Dollar Quilting Club, LLC
Terms Of Service
The “Content” shall mean all materials time to time on the Site and Services including, without limitation, information, text, images, graphics, interfaces, photographs, illustrations, audio and video clips, trademarks, trade names, service marks, logos, descriptions, information obtained from third party providers, information obtained from other users, data and any other materials displayed therein or thereon, including removed items previously included.
“DQC”, “we,” “our”, “us” or the “Company” shall mean Dollar Quilting Club, LLC, a Delaware limited liability company.
The “DQC Parties” shall mean DQC and its affiliates, directors, officers, managers, owners, employees, representatives, agents, and their successors and assigns.
The “Related Parties” shall mean the DQC Parties’ business partners, suppliers, joint venture partners, independent contractors, distribution partners, and third-party service providers, and each of their respective affiliates, directors, officers, managers, owners, employees, representatives, agents, successors and assigns engaged in services relating to the Site, the Services, the DQC server or the Content.
The “Services” shall refer to DQC’s methods of providing Content to you which may include from time to time, without limitation, the Site, branded pages on third party platforms (i.e., social networking services), mobile applications, direct marketing campaigns, other online communications, and offline communications and including, without limitation, the use of events, contests, sweepstakes, and mobile messaging services
The “Site” shall refer to the DQC websites.
The “Terms” shall refer to this Terms of Service, as it may be in effect, from time to time.
“You,” “your,” “user,” and “users,” as used herein, refer to each individual accessing the Site, Services and Content for any reason.
We may update, change, alter, amend or supersede the Terms at any time. ANY ACCESS OR USE OF THE SITE OR SERVICES BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to the Terms by anyone other than DQC shall be valid or enforceable against DQC unless expressly agreed to by DQC in a writing signed by a duly authorized officer of DQC.
The materials provided on the Site and Services are protected by law, including, but not limited to, United States copyright laws and international treaties. You are responsible for reviewing these Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder.
PLEASE NOTE: EXCEPT FOR YOUR RIGHTS TO INITIATE SMALL CLAIMS ACTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND DQC WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION. ARBITRATION INVOLVES LESS DISCOVERY AND COURT REVIEW THAN CIVIL ACTIONS IN COURT. AN ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE DISPUTE. YOU WAIVE ANY RIGHT TO BRING AN ACTION IN COURT BEFORE A JUDGE OR JURY, YOUR RIGHT TO BRING PROCEEDINGS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR ARBITRATION, AND YOUR RIGHT TO A JURY TRIAL. BY ACCEPTING THESE TERMS, AND TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO BE BOUND BY THE MORE DETAILED ARBITRATION AND WAIVER PROVISION IN SECTION 12, INFRA. PLEASE READ IT CAREFULLY.
You must be 18 years of age or older to visit or use the Site or participate in our Services in any manner. By visiting the Site, using our Services and/or accepting these Terms, you represent and warrant to us that you are 18 years of age or older, and that you have the right, authority, and capacity to agree to and abide by these Terms. You also represent and warrant to us that you will use the Site and Services in a manner consistent with any and all applicable laws and regulations.
Whenever you provide us information, you agree to: (a) provide true, accurate, current and complete information and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is, or we have reasonable grounds to suspect is, untrue, inaccurate, not current or incomplete, we may, without notice, suspend or terminate your access to our Site and Services and refuse you any current or future use of our Site or Services, in whole or in part.
2. USE OF THE DQC SERVICES
2.1 Use Restrictions
These Terms govern the Site and Services, and any upgrades provided by the Company that replace and/or supplement the previously existing Site and Services, unless such upgrade is accompanied by its own Terms of Service.
The Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by DQC or by third parties that have licensed their use to DQC. Title to all portions of the Content remains with DQC or such third parties. Any use of the Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
Except as expressly provided herein, no portion of the Content may be copied, reproduced, distributed, republished, downloaded, displayed, modified, sold, licensed, used to create derivative works, used for public performances, posted or transmitted in any form or by any means now or hereafter developed including without limitation by transferring, downloading, or otherwise copying any Content onto any disk drive or other storage medium. Any use of any portion of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by DQC, is strictly prohibited.
You shall comply with any additional rules for your use of other items included on the Site, the Services or in the Content which may be, from time to time, included and which are expressly incorporated into these Terms by reference. The use of the Content on any other site or in a networked computer environment for any purpose is prohibited. All rights not expressly granted herein are reserved to DQC.
You hereby represent and warrant that you will not use or attempt to use the Site, Services and Content, will not induce, participate or permit any third party in using or attempting to use the Site, Services or Content, nor will you use our Site or related software to upload, post, email, distribute, transmit, link, solicit or otherwise make available any Content or use our Site, in any manner that:
- harasses, abuses, stalks, threatens, defames, or otherwise infringes upon or violates the rights of any person (including but not limited to rights of publicity, privacy or proprietary rights), or is vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, or racially, ethnically or otherwise offensive, hateful or abusive;
- is unlawful, harmful to minors, fraudulent, or deceptive or violates these Terms in any manner, or encourages conduct that would constitute a criminal offense or that gives rise to civil liability, or which solicits, facilitates, encourages, condones, or induces any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulation, infringes someone else’s patent, trademark, trade secret, copyright or other intellectual property or other rights, or removes any proprietary notice or label in the Content;
- fails to comply with applicable third-party terms and conditions or other third-party policies;
- “mirrors” or attempt to “mirror” any Content regardless of the place it exists;
- uses technology or other means to access unauthorized content or non-public spaces;
- uses any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site, Services or Content;
- introduces viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- disables or circumvents any security mechanisms used by the Site, Services or Content or otherwise gains unauthorized access to any portion of the Site, Services or Content or any other systems or networks connected to a site or any server of DQC or its third-party service providers, whether by hacking, password “mining”, or any other illegal or improper means;
- introduces viruses, worms, time bombs, corrupted files, Trojan horses or any other harmful computer code, files, or programs that are designed or intended to disrupt, interrupt, destroy, damage, overburden, impair or limit the functioning of any software, hardware, network, server or communications systems or equipment;
- attempts to gain unauthorized access to any DQC’s user account;
- uses any data mining robots (“bots”), spiders, hardware or software modules that add a specific feature or service by plugging into an existing larger system (“plug-ins”), or other data gathering and extraction tools, scripts, applications, or methods on this site;
- uses any device, software, or hardware to bypass any operational element or to interfere, or attempt to interfere, with the proper working of this site, server or activities conducted therein or the use of the Site by any third parties;
- takes any action that imposes an unreasonable or disproportionately large load on this site or its network infrastructure or that adversely affects our network or other customers;
- decompiles, reverse engineers, modifies or disassembles or derives the course code of, any of the software in or associated with the network and/or server;
- uses any meta tags or any other “hidden text” utilizing DQC’s name or any trademark of DQC, the DQC Parties or any Related Parties;
- frames or utilizes framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DQC, the DQC Parties or any Related Parties;
- exceeds your limited access to the site as authorized by DQC;
- distributes or makes the Site, Services or Content available over a network where it could be used by multiple devices at the same time;
- rents, leases, lends, sells, redistributes or sublicenses the Site, Services or Content
- uses any DQC’s, DQC Parties’, or Related Parties’ domain name as a pseudonymous return email address;
- constitutes unsolicited or unauthorized advertising, junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication; and
- impersonates of any person or entity or misrepresents an affiliation with a person or entity, create a false identity, solicits a charity request, petition, chain letter or investment scheme, offers unsolicited goods or services, advertises or promotes, or provides material support or resources to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
ANY BREACH OF ANY RESTRICTION HEREIN MAY SUBJECT YOU TO PROSECUTION AND/OR CLAIMS FOR INJUNCTIVE RELIEF AND/OR DAMAGES. If you are in compliance with these Terms, and only for so long as you are in compliance with these Terms, the Company grants you a non-exclusive, limited, and non-transferable license to use the Site, Services and Content. In connection therewith, DQC authorizes you to view, download and/or print a single copy of the Content solely for your own lawful, personal, non-commercial use but only if you include the following copyright notice: “Copyright © 2018, Dollar Quilting Club, LLC. All rights reserved” and include all other copyright and proprietary rights notices which were contained in the Content.
DQC is under no obligation to monitor the Content and any other information residing on or transmitted to this server. However, anyone using this server agrees that DQC may monitor the server contents periodically to (1) comply with any necessary laws, regulations or other governmental requests; and (2) to operate the server properly or to protect itself and its users. DQC reserves the right to modify, reject or eliminate any information residing on or transmitted to its server that it, in its sole discretion, believes is unacceptable or in violation of these Terms and to suspend or end your service for any operational or governmental reason or violation of these Terms. Unauthorized use of this site or the network infrastructure and/or data display by a person or entity that is not the authorized user of the account is illegal and DQC reserves the right to take legal action.
DQC reserves the right, in its sole discretion, to refuse, discontinue, block and/or terminate your use of, and access to, the DQC Services, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
If you violate any of the Terms, your permission to use the Site, Services and Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
2.2 User Submissions
Except as provided under Submission of Ideas (Section 2.3 below), you retain ownership of any information or material you provide to DQC or which you post, upload, input, submit, or transmit to the DQC Services (each, a “Submission”). You agree that you will not make any Submission that is, in whole or in part, libelous; scandalous; inflammatory; discriminatory; defamatory; false; threatening; vulgar; obscene; pornographic; profane; abusive; harassing; invasive of another’s privacy; hateful or bashing; aimed at gender, race, color, sexual orientation, national origin, religious views, or disability; in violation of local, state, national, or international law; or that infringes on, or violates, any right of any party. Additionally, you agree that you will not: (a) make any Submission that is an advertisement or solicitation of business; (b) disrupt the normal flow of dialogue or make a Submission unrelated to the topic being discussed (unless it is clear the discussion is free-form); (c) post a chain letter or pyramid scheme; impersonate another person; (d) distribute viruses or other harmful computer code; (e) harvest or otherwise collects information about others, including email addresses, without their consent; (f) post the same note more than once or engage in so-called “spamming”; or (g) engage in any other conduct that restricts or inhibits any other person from using or enjoying the Site, Services or Content, or which, in the sole judgment of DQC, exposes DQC or any of its third party providers, partners, or customers to any liability or detriment of any type.
By making a Submission, you agree that each Submission is non-confidential, non-proprietary, and may be disseminated or used by DQC and any third-party recipient. If you make a Submission, you automatically grant—or warrant that you, as owner of such content, has expressly granted—DQC a royalty-free, perpetual, irrevocable, worldwide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the Submission in any media or medium, or any form, format, or forum now known or hereafter developed. Notwithstanding the foregoing, DQC has complete discretion as to whether it makes use of any Submission and, if so, the extent of such use.
You are solely responsible for your Submission and for any consequences arising from your Submission. You are solely liable for your reliance on any Submissions of another. DQC is not responsible for screening or monitoring Submissions made by any users. If notified by a user of a Submission allegedly in violation of these Terms, DQC may investigate the allegation and determine in good faith and its sole discretion whether to remove such Submission. DQC will have no liability or responsibility to users for performance or nonperformance of such activities.
DQC reserves the right (but is not obligated) to: (a) record dialogue, or any portions of dialogue, on the DQC Services; (b) remove Submissions which are abusive, illegal, disruptive, or outdated, or that otherwise fail to comply with these Terms; (c) terminate a user’s access to any or all parts of the DQC Services upon any breach of these Terms or the law; (d) monitor, edit, or disclose any Submission; (e) edit or delete any Submission posted on the DQC Services, regardless of whether such Submission violates these Terms.
2.3 Submission of Ideas
We request that you not submit to DQC, in any form, unsolicited ideas, proposals, creative ideas, original creative artwork, suggestions or other works, including, without limitation, advertising campaigns, promotions, new or improved products or technologies, additional products or technologies, product enhancements, processes, materials, marketing plans, new artwork or other works, or new product names (collectively, “Ideas”). DQC’s policy is to not accept, review, or consider unsolicited Ideas. The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of DQC’s products, services or marketing strategies might seem similar to Ideas submitted to DQC. The Ideas that you may submit shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by DQC for any purpose whatsoever. DQC shall be free to use your Ideas without restriction for any purposes whatsoever, commercial or otherwise, without compensation to you.
Any Ideas that are offered or communicated to us through the Site or Services or otherwise shall be the property of DQC and may be treated by DQC as non-confidential non-proprietary information. In such case, you agree that: (a) any Idea (including its complete content) submitted or transmitted by you to DQC will automatically become the property of DQC, without any compensation due to you; (b) DQC may use, copy, modify, disclose and distribute or redistribute any Ideas for any purpose and in any way, without any compensation to you; and (c) DQC has no obligation to review any Idea.
2.4 Your Account
If any portion of our Site requires you to register or open an account, you may be asked to choose a password and a user name. Please select a password that would not be obvious to someone trying to guess your password and change it regularly as an added precaution. You are responsible for maintaining the confidentiality of the password and account, and for restricting access to your computer, and you are fully responsible for all activities that occur under your password or account identification. You agree to immediately notify DQC of any unauthorized use of your password or account or any other breach of security. Without limiting any rights which DQC may otherwise have, we may, but need not, take any and all action, as we deem necessary or reasonable, to ensure the security of the Sites and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, DQC may rely on the authority of anyone accessing your account or using your password and in no event and under no circumstances shall DQC be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of DQC under this provision, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorized access to your account or use of your password. You understand and agree that use of the Site, Services and Content is not invulnerable to all security breaches, and that DQC makes no warranty, guarantee, or representation that use of any of our Site is protected from viruses, security threats or other vulnerabilities.
You may not use anyone else’s account at any time, without the permission of the account holder.
DQC reserves the right to refuse service, terminate accounts or memberships, remove or edit content, or cancel orders or shipments in its sole discretion and in no event shall DQC be liable to you for any failure, intentional or otherwise, to do so.
3. TERMS OF SALE
DQC sells blades, handles, needles and other products relating to quilting (the “Products”) to end-user customers who purchase a recurring membership plan (“Members”) to have the Products shipped monthly (a “Membership”). You may not purchase Products or a Membership for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 Memberships and Promotions
Members have the option (i) to purchase blades only or blades with handles; (ii) to purchase blades in packages of 2, 4 or 6 blades; and (iii) to purchase additional items we offer. The items you specify (“Your Items”) will be packaged and shipped to you monthly (each shipment, a “Box”). After you make your selections, your Payment Method will be charged for the first Box and any shipping and taxes (if applicable). DQC reserves the right, in its sole discretion, to determine your eligibility for Membership.
Your Membership begins with you purchase of the initial Box and continues with a monthly shipment of Your Items. Each month of your Membership, you will receive a Box of Your Items (each a “Restock Box”). DQC will bill your credit, debit, or other Company-accepted payment method (“Payment Method”) for the applicable charges related to each Restock Box shipped.
To view the specific details of your Membership, including your next ship date, visit our website and click on “Account.” To view your next Box price, content, and ship date, click on “Box”.
DQC reserves the right, in its absolute discretion, to withdraw or modify any Product, Membership, offering, or promotion at any time without prior notice and with no liability. Any and all Products, Memberships, offers, or promotions advertised on the Site or Services are void where prohibited, and are subject to the posting of any official rules to such offers or promotions.
3.3 Products and Product Pricing
The price we will charge you for the Products and Membership will be based on Products you select. Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on the DQC Services. We reserve the right to change a Product’s or a Box’s price at any time, with appropriate notice to you. We do not provide price protection or refunds in the event of promotions or price decreases.
3.4 Processing Orders
If any problems arise with your order, or with the shipping address or Payment Method associated with your Membership, and DQC is unable to resolve the problem, we may notify you via e-mail using the address associated with your Membership. It is important that you keep your information current with an accurate email address that you regularly check. If problems arise with your order that we cannot resolve, your order may be cancelled, and we may not be able to process future Restock Boxes until the problem has been resolved.
DQC shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including without limitation acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.
If you are dissatisfied with one of our Products for any reason, we will refund the amount paid for that Product in your most recent box received. Refund requests must be made directly to us at email@example.com within 30 days of the date of shipment by DQC. We are not liable for Products that are damaged or lost in transit to DQC. Promptly following our receipt of your request (typically within five (5) business days), we will credit the amount paid for the returned Product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the Payment Method you used to make the original purchase. Notwithstanding the foregoing, DQC does not control when a specific credit card or payment method company processes a chargeback transaction. You are responsible for contacting your Payment Method company if you have questions about the status of the chargeback.
We will not provide a refund for a request that is received by DQC more than 30 days after the date of original shipment. We also do not provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.6 Gift Cards
From time to time, we may sell Gift Cards. The risk of loss and title to gift cards passes to the purchaser upon our electronic transmission to the recipient or delivery to the carrier, whichever is applicable. DQC shall have the right to refuse service, suspend or terminate accounts or memberships or any related account(s), cancel orders or Box shipments, or recoup the amount of the Gift Card by charging the amount from the Payment Method supplied, in each case in its sole discretion, if DQC suspects a Gift Card is being redeemed and/or used in a fraudulent manner to make purchases on the DQC Services.
4. MEMBERSHIP TERMS AND CANCELLATION POLICY
4.1 Recurring Membership; Automatic Renewal
YOU ACKNOWLEDGE AND AGREE THAT EACH MEMBERSHIP CONTINUES UNTIL (A) YOU CANCEL OR (B) WE SUSPEND OR TERMINATE IN ACCORDANCE WITH THESE TERMS.
Your Payment Method will be charged at least one full business day prior to your next Box shipping date. We will charge your Payment Method with the applicable cost for your Box, along with any shipping and handling costs and sales or similar taxes that may be charged with your Membership. So long as your Membership continues, we will ship Restock Boxes and charge your Payment Method for sums due, as authorized by you by agreeing to the Membership.
To avoid being charged, you must cancel your Membership as provided in Section 4.3, infra. We will continue to bill your Payment Method on a recurring basis until you cancel.
4.2 Pausing and Resuming Membership; Shipping Frequency
DQC may offer the ability to temporarily pause a Memberships (“Pause Period”). During a Pause Period, Members will remain active members, but they will not receive any Restock Boxes. A Member’s Membership may be placed on a Pause Period for either a one, two, or three-month period. During a Pause Period, Members will continue to receive communications from DQC via email but will not be charged any maintenance or membership fee. The Pause Period will end automatically at the expiration of its term. Members who are in a Pause Period may end the Pause Period early by logging into their account and resuming shipping. You may email any questions about the Pause Period to us at firstname.lastname@example.org
4.3 Membership Cancellation
You may cancel your Membership at any time from the Account page on the DQC website. To cancel a Membership, click on “Membership Settings” link at the bottom of the page, then follow instructions for cancellation. Cancellation requests submitted in this manner must be received at least one full business day prior to your next Restock Box shipping date to avoid charges for that Restock Box. Cancellation requests received by DQC through other channels may take up to five (5) business days to process. If you have any problems, please email us at email@example.com
4.4 DQC Referral Program
DQC may from time to time offer a Referral Program by which Members may earn promotional credits towards a future purchase of Products by referring their friends, family, or other individuals to DQC.
5. DQC SMS TERMS AND CONDITIONS
If you have subscribed to a DQC text message program, the DQC Services will include text message services, including the ability to use text messaging to receive and reply to messages from DQC (collectively the “Text Message Services”). Such text messages may be sent using an automatic telephone dialing system and may be sent using SMS, MMS or other technology. Consent to receive such text messages is not required as a condition of purchasing any goods or services.
Although we do not charge you for these Text Message Services, standard message and data rates may apply. Certain Text Message Services may be prohibited or restricted by your mobile carrier, and not all Text Message Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Text Message Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Text Message Services, and how much they will cost you. Your use of the Text Message Services is subject to our Privacy Statement.
If you would like to receive text messages about your box status, account notifications, and other special offers and announcements, you may sign up by visiting your Member account page and providing your consent to receive autodialed texts from or on behalf of us at the mobile number you’ve provided to opt-in. You understand that consent is not a condition of purchase. If you would like to unsubscribe, you can follow the instructions provided in those messages or otherwise text “STOP” to _______. If you have any questions, you may contact our customer service department at firstname.lastname@example.org.
The DQC Services may include certain other services available to you via your mobile phone or other mobile device (collectively, the “Mobile Services”). The Mobile Services may include the ability to use your mobile device to place orders, receive and reply to electronic communications from DQC and access certain other features. Although DQC does not charge you for these Mobile Services, your mobile carrier’s standard data, and other rates and fees may apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. By using the Mobile Services, you agree that DQC may communicate with you by electronic means including, without limitation, push notifications to your mobile device (if you elect to receive them), and that certain information about your usage of the Mobile Services may be communicated to DQC. Your use of the Mobile Services is subject to our Privacy Statement.
6. LIABILITY OF DQC AND ITS LICENSORS AND PARTNERS
THE USER OF THIS SITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SERVER AND THE INTERNET GENERALLY.
THE WEBSITE, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DQC DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND WARRANTIES OF NON-INFRINGEMENT. NO ADVICE OR CONTENT GIVEN BY DQC SHALL CREATE ANY WARRANTY.
YOU ACKNOWLEDGE THAT THE FUNCTIONS CONTAINED IN THE SITE AND SERVICES MAY NOT BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS MAY OR MAY NOT BE CORRECTED, AND THAT THE SITE, SERVICES OR THE DQC SERVER MAY NOT BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
DQC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF ANY CONTENT IN THE DQC SERVICES, ANY APPARATUS, PRODUCT OR PROCESS DISCLOSED ON THE SERVER OR OTHER MATERIAL ACCESSIBLE FROM THE SERVER IN RELATION TO THEIR CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, OR OTHERWISE. YOU (AND NOT DQC) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF YOUR OWN COMPUTER AND RELATED EQUIPMENT.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,
- DQC, THE DQC PARTIES AND THE RELATED PARTIES ASSUME NO OBLIGATIONS OR LIABILITIES TO YOU; AND
- YOU WAIVE ANY CLAIM FOR LIABILITY AGAINST DQC, THE DQC PARTIES, AND THE RELATED PARTIES, IN CONTRACT OR TORT, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING FROM ANY ACT OR OMISSION BY THEM ,
IN NO EVENT SHALL ANY LIABILITY OF DQC, THE DQC PARTIES AND THEIR RELATED PARTIES EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM.
Please note that some jurisdictions may limit or not permit exclusion of certain implied warranties. Check your local laws for any restrictions or limitations regarding these provisions.
7. CONTACT WITH THIRD PARTIES AND THIRD-PARTY WEBSITES
The DQC Site and Services may contain hyperlinks to other websites and webpages (“Third-Party Pages”), as well as to text, graphics, videos, images, music, sounds, and information belonging to or originating from other third-parties (collectively, “Third-Party Applications”). These links are provided solely as a convenience or benefit to users.
The inclusion of such hyperlinks or any reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier or otherwise of any third parties, does not indicate DQC’s approval, sponsorship, recommendations or endorsement thereof.
Your interactions with a third party on the Site and Services or based on such third party’s participation or presence on the Site and Services, are solely between you and the third party. DQC makes no representations or warranties with respect to the content, ownership, or legality of any such linked third-party website. If you choose to leave the DQC Services to access any Third-Party Pages or Third-Party Applications, you do so at your own risk. We encourage you to be aware when you leave our site and to read the terms and conditions and privacy statements of each and every web site that you visit. We are not responsible for the practices or the content of such other web sites.
We do not investigate, monitor, or review any Third-Party Pages or Third-Party Applications to ensure their accuracy, completeness, or appropriateness. DQC is not responsible for the Third-Party Pages or any Third-Party Applications accessed through the DQC Site or Services. You agree that DQC shall have no liability with respect to any loss or damage of any kind incurred as a result of any dealings between you and any third party resulting from the presence of such third party on the DQC Site or Services.
To the extent any Content is provided by third parties, DQC includes it for informational purposes only. Pursuant to Section 230 of the Federal Communications Decency Act, providers of interactive computer services are not considered or treated as publishers or speakers of information that is provided by other information content providers.
You agree to defend, indemnify, and hold DQC, its affiliates, licensors, suppliers, owners, employees, directors, officers, agents, business partners, affiliates, contractors, distribution partners, representatives and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the “DQC Parties”) harmless from and against any claims, actions, demands, liabilities, and settlements including, without limitation, legal and accounting fees, resulting from, or alleged to result from, your use of the Site, Services or Content, or your violation of these Terms. DQC reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
9. MODIFICATION OR SUSPENSION OF THE DQC SERVICES
DQC may terminate, suspend, modify, discontinue, or suspend some or all of the DQC Services or any feature or portion thereof, or any Products offered through them, without notice or liability to you or any third party. Any such action may be temporary or permanent. In the event of a permanent termination, you are no longer authorized to access those DQC Services, but the restrictions imposed on you with respect to the Content, and the disclaimers, indemnities, and limitations of liabilities set forth in these Terms shall survive termination.
DQC makes no representation that Products and Content described on the site are appropriate or available for use in locations outside the United States or Canada. DQC makes no claims that the Content are appropriate or may be downloaded outside of the United States of America or Canada. Access to the Content may not be legal by certain persons or in certain countries. If you access the DQC Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The following provisions survive the expiration or termination of these Terms for any reason whatsoever: Liability of DQC and its Licensors and Partners, Use Restrictions, User Submissions, Submission of Ideas, Indemnity, Choice of Law, Arbitration and Class Action Waiver, and Complete Agreement.
The Site, Services and Content may include technical inaccuracies or typographical errors. DQC may make changes or improvements at any time but is under no obligation to do so.
11. CHOICE OF LAW
Except for trademark and copyright matters governed by the federal laws of the United States or any other jurisdiction, the foregoing provisions shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without regard to the principles of conflict of law thereof. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
12. MANDATORY AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS; CLASS ACTION WAIVER
Please read this Section 12 (“Arbitration Agreement”) carefully. It is part of your contract with DQC and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION, JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
If you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue though any lawful means, including in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at email@example.com. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 12 govern dispute resolution between us.
If we have been given an opportunity to resolve your complaint and are unable or have not done so within 60 days of your notice of such a claim sent to us, and if your dispute qualifies for hearing by a small claims court, you may pursue your claim in small claims court. Additionally, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY CLAIM, DEMAND, COUNT, CAUSE OF ACTION DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND DQC AND/OR ANY OF THE DQC PARTIES OR RELATED PARTIES, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING AND CONFIDENTIAL ARBITRATION. SUCH CLAIMS SHALL INCLUDE DISPUTES RELATING TO THE INTERPRETATION AND SCOPE OF THIS CLAUSE, THE ENFORCEABILITY OF THIS PROVISION, ANY CHALLENGE TO THE ARBITRATION PROVISION OR THAT AGREEMENT IS VOID, VOIDABLE OR OTHERWISE INVALID AND THE ARBITRABILITY OF THE CONTROVERSY.
The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed.
IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED, AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION).
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, YOU AND DQC AGREE TO WAIVE ANY RIGHTS TO LITIGATE CLAIMS IN A COURT, WAIVE ANY RIGHT TO A JURY TRIAL AND WAIVE RIGHTS TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY-GENERAL OR ANY OTHER REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS MAY ALSO BE UNAVAILABLE, OR MAY BE LIMITED IN ARBITRATION. There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court.
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (“FAA”). Any award of the arbitrator(s) shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. DQC will pay its arbitration costs and, in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, DQC will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: American Arbitration Association,(800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com.
You and the Company must abide by these rules: (a) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (c) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.
With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or U.S. federal court in Delaware.
Please note that some jurisdictions may not allow waiver of jury trial, mandatory arbitration and waiver of rights to class actions, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding these provisions.
13. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)-NOTICE AND TAKE DOWN PROCEDURES OR CLAIMS OF COPYRIGHT INFORMATION
Pursuant to Title II of the DMCA, all claims alleging copyright infringement for material that is believed to be residing on DQC’s Site, System or server should be promptly sent in the form of written notice or e-mail to DQC through its attorney and Designated Agent:
Jack J. Mikels
Jack Mikels & Associates, LLP
One Batterymarch Park, Suite 309
Boston, MA 02169
with the subject line “Takedown Request”.
NOTE: No other notices or communications should be sent to the Designated Agent, who is appointed solely for the purpose of receiving notices of claims alleging copyright infringement under the DMCA.
Specific requirements for proper notification of claimed infringement are set forth in the DMCA (see 17 U.S.C. § 512(c)(3)). Valid notification must be a written communication that includes all of the following elements:
- Signature of copyright owner or person authorized to act on behalf of the owner;
- Identification of copyrighted work claimed to be infringed;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address);
- A statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.
It is the policy of DQC that upon receipt of a valid DMCA notice, we Verizon will remove or disable access to allegedly infringing material.
NOTE: There are substantial penalties for false claims (see 17 U.S.C. § 512(f) – providing sanctions for material misrepresentations of copyright infringement).
Filing a DMCA counter–notification:
If a notice of alleged copyright infringement under the DMCA has been wrongly filed against you, you may submit a counter-notification to DQC’s Designated Agent. Specific requirements for a proper counter–notification are set forth in the DMCA (see 17 U.S.C. § 512(g)(3)). A valid counter-notification must be a written communication that includes all of the following elements:
- A physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which the service provider may be found, and that you will accept service of process from the complainant.
Upon receipt of a valid counter–notification, DQC will forward it to the original complainant who submitted the DMCA notice alleging copyright infringement. The original complainant will then have ten (10) days to notify DQC that it has filed a lawsuit relating to the allegedly infringing material otherwise DQC may restore the removed material or cease disabling access to it.
In an effort to protect the rights of copyright owners, DQC maintains a policy for the termination, in appropriate circumstances, of users of the DQC Services who are repeat infringers.
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of DQC to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance.
15. COMPLETE AGREEMENT