WEBSITE TERMS AND CONDITIONS OF ACCESS AND USE
Welcome to the Ergodyne website (the “Site”). This Site is owned by Tenacious Holdings, Inc. d/b/a Ergodyne (“Ergodyne”). It is provided as a convenience and for information purposes only. This Terms and Conditions of Access and Use Agreement (the “Agreement”) describes the terms and conditions and the general principles applicable to your access and use of the Site.
1. General Terms
b. Prohibited Use of Site. You shall not make any commercial use of this Site or its contents. You further agree not to download or copy any content for the benefit of any third-party or use any data mining, robots, or similar data gathering and extraction tools. This Site, or any portion of this Site, may not be reproduced, duplicated, copied, displayed, sold, resold, visited, or exploited for any commercial purpose without the express written consent of Ergodyne. You agree not to interfere, disrupt or attempt to gain unauthorized access to this Site or any other related computer network. You further agree not to disseminate, store, or transmit viruses, Trojan horses or any malicious code or program or engage in any other activity deemed by Ergodyne to be in conflict with the spirit or intent of this Agreement. You agree to use the Site only for lawful purposes.
c. User Content. The Site may now or in the future permit the submission of text, graphics, images, video, audio and other material at the direction of users of the Site (“User Content”) and permit the hosting, sharing, and/or publishing of such User Content.
You shall be solely responsible for User Content you submit and the consequences of Ergodyne’s posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Ergodyne to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Site and this Agreement; and (ii) you have the written consent, release, or permission to use the name, image, or likeness of each individual identified in the User Content. By submitting the User Content to us, you hereby grant Ergodyne a worldwide, non-exclusive, royalty-free, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with the Site and Ergodyne business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Site and under this Agreement. Ergodyne or its agents may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
In connection with User Content, you further agree that you will not submit material that is copyrighted, protected by trade secret, or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Ergodyne all of the license rights granted herein.
e. Removal of Content/Termination of Access. Ergodyne does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. Ergodyne does not permit copyright infringing activities and infringement of intellectual property rights on this Site, and we will remove all User Content if properly notified that such User Content infringes on another's intellectual property rights. Ergodyne may remove any User Content without prior notice. Ergodyne may also terminate your access to the Site, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once or has had any User Content removed from the Site more than twice. Ergodyne also reserves the right to decide whether User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Ergodyne may remove such User Content or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Ergodyne with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Ergodyne to locate the material; (iv) information reasonably sufficient to permit Ergodyne to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) 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 the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices can be sent to IP@ergodyne.com
f. Equipment. You shall be solely responsible for providing, maintaining and ensuring compatibility with the Site including all hardware, software, electrical and other physical requirements for your use of this Site, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Site.
h. Accessibility. You acknowledge and agree that at times this Site may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Ergodyne may undertake from time to time; or (iii) causes which are beyond the control of Ergodyne or which are not reasonably foreseeable.
2. Ownership of Intellectual Property
a. Trademarks. The trademarks, service marks, brand names and logos appearing on this Site are owned by Tenacious Holdings, Inc. and others. Nothing herein shall be construed as granting any license or right to use any trademarks, service marks, brand names, or logos appearing on the Site, without the express written permission of the owner. You may not frame or utilize framing techniques to enclose any trademarks, brand names, service marks, logos, or use any meta tags or any other “hidden text” utilizing Tenacious Holdings, Inc.’s trademarks, brand names, or service marks without the express written consent of Tenacious Holdings, Inc.
b. Copyrighted Works. Copyrights in content provided on this Site, including, but not limited to, images, video, photos, electronic art, animations, graphics, sounds, audio, information and data, communication programs, electronic mail services, and user interfaces, executable code, and data formatted, organized, and collected in a variety of forms, including layouts, pages, screens, directories, and databases (hereafter “Copyrighted Works”) is exclusively owned by Ergodyne or others, and is protected by U.S. and international copyright laws. Except as stated herein, you agree that you will not copy, reproduce, modify, alter, create derivative works from, distribute, display, post, or transmit any Copyrighted Works (except for your personal, private, non-commercial use) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Ergodyne and any appropriate third party as applicable.
The Site may provide links to other websites maintained by third parties. You acknowledge and agree that such links are provided for your convenience only and do not reflect any endorsement, affiliation, relationship, or sponsorship by Ergodyne with respect to the provider of such linked site or the quality, reliability or any other characteristic or feature of such linked site. You further acknowledge and agree that Ergodyne is not responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any matter associated with the linked site, including without limitation, the content provided on or through any such linked site or your reliance thereon. ERGODYNE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITE. YOUR USE OF ANY LINKED SITE IS SOLELY AT YOUR OWN RISK. In addition, you should be aware that your use of any non- Ergodyne website is subject to the terms and conditions applicable to that site, including the privacy policies (or lack thereof) of such site.
If a third party links to the Site, it is not necessarily an indication of endorsement, affiliation, relationship, or sponsorship by or with Ergodyne. Ergodyne may not even be aware that a third party has linked to the Site.
4. Product Descriptions. Ergodyne attempts to be as accurate as possible. However, Ergodyne does not warrant that product descriptions and images or other content on this Site are accurate, complete, reliable, current, or error-free. Although Ergodyne has made every effort to display and describe the likeness of each product (including, without limitation, colors, sizes, images and designs) as accurately as possible, it is possible that the displayed likeness of the products will depend upon the available graphic image as well as the quality of your monitor. Ergodyne cannot guarantee that the Site or your monitor will accurately portray the actual likeness of the products. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). We apologize for any inconvenience this may cause you. Products displayed on this Site may be out-of-stock or discontinued and subject to change without notice. The product images shown are intended for representational purposes only and Ergodyne reserves the right to substitute a similar image for the one described in the product information in the event an actual image of the product cannot be provided. Ergodyne products displayed on the Site are available in select stores in the United States and select foreign markets while supplies last. In some cases, merchandise displayed for sale on the Site may not be available in all stores. The prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States for purchases made through the Site. Please send any concerns regarding Ergodyne’s products or services to email@example.com or call 800-225-8238.
5. Disclaimer of Warranties
ERGODYNE AND ITS AGENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THIS SITE “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ERGODYNE AND ITS AGENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES DO NOT WARRANT THAT THE OPERATION OF THIS SITE, OR THE INFORMATION, CONTENT, OR MATERIALS INCLUDED ON THIS SITE WILL BE UNINTERRUPTED OR ERROR FREE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ERGODYNE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ERGODYNE DOES NOT WARRANT THAT THIS SITE, OR ITS SERVERS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
6. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL ERGODYNE OR ITS AGENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THIS SITE, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SITE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE.
You agree to indemnify, hold harmless and defend Ergodyne, its affiliates, shareholders, directors, officers, employees, successors, assigns, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of, or relating to: (i) this Agreement; (ii) your use of this Site, including any data or work transmitted or received by you; and (iii) any prohibited use of the Site as set forth in Sections 1(b) and 1(c).
This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated. Ergodyne reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (i) remove or disable access to all or any portion of the Site; (ii) suspend your access to or use of all or any portion of the Site; and (iii) terminate this Agreement. Sections 1-6 shall survive any termination of this Agreement.
a. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
b. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
c. Law. This Agreement is made in and shall be governed and construed by the laws of the State ofMinnesota,United States of America, without reference to conflicts of laws. If you access this site from locations outsideMinnesota or theUnited States, you are voluntarily and purposefully availing yourself of the laws of the State ofMinnesota,United States of America, and you are solely responsible for compliance with all your local laws. Access to the Site from locations where the Site’s contents may be unlawful is prohibited.
d. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts located inHennepin County,Minnesota. You irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over you by the federal and/or state courts inHennepin County,Minnesota. You hereby irrevocably waive any and all objections which you may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts inHennepin County,Minnesota and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court inHennepin County,Minnesota.
e. Headings. The captions and headings of this Agreement are included for ease of reference only and shall be disregarded in interpreting or construing this Agreement.
f. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties.