions, including, but nor limited to, Your misrepresentation of any information You provide to Us; or (iii) Your use of the Site in violation of this Agreement (including, but not limited to, Your breach of this Agreement). We reserve the right, at Your expense, to assume the defense (if applicable) and control of any matter relating to Us, and You shall provide reasonable assistance with respect to such claims. You will not settle any matter relating to Us without Our prior written consent.
Representations and Warranties.
Your Representations and Warranties. You represent and warrant that:
- All of the information You provide to Us is correct;
- You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You under this Agreement;
- You will not harasses or causes distress or inconvenience to any person via the transmission of obscene or offensive material of any kind;
- You will not disrupt the normal flow of any access to, or use of, the Site;
- You will not use any of the Services in a manner not permitted under this Agreement or in a manner that interferes with any websites or network resources operated by Us or any third-party;
- You agree to comply with all applicable tax laws regarding the purchase of any materials obtained through the Site, and that compliance with such tax laws is Your responsibility and that of the providers of such materials, and not Our responsibility; and
- You agree to comply with all local rules regarding online conduct.
Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SITE OR TO ANY INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY MERCHANDISE OFFERED ON THIS SITE;
WE MAKE NO WARRANTY THAT:
- (i) THE SITE WILL MEET YOUR REQUIREMENTS;
- (ii) THE SITE WILL BE TIMELY, SECURE, ERROR-FREE OR OPERATE IN AN UNINTERRUPTED FASHION;
- (iii) ANYTHING AVAILABLE THROUGH OR OBTAINED FROM THE SITE WILL BE ACCURATE, RELIABLE, OR USEFUL; AND
- (iv) ANY ERRORS WILL BE CORRECTED;
- (v) ANY INFORMATION, PRODUCTS, SERVICES, OR OTHER ITEMS OBTAINED VIA THE SITE ARE PROVIDED TO YOU SOLELY AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY HARM TO YOU OR OTHERS, DAMAGE TO YOUR COMPUTER, SYSTEMS OR OTHERWISE OR LOSS OF DATA THAT RESULTS FROM ANYTHING OBTAINED VIA THE SITE; AND
- (vi) ONLY THE LIMITATIONS WHICH ARE ALLOWED AND LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU. OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW; AND PRODUCT INFORMATION ACCESSED THROUGH THIS SITE IS PROVIDED BY THE PRODUCT’S PRODUCER, SUPPLIER, OR MANUFACTURER. YOU UNDERSTAND THAT PRODUCERS, SUPPLIERS, AND MANUFACTURERS MAY ALTER LABELS SUCH THAT ACTUAL PRODUCT PACKAGING AND MATERIALS MAY CONTAIN DIFFERENT INFORMATION THAN THAT SHOWN ON THIS SITE. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY PRODUCT INFORMATION. YOU MAY NOT RELY SOLELY ON THE INFORMATION PRESENTED. YOU MUST READ LABELS, WARNINGS, AND DIRECTIONS BEFORE USING ANY PRODUCT. WE ASSUME NO LIABILITY FOR ANY INACCURACIES ABOUT PRODUCTS. YOU UNDERSTAND AND AGREE THAT CUSTOMER REVIEWS AND OTHER USER GENERATED CONTENT IS PROVIDED SOLELY FOR INFORMATIONAL PURPOSES AND IS NOT PROVIDED BY US. CUSTOMER REVIEWS ARE SOLELY THE INDIVIDUAL REVIEWER’S VIEWS.
Limitation of Liabilities.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT
- (i) WE (INCLUDING ALL OF OUR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND LICENSORS) SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) USE OR THE INABILITY TO USE THE SITE;
- (ii) THE COST OF OBTAINING SUBSTITUTE GOODS OR SERVICES;
- (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
- (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE;
- (v) ANY INFORMATION, PRODUCT, OR SERVICE YOU OBTAIN THROUGH THE SITE; OR
- (vi) ANY OTHER MATTER RELATING TO THE SITE. OUR MAXIMUM LIABILITY IS LIMITED TO THE LESSER OF THE AMOUNT YOU ACTUALLY PAID FOR ANYTHING ORDERED THROUGH THE SITE IN THE SIX (6) MONTH PERIOD PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR FIFTY DOLLARS ($50).
Entire Agreement. Except for the Other Agreements, this Terms of Site constitutes the entire agreement between Us and You regarding the Site and supersedes any prior agreements between Us and You with respect to the Site.
Choice of Law. You and We agree that this Agreement will be governed by the law of the State of New York, USA, without regard to conflicts of law principles or provisions.
No Waiver. Our failure or Your failure to exercise or enforce any right or provision of this Agreement or the Other Agreements shall not constitute a waiver of the right or provision. If any provision of this Agreement or the Other Agreements is found by a court of competent jurisdiction to be invalid, then You agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement and the Other Agreements remain in full force and effect.
Force Majeure. Performance by any party of any obligation hereunder shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event, and prompt notice thereof has been given to the other party. If any party fails to perform any duty or obligation hereunder as a result of a force majeure event, such party shall be required to fulfill its obligations hereunder within a reasonable time after the force majeure event ceases to exist.
No Assignment By You. You agree that Your rights under this Agreement are personal to You, and that You do not have the right to assign, transfer or convey (by operation of law or otherwise) this Agreement or any right or interest under this Agreement herein in whole or in part without Our prior written consent. Any attempt to do so shall be null and void.
We May Assign the Agreement. You understand that We may transfer ownership or operation of all or any part of the Site to another person, and You agree that if We do so We may assign Our rights and obligations under this Agreement to another person. You will remain bound by all of the terms and conditions of this Agreement following any such assignment by Us.
Our Right to Amend the Agreement. We have the right to amend the Agreement at any time without notice to You. You acknowledge and agree that if You use the Site following such an amendment, You will automatically be bound by all of the terms in the amended Agreement as if those terms were in the original Agreement accepted by You.
Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
Export Control Notice. Regardless of any disclosure made by You to Us of an ultimate destination or use of the Site or any Services, or other materials, products, goods, or services You obtain through the Site, You acknowledge and agree that such may be subject to the United States export control laws. You acknowledge Your exclusive obligation to ensure that Your obtaining and use of any Services, materials, or services are in compliance with the United States export control laws.