Updated May 15, 2020
1. Nature of Agreement
2. Grant of License
3. Intellectual Property Rights
The Websites are protected by copyright under United States copyright laws. The Company and its affiliates’ trademarks, logos, slogans, and/or other distinctive designs are owned by Company, are protected by applicable law, and may not be copied or used without Company's prior written consent. All materials contained within the Websites (the "Content") are protected by copyright and are owned or controlled by Company, its affiliates and/or its licensors. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any Content on the Websites. You may download, make copies of, or otherwise reproduce the Content and other downloadable items displayed on the Websites for personal, noncommercial use only, provided that you maintain all copyright and other notices contained in such Content. Copying, otherwise reproducing, or storing of any Content except for your personal, noncommercial use is expressly prohibited without the prior written consent of the Company.
4. Password Policy
5. Unauthorized Use
Actual or attempted unauthorized use of the Websites may result in criminal and/or civil prosecution. For your protection, Company reserves the right to view, monitor, and record activity on the Websites without notice or further permission from you, to the fullest extent permitted by applicable law. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on the Websites. Company will also comply with all court orders involving requests for such information.
You may be permitted to use the Websites to order and pay for Company products and/or services (“Products”). To do so, you must have registered for an account with the Company and you must supply certain additional information relevant to your transaction, including, without limitation, your credit card number, the expiration date of your credit card, the name on your credit card, and/or your billing address. Once you have submitted your payment information, the Company (or its third-party payment processor) will authorize the payment and send you a confirmation email. You agree to pay any fees applicable to your use of the Websites and/or the Company’s Products, including but not limited to fees and charges applicable to your purchases. The Company may suspend or terminate your account and/or access to the Websites or Products if your credit card cannot be processed. By providing a payment method, you expressly authorize the Company and/or its third-party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto, all of which depend on the services you utilize and the Products you purchase. You agree that the Company or its third-party payment processor may charge any unpaid amounts to your provided payment method and/or send you a bill for such unpaid fees.
8. Idea Submission Policy and Your Communications to Company
Except as otherwise provided under the Privacy Policies concerning personally identifiable information, if you forward or transmit to Company through the Websites, by electronic mail or otherwise, any suggestions or material, including any questions or answers, ideas, comments, suggestions, or the like (together, “Submissions”), such Submissions will be treated as non-confidential and non-proprietary. Furthermore, any Submissions will be deemed to include a royalty-free, perpetual, irrevocable, nonexclusive right and license for Company to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display (in whole or in part) worldwide, or act on such Submissions without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Submissions. You hereby waive any claim to the contrary.
9. Restrictions and Covenants
With the exception of the license granted in Section 2 and except as otherwise expressly permitted herein, you may not modify, create derivatives of, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, mirror, frame, “deep link”, “scrape”, data mine, or otherwise use any information or material obtained from or through the Websites, or link to the Websites in any manner that would bypass the Websites’ home page. Further, you may not post any content from the Websites to forums, newsgroups, list serves, mailing lists, electronic bulletin boards, or other websites, without the prior written consent of Company.
10. Assumption of Risk; Your Acknowledgments
You acknowledge and agree that you use the Internet solely at your own risk and subject to all applicable local, state, national, and international laws and regulations. While Company has endeavored to create a secure and reliable websites, please be advised that the confidentiality of any communication or material transmitted to/from a Website over the Internet cannot be guaranteed. Accordingly, Company and Company’s licensors and suppliers are not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Websites, or for the consequences of any reliance on such information. Company and Company’s licensors and suppliers shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Websites.
You acknowledge that transmissions to and from the Websites may be read or intercepted by third parties.
You expressly absolve and release Company and Company’s licensors and suppliers from any claim of harm resulting from a cause beyond their control, including, but not limited to, the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorism or governmental restrictions.
11. Links to Third-Party Websites
Company may provide links, in its sole discretion, to other websites on the World Wide Web for your convenience in locating related information and services. These websites have not necessarily been reviewed by Company and are maintained by third parties over which Company exercises no control. Accordingly, Company expressly disclaims any responsibility for the content, the accuracy of the information, the quality of products or services provided by or advertised on and/or software downloaded from these third-party websites. Moreover, these links do not imply an endorsement of any third party or any website or the products or services provided by any third party.
12. Disclaimer of Warranty
THE INFORMATION PROVIDED WITHIN THE WEBSITES IS PROVIDED "AS IS." NEITHER COMPANY NOR ITS AFFILIATES NOR ITS OR THEIR LICENSORS WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION CONTAINED ON THE WEBSITES OR WEBSITES TO WHICH THEY LINK, AND ARE NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN THE CONTENT. COMPANY, ITS AFFILIATES AND ITS LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANYTHING CONTAINED WITHIN THE WEBSITES OR WEBSITES TO WHICH THEY LINK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES AND ITS AND THEIR LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13. Limitation of Liability
NEITHER COMPANY NOR ITS AFFILIATES NOR ITS OR THEIR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND RESULTING FROM THE USE OF OR THE INABILITY TO USE ANY WEBSITE, RESULTING FROM ANY INFORMATION, GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITES, RESULTING FROM LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY, ITS AFFILIATES AND/OR ITS OR THEIR LICENSORS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, COMPANY, ITS AFFILIATES AND ITS LICENSORS AND SUPPLIERS DISCLAIM LIABILITY FOR ANY DIRECT DAMAGES BASED ON YOUR USE OF THE WEBSITES AND THEIR CONTENT. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL COMPANY'S, ITS AFFILIATES’ OR ITS OR THEIR LICENSORS’ AGGREGATE LIABILITY FOR DAMAGES OF ANY KIND, BASED ON ANY LEGAL THEORY OR CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITES, EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID BY YOU FOR SERVICES PROVIDED VIA THE WEBSITES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE RELEVANT CLAIM ACCRUED, OR (B) ONE HUNDRED DOLLARS.
You agree to indemnify, defend and hold harmless the Company, its affiliates and its or their licensors, together with their respective affiliates, officers, directors, employees, consultants and agents from any and all third-party claims, liability, damages, and/or costs (including, but not limited to, attorneys’ fees) arising from your violation of the terms of this Agreement and/or use of the Website or any information or content thereon in violation of any applicable law, rule, or regulation.
15. Notices / Contact Information
The Company may, with or without cause, immediately terminate this Agreement, and deny you access to any or all of the Websites. Without limiting the foregoing, Company has the right to immediately terminate your right to access any or all of the Websites in the event that you breach this Agreement or engage in conduct that Company, in its sole discretion, considers unacceptable. If this Agreement is terminated, you will no longer be authorized to access the Websites. In the event of termination, the restrictions imposed on you with respect to material downloaded, copied or otherwise reproduced from the Websites, the disclaimers and limitations of liabilities and the indemnification set forth in this Agreement, shall survive.
17. Governing Law, Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of law provisions and without regard to the U.N. Convention on Contracts for the International Sale of Goods.
ARBITRATION; CLASS ACTION WAIVER.
Please read the following Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) carefully. It affects your rights.
For purposes of this Provision, “APSA” means APSA and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and APSA regarding, arising out of or relating to any aspect of your relationship with APSA, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as APSA’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND APSA EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give APSA an opportunity to resolve the Dispute. You must commence this process by mailing written notification to APSA, 1010 West Jasper Drive, Suite 5, Killeen, Texas 76542
That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If APSA does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or APSA may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or APSA may initiate arbitration in either Bell County, Texas or the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – APSA will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with APSA as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and APSA specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Provision, as specified above, this Class Action Waiver will not apply to you. Except to the extent that representative claims under California’s Private Attorney General Act (“PAGA”) are excluded from this Agreement, neither you, nor any other user of a Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.
18. Other Agreements