- Purchaser is interested in obtaining a product from BackShield to reduce back pain, promote posture, alleviate back tension, and other various reasons that may be amended from time to time; and
- BackShield is the product company which facilitates the online purchases;
- To the extent that, as part of providing the Product, BackShield will provide the specified product to Purchaser.
In consideration of the foregoing recitals, the mutual promises, covenants and agreements herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
DEFINITIONS The terms used in this agreement shall have their normal or common meaning, except that the following capitalized terms shall have the following meanings for the purpose of this Agreement.
- "Confidential Information" means any and all confidential, proprietary or trade secret information, including discoveries, ideas, concepts, know-how, techniques, processes, procedures, designs, specifications, strategic information, proposals, requests for proposals, drawings, tracings, diagrams, blueprints, models, samples flow charts, data, computer programs, marketing plans, customer information, authentication credentials, and other technical, financial or business information, whether disclosed in writing, orally, visually, in tangible or intangible form, including in electronic mail or by other electronic communication. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or User and/or Purchaser; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of another person's Confidential Information.
- "Force Majeure" means any act of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, acts of terrorism, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrest and restraints of governments and people, civil disturbances, and explosions.
- "Intellectual Property" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- "Product" means any article or substance that is manufactured and sold by BackShield, including, but not limited to, the BackShield and BackSport.
- "Purchaser" means the person or entity that is the recipient of the product purchased from BackShield or the person or entity that is seeking to purchase a product from BackShield.
- "Services" means any work, service, or product that is performed or generated by BackShield, including, but not limited to, any advertising, marketing, consulting, producing, manufacturing, designing, inventing, generating, engineering, and selling of any back support material.
- "User" means the person or entity that is visiting, utilizing, or observing any BackShield or affiliated website or application.
- TERM OF AGREEMENT The Terms of Service as amended from time to time, will become effective April 2, 2018 and will remain in effect perpetually.
- Price. The price for the product covered by any purchase of any BackShield product shall be the price as stated on the website for the specific product desired to be purchased. All prices are exclusive of all taxes including federal, state, and local sales, excise and value added, goods and services taxes, and any other taxes.
- Payment Terms. Payment may be made by credit card or PayPal, or as otherwise permitted by BackShield. Payment shall be made immediately upon the purchase of the product. If payment is declined for any reason, BackShield may cancel the purchase and is not bound to any other performance and Purchaser will be responsible for any costs, fees, and expenses attributable to the failure of payment.
- DELIVERY TERMS All deliveries will be made to the place of shipment as provided by the Purchaser. Title and risk of loss pass to the Purchaser upon delivery of the product purchased to the shipping carrier. The delivery dates that are stated by BackShield are estimates only and BackShield is not liable for any delay in delivery or failure to perform for causes beyond the reasonable control of BackShield and any delayed delivery does not entitle Purchaser to cancel deliveries. The shipping carrier shall not be deemed an agent of BackShield.
- Confidentiality. All Confidential Information furnished by or on the behalf of BackShield shall remain or become BackShield property and shall be deemed to be the Confidential Information of BackShield. Such Confidential Information shall not be reproduced, given or disclosed to any third party without BackShield's prior express written consent and nothing in this Agreement shall be deemed to grant any rights to anyone to use all or any of BackShield's Confidential Information except for the purposes of this Agreement. Any information that is disclosed to anyone visiting this Site shall be deemed to be disclosed only in connection for the specific purpose and ceases immediately upon completion of the purpose and returned to BackShield. BackShield is under no obligation to keep confidential any information furnished to BackShield by Purchaser, subject to other provisions of this agreement.
- Use of Marks. In no circumstances shall any User or Purchaser issue a news release, public announcement, advertisement, or other form of publicity concerning the existence of this Agreement or the services or products to be provided hereunder without obtaining the prior written approval of BackShield. Neither User nor Purchaser shall use BackShield's name or any trademark, service mark or logo of BackShield, without BackShield's express prior written consent specifically relating to such use. The logo, brand or other trademark or service mark ("Marks") of BackShield will remain the exclusive property of BackShield and neither User nor Purchaser has and will have no right to such Marks. All use of the Marks of BackShield will be deemed to inure only to the benefit of the owner of such Mark. This provision grants User and/or Purchaser no rights whatsoever to BackShield's trademarks or trade names except as may be authorized under this Agreement.
INTELLECTUAL PROPERTY OWNERSHIP The contents of the Products and Services, including the Site, any content, and other materials made available via related social media, are protected by United States copyright, trademark and other intellectual property laws and international treaties and owned or controlled by BackShield or the party credited as the provider of the content. User and/or Purchaser agree to abide by all additional copyright notices, information, or restrictions contained in any content accessed through the any BackShield related content. By accepting these Terms, User and/or Purchaser further acknowledges and agrees that BackShield and third party licensors own and shall continue to own all right, title, and interest in and to the Intellectual Property and other elements of BackShield, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Except for any limited, revocable license expressly granted to User and/or Purchaser herein, these provisions do not grant any ownership or other right or interest in or to the Intellectual Property and/or other elements of BackShield, or any other Intellectual Property Rights of BackShield, whether by implication, estoppel, or otherwise. Any and all trademarks or service marks that BackShield uses in connection with the Products and Services are marks owned by BackShield. These Terms do not grant User and/or Purchaser any right, license, or interest in such marks, and User and/or Purchaser shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks. User and/or Purchaser may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except where expressly permitted for the storage of downloadable material), create new works from, distribute, perform, display, or in any way exploit, any of the content or the Products or Services (including software) in whole or in part.
In addition, subject to and conditioned on compliance with this Agreement, BackShield grants you to access and use the Site for the purpose of using the Site. You must not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purposes other than the purposes for which it was made available. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site in any way for any public or commercial purpose. You must not use any content of the Site on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site unless expressly permitted by applicable law. You will not access Site in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site.
LIMITATION OF LIABILITY BackShield is not liable, and You agree not to hold BackShield responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
- Your use of or your inability to use our Site;
- Delays or disruptions in our Site;
- Viruses or other malicious software obtained by accessing, or linking to, our Site;
- Glitches, bugs, errors, or inaccuracies of any kind in our Site;
- Damage to your hardware device from the use of the Site;
- The content, actions, or inactions of third parties' use of the Site;
- A suspension or other action taken with respect to your account;
- Your reliance on the quality, accuracy, or reliability of third party postings, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- General Indemnity. User and/or Purchaser shall release, defend, indemnify and hold BackShield, its parents, subsidiaries and affiliated or related companies, and its and their respective officers, directors, employees, consultants, agents and invitees harmless from and against any and all claims, demands, causes of action, liabilities, damages, judgments, awards, losses, costs, fines, penalties and expenses (including reasonable attorneys' fees and costs of litigation) of any kind or character ("Claims"), in respect of personal or bodily injury to, sickness, disease or death of, and in respect of damage to or loss or destruction of property owned, leased, rented, or hired by User and/or Purchaser or its employees, consultants, agents or invitees or User and/or Purchaser subcontractors at any tier or their employees, consultants, agents or invitees, arising out of or in connection with the performance of this contract, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF BACKSHIELD, CONTRACTOR, OR ANY OTHER PERSON, PARTY OR ENTITY.
Consequential Damages. Notwithstanding anything contained in this contract to the contrary, User and/or Purchaser shall be liable for, and hereby agrees to release, indemnify, defend and hold BackShield, its parents, subsidiaries, licensors, third party service providers, and affiliated or related companies, and its and their respective directors, officers, employees, consultants, agents and invitees, harmless from and against any and all indirect, incidental, special, punitive, exemplary or consequential damages or losses (whether foreseeable or not at the date of this contract), which shall include, without limitation, any and all damages or losses for lost production, lost revenue, lost product, lost profit, litigation costs, installation and removal costs, loss of data, lost business or business interruptions incurred by, or in favor of, User and/or Purchaser or its co-lessees, co-owners, partners, joint operators and joint venturers, if any, and its and their parents, subsidiaries, licensors, third party service providers, and affiliated or related companies, arising out of, or in connection with, the performance of or subject matter of this contract, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF BACKSHIELD, ITS EMPLOYEES OR AGENTS, OR ANY OTHER PERSON OR PARTY.
In no event will BackShield be liable to User and/or Purchaser or any party related to User and/or Purchaser for any damage, whether under a theory of contract, warranty, tort (including negligence) products liability or otherwise, even if BackShield have been advised of the possibility of such damages. As such THE SERVICES, CONTENT AND ALL PRODUCTS ARE DISTRIBUTED AS AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. USER AND/OR PURCHASER HEREBY ACKNOWLEDGES THAT USE OF THE SERVICES IS AT USER AND/OR PURCHASER'S OWN RISK. Limitations herein described shall be applied to the greatest extent enforceable under applicable law.
- Indemnity Obligations. Except as otherwise expressly limited herein, it is the intent of Parties that ALL INDEMNITY OBLIGATIONS AND/OR LIABILITIES ASSUMED BY SUCH PARTIES UNDER TERMS OF THIS AGREEMENT ARE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING PREEXISTING CONDITIONS, STRICT LIABILITY, FAULT, BREACH OF CONTRACT OR WARRANTY, OR THE NEGLIGENCE OF ANY PERSON OR PARTY, INCLUDING THE INDEMNIFIED PARTY OR PARTIES, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONTRIBUTORY, OR CONCURRENT, ACTIVE OR PASSIVE, ORDINARY OR GROSS. All indemnities in this Agreement will apply even though an insurer or other person or entity is required to pay for any claim or make a contribution to such claim. Except to the extent prohibited by law, even though insurance may be arranged or other persons or entities may have certain liabilities or obligations, each Party remains responsible for its indemnity and other obligations under this Agreement, even if such insurer or such other person or entity, for any reason, does not satisfy such liability or obligation.
- TERMINATION BackShield may, in writing, terminate all or any part of this Agreement at any time without cause and without liability by BackShield to User and/or Purchaser. The provisions of this subparagraph shall not limit or affect the right of BackShield to terminate this Agreement for cause. If User and/or Purchaser fails to observe or comply with any of the other instructions, terms, conditions or warranties applicable to this Agreement, or in the event of any proceeding by or against User and/or Purchaser in bankruptcy or insolvency or appointment of a receiver or trustee or an assignment for the benefit of creditors, BackShield may, in addition to any right or remedy provided by this Agreement or by law, terminate all or any part of this Agreement by written notice to User and/or Purchaser without any liability by BackShield to User and/or Purchaser. Any rights and/or obligations of the parties that have accrued as of any termination of this Agreement shall survive any such termination of this Agreement.
- Alternative Dispute Resolution. All disputes (the "Dispute") arising out of or relating to this Agreement or the furnishing of Work hereunder shall be resolved by final and binding arbitration, conducted in accordance with the Commercial Rules of Arbitration of the American Arbitration Association (the "Rules") which are deemed to be incorporated by reference. The tribunal shall be composed of one (1) neutral arbitrator if the Dispute involves a maximum exposure of less than $1,000,000. If the Parties are unable to agree on a neutral arbitrator, one will be appointed pursuant to the Rules. If the Dispute involves a maximum exposure in excess of $1,000,000, then the Tribunal shall consist of three (3) arbitrators, with each Party appointing one arbitrator, and the two arbitrators so appointed appointing the third arbitrator who shall act as Chair (the "Tribunal"). The place of arbitration shall be Shoreline, Washington, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal, which the Tribunal may modify for good cause shown. No award shall be made for punitive, special, exemplary, or consequential damages or losses, including loss of profits or loss of business opportunity. Judgment on the award may be entered in, and enforced by, any court of competent jurisdiction. All statutes of limitation that would otherwise be applicable shall apply to the Dispute. Any attorney-User and/or Purchaser privilege and other protection against disclosure of privileged or confidential information, including without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any Party shall be available to, and may be claimed by, any such Party in any arbitration proceeding. The Parties shall treat all matters relating to the arbitration as confidential. Subject to each Party's right to cooperate fully with the United States' authorities, the Parties understand and agree that this confidentiality obligation extends to information concerning the fact of any request for arbitration, and any ongoing arbitration, as well as all matters discussed, discovered, or divulged, (whether voluntarily or by compulsion) during the course of such arbitration proceeding. It is the desire of the Parties that any Dispute is resolved efficiently and fairly and the Tribunal shall act in a manner consistent with these intentions.
- Class Action and Jury Trial Waiver. This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and BackShield agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding ("Class Action Waiver"). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. You and BackShield agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, BackShield may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
- Exclusivity. Redress under the indemnity and release provisions set forth in this Agreement shall be the exclusive remedy/remedies available to the Parties for the Claims covered by such provisions.
- Entirety. Subject to the foregoing, these Terms set forth the entire and complete agreement of the parties as to the subject matter hereof, and supersedes any and all proposals, negotiations, agreements, and representations of the Parties prior to the execution hereof, including without limitation, prior drafts or prior versions of these Terms.
- Enforcement and Waiver. BackShield's failure to enforce any rights granted by these Terms or to take action against any other party in the event of any breach shall not be deemed a waiver by BackShield as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Modifications and Amendments. No amendment, change, modification, waiver, extension, renewal, ratification, rescission or discharge of this Agreement or of any provision hereof or any representation, promise or condition relating to this Agreement shall be binding upon a Party unless made in writing, signed by the Parties, and specifically referencing this Agreement.
- Assignability. This Agreement shall be binding upon the Parties and their respective successors, heirs, and assigns; provided, however, that this Agreement shall not be assigned or subcontracted by User and/or Purchaser without the written consent of BackShield and that any assignment or subcontract shall not relieve User and/or Purchaser of its obligations hereunder.
- Severability. In the event one or more of the provisions contained in this Agreement shall be held, for any reason, to be invalid, void, illegal, contrary to law and/or unenforceable in any respect, this Agreement shall be deemed to be amended to partially or completely modify such provision or portion thereof to the extent necessary to make it enforceable. If necessary, this Agreement shall be deemed to be amended to delete the unenforceable provision or portion thereof, in which event such invalidity, voidness, illegality or unenforceability shall not affect the remaining provisions hereof and this Agreement shall remain unaffected and shall be construed as if such invalid, void, illegal or unenforceable provision never had been contained herein. The Parties agree and acknowledge that this Agreement has been jointly drafted and negotiated by both Parties and thus that no provision shall be construed against a Party on grounds that it drafted, proposed or revised such provision (or any other proposed or final provision for this Agreement).
- Force Majeure. Neither party shall be considered in breach of an obligation under the Terms, other than obligations to pay money, to the extent the party can demonstrate that fulfillment of the obligation has been prevented by a force majeure event. "Force majeure" shall include, but not be limited to, acts of God, laws and regulations, strikes, lightening, fire, flood, washout, storm, war (declared or undeclared), acts or threats of terrorism, breakage or accident to equipment or machinery, and any other causes that are not reasonably within the control of the party affected.
- Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California (excluding any choice-of-law rule that would refer to the law of another jurisdiction, except as otherwise expressly provided herein, provided, however, if any portion of the work or services to be provided takes place in, upon or over the navigable waters of the United States of America, then this Agreement will be governed and controlled exclusively by the General Maritime Law of the United States of America. The Parties agree that any conflicts shall be resolved in accordance with the Alternative Dispute Resolution section, however should the Parties bring any action in a court, the Parties consent to personal jurisdiction in any action brought in any court, federal or state, within California, having subject matter jurisdiction arising under this Agreement. With respect to any such claim, the Parties irrevocably waive, to the fullest extent permitted by law, any claim, or any objection they may now or hereafter have, that venue is not proper to any such suit, action, or proceeding brought in such a court in San Francisco, California, including any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum and any claim that a party is not subject to personal jurisdiction or service of process in such San Francisco, California forum.
Notice. Any notices to BackShield provided for herein shall be in writing and sent by prepaid mail (or hand-delivery or a nationally recognized courier company) to BackShield at the addresses stated below or by email at email@example.com:
900 Larkspur Landing Circle
Larkspur, CA 94939
- Titles/Heading. Headings and titles are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
- Survival. After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute the same single agreement.