These
Terms of Use shall remain in full force and effect while you use the Site. WITHOUT
LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR
SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE
(INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO
REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR
COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE
MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE
ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME,
WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate
or suspend your account for any reason, you are prohibited from registering and
creating a new account under your name, a fake or borrowed name, or the name of
any third party, even if you may be acting on behalf of the third party. In
addition to terminating or suspending your account, we reserve the right to
take appropriate legal action, including without limitation pursuing civil,
criminal, and injunctive redress.
We cannot guarantee
the Site will be available at all times. We may experience hardware, software,
or other problems or need to perform maintenance related to the Site, resulting
in interruptions, delays, or errors. We
reserve the right to change, revise, update, suspend, discontinue, or otherwise
modify the Site at any time or for any reason without notice to you. You agree that
we have no liability
whatsoever for any loss, damage, or inconvenience caused by your inability to
access or use the Site during any downtime or discontinuance of the Site. Nothing in
these Terms of Use will be
construed to obligate us to maintain and support the Site or to supply any
corrections, updates, or releases in connection therewith.
To
expedite resolution and control the cost of any dispute,
controversy, or claim related to these Terms of Use (each "Dispute"
and collectively, the “Disputes”) brought by either you or us
(individually, a “Party” and collectively, the “Parties”), the
Parties agree to first attempt to negotiate any Dispute (except
those Disputes expressly provided below) informally for at least
thirty (30) days before initiating
arbitration. Such informal negotiations commence upon written notice
from one Party to the other Party.
If
the Parties are unable to resolve a Dispute through informal
negotiations, the Dispute (except those Disputes expressly excluded
below) will be finally and exclusively resolved through binding
arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD
HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The
arbitration shall be commenced and conducted under the Commercial
Arbitration Rules of the American Arbitration Association ("AAA")
and, where appropriate, the AAA’s Supplementary Procedures for
Consumer Related Disputes ("AAA Consumer Rules"), both of which are
available at the AAA website:
www.adr.org
.
Your arbitration fees and your share of
arbitrator compensation shall be governed by
the AAA Consumer Rules and, where
appropriate, limited by the AAA Consumer
Rules.
The arbitration may be conducted
in person, through the submission of
documents, by phone, or online. The
arbitrator will make a decision in
writing, but need not provide a
statement of reasons unless requested by
either Party. The arbitrator must follow
applicable law, and any award may be
challenged if the arbitrator fails to do
so. Except where otherwise required by
the applicable AAA rules or applicable
law, the arbitration will take place in
Washington
County,
Oregon
. Except as otherwise provided
herein, the Parties may litigate in
court to compel arbitration, stay
proceedings pending arbitration, or to
confirm, modify, vacate, or enter
judgment on the award entered by the
arbitrator.
If
for any reason, a Dispute proceeds in court rather than arbitration,
the Dispute shall be commenced or prosecuted in the state and federal courts located in
Washington County,
Oregon
, and the Parties
hereby consent to, and waive all defenses of lack of personal
jurisdiction, and forum non conveniens with respect to venue and
jurisdiction in such
state and federal courts
. Application of the United Nations Convention on Contracts
for the International Sale of Goods and the Uniform Computer
Information Transaction Act (UCITA) is excluded from these Terms of
Use.
In no event shall any Dispute brought
by either Party related in any way to the Site be
commenced more than one (1) years after the
cause of action arose.
If this provision is found to be illegal or unenforceable,
then neither Party will elect to arbitrate any Dispute falling
within that portion of this provision found to be illegal or
unenforceable, and such Dispute shall be decided by a court of
competent jurisdiction within the courts listed for jurisdiction
above, and the Parties agree to submit to the personal jurisdiction
of that court.
The
Parties agree that any arbitration shall be limited
to the Dispute between the Parties individually. To
the full extent permitted by law, (a) no arbitration
shall be joined with any other proceeding; (b) there
is no right or authority for any Dispute to be
arbitrated on a class-action basis or to utilize
class action procedures; and (c) there is no right
or authority for any Dispute to be brought in a
purported representative capacity on behalf of the
general public or any other persons.
Exceptions to
Informal Negotiations and Arbitration
The
Parties agree that the following Disputes are not
subject to the above provisions concerning informal
negotiations and binding arbitration: (a) any
Disputes seeking to enforce or protect, or
concerning the validity of, any of the intellectual
property rights of a Party; (b) any Dispute related
to, or arising from, allegations of theft, piracy,
invasion of privacy, or unauthorized use; and (c)
any claim for injunctive relief. If this provision
is found to be illegal or unenforceable, then
neither Party will elect to arbitrate any Dispute
falling within that portion of this provision found
to be illegal or unenforceable and such Dispute
shall be decided by a court of competent
jurisdiction within the courts listed for
jurisdiction above, and the Parties agree to submit
to the personal jurisdiction of that court.
There may be
information on the Site that contains typographical errors, inaccuracies, or
omissions, including descriptions, pricing, availability, and various other
information. We reserve the right to
correct any errors, inaccuracies, or omissions and to change or update the
information on the Site at any time, without prior notice.
THE SITE IS PROVIDED
ON AN AS-IS AND AS-AVAILABLE BASIS. YOU
AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO
THE
FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT
THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY
WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY
FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM
YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL
INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION
TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH
MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY
ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE,
OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A
THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE
APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A
PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU
AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE
PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU
SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
16. LIMITATIONS
OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS,
EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES,
INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM
YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS
OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO
THE
AMOUNT PAID, IF ANY, BY YOU TO US
. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT
ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU,
SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT
APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to
defend, indemnify, and hold us harmless, including our subsidiaries,
affiliates, and all of our respective officers, agents, partners, and
employees, from and against any loss, damage, liability, claim, or demand,
including
reasonable attorneys’ fees and expenses, made by any third party due to or
arising out of:
(1) use of the Site; (2) breach of these Terms of Use;
(3) any breach of your
representations and warranties set forth in these Terms of Use; (4) your violation of the rights of
a third party, including but not limited to intellectual property rights; or
(5) any overt harmful act toward
any other user of the Site with whom you connected via the Site.
Notwithstanding the foregoing, we reserve the right, at your expense, to
assume the exclusive defense and control of any matter for which you are
required to indemnify us, and you agree to cooperate, at your expense, with
our defense of such claims. We will use reasonable efforts to notify you of
any such claim, action, or proceeding which is subject to this
indemnification upon becoming aware of it.
We will maintain
certain data that you transmit to the Site for the purpose of managing the
performance of the Site, as well as data relating to your use of the Site.
Although we perform regular routine backups
of data, you are solely responsible for all data that you transmit or that
relates to any activity you have undertaken using the Site. You agree
that we shall have no liability to you for any loss or corruption of any such
data, and you hereby waive any right of action against us arising from any such
loss or corruption of such data.
19. ELECTRONIC
COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and
completing online forms constitute electronic communications. You consent to
receive electronic communications, and you agree that all agreements, notices,
disclosures, and other communications we provide to you electronically, via
email and on the Site, satisfy any legal requirement that such communication be
in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS,
ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND
RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby
waive any rights or requirements under any statutes, regulations, rules,
ordinances, or other laws in any jurisdiction which require an original
signature or delivery or retention of non-electronic records, or to payments or
the granting of credits by any means other than electronic means.
20. CALIFORNIA
USERS AND RESIDENTS
If any complaint
with us is not satisfactorily resolved, you can contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N
112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916)
445-1254.
These Terms of Use and any policies or
operating rules posted by us on the Site or in respect to the Site constitute
the entire agreement and understanding between you and us. Our failure to
exercise or enforce any right or provision of these Terms of Use shall not
operate as a waiver of such right or provision. These Terms of Use operate to
the fullest extent permissible by law. We may assign any or all of our rights
and obligations to others at any time. We shall not be responsible or liable for
any loss, damage, delay, or failure to act caused by any cause beyond our
reasonable control. If any provision or part of a provision of these Terms of
Use is determined to be unlawful, void, or unenforceable, that provision or part
of the provision is deemed severable from these Terms of Use and does not affect
the validity and enforceability of any remaining provisions. There is no joint
venture, partnership, employment or agency relationship created between you and
us as a result of these Terms of Use or use of the Site. You agree that these
Terms of Use will not be construed against us by virtue of having drafted them.
You hereby waive any and all defenses you may have based on the electronic form
of these Terms of Use and the lack of signing by the parties hereto to execute
these Terms of Use.
In order to resolve a complaint regarding the
Site or to receive further information regarding use of the Site, please
contact us at:
Engage Instruments LLC
1915 NE STUCKI AVE STE 308
HILLSBORO
, OR
97006
United States
info@engageinstruments.com