By accessing the Site in any way, including, without limitation, browsing the Site, using a mobile application, using information obtained from the Site, and/or submitting information to D7, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including, but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Delaware law.
From time to time we may update the Site and these Terms. Your use of the Site after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. D7 may, in its sole discretion, and at any time, discontinue the Site or any part thereof, with or without notice, or may prevent your use of the Site with or without notice to you. You agree that you do not have any rights in the Site and that D7 will have no liability to you if the Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.
By accessing the Site, you acknowledge and agree that any materials, ideas or other communications you transmit to us in any manner and for any reason will not be treated as confidential or proprietary. Should you submit such materials, you understand that you have no ownership rights in any ideas you may submit, and you expressly disclaim any rights or causes of action you may have with respect to any materials you may submit.
Content on the Site that is provided by D7 or its licensors, including certain graphics, photographs, artwork, merchandise, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“D7 Content”) is the property of Div 7 Inc and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.
Unless otherwise specified on the Site, you agree not to download, display or use any D7 Content located on the Site for use in any brochures, marketing materials, publications, in public performances, on websites other than the Site or in any other medium for any commercial purpose. You also agree not to download, display or use any D7 Content located on the Site in connection with products or services that are not those of D7, in any other manner that is likely to cause confusion among consumers, that disparages or discredits D7 and/or its licensors, that dilutes the strength of D7’s or its licensor’s property, or that otherwise infringes D7’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any D7 Content, User Content (as defined below), or third party content that appears on the Site.
Representations and Limitations of Liability
D7 makes no representations about the reliability of the features of the Site, the D7 Content, or any other feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. D7 makes no representations regarding the amount of time that any D7 Content or User Content will be preserved.
D7 does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content.
THE SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL D7 BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SITE, NOR SHALL D7 BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND D7’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SITE RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL D7 OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, INCLUDING, WITHOUT LIMITATION, ANY GOODS OR SERVICES PURCHASED THROUGH THE SITE AND/OR THE SUBMISSION OF AND/OR D7’S USE OR DISTRIBUTION OF USER CONTENT, EVEN IF D7 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Third Party Websites
Both you and D7 acknowledge and agree that no partnership is formed and neither of you nor D7 has the power or the authority to obligate or bind the other.
a. Resolution. You and D7 (Individually, a “Party” and collectively, the “Parties”) agree to make a diligent, commercially reasonable attempt to resolve any disputes arising out of or concerning the provisions of these Terms. If the Parties are unable to resolve a dispute within 15 days after notice from one Party to the other, except for your misuse of the D7 trademarks, such dispute shall be settled by final and binding arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) at the offices of the AAA in the state nearest the location of your offices. Within thirty (30) days after an arbitrator has been selected, the Parties shall provide all documents and electronically stored information (“ESI”) related to or necessary to the prosecution or defense of any claim, defense or legal theory presented in the arbitration by either Party. The Parties shall only be required to produce ESI that is stored in a reasonably accessible medium. No other document requests, interrogatories or requests for admissions shall be permitted. If either Party desires to file a dispositive motion, that Party must first submit a letter to the arbitrator outlining the legal and factual issues that it contends are ripe for summary disposition. The opposing Party shall have five (5) days to submit a letter detailing its position on the requested motion. Within two (2) weeks of submission of the opposing Party’s letter, the arbitrator shall determine whether the requesting Party shall be permitted to file a dispositive motion. The decision of the arbitrator shall be final and binding upon the Parties and shall be set forth in a written reasoned opinion, and any award may be enforced by either Party in any court of competent jurisdiction. Any award of the arbitrator shall include interest from the date of any damages incurred for breach or other violation of these Terms, and from the date of the award until paid in full, at the rate of one percent (1%) per month compounded monthly. Except as may be required by law, neither Party may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the other Party.
(i) THE ARBITRATION OF DISPUTES PURSUANT TO THESE TERMS SHALL BE IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW:
(a) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE SITE AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION;
(b) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE;
(c) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND
(d) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND YOU IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
(ii) In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, D7 will pay as much of the claimant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
(iii) If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor D7 shall be entitled to arbitrate their dispute.
b. Injunctive Relief. You acknowledge that irreparable injury may result to D7 and its business upon the unauthorized use of its trademarks and/or unauthorized disclosure of D7’s confidential and/or proprietary information and that money damages may not be a sufficient remedy for any such harm. You therefore agree that upon any act or threatened act of trademark infringement or unauthorized disclosure of information which D7 believes is confidential and/or proprietary, D7 shall be entitled, in addition to such other remedies now or hereafter available at law, in equity, by statute or otherwise, to seek damages and relief as may be available under applicable law, including obtaining a temporary restraining order and/or a permanent injunction prohibiting you from engaging in any such act or specifically enforcing these Terms, as the case may be, without proof of damages or posting a bond.
c. Governing Law; Remedies. These Terms shall be interpreted and construed under the substantive laws of the State of Georgia without reference to its conflict of laws principles, except to the extent governed by the United States Trademark Act of 1946 or other superseding federal law. All remedies under these Terms shall be cumulative and not exclusive.
e. These Terms constitute a binding agreement between you and D7, and is accepted by you upon your use of the Site or your account. These Terms constitute the entire agreement between you and D7 regarding the use of the Site and your account. By using the Site you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.