ALL YEAR COOLING, INC. WEB SITE
BY ACCESSING OR USING THE AYC WEBSITE AND BY CREATING AND USING YOUR AYC ACCOUNT, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ANY OTHER ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. YOU ARE ONLY AUTHORIZED TO USE THE AYC WEBSITE AND YOUR AYC ACOUNT (REGARDLESS OF WHETHER YOUR ACCESS OR USE IS INTENDED) IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE WITH IT, YOU SHOULD LEAVE THE AYC WEBSITE AND IMMEDIATELY DISCONTINUE YOUR USE OF THE AYC WEBSITE OR ANY AYC ACCOUNT CREATED BY YOU AT THE AYC WEBSITE.
2. Modifications to this Agreement.
AYC may modify this Agreement from time to time, and any such modifications shall be effective upon posting by AYC of the modified Agreement on the AYC Website or on Your AYC Account. You agree to be bound by any changes to this Agreement when You use the AYC Website or Your AYC Account after any such modification is posted on the AYC Website or to Your AYC Account. It is therefore important that You review this Agreement each time You access Your AYC Account to ensure that You are aware of any changes or modifications to this Agreement.
3. Account Registration.
When You accept this Agreement, purchase products or services through the AYC Website, or create Your AYC Account, You represent and warrant to AYC that:
A. You will provide true, accurate, and complete information about Yourself and the company with which your affiliated or employed as prompted by any AYC Account registration processes, or in the course of ordering products or services through the AYC Website, including, without limitation, Your name, the company with which You are employed or affiliated, Your business or personal telephone number, Your business or personal address, and a valid email address;
B. You will update Your business or contact information in order to maintain its truth, accuracy, and completeness;
C. You are at least eighteen (18) years of age and have the legal capacity and authority to be bound by this Agreement;
D. You are acting with full authority of any company with which You are affiliated and on whose behalf you are accessing and using the functionality accessible at the AYC Website, or through Your AYC Account, and Your actions bind the company to the terms under which AYC will deliver products or services to such company;
E. You will terminate use of Your AYC Account if, at any time, You are no longer employed or affiliated with the company on whose behalf You created Your AYC Account;
G. You will, as provided herein, defend, indemnify and hold harmless AYC, and its subsidiaries, affiliates, officers, employees, agents, and other partners against any and all damages of any type, costs, fees, expenses, judgments, or liabilities of any kind, including reasonable attorneys fees, costs, and litigation or arbitration expenses at any initial trial or hearing, or on appeal, or to enforce any judgment or arbitration award, arising from claims asserted by a third party alleging facts that if proven to be true would constitute Your breach of any of Your duties, obligations, representations or warranties to under this Agreement or to such third party;
H. You will comply with any and all federal or state laws, rules, or regulations, that govern the operation of Your AYC Account, including, but not limited to, any state or federal laws regulating the use of personally identifiable information about consumers; and
4. Obligation for Using Your Password.
ALL INFORMATION TRANSMITTED BY, SUBMITTED BY, OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD ON THE AYC WEBSITE OR YOUR AYC ACCOUNT WILL BE DEEMED BINDING ON YOU. You agree that You are solely liable for all actions taken via Your password, whether or not made with Your knowledge or authority. You agree to guard Your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the AYC Website or Your AYC Account for which You will be legally responsible, and liable to AYC for any resulting damages. If You suspect that someone may have obtained access to Your password who is not intended to have authority to act on Your behalf, please contact AYC immediately to enable AYC to deny access to the AYC Website or Your AYC Account to anyone purporting to be You, or presenting Your password.
5. Use of the AYC Website.
A. Lawful Purposes. You represent and warrant that You will not use the AYC Website or Your AYC Account for any purpose that is unlawful, or prohibited by this Agreement, or any law or regulation applicable to You or Your business.
B. License Grant and Restrictions. AYC hereby grants You a limited, non-exclusive, non-transferable, and revocable right to access and use the AYC Website and Your AYC Account to (1) order products and services from AYC; and (2) utilize the features, content and tools that AYC makes available to You through the AYC Website, Your AYC Account, or otherwise. You shall use the AYC Website and Your AYC Account for the sole and limited purposes set forth above, and for no other purpose whatsoever without the express written consent of AYC. Your AYC Account created and maintained by AYC shall be for Your sole and exclusive use as provided herein. You shall not make Your AYC Account accessible for use by other persons or entities, including, but not limited to, any other persons or entities that are also customers of AYC, or compete with AYC. You shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, broadcast, create derivative works from, transfer, or sell any information, data, content, or software accessible or displayed to You by AYC on the AYC Website or displayed or made accessible through Your AYC Account, including, without limitation, any data, text, artwork, graphics, logos, button icons, images, audio clips, digital downloads, product and service descriptions, and data compilations. The license granted herein does not include any resale or commercial use of AYC Web Site or its contents; any collection and use of any product or service listings, descriptions, or prices; any derivative use of this Web Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools, except to the extent the AYC Website is indexed by general purpose consumer accessible search engines, including, but not limited to, Google, Yahoo, AOL, MSN, or Bing. AYC reserves the right to suspend or deny, in its sole discretion, Your access to all or any portion of the AYC Website or Your AYC Account as described in Section 14 below. Any rights in the AYC Website or Your AYC Account not expressly granted to You herein are reserved to AYC.
C. Use of Information. AYC may display on the AYC Website, or on Your AYC Account information, tips, facts, views, and opinions that AYC deems worthy of publication. ALL SUCH INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED OR RELIED UPON BY YOU AS PROFESSIONAL ADVICE.
Neither the AYC Website, Your AYC Account, or any data, information, text, images, or other content accessible on or through the AYC Website may be duplicated, modified, reengineered, decompiled, reverse engineered, decrypted, reassembled, supplemented, translated, adapted, or enhanced, except by AYC or as expressly authorized by AYC in writing. You shall not remove any notice or other indicia of an intellectual property right from the AYC Website or Your AYC Account. You shall not use, copy, distribute, display, demonstrate, or sub-license the AYC Website, any content on or accessible through the AYC Website, or Your AYC Account, the software related thereto, or any component thereof, except as permitted by this Agreement, or as expressly authorized by AYC. The rights granted to You by AYC to use the AYC Website or Your AYC Account are strictly limited to the rights specified herein and You shall not have any rights to re-license or sub-license access to, or use of, the AYC Website or Your AYC Account, or any components thereof, to any other person or entity. You acknowledge and agree that You are solely responsible for Your use of the AYC Website and Your AYC Account and for Your compliance with any laws and regulations relating to your business operations.
You and AYC acknowledge that the rights granted to You by AYC to access and use the AYC Website and Your AYC Account are a valuable contribution to the overall operation of Your business. You agree to pay promptly, and in accordance with AYC credit terms, for any AYC products or services delivered to You by reason of orders placed by You through Your AYC Account.
D. AYC Web Site Security.
You are prohibited from violating or attempting to violate the security of the AYC Web Site, including, without limitation:
1. Accessing data not intended for Your use, or logging onto a server or an AYC Account that You are not authorized to access.
2. Attempting to probe, scan or test the vulnerability of the AYC Website or any AYC system or network, or to breach security or authentication measures utilized by AYC on the AYC Website without proper authorization.
3. Attempting to interfere with AYC’s service to any other AYC Account holder, or user of the AYC Website, host or AYC network, including, without limitation, via means of submitting a virus to the AYC Web Site, overloading, “flooding,” “spamming,” “mailbombing” or “crashing.”
4. Sending unsolicited email, including promotions and/or advertising of products or services not otherwise expressly authorized or permitted by AYC.
5. Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.
Violations of AYC’s system or network security may result in civil or criminal liability. AYC will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users, including You, who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the AYC Website or any activity being conducted on the AYC Website. You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the AYC Website other than the search engine and search agents available from AYC on the AYC Website and other than generally available third party web browsers (e.g., Firefox, Google Chrome, or Microsoft Explorer).
E. Liquidated Damages.
In the event You breach or violate any of AYC’s restrictions on the use of the AYC Website or Your AYC Account, use the AYC Website or Your AYC Account in an manner not permitted by the License granted herein, acquire or download any content, data, text or images from the AYC Website or Your AYC Account without authorization under this Agreement or without AYC’s express written permission, or You remove any intellectual property notices from the AYC Website or any content accessible or displayed on the AYC Website without AYC’s express written approval, You agrees that AYC’s damages in the event of such unauthorized conduct by You will be difficult to quantify. Therefore, in the event of such a breach, and in addition to immediately commencing commercially reasonable efforts to cure any breach, You shall pay AYC as liquidated damages, and not as penalty, the amount of $5,000.00 per occurrence, which liquidated damages shall be in addition to, and not in lieu of, any equitable relief to which NGF may be entitled by reason of the Receiving Party’s breach of this Agreement.
F. Order Acceptance.
There may be certain of Your orders placed through the AYC Website or Your AYC Account that AYC is unable to accept and must cancel. AYC reserves the right, at its sole discretion, to refuse or cancel any order for any reason. For Your convenience, You will not be charged until Your payment method is authorized, the order information is verified for accuracy and Your order is shipped or delivered. Among the circumstances that may result in Your order being cancelled include limitations on product quantities available for purchase, inaccuracies or errors in product, service, or pricing information, or problems identified by AYC’s credit and fraud avoidance department. AYC may also require additional verifications or information before accepting any order. We will contact You if all or any portion of Your order is canceled or if additional information is required to accept Your order. If Your order is canceled after Your payment has been received, AYC will issue a credit to Your AYC Account in the amount of the charge.
F. Pricing Information.
While AYC strives to provide accurate product, service, and pricing information, pricing or typographical errors may occur. AYC cannot confirm the price of any AYC product or service until after You place an order at Your AYC Account. In the event that a product or service is listed on the AYC Website or at Your AYC Account at an incorrect price or with incorrect information due to an error in pricing or product information, AYC shall have the right, at our sole discretion, to refuse or cancel any orders placed for that product or service. In the event that a product or service is mispriced, AYC may, at its discretion, either contact You for instructions or cancel Your order and notify You of such cancellation. AYC strives to provide You with accurate prices on the AYC Website; however, sometimes a price on the AYC Website does not match the price in an AYC product pricing database or catalogue. AYC’s prices and the availability of AYC products or services are subject to change without notice.
G. AYC Refund Policy.
Upon delivery of any products You order through the AYC Website, or Your AYC Account, You will be required to sign a delivery receipt form indicating that the products are in acceptable condition upon arrival at their destination.
AYC shall be responsible for arranging all shipments of products pursuant to Your orders.
You may return delivered products within fourteen (14) calendar days of delivery if the following criteria are met:
1. The product has not been installed.
2. The product is in its original, unaltered packaging.
You will be obligated to pay a restocking fee equal to fifteen percent (15%) of the gross purchase price of the returned product, which will reimburse AYC for the expense of picking up the returned product. The restocking fee will be assessed to You upon scheduling of a date for AYC to pick up the returned product.
7. Advertising on the AYC Website and Your AYC Account.
AYC DOES NOT MAKE ANY GUARANTEES OR REPRESENTATIONS REGARDING THE PRODUCTS, SERVICES, OR SKILLS OF ANY ENTITIES THAT ARE ADVERTISED ON, OR LINKED TO OR FROM, THE AYC WEBSITE OR YOUR AYC ACCOUNT, OR THE QUALITY OF THE PRODUCTS OR SERVICES THAT YOU MAY PURCHASE OR ACQUIRE FROM SUCH ENTITIES. IF YOU PURCHASE SUCH PRODUCTS OR SERVICES, OR ENTER INTO A BUSINESS RELATIONSHIP WITH THE PROVIDERS OR SUCH PRODUCTS OR SERVICES, YOU DO SO AT YOUR SOLE DISCRETION AND RISK. AYC DOES NOT GUARANTEE OR WARRANT THE PERFORMANCE OR THE OUTCOME OR QUALITY OF THE PRODUCTS OR SERVICES PROVIDED BY ANY ENTITY OTHER THAN AYC. SHOULD YOU HAVE A DISPUTE WITH A THIRD PARTY ADVERTISER, YOU MUST ADDRESS THE DISPUTE WITH THAT ADVERTISER DIRECTLY, AND YOU HEREBY AGREE TO RELEASE AYC, ITS EMPLOYEES AND AGENTS FROM ANY AND ALL DAMAGES OR CLAIMS, INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES AND YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER ON THE AYC WEBSITE OR YOUR AYC ACCOUNT.
8. Intellectual Property Protection.
The information displayed on the AYC Website or Your AYC Account, or any other AYC product or service including, without limitation, text, artwork, graphics, logos, button icons, images, audio clips, digital downloads, prices, product and service descriptions, and data compilations (collectively, “Content”), is the property of AYC, the manufacturers from whom AYC acquires products for resale, or other AYC licensors. Such Content is protected by U.S. and international trademark, copyright, and other intellectual property laws. You shall not copy, distribute, alter, display, perform, publish, or create derivative works from such Content, other than as permitted in this Agreement. Systematic retrieval of data or other Content from the AYC Website or Your AYC Account, or any other AYC service to prepare any collection, compilation, database, or directory is strictly prohibited.
The acronym “AYC”, the name “All Year Cooling”, the domain at which the AYC Website is located, and any other AYC graphics, logos, designs, page headers, button icons, scripts and service names are trademarks or trade dress of AYC. AYC’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any other product or service in any manner that is likely to cause consumer confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of AYC. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of AYC or any AYC affiliates without AYC’s express written consent. You may not use any meta tags or any other “hidden text” utilizing the AYC’s name or trademarks without the express written consent of AYC.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER AYC NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL, OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS TO USE THE AYC WEBSITE OR YOUR AYC ACCOUNT. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU BY REASON OF YOUR ACCEPTANCE OF THIS AGREEMENT.
9. User Submissions.
By posting messages, uploading files (including graphics), inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the AYC Website, or Your AYC Account, You represent and warrant that You own or otherwise control the rights necessary to do so and to grant AYC the license set forth above. You will defend, indemnify, and hold AYC and its agents, employees, officers, directors, subsidiaries, affiliates, parents, and partners harmless from any losses, expenses, judgments, fines or penalties, including reasonable attorneys fees and litigation costs and expenses, based upon claims asserted by a third party alleging facts that if true would constitute a breach by You of any of the foregoing representations or warranties.
You are prohibited from posting on or through the AYC Website or Your AYC Account any “Prohibited Submissions”, which shall include, but not be limited to, Submissions that are deemed in AYC’s sole discretion to be patently offensive or promote racism, bigotry, hatred or physical harm of any kind against any group or individual; harass or advocate harassment of another person; exploit people in a sexual or violent manner; contain violence or offensive subject matter or contain a link to an adult website; solicit personal information from anyone under the age of eighteen (18); promote information that You know is false or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promote an illegal or unauthorized copy of another person’s copyrighted work; involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; further or promote any criminal activity or enterprise or provide instructional information about illegal activities, violate someone’s privacy, or provide or creating computer viruses; solicit passwords or personal identifying information for commercial or unlawful purposes from other users; or include a photograph of another person that You have posted without that person’s consent. AYC reserves the right to investigate and take appropriate legal action against anyone who, in AYC’s sole discretion, violates this provision, including without limitation, removing the offending communication or Submission from the AYC Website or Your AYC Account, or any other web site hosted or maintained by AYC, and terminating the Accounts of such violators.
AYC DOES NOT ASSUME ANY RESPONSIBILITY FOR AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY OF YOUR SUBMISSIONS OR THE SUBMISSIONS OF ANY OTHER AYC WEBSITE USERS THAT APPEAR ON THE AYC SITE OR YOUR AYC ACCOUNT.
AYC DOES NOT ASSUME ANY RESPONSIBILITY FOR MONITORING YOUR SUBMISSIONS, AND, IF AT ANY TIME AYC CHOOSES, IN ITS SOLE DISCRETION, TO MONITOR SUCH SUBMISSIONS, AYC NONETHELESS DOES NOT ASSUME ANY RESPONSIBILITY FOR THE SUBMISSIONS, ANY OBLIGATION TO MODIFY OR REMOVE ANY INAPPROPRIATE OR INACCURATE SUBMISSIONS, OR ANY RESPONSIBILITY FOR YOUR CONDUCT IN SUBMITTING ANY SUBMISSION.
FURTHERMORE, AYC DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE ABILITY OF ANY PERSON TO RELY UPON ANY SUBMISSIONS SUBMITTED BY ANY REGISTERED USERS OF THE AYC WEBSITE, OR ANY SUBMISSIONS THAT YOU MAY POST TO YOUR AYC ACCOUNT, OR TO ANY OTHER SITE.
10. Disclaimer of Warranties.
AYC uses reasonable efforts to provide accurate, complete, and current Content on the AYC Website or on Your AYC Account. Nevertheless, AYC does not guarantee or warrant that the Content therein is accurate, complete, timely, or free of technical or typographical errors. It is Your responsibility to verify any Content displayed on Your AYC Account or upon which You rely in placing any orders at Your AYC Account or on the AYC Website. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE CONTENT ON THE AYC WEBSITE OR YOUR AYC ACCOUNT IS AT YOUR SOLE RISK. THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AYC EXPRESSLY DISCLAIMS 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. AYC MAKES NO WARRANTY THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ACCESS TO THE AYC WEBSITE OR YOUR AYC ACCOUNT, AND THE CONTENT THEREON, WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, VIRUS-FREE OR ERROR FREE. EXCEPT AS OTHERWISE SEPARATELY EXTENDED TO YOU AT THE TIME YOU TAKE DELIVERY OF ANY PRODUCTS OR SERVICES SOLD TO YOU THROUGH YOUR AYC ACCOUNT OR THE AYC WEBSITE, AYC DOES NOT MAKE ANY WARRANTY CONCERNING THE INFORMATION AND RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE AYC WEBSITE OR YOUR AYC ACCOUNT, OR CONCERNING THE ACCURACY OR RELIABILITY OF ANY CONTENT DISPLAYED THEREON. AYC DOES NOT MAKE ANY WARRANTY REGARDING ANY INFORMATION OBTAINED FROM ANY HYPERLINKED THIRD PARTY SITE, INCLUDING ANY ADVERTISER’S SITE. AYC DOES NOT MAKE ANY WARRANTY REGARDING THE RELATIONSHIPS BETWEEN ANY ADVERTISER ON THE AYC SITE OR YOUR AYC ACCOUNT AND OTHER USERS OF THE AYC WEBSITE OR YOUR AYC ACCOUNT. INFORMATION OBTAINED BY YOU FROM THE AYC WEBSITE OR THROUGH YOUR AYC ACCOUNT SHALL NOT CREATE ANY WARRANTY NOT EXPRESSLY OR IMPLIEDLY MADE HEREIN TO THE EXENT PERMITED BY APPLICABLE LAW.
11. Limitation of Liability.
YOU AGREE THAT NEITHER AYC NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE AYC WEBSITE OR YOUR AYC ACCOUNT SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR ACCESS, USE OR INABILITY TO USE THE AYC WEBSITE OR YOUR AYC ACCOUNT, OR ANY OTHER HYPERLINKED WEBSITE OR ANY ERRORS OR OMISSIONS IN THE CONTENT THEREOF, ANY PERSON’S RELIANCE ON ANY INFORMATION OR CONTENT PROVIDED IN THE AYC WEBSITE OR YOUR AYC ACCOUNT, WHETHER OR NOT THE INFORMATION IS CORRECT, CURRENT, OR COMPLETE, OR THE CONSEQUENCES OF ANY ACTION YOU OR ANY OTHER PERSON TAKE OR FAIL TO TAKE BASED ON CONTENT PROVIDED BY OR AS A RESULT OF THE USE OF THE AYC WEBSITE OR YOUR AYC ACCOUNT.
YOU SPECIFICALLY AGREE THAT AYC IS NOT LIABLE FOR ANY CONDUCT BY YOU WHILE USING THE AYC WEBSITE OR YOUR AYC ACCOUNT. AYC IS ALSO NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE AYC WEBSITE OR YOUR AYC ACCOUNT, INCLUDING ANY INJURY OR DAMAGE TO ANY YOUR, OR ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM USE OF THE AYC WEBSITE OR YOUR AYC ACCOUNT.
IN NO EVENT SHALL AYC, BE LIABLE FOR ANY DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OR THE INABILITY TO USE THE AYC WEBSITE OR YOUR AYC ACCOUNT, ANY INFORMATION ACCESSIBLE ON THE AYC WEBSITE OR YOUR AYC ACCOUNT, FROM ANY MESSAGES RECEIVED THROUGH THE AYC WEBSITE OR YOUR AYC ACCOUNT, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLE PROPERTY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF AYC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree that regardless of any statute or law to the contrary, You will file any claim or cause of action arising out of or related to Your use of the AYC Website or Your AYC Account, or to interpret or enforce this Agreement within one (1) year after such claim or cause of action arose or be forever barred.
In addition to your duties set forth in Section 9 above, You agree to defend, indemnify and hold harmless AYC, or any of its employees, officers, directors, subsidiaries, parents, affiliates, or agents (the “Indemnified Parties”) from any losses, expenses, damages, judgments, or penalties, including reasonable attorneys fees and litigation expenses incurred at all levels of litigation, whether at trial or on appeal, arising from any allegations by a third party (a “Claim”) that, if proven to be true, would constitute a breach of You representations, warranties or other obligations under this Agreement. A Claim subject to this Section 12 shall include any allegations made by a third party or a governmental agency against an Indemnified Party arising from Your use of the AYC Website or Your AYC Account, or Your marketing or resale of any product purchased from AYC through Your AYC Account. In the event of any Claim, an Indemnified Party shall provide You with prompt written notice of such a Claim, and will cooperate with You on reasonable terms and conditions in Your defense of any such Claim. You shall have the right to select legal counsel to defend any Claim, provided that any Indemnified Party shall have the right to engage independent legal counsel at its expense solely for the purpose of monitoring the progress of the defense or settlement of any Claim. You shall have the right to settle or compromise any Claim, provided that the Indemnified Parties shall have the right to consent to any such settlement or compromise that will materially diminish the Indemnified Parties’ rights under this Agreement, which consent the Indemnified Parties shall not unreasonably withhold or delay. This indemnification obligation shall survive any termination of Your AYC Account or Your right to use the AYC Website.
You understand and agree that AYC, in its sole discretion, may terminate Your right to use the AYC Website and Your AYC Account, delete any content stored in Your AYC Account, direct You to cease using the AYC Website or Your AYC Account, and discontinue or restrict Your access to the AYC Website or Your AYC Account, all without notice to You and for any reason. You agree that AYC shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the AYC Website or Your AYC Account, or any parts thereof.
15. Modifications to the AYC Site or Your AYC Account.
You understand and agree that AYC may discontinue or change the AYC Website or Your AYC Account at any time, without notice to You. AYC makes no commitment to update the information and content on the AYC Website or Your AYC Account. AYC may, as it deems necessary and appropriate, make revisions, upgrades and modifications to Your AYC Account from time to time to maintain the general performance and functionality of Your AYC Account at no additional charge to You.
A. Assignment. This Agreement shall bind and inure to the benefit of AYC’s successors, assigns and licensees. AYC shall have the right to assign or otherwise transfer its rights or obligations under this Agreement whether by contract, merger, sale of all or substantially all of AYC’s assets, or operation of law without Your consent, or notice to You. You shall not have the right to assign, by contract, operation of law or otherwise, this Agreement or any of the rights, interests, or obligations hereunder, without AYC’s express written permission, which AYC may withhold in its absolute discretion.
B. Severability. In the event that any provision of this Agreement is, becomes, or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without such provision.
C. Waiver. The failure of AYC at any time or times to require performance of any provision hereof shall in no manner affect the right of AYC at a later time to enforce the same.
D. Applicable Law. You acknowledge that the Content contained in the AYC Website, and the AYC supplied Content on Your AYC Account, is controlled in and originates from the United States. AYC does not make any representation that any of the Content, or any products or services available on the AYC Website or through Your AYC Account are appropriate or available for use in other countries or locations. AYC does not have any responsibility for any access to this AYC Website or Your AYC Account from territories where the Content may be illegal or otherwise prohibited. If You choose to access the AYC Website or Your AYC Account from other locations, You do so at Your own risk and are responsible for compliance with applicable local laws. Any claim relating to the use of the AYC Website, Your AYC Account, this Agreement, and any Content displayed on such sites, shall be governed by the internal substantive laws of the State of Florida, without regard to its conflicts of laws rules. You expressly consent to the jurisdiction of the state and federal courts located in Broward or Miami-Dade Counties, Florida for any such claim. You further agree that in the event of any litigation or arbitration proceeding to interpret or enforce a Party’s rights under this Agreement, the court or arbitration panel shall have the right and duty, in addition to awarding any relief deemed appropriate in the circumstances, to award the prevailing Party its reasonable attorneys fees, costs, and litigation expenses, incurred in prosecuting or defending such action or proceeding, at trial, at any arbitration proceeding, on appeal, or in any proceeding to enforce any final judgment or arbitration award.
F. Amendments. Further to Section 2 of this Agreement, You agree that AYC may amend or modify this Agreement or impose new conditions at any time by updating this Agreement on the AYC Website or on Your AYC Account, or upon notice from AYC to You as published through the AYC Website, Your AYC Account, or by e-mail. Your use of the AYC Website or Your AYC Account after such updating or notice to You shall constitute Your acceptance of such amendments, modifications, or new conditions. If You do not want to be bound by an amendment, or subsequent version of this Agreement, You must to terminate Your use of Your AYC Account, and refrain from using the AYC Website or Your AYC Account after the date of Your termination. No other amendments will be valid unless they are in a paper writing signed by AYC and by You.
The following provisions of this Agreement shall survive its termination for any reason: 1, 2, 3G, 4, 5C, 5D, 5E, 7, 8, 9, 10, 11, 12, and 16.
I. Descriptive Headings.
The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or affect the meaning or interpretation of this Agreement.