1. ACCEPTANCE OF TERMS OF SERVICE.
- By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, or clicking on a button or taking similar action to signify your affirmative acceptance of these Terms of Service, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
- Certain Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SITE.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE SECTION 13 (ARBITRATION AGREEMENT) BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. HEALTH CARE DISCLAIMER.
ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT (AS DEFINED BELOW), ARE FOR INFORMATIONAL PURPOSES ONLY. NO INFORMATION PROVIDED THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT TAKEN TO BE, FACTUAL OR ACCURATE KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. NO ASPECT OF THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, PROFESSIONAL MEDICAL KNOWLEDGE, ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH PROVIDER, KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. YOU CANNOT USE THE SERVICES AS A DIAGNOSIS, TREATMENT OR PRESCRIPTION. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. NO PATIENT/DOCTOR RELATIONSHIP OF ANY KIND IS ESTABLISHED THROUGH USE OF THE SERVICES. THE SERVICES ARE NOT A SUBSTITUTE FOR EMERGENCY MEDICAL HELP AND CANNOT BE USED IN THE EVENT OF A MEDICAL EMERGENCY. You should always seek the advice of your physician or other qualified health provider, with any questions you may have regarding personal health or a medical condition, including diagnosis and treatment for your specific medical needs. You should never disregard or delay in seeking professional medical advice due to information you have obtained from the Services.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. If you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).
To sign up for the Services, you must register for an account on the Services (an “Account”) with your email address or log in through your Facebook account. By using the Services through your Facebook ID, you permit us to access certain information from such account for use by the Services. You may control the amount of information that is accessible to us by adjusting your Facebook account settings. You must provide accurate and complete information and keep your Account information updated. You shall not use any other person’s email address to register for an Account. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by following the instructions on the Site or through the Services.
- Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
- User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. Any testimonials you may provide us at our request shall be User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
- Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
- Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for personal, non-commercial use of the Services. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use of the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
- License Grant. By submitting User Content through the Services or otherwise to us, you hereby grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your User Content that is publicly available to such user through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, (i) any information you submit to the Services that you do not publicly post through the Services will not be shared with other users (for example, your Subscription information will not be shared with other users), and (ii) the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
- Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
- Ownership. Except for User Content, you acknowledge that Enya and its licensors own the Services and all intellectual property rights and moral rights therein, including without limitation all copyrights, trademarks and trade dress. Except for the limited access expressly provided in these Terms of Service, neither these Terms of Service nor your access to the Services transfers to you any right, title or interest in or to such intellectual property rights. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms of Service. Except as expressly provided by us, none of the Services may be copied, displayed or transmitted in any way.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us through email, mail, phone or its suggestion, feedback, wiki forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations or confidentiality) with respect to such Feedback and are free to use or disseminate that feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
6. RULES OF CONDUCT.
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
- You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty
- you know is false, misleading, untruthful or inaccurate;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone’s identification documents or sensitive financial information.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
7. THIRD PARTY SERVICES.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
8. ENYA SUBSCRIPTIONS AND PURCHASES.
- Subscriptions; Automatic Renewal; Changes. Please see our Site for a current description of the subscriptions we offer through the Services (“Subscriptions”), how to place an order for a Subscription and our policies with respect to changing or cancelling a Subscription. Before submitting your order for a Subscription, you must select the quantity and subscription renewal frequency of either 15 or 30 days. Note that Subscriptions are automatically renewed and will continue for renewal periods of the same duration as the Subscription term originally selected at the then-current price (or for the term and price as subsequently modified by you), unless you have cancelled such Subscription. You acknowledge that Subscriptions have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. For a given Subscription, you can change your preferences in your Account, where you can skip or cancel such Subscription. Any changes must be made at least seventy-two (72) hours before your next ship date. Our Site will let you know if you can still modify the next shipment before it ships.
- One-Time Purchases. Please see our Site for a current description of the products you can purchase through the Services (“Purchases”). If you choose to make a Purchase, such Purchase will be shipped to you with the next shipment of your Subscription.
- Order Processing. All orders are subject to acceptance by us. We may choose not to accept your order for any reason without liability to you, and Enya reserves the right to refuse or cancel any order or transaction at any time, in its sole discretion. For example, we may choose to not process or to cancel your order when a product is out of stock or has been mispriced or if we suspect the request is fraudulent. If we decide not to process your order or if we cancel all or a portion of your order, Enya will either not charge you for the applicable item(s) or provide you with a refund for the applicable item(s).
- Risk of Loss. The risk of loss and title for all products you order passes to you upon our delivery to the carrier (such as Pgeon, FedEx, GDex, Pos Malaysia or PosLaju).
- Returns and Exchanges. Unfortunately, due to the nature of our product, we cannot accept returns or exchanges. We understand that relationships don’t always work out and we hope you’ll come back to try our new products.
- Payment. In order to submit an order through the Services, you must use a valid credit card or other payment method accepted by the Services (which may change from time to time in Enya’s sole discretion) (your “Payment Method”), with full authority to use it. Enya reserves the right, in its sole discretion, to take steps to verify your identity and/or eligibility to process your order. Please note that any payment terms presented to you in the process of placing an order through the Services are deemed part of this Agreement. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for orders through the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase products through the Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with your Payment Method and you authorize us, through the Payment Processor, to charge your Payment Method. Such charges for your purchase may include shipping fees and state and local sales tax, the amount of which varies due to factors including the type of item purchased and the shipping destination. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. FOR SUBSCRIPTIONS, WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable order upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR PAYMENT METHOD. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELLED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR YOUR SUBSCRIPTION UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION THROUGH THE SERVICES.
- Change in Amount Authorized. If the amount to be charged to your Payment Method varies from the amount you pre-authorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Reaffirmation of Authorization. Your non-termination of a Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to order the Subscription.
- Promotional Credits. From time to time, Enya may choose to issue a certain number of credits (“Promotional Credits”) to your Account (the “Program”). In addition to any specific rules and descriptions for each issuance of Promotional Credits, which are incorporated herein, the following terms apply. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCEPT PROMOTIONAL CREDITS THROUGH THE SITE.
- Promotional Credits, the number of Promotional Credits, and the redemption value of Promotional Credits and any restrictions on the use of Promotional Credits, are issued at Enya’s sole discretion to the fullest extent of the law. Any Promotional Credits issued shall be automatically redeemed at checkout on your next shipment(s) through the Services, until the Promotional Credits are fully redeemed. You acknowledge that even if Promotional Credits are redeemed on a shipment, you may still need to pay for expedited shipping if you choose expedited shipping for such shipment and you do not have enough Promotional Credits to cover the full cost. Any remaining balance on the purchase amount for a given shipment after Promotional Credits are fully redeemed is your sole responsibility. You cannot choose when (or when not) to redeem any Promotional Credits in your Account.
- To the fullest extent of the law, Promotional Credits automatically expire and are forfeited at the date that is three (3) years after the date such Promotional Credits are issued AND THERE IS NO DORMANCY FEE. Promotional Credits are only valid for redemption on the Services and are void where prohibited or restricted by law. Promotional Credits are promotional in nature and are not legal tender. Promotional Credits are non-transferable, non-exchangeable, have no value and cannot be used for cash back or sold. Enya reserves the right, in its sole discretion at any time, to void any Promotional Credits, or to cancel, suspend, terminate or modify any aspect of the Program, with or without notice to you. Enya also reserves the right, in its sole discretion, to terminate your participation in the Program at any time, with or without cause, with or without notice, effective immediately, including without limitation if Enya deems or suspects any violation of these terms and conditions, cheating, fraud or tampering with the operation of Program.
- By participating in the Program, you agree to release and hold harmless Enya, and its affiliates, suppliers, partners, parent companies, subsidiaries, employees, contractors, directors, officers, agents, and representatives, from any and all economic liabilities, claims, damages, loss, harm, costs or expenses, including without limitation property damage, that arise from or relate to in any way the Program and/or use or misuse of Promotional Credits. THIS SUB-SECTION 8.k(iii) APPLIES ONLY TO ECONOMIC DAMAGES AND DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.
- Other Credits. From time to time, Enya may choose to issue a certain number of non-promotional credits (“Other Credits”) to your Account. Other Credits include, without limitation, credit issued to you for any returns (that we may reject or accept in our sole direction and that we generally do not accept) or for credit issued to you for a minor error with our third-party vendors or carriers. In addition to any specific description of the issuance of Other Credits, which are incorporated herein, the following terms apply. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCEPT OTHER CREDITS THROUGH THE SITE.
- Other Credits, the number of Other Credits, and the redemption value of Other Credits, and any restrictions on the use of Other Credits are issued at Enya’s sole discretion to the fullest extent of the law. Any Other Credits issued shall be automatically redeemed at checkout on your next shipment(s) through the Services, until the Other Credits are fully redeemed. You acknowledge that even if Other Credits are redeemed on a shipment, you may still need to pay for expedited shipping if you choose expedited shipping for such shipment and you do not have enough Other Credits to cover the full cost. Any remaining balance on the purchase amount for a given shipment after Other Credits are fully redeemed is your sole responsibility. You cannot choose when (or when not) to redeem any Other Credits in your Account.
- THERE IS NO DORMANCY FEE. Other Credits are only valid for redemption on the Services and are void where prohibited or restricted by law. To the fullest extent of the law, Other Credits cannot be used for cash back or sold.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. WARRANTY DISCLAIMER.
- THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. ENYA, ON BEHALF OF ITSELF AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, PARTNERS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY THE “ENYA PARTIES”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE; (B) DOES NOT WARRANT THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE OR SECURE; (C) DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY WARRANTIES REGARDING THE USE OF THE SERVICES OR CONTENT WITH RESPECT TO THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN RISK.
- THE DISCLAIMER OF WARRANTIES SET FORTH IN THIS SECTION IS PART OF THE BARGAIN BETWEEN YOU AND ENYA.
- NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ENYA PARTIES’ WARRANTIES, TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES/JURSIDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL IMPLIED WARRANTY RIGHTS.
You shall defend, indemnify, and hold harmless the Enya Parties from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from your misuse of the Services, your violation of these Terms of Service, or your infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Enya Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.
12. LIMITATION OF LIABILITY.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE ENYA PARTIES BE LIABLE TO YOU FOR ANY PUNITIVE OR EXEMPLARY DAMAGES OR FOR ECONOMIC DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR CONTENT, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL ECONOMIC DAMAGES EVEN IF A ENYA PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
- IF, NOTWITHSTANDING THE FOREGOING, A ENYA PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SERVICES OR CONTENT, THE RELEVANT ENYA PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID ENYA FOR THE SUBSCRIPTION OR PURCHASES, AS APPLICABLE, OR (B) THE SUM OF FIVE HUNDRED RINGGITS (RM 500). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
- THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THIS SECTION 12 DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.
13. ARBITRATION AGREEMENT.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Enya, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Enya may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at the following address: 57, Jalan Sierra 2/1 Bandar Sierra 16, Puchong 47100 Selangor, Malaysia. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, enya will pay them for you. In addition, enya will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
- You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and enya . The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND ENYA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and enya are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.a above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the Selangor and Kuala Lumpur. All other claims shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 31, USJ 11/4B 47620 Subang Jaya, Selangor, Malaysia within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your company username (if any), the email address you used to set up your company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. Except as provided in subsection 13.e, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with enya.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if enya makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing enya at the following address: 31, USJ 11/4B 47620 Subang Jaya , 47620 Selangor, Malaysia.
14. GOVERNING LAW AND JURISDICTION.
These Terms of Service shall be governed by and construed in accordance with the laws of Selangor, without regard to the conflict of laws provisions thereof, and Malaysia. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Selangor, Malaysia.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
16. COPYRIGHT POLICY.
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to firstname.lastname@example.org
17. INTERNATIONAL USE.
The Site can be accessed from countries other than Malaysia, but may contain products and/or references that are not available outside of Malaysia. Any such references do not imply that such products will be made available outside the Malaysia. If you access and use the Site and/or Services outside Malaysia you are responsible for complying with your local laws and regulations.
- Entire Agreement. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
- Severability. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
- Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
- Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com
- No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Contact. You may contact us at firstname.lastname@example.org