Terms of Service
THIS DISCLAIMER AND TERMS OF SERVICE AGREEMENT ("AGREEMENT") CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("USER") AND HARDNDIRTY ("HARDNDIRTY") AND DESCRIBES THE TERMS AND PROVISIONS APPLICABLE TO YOUR USE OF PROPRIETARY SITES AND SERVICES WITHIN THE DOMAIN AND SUB-DOMAINS OF HARDNDIRTY.COM ("SERVICES") AND ANY FUNCTIONS TO BE PERFORMED THEREBY. YOU MUST READ, AGREE WITH, AND ACCEPT ALL OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT, INCLUDING THE TERMS AND PROVISIONS EXPRESSLY SET FORTH BELOW AND THOSE INCORPORATED BY REFERENCE, BEFORE YOUR USE OF THE SERVICES IS AUTHORIZED. THE ABOVE NAMED PARTIES ARE HEREIN REFERRED TO SINGULARLY AS A "PARTY" AND COLLECTIVELY AS "PARTIES".
THIS AGREEMENT WILL BE GOVERNED BY THE ELECTRONIC SIGNATURES ACT. YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT BY SELECTING "I AGREE" AND CLICKING THE APPROPRIATE BUTTON BELOW OR BY ANY ACCESS, VIEWING, OR USE OF THE SERVICES. IF YOU DO NOT AGREE, YOU MUST SELECT "I DISAGREE" AND NOT ACCESS, VIEW, OR USE ANY PART OF THE SERVICES.
1. Ownership and Intellectual Property
1.1 "User Materials" is defined as any information, data, content, or materials you provide (directly or indirectly) to HARDNDIRTY or other Users. User Materials include information you submit, transfer, post, or deliver to the Services, including without limitation, data, information, email addresses, User Accounts, User Accounts, and passwords, as well as any other information resulting from or produced by your use of the Services obtained by HARDNDIRTY. Users are solely responsible for User Materials, and you hereby agree that HARDNDIRTY acts as a passive means for the online storage, distribution, and publication thereof.
1.2 Other than User Materials, all information included within or available via the Services, such as data, information, processes, procedures, methods, advertisements, articles, publications, text, graphics, logos, icons, images, audio, videos, software, and other analog or digital information in any media, now known or later developed (collectively the "Content"), is the property of HARDNDIRTY or its licensors and is protected by copyright, trademark, patent, or other intellectual and proprietary rights.
1.3 The compilation, meaning the collection, arrangement, and assembly, of all Content via the Services are the exclusive property of HARDNDIRTY or its licensors , and is protected by copyright, trademark, patent, or other intellectual and proprietary rights. All software used via the Services are the property of HARDNDIRTY or its licensors and is protected by copyright, patent or other intellectual and proprietary rights.
1.4 All elements of the Services, including without limitation, the general design and Content, are protected by trade dress, moral rights, copyright, trademark, patent, or other intellectual and proprietary rights. Except as explicitly permitted under this or another agreement with HARDNDIRTY or one of its respective licensors , no portion or element of this Services or its Content may be copied or retransmitted via any means, and this Services, its Content, and all related rights will remain the exclusive property of HARDNDIRTY or its licensors unless otherwise expressly agreed.
1.5 User may not reproduce, resell or sublicense the Services without the express prior written consent of HARDNDIRTY. User will not use the Services for any other purpose or for the benefit of any of its affiliates or any third party except as expressly authorized in advance in writing by HARDNDIRTY. User may not make any derivative works or other products or software based in whole or in any part on the Services. User may not modify the Services, Services, or the documentation for its own use or for the use of any other person or entity.
1.6 The Services are copyrighted by HARDNDIRTY and all websites, html code, and documents printed or generated by the Services or contained in the documentation are covered by the copyright notice and the restrictions on reproduction, publication, and distribution contained in this Agreement apply. User will not remove or alter any copyright notice contained in or generated by the Services.
1.7 You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy any portion of the Services contained herein without the prior express written permission of HARDNDIRTY. You agree that you will not use any device, software, or routine to bypass any operational element, or to interfere or attempt to interfere with the proper working of the Services, server, or activities conducted therein. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on Services or network infrastructure.
1.8 Much of the Content is updated on a real time basis and is proprietary or licensed to HARDNDIRTY by its Users or licensors . You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any Content, except for User Materials, without the prior express written permission of HARDNDIRTY or respective HARDNDIRTY.
1.9 "HARDNDIRTY" and any accompanying logos, alone or in conjunction with any text, are trademarks and service marks of HARDNDIRTY and are in use, registered, or pending in certain countries. HARDNDIRTY retains all right, title, and interest in and to its trademarks, service marks, domain names, Internet sites, and trade names worldwide (collectively the "Marks"). You agree to use the Marks only with the prior express written permission of HARDNDIRTY, and then only in the manner authorized. You may not alter, modify, or change the Marks in any way under any circumstances.
1.10 Subject to the terms and provisions of this Agreement, HARDNDIRTY grants a limited license to you to make personal use of the Services only for their intended purposes. This license expressly excludes any resale or making a derivative of the Services, the collection and use of other Users' personal information, email addresses, User Materials, or any data extraction or data mining whatsoever, except with the prior express written permission of the respective owner. You may not repost or otherwise reuse or distribute materials created by or resulting from using the Services.
1.11 You may not use, export, or re-export the Content or Services at this Services or any copy or adaptation thereof in violation of any applicable law or regulation, including without limitation, United States export laws and regulations.
1.12 You agree to take all action and cooperate, at HARDNDIRTY' request, to protect HARDNDIRTY' right, title, and interest in any property, and agree to execute any documents necessary to perfect HARDNDIRTY' ownership of such right, title, and interest.
1.13 Nothing in this Agreement grants either Party ownership or other rights except in accordance with the terms of this Agreement.
2. Services License and Use of the Services
2.1 Subject to the terms and provisions of this Agreement, HARDNDIRTY hereby grants to User a non-exclusive, non-transferable, non-sublicensable license to use and operate the Services in conjunction with the operation and function of the Services in accordance with the documentation.
2.2 The license granted in this Section extends to the Services in executable code form as its exists as an integral part of the Services only and not to source code. HARDNDIRTY does not grant, and User does not obtain under this Agreement, any right to distribute, sell, or sublicense the Services in any form. Except as provided herein, HARDNDIRTY grants no rights or licenses to User, by implication, estoppel, or otherwise, in or to the Services or any intellectual property rights therein. User acknowledges that no right or license in or to any source code or technical-level documentation is granted under this Agreement. HARDNDIRTY reserves all rights not expressly granted to User hereunder.
2.3 User acknowledges that use of the Services is limited to the scope of the license granted under this Section and that this Agreement does not permit the User to use the Services other than as provided herein. User acknowledges that the Services and its structure, organization, and source code constitute valuable trade secrets of HARDNDIRTY and its suppliers. Without HARDNDIRTY' prior written consent, User will not knowingly or negligently permit other individuals or entities to:
(A) use or copy the Services except in strict accordance with the terms and provisions of this Agreement;
(B) modify, translate, alter, adapt, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Services;
(C) apply any process, technique or procedure to ascertain or derive the source code to the Services, which is a valuable trade secret of HARDNDIRTY;
(D) merge the Services with any other software; publish or provide any results of benchmark tests run on the Services to a third party;
(E) sublicense, rent, lease, grant a security interest in, or otherwise transfer rights to the Services except as specifically permitted herein;
(F) use the Services to operate in or as a time-sharing, outsourcing, or service bureau environment other than for User's own internal use; or
(G) in any way allow third-party access to the Services.
2.4 The Services are available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to minors or to temporarily or indefinitely suspended Users. If you are a minor, you can use this service only in conjunction with your parents or guardians. If you do not qualify, do not access or use the Services.
2.5 To use the Services, you must accept the terms and provisions contained in this Agreement on behalf of yourself or the corporation, partnership, or other legal entity that will be using the Services. By accepting this Agreement, you represent that you are:
(A) eighteen (18) years of age or older, or twenty-one (21) years of age or older in places where eighteen (18) years of age is not the age of majority; and
(B) if applicable, you are authorized to sign for and bind the corporation, partnership, or other legal entity that will be using the Services.
2.6 User Accounts or User Accounts may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this terms and provisions contained in this Agreement.
2.7 You agree to comply with all applicable local, state, federal, and international laws and regulations related to use of the Services.
2.8 You may not use the Services to engage in fraud or other illegal activity, or to infringe the intellectual property rights of HARDNDIRTY or third parties. If you believe that a User of this Services has infringed on materials protected by copyright, trademark, or patent law, contact email@example.com.
2.9 You agree to comply with the terms and provisions of all agreements you have with any third parties, as such terms and provisions relate to use of the Services.
2.10 In consideration for the Services to be provided by HARDNDIRTY to User hereunder, User agrees to comply with, and HARDNDIRTY will invoice User in accordance with, the applicable HARDNDIRTY Price List, the terms and provisions of which are incorporated herein by reference. A current version of the HARDNDIRTY Price List for any respective HARDNDIRTY site is maintained at the respective HARDNDIRTY site URL.
2.11 Except as the Parties specifically agree in writing, You will be solely responsible for the selection, implementation, and performance of all third party equipment, software, and telecommunication equipment and services, including without limitation, Internet email connectivity and Internet services used in connection with the Services. You are responsible for ensuring that the email system and computer with which you choose to operate the Services and products thereof, including without limitation, data or information generated by or resulting from the operation of the Services, meets HARDNDIRTY' minimum standards for interoperability, including without limitation, processing speed, memory requirements, choice of email server and client software, and use of dedicated Internet access for accessing Internet email.
2.12 User Accounts allow trial access to limited and restricted Services and Content. Unlimited and unrestricted access to the Services and Content requires an upgrade to a Full User Account according to the monthly fee schedule. TRIAL ACCESS USER ACCOUNTS WILL ONLY ALLOW ACCESS TO A LIMITED AREA OF THE SITE. IN ORDER TO ACCESS THE FULL AMOUNT OF SERVICES AND CONTENT AVAILABLE WITHIN THE SITE, USERS MUST UPGRADE TO A FULL USER ACCOUNT.
3. User Materials
3.1 User Materials, or any items included therein:
(A) will not be false, inaccurate, or misleading;
(B) will not be fraudulent or involve the sale of counterfeit or stolen items;
(C) will not infringe any third party's intellectual property, copyright, patent, trademark, trade secret, publicity rights, privacy rights, or other proprietary rights;
(D) will not violate any local, state, federal, or international law or regulation, including without limitation, those governing export control, consumer protection, unfair competition, anti- discrimination, false advertising, deceptive practices, or securities transactions;
(E) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing;
(F) will not be obscene, contain child pornography, harmful to minors, or be distributed to people not legally permitted to receive such content;
(G) will not create liability for HARDNDIRTY or cause it to lose, in whole or in part, the Services, its Internet Service Provider, hosting server, or other suppliers;
(H) will not violate the terms and provisions of any agreements you have with any third parties as such relate to your use of the Services; and
(I) will not contain any virus, Trojan Horse, worm, time bomb, cancelbot, robot, spider, monitor, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, record, or expropriate any system, data, or personal information.
3.2 You will only use the Services solely for purposes related to the Services.
3.3 By entering into this Agreement you grant HARDNDIRTY a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right, including a waiver of any applicable moral rights, to exercise the copyright and publicity rights you have in your User Materials, in any media now known or later developed, solely for purposes related to providing the Services. You represent and warrant that you have the authority to grant such license and that the holder of any intellectual property or other proprietary rights in your User Materials has licensed, assigned, or waived such holder's rights to the extent necessary to grant the license.
3.4 Any communications or materials you transmit to HARDNDIRTY by electronic mail or otherwise may be used by HARDNDIRTY, its affiliates, or licensors for any purpose, including without limitation, reproduction, disclosure, display, performance, transmission, publication, broadcast, and posting. Furthermore, HARDNDIRTY and its affiliates and licensors are free to use any ideas, concepts, know-how, hypothesis, premise, or technique contained in any such communication for any purpose whatsoever, including without limitation, developing, manufacturing, and marketing products or services.
3.5 HARDNDIRTY reserves the right to access, monitor, remove, or disable access to any User Materials at any time in its sole and absolute discretion.
4. Warranty Disclaimer
4.1 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES, SERVICES, SITE, CONTENT, OR ANY MATERIALS CONTAINED THEREIN OR CONSTITUTING A PART THEREOF ARE AT YOUR OWN RISK AND THAT HARDNDIRTY, ITS AFFILIATES, HARDNDIRTYS, AND SUPPLIERS PROVIDE THE SERVICES AND CONTENT "AS IS" AND "AS AVAILABLE", WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS, ENDORSEMENTS, OR CONDITIONS. HARDNDIRTY, ITS AFFILIATES, HARDNDIRTYS, AND SUPPLIERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, INCLUDING WITHOUT LIMITATION:
(A) ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT;
(B) THAT THE SERVICES, CONTENT, OR ANY MATERIALS CONTAINED THEREIN OR CONSTITUTING A PART THEREOF WILL MEET ANY REQUIREMENTS OR WILL BE AVAILABLE, ACCURATE, RELIABLE, CORRECT, USEFUL, TIMELY, UNINTERRUPTED, SECURE, OR FREE FROM DEFECTS OR ERROR, INCLUDING WITHOUT LIMITATION, TRANSMISSION OR RECEPTION OUTAGES, BLOCKAGES, WEAKNESSES, STATIC, VIRII, WORMS, TROJAN HORSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS OR EVENTS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF HARDNDIRTY, ITS AFFILIATES, HARDNDIRTYS, OR SUPPLIERS.
4.2 While reasonable efforts are made to ensure the accuracy, correctness, and reliability of the Services, HARDNDIRTY makes no representations or warranties as to the accuracy, correctness, and reliability of the Services, which may be out of date. HARDNDIRTY makes no commitment to update the Services.
4.3 HARDNDIRTY does not guarantee continuous, uninterrupted, or secure access to the Services, and operation may be interfered with by numerous factors beyond its control.
4.4 The Services is provided "as is" and "with all faults" and the entire risk as to the satisfactory quality, performance, accuracy, and effort is with the User.
4.5 HARDNDIRTY may provide links to third party sites. Links to third party sites are provided solely as a convenience. Use of such links will cause the User to leave the Services. HARDNDIRTY does not review or control any third party sites, and does not endorse, make any representations regarding, and is not responsible for any content, services, information, software, products, or materials found therein, nor any loss or results suffered in relation to use of the third party site. Access of any third party site via the HARDNDIRTY domain or sub-domain is entirely at the User's own risk. You hereby waive any and all claims against HARDNDIRTY regarding the inclusion of links to third party sites and your use of those sites.
4.6 Some states and foreign countries do not permit the exclusion or limitation of implied warranties. Therefore, some or all of the above limitations may not apply to the extent they are prohibited or superseded by state or national provisions. There may also be other legal rights which vary from state to state.
4.7 No representative, agent, employee, or other person is authorized to make any modifications, extensions, or additions to any warranty or disclaimer contained herein.
5. Limitation of Liability
5.1 EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT OR ELSEWHERE VIA THE SERVICES, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER HARDNDIRTY NOR ITS SUCCESSORS, ASSIGNS, AFFILIATES, HARDNDIRTYS, OR SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR CONSULTANTS, OR ANY OTHER THIRD PARTY MENTIONED AT THE SERVICES WILL BE LIABLE FOR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION:
(A) THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION;
(B) DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE RELIANCE ON OR USE, MISUSE, INABILITY TO USE, RESULTS OF USE, OR PERFORMANCE OF THE SERVICES AND ANY THIRD PARTY SERVICESS LINKED TO FROM THE SERVICES, OR THE MATERIALS, INFORMATION, MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, OR FAILURE THEREOF, OR LINKS CONTAINED AT ANY OR ALL SUCH SERVICESS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
(C) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR COSTS, INCLUDING LEGAL OR ATTORNEYS' FEES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT USE OR ACCESS OF THE SERVICES, CONTENT, OR ANY MATERIALS CONTAINED THEREIN, INCLUDING CONTENT AND MATERIALS SUPPLIED BY YOUR OR A THIRD PARTY, INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PUBLICITY, PRIVACY, OR OTHER INDUSTRIAL, CONTRACTUAL, OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THIS LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE, AND GROSS NEGLIGENCE OF HARDNDIRTY, ITS SUCESSORS, ASSIGNS, AFFILIATES, HARDNDIRTYS, OR SUPPLIERS, TOGETHER WITH ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND CONSULTANTS WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A CAUSE OF ACTION AGAINST HARDNDIRTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND EXCLUSIVE REMEDY REGARDING ANY OF THE FOREGOING IS TO DISCONTINUE USE OF THE SERVICES, CONTENT, AND ANY MATERIALS CONTAINED THEREIN.
5.2 If your use of the Services results in the need for servicing, repair or correction of equipment or data, you assume all costs thereof.
5.3 The aggregate liability of HARDNDIRTY, its suppliers, or distributors to you or any third parties in any circumstance is limited to one-hundred United States dollars ($100).
5.4 Some United States states and foreign countries do not permit the exclusion or limitation of incidental or consequential damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions. You may also have other legal rights which vary from state to state.
5.5 In jurisdictions not allowing the exclusion or limitation of incidental or consequential damages, the liability of HARDNDIRTY, its successors, assigns, affiliates, licensors , and suppliers, together with all of their respective officers, directors, employees, and consultants will be limited to the fullest extent permitted by applicable law.
6.1 You hereby agree to defend, indemnify, and hold harmless HARDNDIRTY, its successors, assigns, affiliates, licensors , and suppliers, together with all of their respective officers, directors, employees, and consultants from and against any and all claims, civil and criminal liability, judgments, penalties, taxes, damages, and all costs and expenses, including without limitation, those arising out of or relating to your use, misuse, or inability to use the Services or any materials, or any violation of this Agreement or any local, state, or federal law, regulation, or statute, or any rights of any third parties, including without limitation:
(A) any third party claim, action, or allegation that the Services infringe or violates any third party's copyright, patent, trade secret, trademark, right of publicity, or right of privacy, contains any defamatory content, or violates any local, state, or federal law, regulation, or statute, including without limitation, any claim of personal injury or product liability;
(B) any fraud, manipulation, or other breach of this Agreement or other policies and agreements by you;
(C) any third party claim, action, or allegation brought against HARDNDIRTY arising out of or relating to a dispute with you over the terms and provisions of an agreement or related to the purchase or sale of any goods or Services;
(D) your violation of any law or the rights of a third party;
(E) your use, or HARDNDIRTY' provision, of the Services or use of your User Account by any third party. HARDNDIRTY will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on HARDNDIRTY' behalf without the prior written consent of HARDNDIRTY; and
(F) reasonable attorneys' fees resulting from any breach of any warranty or representation under this Agreement.
6.2 HARDNDIRTY reserves the right to exclusively defend and control any indemnification matters and you hereby agree that you will fully cooperate and assist in any such defense.
7. Deactivation, Suspension, and Termination
7.1 Without limiting other remedies, HARDNDIRTY, in its sole and absolute discretion, may terminate this Agreement, deactivate, suspend, or terminate your access to the Services immediately without notice for any reason, including without limitation:
(A) infringement of the intellectual property rights of HARDNDIRTY or third parties;
(B) inability to verify or authenticate any information you provide to us;
(C) breach of any terms of this Agreement or documents incorporated by reference;
(D) breach of the applicable HARDNDIRTY Price List; or
(E) the taking of any actions that, in the sole judgment of HARDNDIRTY, may cause financial loss or legal liability for you, HARDNDIRTY, or other Users.
7.2 In the event HARDNDIRTY suspends or terminates your access to the Services, you acknowledge that you may be denied any further access to any User Materials placed on any HARDNDIRTY site or network location.
8.1 HARDNDIRTY is committed to protecting User privacy and will only use and disclose User information in accordance with the provisions of this Agreement.
8.2 HARDNDIRTY collects information in different ways throughout the various parts of its Services. This information is used to provide a customized experience as you use the Services and, generally, do not share this information with third parties. Personal information will only be disclosed if your permission is received beforehand or in very special circumstances, such as when HARDNDIRTY believes such disclosure is required by law or other special cases.
8.3 Users may be asked to provide certain personal information when they are assigned a User Account, including name, address, telephone number, email address, billing information, and the type of computer being used to access the Services. The personal information collected from Users during the User Account assignment process is used to manage User information and for billing purposes related to HARDNDIRTY. The personal information collected from Users is used to enable delivery, operation, and maintenance of the Services, including without limitation, to provide accurate customer and technical service, to respond to inquiries and troubleshooting, to ensure proper delivery of Content and billing information, to provide specific services as requested or subscribed for, to protect the security of the Services and network resources, to ensure compliance with local, state, or federal laws, regulations, or statutes, to ensure compliance with this Agreement and other policies governing use of the Services, and to maintain records. This information is not shared with third parties unless your permission is received beforehand or in very special circumstances, such as when HARDNDIRTY believes that such disclosure is required by law.
8.4 You must at all times maintain the confidentiality of User Accounts and passwords. If you are a corporation or other legal entity, you may allow employees to use User Accounts and passwords, provided that you are responsible for all activity by such employees.
8.5 Permitting use of the Services by a third party is prohibited and is a violation of this Agreement. If there is a breach of security through your User Account, you must immediately change your password and also notify HARDNDIRTY. You will be liable for any unauthorized use of the Services until you notify us of the security breach.
8.6 HARDNDIRTY may provide links to third party sites where you can purchase products and services or register to receive materials, such as catalogs or new product and service updates. The third party site may ask you to provide personal information, such as name, address, email address, phone number, and credit/debit card information. If you complete an order for someone else, such as an online gift order sent directly to a recipient, the third party site may ask you to provide personal information about the recipient, such as the recipient's name, address, email address, and phone number. HARDNDIRTY has no control over any third party site's use of any personal information you provide to such third party site under any circumstances. Please exercise extreme care when providing personal information to a third party site.
8.7 HARDNDIRTY may display online advertisements and may share aggregated and non-identifying information about Users collected via the Services, as well as through online surveys and promotions with these advertisers. Additionally, in some instances, this aggregated and non-identifying information is used to deliver tailored advertisements. HARDNDIRTY does not share personal information about Users with these advertisers.
8.8 When Users send email inquiries to an email address within the HARDNDIRTY.com domain, the return email address is used to answer the email inquiry. HARDNDIRTY does not use the return email address for any other purpose and does not share the return email address with any third party under any circumstances.
8.9 HARDNDIRTY may periodically conduct User surveys. Users are encouraged to participate in these surveys because they provide important information to assist in improving the Services. Responses to such surveys will remain strictly confidential and participation is voluntary.
8.10 Information received from responses to User surveys may be combined, or aggregated, with the responses of other HARDNDIRTY Users to create broader, generic results to the survey questions. The aggregated information may be used to improve the quality of the Services. This aggregated, non-personally identifying information may be shared with third parties.
8.11 HARDNDIRTY does not to use or share the personal information about Users in ways unrelated to the ones described above without also providing you an opportunity to opt out or otherwise prohibit such unrelated uses. However, HARDNDIRTY may disclose personal information about Users, or information regarding your use of the Services or third party sites accessible through the Services, for any reason if HARDNDIRTY believes, in its sole and absolute discretion as permitted by law, that it is legal, ethical, and reasonable to do so in order to:
(A) satisfy laws, such as the Electronic Communications Privacy Act, regulations, or governmental or legal requests for such information;
(B) disclose information that is necessary to identify, contact, or bring legal action against someone who may be violating the terms and provisions of this Agreement;
(C) operate the Services properly; or
(D) protect the Services and its Users.
8.13 Advertisers, third parties, and partners may also use their own cookies. HARDNDIRTY does not control use of these cookies and expressly disclaims responsibility for information collected through them.
8.14 Protecting children's privacy is especially important. It is HARDNDIRTY policy to comply with the Children's Online Privacy Protection Act of 1998 and all other applicable laws.
8.15 Please remember that any information you may disclose in public areas of the Services or the Internet, becomes public information. You should exercise extreme care when deciding to disclose personal information in these public areas.
8.16 The Services has security measures in place to protect the loss, misuse, and alteration of the information under its control. While HARDNDIRTY makes every effort to ensure the integrity and security of its network and systems, it cannot guarantee that these security measures will prevent third-parties from illegally obtaining this information.
9.1 Each Party will treat as strictly confidential all Confidential Information of the other Party, and will not disclose such Confidential Information to any person or entity or use such Confidential Information except as contemplated herein or as otherwise authorized in writing. Each Party will implement procedures to prohibit the unauthorized disclosure or misuse of the other Party's Confidential Information by its agents, employees, and representatives, and will not intentionally disclose such Confidential Information to any third party except for the purposes of this Agreement, and subject to confidentiality obligations similar to those set forth herein.
9.2 Notwithstanding the above, neither Party will have liability to the other with regard to any Confidential Information of the other which:
(A) was publicly available at the time it was disclosed or becomes publicly available through no fault of the receiver;
(B) was known to the receiver, without similar confidentiality restriction, at the time of disclosure;
(C) is disclosed with the prior written approval of the discloser;
(D) is independently developed by the receiver without any use of the Confidential Information; or
(E) becomes known to the receiver, without similar confidentiality restriction, from a source other than the discloser without breach of this Agreement by the receiver.
9.3 In addition, each Party will be entitled to disclose the other's Confidential Information to the extent required by any order or requirement of a court, administrative agency, or other governmental body, provided that the receiver will provide prompt, advance written notice thereof to the discloser and cooperate with the discloser if the discloser elects to seek a protective order or otherwise prevent such disclosure.
9.4 Nothing in this Agreement will restrict each Party's rights to assign or reassign its employees, including without limitation those who have had access to the other Party's Confidential Information, to any project in its discretion.
10.1 This Agreement will enter into force on the date on which User manifest their consent by selecting "I Agree" and clicking the appropriate button below or by any access, viewing, or use of the services, and will remain in force for twelve (12) months thereafter. This Agreement will automatically be renewed for additional periods of twelve (12) months, unless it is terminated by either Party giving one month written notice prior to the expiration of the initial or any additional term. HARDNDIRTY will notify User of any changes in the terms of this Agreement at least thirty (30) days prior to the expiration of the initial or any additional terms.
10.2 If either Party defaults in the performance of its material obligations hereunder and if any such default is not corrected within thirty (30) days after it will have been called to the attention of the defaulting Party in writing by the other Party, then the other Party, at its option, may, in addition to any other remedies it may have, thereupon terminate this Agreement by giving written notice of termination to the other Party
10.3 If any amounts due under this Agreement are not paid when due, then HARDNDIRTY may, at its option, without limiting HARDNDIRTY' other available remedies suspend its further obligations to User under this or any other agreement between the Parties and, if such amounts remain unpaid twenty (20) days after receipt by User of written notice from HARDNDIRTY that such amounts are overdue, HARDNDIRTY may, in its sole and absolute discretion, terminate this Agreement immediately and without further notice.
11. Governing Law and Dispute Resolution
11.1 This Agreement will be interpreted, construed and governed by the laws of the State of Washington, United States of America, without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
11.2 Venue for all disputes arising under this Agreement will lie exclusively in Lynden, Washington.
11.3 You agree that any and all disputes, claims, or controversies arising from or relating to this Agreement or the breach, termination, or validity thereof which cannot be resolved informally will be resolved individually, without resort to any form of class action or consolidation in any arbitration with any dispute, claim, or controversy of any other party, and will be submitted to binding arbitration in accordance with the commercial rules of the American Arbitration Association then in effect.
11.4 The arbitration panel will consist of one (1) neutral arbitrator if the amount in controversy is less than twenty-thousand United States Dollars ($20,000.00), otherwise the panel will consist of three (3) neutral arbitrators, each an active, licensed attorney with at least five (5) years of experience in the primary area of the law as to which the dispute relates.
11.5 The arbitration will be in the English language in Lynden, Washington.
11.6 The arbitration panel will determine issues of arbitrability but may not limit, expand, or otherwise modify the terms and provisions contained herein.
11.7 Any award made pursuant to this section:
(A) will be a bare award limited to a holding for or against a Party and affording such remedy as is deemed equitable, just, and within the scope of this Agreement;
(B) will be without findings as to issues, including without limitation, copyright, trademark, or patent validity or infringement, or a statement of the reasoning on which the award rests:
(C) may, in circumstances other than patent disputes, include injunctive relief;
(D) will be made within four (4) months of arbitration panel appointment; and
(E) may be entered in any court of competent jurisdiction.
11.8 The requirement for arbitration will not be deemed a waiver of any right of termination under this Agreement and the arbitration panel is not empowered to act or make any award other than based solely on the rights and obligations of the Parties prior to any such termination.
11.9 Each Party will bear its own expenses, but those related to the compensation and expenses of the arbitration panel will be borne equally.
11.10 The arbitration panel will not have authority to award punitive or damages in excess of compensatory damages, and each Party irrevocably waives any claim thereto.
11.11 The Parties, their representatives, participants, and the arbitration panel will hold the existence, content, and result of the proceedings in confidence.
11.12 Notwithstanding the foregoing, HARDNDIRTY reserves and will have the sole and exclusive right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction, whether in the United States or in a foreign country, to collect any fees, recover damages for, or obtain injunctive or other relief relating to the Services, its operation, or intellectual property if, in the sole opinion of HARDNDIRTY, such action is necessary or desirable.
(A) You hereby consent and agree to irrevocably submit to the exclusive personal jurisdiction of such courts, accept service of process by mail, and irrevocably waive any available jurisdictional, venue, or inconvenient forum objections to such court.
(B) You hereby agree that such action will not be deemed a waiver of the obligation to arbitrate.
11.13 In the event you file an action contrary to the foregoing provisions, HARDNDIRTY may recover attorney's fees and costs up to five-thousand Unites States Dollars ($5,000).
12. General Provisions
12.1 No action of HARDNDIRTY, other than an express written waiver or amendment, may be construed as a waiver or amendment of any of this Agreement.
12.2 Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.
12.3 You agree that this Agreement and all incorporated agreements may be automatically assigned by HARDNDIRTY, in its sole and absolute discretion, to a third party in the event of a merger or acquisition.
12.4 Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.
12.5 Any failure to act with respect to a breach of the terms and provisions of this Agreement does not waive any right by HARDNDIRTY to act with respect to subsequent or similar breaches.
12.6 All provisions of this Agreement that by their nature should survive termination will survive termination, including without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity, arbitration, governing law, and the general provisions.
12.7 You also may be subject to additional terms and provisions that may apply when you use affiliate or third party services, sites, content, or software.
12.8 Should HARDNDIRTY prevail in any action or proceeding to enforce rights under this Agreement, it will be entitled to recover its costs and attorneys' fees from you.
12.9 You agree that you are subject to the terms and provisions contained in this Agreement and any additional policies applicable to the Services, which may be posted from time to time. All such posted policies or rules are effectively immediately upon posting and are hereby incorporated by reference into this Agreement.
12.10 The provisions of this Agreement will be binding upon and will inure to the benefit of the Parties, their heirs, administrators, successors, and assigns.
12.11 You may not assign this Agreement or the rights and obligations hereunder to any third party under any circumstances.
12.12 You will be solely responsible for all costs and expenses incurred arising out of or relating to this Agreement.
12.13 You acknowledge and agree that if you are located in any United States or international jurisdiction where any common, statutory, regulatory, codified, or other law, rule, or regulation makes accessing the Services or any materials contained therein inappropriate, illegal, or subject to consents or permissions that you have not obtained, or voids this Agreement in whole or in part, then you are not authorized to access the Services or any materials contained therein.
12.14 The Services contain features that may allow User to collect data from, control, or monitor computers running the Services. User hereby agrees to hold HARDNDIRTY harmless from and against any damages, claims, losses, settlements, attorney's fees, and other expenses related to any such activities.
12.15 User acknowledges and agrees that the Services are not intended for use with any high risk or strict liability activity and HARDNDIRTY makes no warranty and will have no liability arising from any use of the Services in any high risk or strict liability activities.
12.16 User acknowledges that the laws and regulations of the United States restrict certain export and re-export of commodities and technical data of United States origin, including the Services. User agrees that it will not export or re-export the Services in any form.
12.17 The Section headings in this Agreement are solely for convenience and will not be considered in its interpretation. Any applicable HARDNDIRTY Price List is incorporated herein as if set forth herein in full. This Agreement has been reviewed and negotiated by the parties, and each party has had the opportunity to review this Agreement with counsel of its own choosing. Accordingly, this Agreement will not be construed strictly for or against either party. Pronouns used in this Agreement will be construed to include the masculine, feminine or neuter, as the identity of the antecedent may require.
12.18 Each Party acknowledges that its material breach of this Agreement including, without limitation, unauthorized disclosure or use of the other Party's Confidential Information, will cause irreparable harm and significant injury to the Party which may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, each Party agrees that the other Party will be entitled to immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have at law or in equity.
13. Revision, Amendment, and Notice
13.1 HARDNDIRTY reserves the right to amend or revise this Agreement and any terms and provisions incorporated by reference herein at any time and in any manner. Amended or revised terms and provisions will be effective immediately. Users will be notified of any such revision or amendment as provided herein. This Agreement may not otherwise be amended or revised except in a writing signed by both parties.
13.2 HARDNDIRTY reserves the right to revise the Services, Content, information, materials, and available contractual license terms featured via the Services without notice.
13.3 Except as explicitly stated otherwise, any notice required according to this Agreement will be given as follows:
(A) Notice to HARDNDIRTY: via email to firstname.lastname@example.org.
(B) Notice to Users: via https://tour1.hardndirty.com/terms.html or email to the address provided during the registration process.
13.4 Notice will be deemed given twenty-four (24) hours after any HTTP document is posted or after any email is sent, unless the sending Party is notified that the email address is invalid. Alternatively, notice may be sent via reputable carrier to the address provided to HARDNDIRTY during the registration process. In such case, notice will be deemed given three (3) days after the date sent.
13.5 The designated agent for service of notices pursuant to the Digital Millennium Copyright Act is as follows:
Attn: legal department email@example.com
with a courtesy copy to legal counsel for HARDNDIRTY:
Chad L. Belville, Attorney at Law
4500 South Lakeshore Drive Ste 515
Tempe, AZ 85282
14. General Release
14.1 In the event that you have a dispute with one or more Users or users of third party sites, you release HARDNDIRTY, its successors, assigns, affiliates, licensors , and suppliers, together with all of their respective officers, directors, employees, and consultants from claims, demands and damages, both actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with such disputes.
14.2 HARDNDIRTY does not control the information provided by other Users or users of third party sites that is made available through the Services. You may find other Users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe online behavior when using the Services. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals.
14.3 If you are a California resident, you waive California Civil Code 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
15. No Relationship or Agency
15.1 No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created herein.
16. Force Majeure
16.1 Neither you nor HARDNDIRTY will be liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond the affected Party's reasonable control that it is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
17.1 If any court or other tribunal of competent jurisdiction hereof holds any term, clause, or provision of this Agreement invalid or unenforceable, then such term, clause, or provision will be eliminated, severed, or limited to minimum extent necessary such that this Agreement will otherwise remain in full force and effect.
18. Entire Agreement
18.1 This Agreement and the terms, clauses, and provisions hereof, as well as those incorporated by reference, constitutes the entire understanding and agreement of the Parties, and revokes and supersedes all prior oral or written agreements between HARDNDIRTY and the User and is intended as a final expression of their Agreement.
18.2 You agree that you are not entering into this Agreement in reliance on any statements, representations, or promises other than those contained herein.
18.3 This Agreement will take precedence over any other documents, incorporated herein or otherwise, which may conflict with this Agreement.
18.4 This Agreement will not be modified or amended except in writing signed by the Parties, specifically referring to this Agreement.
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