REVIEW THESE TERMS CAREFULLY. BY ACCESSING OR USING OUR WEBSITES (IN WHOLE OR IN PART), INCLUDING WITHOUT LIMITATION, BY PLACING AN ORDER THROUGH OUR WEBSITES, YOU AGREE TO BE BOUND BY THESE TERMS. YOU MAY NOT VISIT OR USE OUR WEBSITES IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT MEET THE REQUIREMENTS IN SECTION 1.1.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT, JURY TRIALS OR PARTICIPATION IN A CLASS ACTION. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. THUS, CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU ACCESS OR USE OUR WEBSITES.
- ACCEPTANCE AND APPLICABILITY OF AGREEMENTS
- Without limiting anything set forth in the Agreements, by accessing or using our Websites, you represent to us that: (1) you are at least 18 years old; (2) you are legally able to enter into contracts; (3) you have not been barred from accessing or using our Websites under federal, state, local or other laws; and (4) you have not previously been suspended or prohibited from accessing or using our Websites for any reason.
- Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without liability to you or any third party:
- change or terminate all or any part of our Websites;
- restrict or terminate your access to all or any part of our Websites;
- refuse, move, or remove anything that is available on our Websites; or
- deny access to our Websites to anyone at anytime in our sole and absolute discretion.
- In the event of any conflicts between these Terms and the Agreements, unless otherwise specified in the Agreements, these Terms shall control.
- ACCESS TO AND USE OF OUR WEBSITES
- You may be able to create an account on our Websites. If you do so, you agree
- You are responsible for maintaining the confidentiality and security of your account;
- You will keep your password confidential and will be responsible for all use of your password and your account;
- You agree to change any account name or password if the password is lost, stolen, or otherwise compromised and to immediately notify us of such an incident.
- You authorize Outbreaks to access your account, including your data as necessary to administer, operate, or configure the Websites.
- Acceptable Use. Your access to and use of our Websites must comply with the following (the “Acceptable Use Restrictions”):
- You are only allowed to access and use our Websites for their intended purposes, as determined by us in our sole discretion.
- Without limitation, you shall not use or access our Websites other than as set forth in these Terms. Further, you shall not access or use the Websites to (1) violate any laws; (2) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; or (3) engage in commercial activity except as expressly permitted under the Agreements.
- You are also prohibited from: (1) reformatting or framing any portion of our Websites; (2) using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of our Websites; (3) taking any action that imposes, or may impose, as determined by us in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure; (4) modifying, adapting, disassembling, decompiling, translating or reverse engineering any portion of our Websites or otherwise attempting to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming interoperability interfaces of our Websites; (5) disrupting or otherwise interfering with our Websites or the networks or servers we use; (6) impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity; (7) collecting or storing, or attempting to collect or store, personal information about other users of our Websites, except as expressly permitted under the Agreements; (8) engaging in any activity that is illegal under federal, state, local, or other laws; (9) creating a false identity on our Websites; (10) creating an account on our Websites for anyone else except, and only to the extent, specifically permitted under the Agreements; (11) releasing to any third party information related to your access to or use of our Websites for purposes of monitoring our Websites’ availability, performance, or functionality, or for any other benchmarking or competitive purposes without our prior written approval; (12) copying our Websites, except as expressly permitted under the Agreements; (13) accessing or using our Websites in a service bureau or time-sharing environment (including, without limitation, accessing our Websites to provide third parties a service consisting solely of the collection and entry of data and other information on our Websites); (14) selling, assigning, transferring, sublicensing, pledging, renting, or otherwise sharing your rights under the Agreements; (15) creating any derivative works based on our Websites; (16) modifying, obscuring, or removing any proprietary notices on our Websites or copies thereof; and (17) harassing, annoying, intimidating or threatening any of our employees or agents engaged in providing any portion of the our services to you.
- Compliance with Applicable Laws. You certify that you will comply with all applicable laws (g., federal, state, local, and other laws) and the Agreements when accessing or using our Websites. Without limiting the foregoing, by accessing or using our Websites, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If you access or use our Websites outside the United States, you are solely responsible for ensuring that your access to and use of the Websites in such country, territory, or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation to, in our sole discretion, monitor where our Websites is accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Websites, in whole or in part, from any geographic location.
- Mistakes or Errors.
- Website Errors. We make a conscientious effort to describe and display our Products accurately on the Websites. Despite these efforts, a small number of items on the Websites may be mispriced, described inaccurately or unavailable, and we may experience delays in updating information on the Websites. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications and availability. We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. We apologize for any inconvenience. If we determine that there were inaccuracies in our Product information, we will cancel your order and notify you of such cancellation via email.
- Your Errors. Without limiting anything set forth in the Agreements, you acknowledge and agree that under no circumstances will we be responsible for any loss, damage or liability arising out of any mistakes or other errors made by you as a result of your access to or use of our Websites.
- You may be able to create an account on our Websites. If you do so, you agree
- PRODUCTS [TO BE REVIEWED]
- We create over the counter Products including natural, homeopathic cold sore remedies.
- Not Medical or Health Advice. Outbreaks is not a medical organization, and our staff cannot give you medical advice or diagnose you. The Websites are not intended to provide medical advice, diagnosis or treatment. The Products, information, and other content provided on and through the Websites are provided for informational purposes only and are not intended as a substitute for advice from your physician or other health care professional. Please consult with your physician or other healthcare professional regarding any medical or health-related diagnosis or treatment options. If you have a negative reaction to our Products, please stop using them.
- Not FDA Evaluated. The Products and the claims made about specific Products on or through the Websites have not been evaluated by the United States Food and Drug Administration and are not intended to diagnose, treat, cure or prevent disease. You should not use the information on this site for diagnosis or treatment of any health problem or for prescription of any medication or other treatment.
- PRICES AND PAYMENT
- All prices posted on the Websites are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
- Third Party Payment Processing. We currently use Stripe as our third-party payment processor. Stripe has its own separate terms of service. Before submitting any payment information on our Websites, you agree to read and be bound by Stripe’s End User Terms of Service available at: https://stripe.com/legal/end-users.
- ORDERS, RETURNS AND REFUNDS
- Orders. You agree that your order is an offer to buy, under these Terms, all Products listed in your order. We must accept each order. If we do not accept the order, we will not be obligated to sell the Products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between you and us will not take place unless and until you have received your order confirmation email.
- Returns. You may return unopened Products within 30 days of purchase by contacting us at email@example.com for a full refund of the purchase price and taxes [less the original shipping and handling costs]. Proof of purchase must accompany the return. To return the Products, you must send us a message at firstname.lastname@example.org with the subject “Returns” to start the return process. We will send instructions on how to return the unopened package(s) intact. Only one refund per customer.
- If you receive a Product with a broken glass applicator, please contact us for a full refund of the purchase price, taxes, and the original shipping and handling costs. [Your refund will be credited back to the same payment method used to make the original purchase on the Website.] Once you email us for a refund, we will then send you a Return Authorization Form to complete and return to us, along with a picture of your receipt and product.
- Goods Not for Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You represent and warrant that you are buying Products from the Websites for your own personal or household use only, and not for resale or export, unless otherwise specified in the Agreements.
- We will arrange for shipment of the Products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
- Risk of Loss. Title and risk of loss pass to you upon our transfer of the Products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. Deliveries that are refused may be returned to us, and it may take up to 30 days for returned Products to be processed for any potential refund or replacement.
- Delivery Address. You are responsible to check that your order has the correct “ship-to” address. P.O. Box numbers are not acceptable as a delivery address. For deliveries to a business, you need to indicate the name of the business. We take no responsibility for address errors in the order record. If the carrier delivers to an address that you incorrectly specified or if the carrier cannot deliver due to an address error, the order is still considered fulfilled.
- USER CONTENT AND INFORMATION
- User Content. In using the Websites, you may upload, import into, or create text, information, communication, or material, such as audio files, video files, or images (collectively, “User Content”). Although we reserve the right to edit or remove content that violates these Terms, you acknowledge and accept responsibility and liability for User Content posted by you.
- Sharing User Content. Depending on how you use our Websites, you may be able to share your User Content. Please carefully consider what you choose to share or make public as you are responsible for the User Content that you share.
- Reliance on User Content. We do not endorse any User Content, and are not responsible or liable for any User Content that appears on the Websites.
- By submitting ideas, suggestions, documents, proposals, products, and/or technologies (“Ideas” or “Innovations”) to us in any way, you acknowledge and agree that: (1) your Ideas and/or Innovations do not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Ideas and Innovations; (3) we shall be entitled to disclose (or choose not to disclose) such Ideas and Innovations for any purpose and in any way; (4) we may have something similar to the Ideas and Innovations already under consideration or in development; (5) your Ideas and Innovations which are not subject to a patent, automatically become our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
- Links to Third Party Websites. Our Websites may include links to other websites (g., sponsors’ and/or advertisers’ websites) or services solely as a convenience to you. You acknowledge and agree that we are not responsible for the availability of such external sites or resources and that we do not endorse and are not responsible or liable for any such linked sites or other information, material, products or services contained on or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites, unless otherwise provided in the Agreements. Your access to and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
- INTELLECTUAL PROPERTY
- All rights, title and interest in and to our Websites, including, but not limited to, all of the software and code that comprise and operate our Websites, and all of the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided through our Websites are owned by us or third parties who have licensed their content to us. Our Websites is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Websites is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of our Websites.
- The Outbreaks names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within our Websites, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Outbreaks (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks, and/or trade dress (collectively, “Other Marks”) mentioned, displayed, cited, or otherwise indicated within our Websites are the property of their respective owners. You are not authorized to display or use Our Marks in any manner without our prior written permission. You are not authorized to display or use any Other Marks that appear on our Websites without the prior written permission of the applicable third party.
- Limited License. Subject to your acceptance of, and compliance with, the Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use our Websites in a manner that is consistent with the Agreements and our Websites’ intended purpose(s). You obtain no rights in our Websites except to use them in accordance with the Agreements. Without limiting the generality of the foregoing, you shall not access or use our Websites in violation of the terms set forth in any of the Agreements, including, without limitation, the Acceptable Use Restrictions set forth in these Terms (collectively, “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission by any person of a Prohibited Activity and shall provide us with reasonable assistance upon our request with any investigations we may conduct in connection with any such Prohibited Activity.
- Reservation of Rights. We reserve all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under the Agreements, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any Intellectual Property Rights or other right, title, or interest in or to the Products or the Websites, or any and all intellectual property provided to any User in connection with the foregoing.
- Right to Terminate. Subject to the terms set forth in the Agreements, in addition to, and not in lieu of, any of our other rights set forth in these Terms, we reserve the right, with or without notice and in our sole discretion, to terminate these Terms, your account, and/or your ability to access or use our Websites for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Websites. You agree that we will not be liable to you or any third party for any such termination.
- Effects of Termination. If we exercise our termination rights available under the Agreements, your license to access and use our Websites shall immediately terminate and you must discontinue all access to and use of our Websites.
- Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive, or illegal activity, we may refer such matter to appropriate law enforcement authorities.
- The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms.
- PRODUCT LIMITED WARRANTY
OUTBREAKS PROVIDES A LIMITED WARRANTY FOR THE PRODUCTS AVAILABLE AT: [insert link to limited warranty].
OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NO ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY OUTBREAKS OR ANY OF ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
- Disclaimer of Warranties.
- OUR WEBSITES – INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF OUR WEBSITES – ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED RELATING TO OUR WEBSITES INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE FURTHER EXPRESSLY DISCLAIM THAT OUR WEBSITES WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
- YOU HEREBY ACKNOWLEDGE THAT OUR WEBSITES MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF OUR WEBSITES AND/OR TELECOMMUNICATIONS INFRASTRUCTURE, OR DISRUPTION. THEREFORE, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE OF OUR WEBSITES CAUSED BY SUCH FACTORS.
- UPON DELIVERY, YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE, HANDLING, STORAGE, USE, AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS BEFORE USING SUCH PRODUCTS, INCLUDING READING ANY WARNINGS OR INFORMATION PROVIDED ON PACKAGE RELATED TO ALLERGENS AND INGREDIENTS.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
- Disclaimer of Warranties.
- YOUR LIABILITY
- Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY ACCESS AND USE OUR WEBSITES IN ACCORDANCE WITH THE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEY FEES) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THESE TERMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US, OUR SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF OUR WEBSITES, YOUR CONNECTION TO OUR WEBSITES, YOUR VIOLATION OF THE AGREEMENTS, OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
- Additional Remedies. We reserve the right to seek all remedies available at law and in equity for your violation of the Agreements, including the right to block access from a particular Internet address to our Websites and report misuses to law enforcement.
- LIMITATION OF LIABILITY
- Maximum Liability. WITHOUT LIMITING ANYTHING SET FORTH IN THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY LAW, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR ACCESS TO AND USE OF OUR WEBSITES SHALL BE $100.
- No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR ACCESS TO OR USE OF OUR WEBSITES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR ACCESS TO OR USE OF OUR WEBSITE.
- Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS WILL ALSO APPLY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Notice to California Residents. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
- Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING OUR WEBSITE, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
- Agreement to Arbitrate.
- YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS OR YOUR ACCESS TO OR USE OF THE WEBSITES SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
- EXCEPTIONS TO INFORMAL NEGOTIATIONS AND ARBITRATION. YOU AND OUTBREAKS AGREE THAT THE FOLLOWING DISPUTES ARE NOT SUBJECT TO THE ABOVE PROVISIONS CONCERNING INFORMAL NEGOTIATIONS AND BINDING ARBITRATION: (1) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF ANY OF YOUR OR YOUR COMPANY’S INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, INVASION OF PRIVACY OR UNAUTHORIZED USE; AND (3) ANY CLAIM FOR INJUNCTIVE RELIEF. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR OUTBREAKS WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION WITHIN THE COURTS LISTED FOR JURISDICTION BELOW, AND YOU AND OUTBREAKS AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT.
- THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
- THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
- THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
- FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) WILL TAKE PLACE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR THE COURTS OF THE STATE OF DELAWARE.
- THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY DELAWARE LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONAS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
- THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
- THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
- EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 14.6, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OR USE OF OUR WEBSITES AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES.
- All challenges to the validity and applicability of this agreement to arbitrate (i.e., whether a particular claim or dispute is subject to arbitration) shall be determined by the arbitrator.
- Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
- Challenges to Validity of Agreement to Arbitrate. YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENTS TO THE CONTRARY, IF THE CLASS ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THE YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.
- Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF THE EFFECTIVE DATE OF THESE TERMS OR WHEN YOU FIRST YOU THE WEBSITE, WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING: “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:
PO Box 3126
Cary, NC 27519
- Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IN SECTION 14.3 ABOVE IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OR IF YOU OPTS OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 14.6, THEN, UNLESS PROHIBITED BY APPLICABLE LAW, THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE U.S. STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR THE STATE COURTS OF DELAWARE, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT.
- Prevailing Party. IN ANY ARBITRATION PROCEEDING OR ANY LEGAL SUIT, ACTION, OR PROCEEDING (AS APPLICABLE) BETWEEN YOU AND THE RELEASED PARTIES RELATED TO YOUR ACCESS TO OR USE OF THE WEBSITE, OR YOUR DEALINGS WITH THE RELEASED PARTIES, THE PREVAILING PARTY SHALL HAVE THE RIGHT TO COLLECT FROM THE NON-PREVAILING PARTY ITS REASONABLE ATTORNEY FEES AND COSTS, INCLUDING BUT NOT LIMITED TO ATTORNEY FEES, EXPENSES, AND COURT COSTS INCURRED DURING ENFORCEMENT OF THE AGREEMENTS.
- NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
- Outbreaks Policy. Outbreaks respects the intellectual property rights of others. We will remove our content and other materials from the Websites in accordance with the Digital Millennium Copyright Act (“DMCA”) upon receipt of proper notices that such content or other materials infringe a third party’s copyright.
- Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Websites infringes upon your copyrights, you may submit a notification pursuant to the DMCA to the address provided below. Such notification must contain the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic email address;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Outbreaks may disclose DMCA notices to affected users and third party databases that collect information about copyright takedown notices.
- Counter Notifications. If your content is removed pursuant to notice of copyright infringement and you want to challenge the removal, you must provide us with a counter notification at the address provided below. Such counter notification must contain the following:
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- a description of the material that was removed and where the material previously appeared on the Websites reasonably sufficient to permit us to identify the material;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside the United States, any judicial district in which Outbreaks may be found (the United States District Court for the District of Delaware or the State Courts of Delaware) and that you will accept service of process from the person who provided the original DMCA notice or an agent of such person; and
- your physical or electronic signature.
We will forward any complete counter notification to the person who provided the initial DMCA notice. The copyright owner(s) may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that such a lawsuit has been filed within ten (10) business days after we provide notice of your counter notification, we may, but are not obligated to, restore your content and other materials. Until that time, your content and other materials will remain removed.
- Repeat Infringer Policy. Without limiting anything else in these Terms, we will terminate your access to and ability to use the Websites if you are subject to three (3) DMCA Takedown Actions. A “DMCA Takedown Action” occurs each time your content or other materials are removed due to a DMCA notice. We may group multiple DMCA notices received in a short period of time as a single DMCA Takedown Action. We may remove a DMCA Takedown Action in appropriate circumstances, such as where: (1) the material is restored due to a counter notification; or (2) the party who submitted the DMCA notice withdraws their complaint.
- Address for Notices. DMCA notices and counter notifications may be sent to our designated agent, [Elizabeth Biggers?] at the following addresses:
By email to: email@example.com
By mail to: Outbreaks, Inc.
Attn: [Elizabeth Biggers?]
PO Box 3126
Cary, NC 27519
- ADDITIONAL TERMS
- Governing Law. These Terms will be governed by the laws of Delaware, without giving effect to any principles of conflicts of laws.
- Electronic Communications. The communications between you and Outbreaks use electronic means. For contractual purposes, you: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically, including, but not limited to, the Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Terms shall continue in effect.
- Our failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.
- Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in arbitration, judicial, or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- We reserve the right to transfer, assign, sublicense, or pledge these Terms, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense, or otherwise transfer in any manner whatsoever any of your rights or obligations under these Terms.
- The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.
- If you have any questions or concerns about our Websites or these Terms, please contact us at firstname.lastname@example.org.