- CHANGES TO AGREEMENT
WAKE BALLAST RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY: (I) THE POSTING OF A NEW VERSION; AND/OR (II) A CHANGE NOTICE ON THE WEBSITE OR APPLICATION. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Services following the date in which the modified or amended Agreement is posted.
- RISK ASSUMPTION
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE, PRODUCTS AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY WAKE BALLAST AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
- USER INFORMATION; PASSWORD PROTECTION
You will also be asked to provide a user name and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other Member at any time. You agree to notify Wake Ballast immediately of any unauthorized use of Your account, user name, or password. Wake Ballast shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Wake Ballast, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
- CONSENT TO RECEIVE EMAIL FROM WAKE BALLAST
In providing the Services, You may receive periodic email communications regarding the Services, new product offers and information regarding the Services, which are part of the Services and which You cannot opt out of receiving. You may also receive periodic promotions and other offers or materials Wake Ballast believes might be of interest to You. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each newsletter; or (b) changing the email preferences in Your account.
- THIRD-PARTY WEBSITES
The Service includes links to websites of third parties ("Third-Party Websites"), some of whom may have established relationships with Wake Ballast and some of whom may not. Wake Ballast does not have control over the content and performance of Third-Party Websites. WAKE BALLAST HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, WAKE BALLAST DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. WAKE BALLAST DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
- INTELLECTUAL PROPERTY
Wake Ballast, Wake Ballast.com and the Wake Ballast logo (collectively, the "Wake Ballast Marks") are trademarks or registered trademarks of Wake Ballast, Inc.. Other trademarks, service marks, graphics, logos and domain names appearing on the Services may be the trademarks of third-parties. Neither Your use of the Services, nor this Agreement, grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Wake Ballast Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Wake Ballast Marks generated as a result of Your use of the Services will inure to the benefit of Wake Ballast, Inc., and You agree to assign, and hereby do assign, all such goodwill to Wake Ballast, Inc.. You shall not at any time, nor shall You assist others to, challenge Wake Ballast, Inc.’s right, title, or interest in or to, or the validity of, the Wake Ballast Marks.
- Copyrighted Materials; Copyright Notice
All content and other materials available through the Website and Services, including without limitation the Wake Ballast logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Wake Ballast, Inc. or are the property of Wake Ballast’s licensors and suppliers. Except as explicitly provided, neither Your use of the Services nor this Agreement grant You any right, title or interest in or to any such materials.
- DMCA Policy
If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Wake Ballast to delete, edit, or disable the material in question, you must provide Wake Ballast with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 Wake Ballast to locate the material; (d) information reasonably sufficient to permit Wake Ballast to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Wake Ballast’s designated agent at: http://wakeballast.com/contact-us/
- DISCLAIMERS; LIMITATION OF LIABILITY
- NO WARRANTIES.
WAKE BALLAST, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, WAKE BALLAST, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER WAKE BALLAST NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE, PRODUCTS OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE, PRODUCTS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY
THE LIABILITY OF WAKE BALLAST AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WAKE BALLAST OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO WAKE BALLAST OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, PRODUCTS OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF WAKE BALLAST AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN WAKE BALLAST AND YOU. THE WEBSITE, PRODUCTS AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
- YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website, products, and services will be in accordance with this Agreement and any other Wake Ballast policies and guidelines, and with any applicable laws or regulations.
- INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You agree to defend, indemnify and hold harmless Wake Ballast and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Third-Party Service Providers (collectively, the "Indemnified Parties") from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, "Claims"), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website, Products, or Services; (iii) Your provision to Wake Ballast or any of the Indemnified Parties of information or other data; (iv) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; or (v) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
- GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in Valencia, California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE PRODUCTS, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
- Requirement of Arbitration.
You agree that any dispute, of any nature whatsoever, between You and Wake Ballast arising out of or relating to this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Los Angeles, California (unless You and Wake Ballast mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS’ fee and reasonable attorney’s fees) to the prevailing party.
- Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not preclude You or Wake Ballast from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or Wake Ballast from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
All notices required or permitted to be given under this Agreement must be in writing. Wake Ballast shall give any notice by email sent to the most recent email address, if any, provided by You to Wake Ballast. You agree that any notice received from Wake Ballast electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH WAKE BALLAST IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY WAKE BALLAST OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Wake Ballast by navigating to the page of the website to contact us and filling out the contact form: http://wakeballast.com/contact-us/. Notice to Wake Ballast shall be effective upon receipt of notice by Wake Ballast.
This Agreement constitutes the entire agreement between Wake Ballast and You concerning Your use of the Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Wake Ballast or by the unilateral amendment of this Agreement by Wake Ballast and by the posting by Wake Ballast of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Wake Ballast may assign or transfer this Agreement at any time, with or without notice to You. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Wake Ballast. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and Wake Ballast are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for the Wake Ballast Parties and the Indemnified Parties, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to Wake Ballast and Wake Ballast’s licensors and suppliers, and would therefore entitle Wake Ballast or Wake Ballast’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.