TERMS & CONDITIONS
Last Updated: January 17, 2017
THE FOLLOWING AGREEMENT DESCRIBES THE TERMS UNDER WHICH IMPACT CONFECTIONS, INC. OFFERS YOU ACCESS TO OUR WEB SITE AND RELATED SERVICES
SECTION 1.1 MODIFICATIONS
From time to time it may be necessary for the Company to update or revise certain provisions of the TOU. By using the Company Site and accepting the TOU, you agree that the Company may modify the terms of the TOU, including, but not limited to, those terms related to the charges (if any) associated with your use of the Company Site. You are responsible for regularly reviewing the latest version of the TOU, and any additional terms and conditions that may be posted. Your continued use of the Company Site constitutes your agreement to all such terms, conditions, and notices. If you do not agree to the changes proposed by the Company, or to any of the terms in the TOU, your only remedy is to stop using the Company Site.
SECTION 1.2 PRIVACY
II. USING THE COMPANY SITE
SECTION 2.1 INAPPROPRIATE USES
The Company Site must not be used:
- (a) to store, publish, distribute, or otherwise disseminate unlawful material or information including, but not limited to: threatening, harassing, defamatory, obscene, vulgar, indecent, hateful, objectionable, tortuous, libelous, deceptive, or fraudulent information and materials, or information and materials that constitute or give rise to claims of an invasion of another person’s privacy or harassment;
- (b) to conduct any activity that is a violation of any applicable law or to request unlawful services or materials;
- (c) to harm minors in any way;
- (d) to impersonate any person or entity, including, but not limited to, a Company employee or representative, or to falsely state or otherwise misrepresent your affiliation with a person or entity;
- (e) in the furtherance of any activity that infringes (directly or indirectly) upon the intellectual property rights of others, including, but not limited to, copyrights, trademarks, service marks, trade secrets, and patents;
- (f) to interfere with any other party’s use and enjoyment of the Company Site;
- (g) in any way that deliberately degrades or disables the Company Site or any other computer system or to prevent or impede the delivery of any legitimate data;
- (h) to make inappropriate postings to newsgroups, chat rooms, electronic bulletin boards and any other forum on the Company Site or elsewhere; or
- (i) by persons under the age of 18 to purchase products without the involvement of a parent or guardian.
- You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Many of the features and information on the Company Site are updated on a real-time basis and are proprietary to us or are licensed to the Company by third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for content you provide to us) from the Company Site without the prior expressed written permission of the Company or the appropriate third party.
SECTION 3.1 LICENSE
The Company grants you a limited, nonexclusive, personal and revocable license to access and make personal use of the Company Site, but not to download (other than page caching) or modify it, or any portion of it, except with the express written consent of the Company. This license does not include any resale or commercial use of the Company Site or its contents; any collection or use of any product listings, descriptions, or prices; any derivative use of this Company Site or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. Any unauthorized use or other violation of this TOU by you automatically terminates the permission and license granted by the Company. You are granted a limited, personal, revocable, and nonexclusive right to create a hyperlink to the home page of the Company (www.impactconfections.com) so long as the link does not portray the Company, or its products or services, in a false, misleading, derogatory, or otherwise offensive manner as determined by the Company in its sole discretion.
Except as provided in Section 3.2, the Company does not claim ownership of any information, data, text, communications, software, graphics, or other materials (individually and collectively, “Content”) you submit or make available for inclusion on the Company Site. However, with respect to submitted Content you may post on the Company Site or communicate to the Company via email or other means, you grant the Company a world-wide, royalty free and non-exclusive license(s) to use, distribute, reproduce, modify, and adapt such Content on the Company Site solely for the purposes of providing the Company Site services. This license exists only for as long as you elect to continue to include, transmit or store such Content on the Company Site and will terminate at the time you remove, or the Company removes, such submitted Content from the Company Site. You expressly warrant you have the right to grant this license in any Content you upload, store or transmit to or through the Company Site. If you do not have the right to grant such license, you must not upload, store or transmit such material, and doing so will be a breach of the TOU. You acknowledge that the Company may or may not pre-screen Content, but that the Company and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, delete or move any Content that is available via the Company Site. Without limiting the foregoing, the Company and its designees shall have the right (but not the obligation) to remove any submitted Content that violates the TOU or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by, or submitted to, the Company.
SECTION 3.2 PRODUCT SUBMISSIONS
The Company receives many inquiries and suggestions regarding new product ideas, but does not accept any unsolicited submissions of new products, creative suggestions, ideas, notes, drawings, concepts or other information (each, “Information”). Although we are honored you would think of us, the Company relies on its employees to supply its new products and other creative ideas. The Company has found it necessary to adopt this policy because some companies in our industry have had claims made against them by people who allege that the company used an idea, even though the company had received only the most general of concepts. Because the employees of the Company are constantly working on a number of ideas in many areas, some of which might be similar to an idea you seek to send to the Company, we cannot and do not accept any outside submissions or the risks associated with these submissions.
If you send the Company any Information despite our request that you do not do so, you agree that all Information you send the Company is in the public domain, is not confidential and is sent by you for use by the Company without payment or compensation to you or acknowledgement of the source. For any Information you submit to the Company, you grant the Company a world-wide, royalty free, fully paid-up and non-exclusive license(s) to use, distribute, reproduce, modify and adapt such Information for the sole benefit of the Company. The Company makes no warranty to you, whether express or implied, regarding its use of any Information you may submit to the Company.
SECTION 3.3 SECTION LINKS
The Company may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, advertising, products, materials, goods or services available on or through any such site or resource.
SECTION 3.4 THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS
The Content provided by the Company (that is, Content other than as submitted by site users) on the Company Site, such as for example and not limitation, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of the Company or its content suppliers, partners, or affiliates, and is protected by U.S. and international copyright laws. The compilation of all Content on the Company Site is the exclusive property of the Company and is protected by U.S. and international copyright laws. All software used on this Company Site is the property of the Company or its software suppliers and is protected by U.S. and international copyright laws. You acknowledge and agree that the Company Site contains proprietary and confidential information that is protected by applicable U.S. and international intellectual property and other laws and agree to fully comply with such laws. Except as expressly authorized by the Company, you agree not to use, modify, rent, lease, loan, sell, distribute or create derivative works based on the Company Site or any information on the Company Site, including its interface, in whole or in part, and other logos and product and service names that are trademarks of the Company (the “Company Marks”). Unless you have written permission, you agree not to display or use in any manner, the Company Marks.
Any trademarks, logos, service marks, brand identities, titles, characters, graphics, designs, and/or other properties displayed on the Company Site are property of the Company and are protected as registered and unregistered trademarks and copyrights. To protect our brand names and accompanying marks, the Company requires a written license agreement or written permission from an authorized agent at the Company, prior to any use of trademarks or copyrights belonging to the Company. Any misuse of trademarks belonging to the Company is strictly prohibited.
SECTION 3.5 COPYRIGHT INFRINGEMENT NOTIFICATION
The Company is committed to complying with U.S. copyright law and to responding to claims of copyright infringement. The Company will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) ("DMCA").
Pursuant to the DMCA, notifications of claimed copyright infringement must be sent to a Service Provider's Designated Agent. Notification must be submitted to the following Designated Agent for this Company Site in the manner described below:
By Mail: Registered Agent
Impact Confections, Inc
4017 Whitney St
Janesville, WI 53546
By Email: firstname.lastname@example.org
You must provide all of the following information when providing notice of the claimed copyright infringement under DMCA:
- a. A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- b. Identification of the copyrighted work claimed to have been infringed;
- c. Identification of the material that is claimed to be infringing or to be the subject of the infringing activity, and that is to be removed or access to which is to be disabled, as well as information reasonably sufficient to permit the Company to locate the material;
- d. Information reasonably sufficient to permit the Company to contact the copyright owner, such as an address, telephone number, and, if available, an electronic mail address;
- e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- f. 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 copyright owner.
For more details on the information required for a valid notification refer to the DMCA.
Notably, under the DMCA claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys’ fees.
IV. NO WARRANTY AND LIMITATION OF LIABILITY
THE COMPANY SITE AND CONTENT MAY INCLUDE INACCURACIES OR OTHER ERRORS. THE COMPANY SITE AND EVERYTHING PROVIDED ON IT IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTEE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- A. YOUR USE AND BROWSING OF THE COMPANY SITE IS AT YOUR SOLE RISK, COST AND EXPENSE. OUR SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- B. THE COMPANY MAKES NO WARRANTY OR GUARANTEE THAT (a) USING THE COMPANY SITE WILL MEET YOUR REQUIREMENTS, (b) SERVICE CONTENT OR INFORMATION WILL BE UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SITE OR SERVICES WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMPANY SITE WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE COMPANY SITE WILL BE CORRECTED.
- C. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE COMPANY SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES AND DAMAGES INCLUDING, WITHOUT LIMITATION THOSE RELATING TO YOUR COMPUTER SYSTEM, BUSINESS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
THE COMPANY SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER WHERE SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND THE COMPANY’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION.
IN NO EVENT SHALL THE COMPANY OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY PUNITIVE, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE COMPANY SITE, OUR SERVICES, OR THIS AGREEMENT HOWEVER ARISING (WHETHER UNDER CONTRACT, STATUTE, LAW, TORT OR OTHERWISE, INCLUDING NEGLIGENCE). OUR TOTAL LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $250.00.
You agree, at your own expense, to indemnify, protect, defend and hold harmless the Company and its employees, representatives, subsidiaries, affiliates, parents, officers, directors, suppliers and agents (collectively, the “Company Indemnified Parties”), from and against any and all damages (including direct, indirect, special, punitive, incidental and consequential), claims (including, without limitation, any claim, suit, action or other proceeding against the Company Indemnified Parties, made by a third party relating to direct, indirect, special, punitive, incidental and consequential damages incurred by that third party), demands, liens, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees, expert fees, court costs and other expenses of litigation), and liabilities of any kind or nature whatsoever suffered or incurred by or threatened or asserted against the Company Indemnified Parties as a result of, arising out of, or in connection with your use of the Company Site (or the use of any of your sub-accounts) specifically including, without limitation (i) a violation of the TOU, and (ii) a claim that any use of the Company Site by you infringes any third party intellectual property right, is libelous or defamatory, or otherwise results in injury or damage to anyone. You agree to pay all costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action or proceeding attributable to any such claim.
Any legal controversy or legal claim arising out of or relating to this TOU or the Company Site, excluding legal action taken by the Company to collect our fees and/or recover damages for, or obtain an injunction relating to, the Company or the Company Site operations, intellectual property, and our services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party, unless in our sole judgment, the Company wishes to consolidate the legal controversy of two or more parties in any legal action. The arbitration shall be conducted in Madison, Wisconsin, and judgment on the arbitration award may be entered by any court with jurisdiction. The Company may seek any interim or preliminary relief from a court of competent jurisdiction in Madison, Wisconsin necessary to protect our rights pending the completion of arbitration. Should you file an action contrary to this provision, the Company may recover from you our reasonable attorney fees and costs. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this site or services or the TOU must be filed within six (6) months after such claim or cause of action arose or be forever barred. Notwithstanding anything else to the contrary in this TOU, the Company shall always have and retains the right to pursue legal action of any kind or nature whatsoever in any appropriate jurisdiction in order to protect our interests.
You agree that the Company may, without prior notice, immediately terminate your access to the Company Site and the Company services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOU or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated termination), (d) discontinuance or material modification to the Company service (or any part thereof), (e) unexpected technical or security issues or problems, and (f) extended periods of inactivity. Termination of your access to the Company Site and Company services includes (i) removal of access to all the Company services and the Company Site, (ii) removal of access and deletion of all related information, files and content associated with or inside services provided to you by the Company (or any part thereof), and (iii) barring from further use of the Company Site and the Company services. Further, you agree that all terminations for cause shall be made in the Company’ sole discretion and that the Company shall not be liable to you or any third party for any termination of the Company Site or the Company services.
SECTION 8.1 NO AGENCY.
No agency, partnership, joint venture, or employment is created as a result of this TOU and you do not have any authority of any kind to bind the Company in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
SECTION 8.2 SAVINGS
If any provision of this TOU is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this TOU shall otherwise remain in full force and effect and enforceable.
SECTION 8.3 NOTICE
Any notice by us to you may be made via a posting on the Company site or via email or first class mail. Any notice by you to us must be made by first class mail sent to the following:
4017 Whitney Street, Janesville, WI 53546; Attention: CFO
SECTION 8.4 CHOICE OF LAW, COMPLIANCE WITH APPLICABLE LAWS
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of the State of Wisconsin, excluding its conflicts-of-law rules, govern the TOU, your use of the Company Site and your account. User conduct may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with the Company Site or relating in any way to your account, this TOU or your use of the Company Site resides in the Federal courts for the Western District of Wisconsin or the State courts located in Madison, Wisconsin. You further agree and expressly consent to the exercise of personal jurisdiction in the Federal courts for the Western District of Wisconsin and the State courts located in Madison, Wisconsin in connection with any such dispute including any claim involving the Company or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. Accordingly, any action or proceeding brought by either party which is based on, or derives from, this Agreement must be brought in such courts, subject to the arbitration provision in this TOU.
You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or software subject to restrictions under such laws to a national destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Company Site any Content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this TOU.
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of this site or access to the Company Site or our services.