Terms & Conditions

Terms & Conditions

Last updated June 12, 2022

1. AGREEMENT TO TERMS

These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Rowdy Performance and Machine (“Company,” “we,” “us,” or “our”), concerning your access to and use of the http://www.rowdyperformance.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). We are registered in Colorado, United States and have our registered office at 1902 W 18th St, Pueblo, CO 81003. You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).

The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.

2.INTELLECTUAL PROPERTY RIGHTS

Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site(collectively, the “Content”) and the trademarks, service marks, and logos contained therein(the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploitedfor any commercial purpose whatsoever, without our express prior writtenpermission.

Provided that you are eligible to use the Site, you aregranted a limitedlicense to access and use the Site and to download or print acopy of anyportion of the Content to which you have properly gained accesssolely foryour personal, non-commercial use. We reserve all rights notexpresslygranted to you in and to the Site, the Content and the Marks.

3.USER REPRESENTATIONS

By using the Site, you represent and warrant that:

(1) all registrationinformation you submit will be true, accurate, current, and complete; (2) youwill maintain the accuracy of such information and promptly update suchregistration information as necessary

; (3) you have the legal capacity andyou agree to comply with these Terms of Use; (4) you are not a minor in thejurisdiction in which you reside

; (5) you will not access the Site throughautomated or non-human means, whether through a bot, script, orotherwise; (6) you will not use the Site for any illegal or unauthorizedpurpose; and (7) your use of the Site will not violate any applicable law orregulation.

If you provide any information that is untrue, inaccurate, not current, orincomplete, we have the right to suspend or terminate your account andrefuse any and all current or future use of the Site (or any portion thereof).

4.USER REGISTRATION

You may be required to register with the Site. You agree to keep yourpassword confidential and will be responsible for all use of your accountand password. We reserve the right to remove, reclaim, or change ausername you select if we determine, in our sole discretion, that suchusername is inappropriate, obscene, or otherwise objectionable.

5.PROHIBITED ACTIVITIES

You may not access or use the Site for any purpose other than that forwhich we make the Site available. The Site may not be used in connectionwith any commercial endeavors except those that are specifically endorsedor approved by us.

As a user of the Site, you agree not to:

Systematically retrieve data or other content from the Site to createor compile, directly or indirectly, a collection, compilation, database,or directory without written permission from us.

Trick, defraud, or mislead us and other users, especially in anyattempt to learn sensitive account information such as userpasswords.

Circumvent, disable, or otherwise interfere with security-relatedfeatures of the Site, including features that prevent or restrict theuse or copying of any Content or enforce limitations on the use ofthe Site and/or the Content contained therein.

Disparage, tarnish, or otherwise harm, in our opinion, us and/or theSite.

Use any information obtained from the Site in order to harass,abuse, or harm another person.

Make improper use of our support services or submit false reportsof abuse or misconduct.

Use the Site in a manner inconsistent with any applicable laws orregulations.

Engage in unauthorized framing of or linking to the Site.

Upload or transmit (or attempt to upload or to transmit) viruses,Trojan horses, or other material, including excessive use of capitalletters and spamming (continuous posting of repetitive text), thatinterferes with any party’s uninterrupted use and enjoyment of theSite or modifies, impairs, disrupts, alters, or interferes with the use,features, functions, operation, or maintenance of the Site.

Engage in any automated use of the system, such as using scriptsto send comments or messages, or using any data mining, robots,or similar data gathering and extraction tools.

Delete the copyright or other proprietary rights notice from anyContent.

Attempt to impersonate another user or person or use theusername of another user.

Upload or transmit (or attempt to upload or to transmit) any materialthat acts as a passive or active information collection ortransmission mechanism, including without limitation, cleargraphics interchange formats (“gifs”), 1×1 pixels, web bugs,cookies, or other similar devices (sometimes referred to as“spyware” or “passive collection mechanisms” or “pcms”).

Interfere with, disrupt, or create an undue burden on the Site or thenetworks or services connected to the Site.

Harass, annoy, intimidate, or threaten any of our employees oragents engaged in providing any portion of the Site to you.

Attempt to bypass any measures of the Site designed to prevent orrestrict access to the Site, or any portion of the Site.

Copy or adapt the Site’s software, including but not limited to Flash,PHP, HTML, JavaScript, or other code.

Except as permitted by applicable law, decipher, decompile,disassemble, or reverse engineer any of the software comprising orin any way making up a part of the Site.

Except as may be the result of standard search engine or Internetbrowser usage, use, launch, develop, or distribute any automatedsystem, including without limitation, any spider, robot, cheat utility,scraper, or offline reader that accesses the Site, or using orlaunching any unauthorized script or other software.

Use a buying agent or purchasing agent to make purchases on theSite.

Make any unauthorized use of the Site, including collectingusernames and/or email addresses of users by electronic or othermeans for the purpose of sending unsolicited email, or creatinguser accounts by automated means or under false pretenses.

Use the Site as part of any effort to compete with us or otherwiseuse the Site and/or the Content for any revenue-generatingendeavor or commercial enterprise.

Use the Site to advertise or offer to sell goods and services.

Sell or otherwise transfer your profile.

6.USER GENERATED CONTRIBUTIONS

The Site does not offer users to submit or post content. We may provideyou with the opportunity to create, submit, post, display, transmit, perform,publish, distribute, or broadcast content and materials to us or on the Site,including but not limited to text, writings, video, audio, photographs,graphics, comments, suggestions, or personal information or othermaterial (collectively, “Contributions”). Contributions may be viewable byother users of the Site and through third-party websites. As such, anyContributions you transmit may be treated in accordance with the SitePrivacy Policy. When you create or make available any Contributions, youthereby represent and warrant that:

The creation, distribution, transmission, public display, or performance,and the accessing, downloading, or copying of your Contributions do notand will not infringe the proprietary rights, including but not limited tothe copyright, patent, trademark, trade secret, or moral rights of any thirdparty.

You are the creator and owner of or have the necessary licenses, rights,consents, releases, and permissions to use and to authorize us, the Site,and other users of the Site to use your Contributions in any mannercontemplated by the Site and these Terms of Use.

You have the written consent, release, and/or permission of each andevery identifiable individual person in your Contributions to use thename or likeness of each and every such identifiable individual person toenable inclusion and use of your Contributions in any mannercontemplated by the Site and these Terms of Use.

Your Contributions are not false, inaccurate, or misleading.

Your Contributions are not unsolicited or unauthorized advertising,promotional materials, pyramid schemes, chain letters, spam, massmailings, or other forms of solicitation.

Your Contributions are not obscene, lewd, lascivious, filthy, violent,harassing, libelous, slanderous, or otherwise objectionable (asdetermined by us).

Your Contributions do not ridicule, mock, disparage, intimidate, or abuseanyone.

Your Contributions are not used to harass or threaten (in the legal senseof those terms) any other person and to promote violence against aspecific person or class of people.

Your Contributions do not violate any applicable law, regulation, or rule.

Your Contributions do not violate the privacy or publicity rights of anythird party.

Your Contributions do not violate any applicable law concerning childpornography, or otherwise intended to protect the health or well-being ofminors.

Your Contributions do not include any offensive comments that areconnected to race, national origin, gender, sexual preference, or physicalhandicap.

Your Contributions do not otherwise violate, or link to material thatviolates, any provision of these Terms of Use, or any applicable law or regulation.

Any use of the Site in violation of the foregoing violates these Terms of Useand may result in, among other things, termination or suspension of yourrights to use the Site.

7.CONTRIBUTION LICENSE

You and the Site agree that we may access, store, process, and use anyinformation and personal data that you provide following the terms of thePrivacy Policy and your choices (including settings).

By submitting suggestions or other feedback regarding the Site, you agreethat we can use and share such feedback for any purpose withoutcompensation to you.

We do not assert any ownership over your Contributions. You retain fullownership of all of your Contributions and any intellectual property rightsor other proprietary rights associated with your Contributions. We are notliable for any statements or representations in your Contributions providedby you in any area on the Site. You are solely responsible for yourContributions to the Site and you expressly agree to exonerate us from anyand all responsibility and to refrain from any legal action against usregarding your Contributions.

8.GUIDELINES FOR REVIEWS

We may provide you areas on the Site to leave reviews or ratings. Whenposting a review, you must comply with the following criteria: (1) youshould have firsthand experience with the person/entity being reviewed; (2)your reviews should not contain offensive profanity, or abusive, racist,offensive, or hate language; (3) your reviews should not containdiscriminatory references based on religion, race, gender, national origin,age, marital status, sexual orientation, or disability; (4) your reviews shouldnot contain references to illegal activity; (5) you should not be affiliatedwith competitors if posting negative reviews; (6) you should not make anyconclusions as to the legality of conduct; (7) you may not post any false ormisleading statements; and (8) you may not organize a campaignencouraging others to post reviews, whether positive or negative.

We may accept, reject, or remove reviews in our sole discretion. We haveabsolutely no obligation to screen reviews or to delete reviews, even ifanyone considers reviews objectionable or inaccurate. Reviews are notendorsed by us, and do not necessarily represent our opinions or the viewsof any of our affiliates or partners. We do not assume liability for any reviewor for any claims, liabilities, or losses resulting from any review. By postinga review, you hereby grant to us a perpetual, non-exclusive, worldwide,royalty-free, fully-paid, assignable, and sublicensable right and license toreproduce, modify, translate, transmit by any means, display, perform,and/or distribute all content relating to reviews.

9.SUBMISSIONS

You acknowledge and agree that any questions, comments, suggestions,ideas, feedback, or other information regarding the Site (“Submissions”)provided by you to us are non-confidential and shall become our soleproperty. We shall own exclusive rights, including all intellectual propertyrights, and shall be entitled to the unrestricted use and dissemination ofthese Submissions for any lawful purpose, commercial or otherwise,without acknowledgment or compensation to you. You hereby waive allmoral rights to any such Submissions, and you hereby warrant that anysuch Submissions are original with you or that you have the right to submitsuch Submissions. You agree there shall be no recourse against us for anyalleged or actual infringement or misappropriation of any proprietary right inyour Submissions.

10.SITE MANAGEMENT

We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.

11. PRIVACY POLICY

We care about data privacy and security. Please review our Privacy Policy: https://rowdyperformance.com/privacy-policy/. By using the Site, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Site is hosted in the United States. If you access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.

12. TERM AND TERMINATION These Terms of Use shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

13. MODIFICATIONS AND INTERRUPTIONSWe reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms of Use will beconstrued to obligate us to maintain and support the Site or tosupply anycorrections, updates, or releases in connection therewith.

14.GOVERNING LAW

These Terms of Use and your use of the Site are governed by andconstrued in accordance with the laws of the State of Colorado applicableto agreements made and to be entirely performed within the State of Colorado, without regard to its conflict of law principles.

15.DISPUTE RESOLUTION

Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, orclaim related to these Terms of Use (each “Dispute” and collectively, the“Disputes”) brought by either you or us (individually, a “Party” andcollectively, the “Parties”), the Parties agree to first attempt to negotiateany Dispute (except those Disputes expressly provided below) informallyfor at least thirty (30) days before initiating arbitration. Such informalnegotiations commence upon written notice from one Party to the otherParty.

Binding Arbitration

If the Parties are unable to resolve a Dispute through informal negotiations,the Dispute (except those Disputes expressly excluded below) will be finallyand exclusively resolved through binding arbitration. YOU UNDERSTANDTHAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUEIN COURT AND HAVE A JURY TRIAL. The arbitration shall be commencedand conducted under the Commercial Arbitration Rules of the AmericanArbitration Association (“AAA”) and, where appropriate, the AAA’sSupplementary Procedures for Consumer Related Disputes (“AAAConsumer Rules”), both of which are available at the AAAwebsite: www.adr.org. Your arbitration fees and your share of arbitratorcompensation shall be governed by the AAA Consumer Rules and, whereappropriate, limited by the AAA Consumer Rules.

If such costs aredetermined by the arbitrator to be excessive, we will pay all arbitration feesand expenses. The arbitration may be conducted in person, through thesubmission of documents, by phone, or online. The arbitrator will make adecision in writing, but need not provide a statement of reasons unlessrequested by either Party. The arbitrator must follow applicable law, andany award may be challenged if the arbitrator fails to do so. Except whereotherwise required by the applicable AAA rules or applicable law, thearbitration will take place in Pueblo, Colorado. Except as otherwiseprovided herein, the Parties may litigate in court to compel arbitration, stayproceedings pending arbitration, or to confirm, modify, vacate, or enterjudgment on the award entered by the arbitrator.

If for any reason, a Dispute proceeds in court rather than arbitration, theDispute shall be commenced or prosecuted in the state and federal courtslocated in Pueblo, Colorado, and the Parties hereby consent to, and waiveall defenses of lack of personal jurisdiction, and forum non convenienswith respect to venue and jurisdiction in such state and federal courts.Application of the United Nations Convention on Contracts for theInternational Sale of Goods and the Uniform Computer InformationTransaction Act (UCITA) is excluded from these Terms of Use.

In no event shall any Dispute brought by either Party related in any way tothe Site be commenced more than one (1) years after the cause of actionarose. If this provision is found to be illegal or unenforceable, then neitherParty will elect to arbitrate any Dispute falling within that portion of thisprovision found to be illegal or unenforceable, and such Dispute shall bedecided by a court of competent jurisdiction within the courts listed forjurisdiction above, and the Parties agree to submit to the personaljurisdiction of that court.

Restrictions

The Parties agree that any arbitration shall be limited to the Disputebetween the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right orauthority for any Dispute to be arbitrated on a class-action basis or toutilize class action procedures; and (c) there is no right or authority for anyDispute to be brought in a purported representative capacity on behalf ofthe general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

The Parties agree that the following Disputes are not subject to the aboveprovisions concerning informal negotiations and binding arbitration: (a) anyDisputes seeking to enforce or protect, or concerning the validity of, any ofthe intellectual property rights of a Party; (b) any Dispute related to, orarising from, allegations of theft, piracy, invasion of privacy, or unauthorizeduse; and (c) any claim for injunctive relief. If this provision is found to beillegal or unenforceable, then neither Party will elect to arbitrate anyDispute falling within that portion of this provision found to be illegal orunenforceable and such Dispute shall be decided by a court of competentjurisdiction within the courts listed for jurisdiction above, and the Partiesagree to submit to the personal jurisdiction of that court.

16.CORRECTIONS

There may beinformation on the Site that contains typographical errors,inaccuracies, oromissions, including descriptions, pricing, availability, andvarious otherinformation. We reserve the right tocorrect any errors,inaccuracies, or omissions and to change or update theinformation on theSite at any time, without prior notice.

17.DISCLAIMER

THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOUAGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BEAT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCONNECTION WITH THE SITE AND YOUR USE THERE OF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BETRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY,AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

18.LIMITATIONS OF LIABILITY

IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, ORAGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL,OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE,LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OFTHE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITYOF SUCH DAMAGES. NOT WITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THEAMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $500.00USD. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TOYOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONSMAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

19.INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of:

(1) use of the Site; (2) breach of theseTerms of Use; (3) any breach of your representations and warranties setforth in these Terms of Use; (4) your violation of the rights of a third party,including but not limited to intellectual property rights; or (5) any overtharmful act toward any other user of the Site with whom you connected viathe Site. Notwithstanding the foregoing, we reserve the right, at yourexpense, to assume the exclusive defense and control of any matter forwhich you are required to indemnify us, and you agree to cooperate, atyour expense, with our defense of such claims. We will use reasonableefforts to notify you of any such claim, action, or proceeding which issubject to this indemnification upon becoming aware of it.

20.USER DATA

We will maintaincertain data that you transmit to the Site for the purpose ofmanaging theperformance of the Site, as well as data relating to your useof the Site. Although we perform regular routine backupsof data, you aresolely responsible for all data that you transmit or thatrelates to any activityyou have undertaken using the Site. You agreethat we shall have noliability to you for any loss or corruption of any suchdata, and you herebywaive any right of action against us arising from any suchloss or corruptionof such data.

21.ELECTRONIC COMMUNICATIONS,TRANSACTIONS, AND SIGNATURES

Visiting the Site, sending us emails, and completing online forms constituteelectronic communications. You consent to receive electroniccommunications, and you agree that all agreements, notices, disclosures,and other communications we provide to you electronically, via email andon the Site, satisfy any legal requirement that such communication be inwriting. YOU HEREBY AGREE TO THE USE OF ELECTRONICSIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, ANDTO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDSOF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THESITE. You hereby waive any rights or requirements under any statutes,regulations, rules, ordinances, or other laws in any jurisdiction whichrequire an original signature or delivery or retention of non-electronicrecords, or to payments or the granting of credits by any means other thanelectronic means.

22.CALIFORNIA USERS AND RESIDENTS

If any complaintwith us is not satisfactorily resolved, you can contact theComplaintAssistance Unit of the Division of Consumer Services of theCaliforniaDepartment of Consumer Affairs in writing at 1625 North MarketBlvd., Suite N112, Sacramento, California 95834 or by telephone at (800)952-5210 or (916)445-1254.

23.MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

24.CONTACT US

In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at: