Affiliate Program Terms & Conditions
Adya Water Affiliate Terms & Conditions
Important! Please read our affiliate terms and conditions before you join our program. By signing up for the Adya Water Affiliate Program, you indicate your acceptance of this agreement and its terms and conditions. If you do not accept these terms and conditions, do not sign up. This program is subject to change.
Last Updated: February 10, 2017
Adya, Inc., a Michigan Corporation, with it’s principal place of business at 1430 Old 27, North Gaylord, MI 49735, United States, its affiliates, subsidiaries and parent companies (collectively, "Adya", "us", "we" or "our") are excited to have you join our affiliate program and provide you with access to and use of our websites, applications, content, Products, goods, equipment, services, promotions, and any other materials (collectively, "Adya Services" or “Affiliate Program”) that we may provide. THE ADYA SERVICES ARE NOT INTENDED FOR USE BY ANYONE UNDER THE AGE OF 13. IF YOU ARE BETWEEN THE AGES OF 13 TO 17, YOU MUST ONLY ACCESS AND/OR USE ANY ADYA SERVICES WITH THE CONSENT AND INVOLVEMENT OF YOUR PARENT OR GUARDIAN, WHO MUST BE THE PARTY TO THIS AGREEMENT BY ENTERING THEIR EMAIL ADDRESS AND JOINING THIS AFFILIATE PROGRAM.
1. Contract Between you and Adya.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Adya's Affiliate Program for the purpose of selling our water purification minerals and devices (the “Products”). The primary purpose of this Agreement is to allow HTML linking between your web sites and one or more of Adya’s web sites ( the “Adya Website”) (and/or the website of a Third Party as defined below) to promote and sell our Products. Please note that throughout this Agreement, "we," "us," and "our" refer to Adya, and "you," "your," and "yours" refer to you as the affiliate. These terms and conditions of use ("Terms") form a legally binding agreement between you and Adya (the “Agreement”), and govern your use and access to the Adya Services and any other technology, items or other materials on which these Terms are posted on the Adya website. BY ENTERING YOUR EMAIL ADDRESS AND SUBMITTING TO JOIN OUR AFFILIATE PROGRAM, YOU AGREE TO BE BOUND AND ABIDE BY THESE TERMS, AND ANY AMENDMENTS THERETO, AND YOU ASLO AGREE THAT YOU ARE AT LEAST 13 YEARS OF AGE (AND IF YOU ARE BETWEEN THE AGES OF 13 TO 17, YOUR PARENT OR GUARDIAN WILL BE THE ACTUAL AFFILIATE WHO ACCEPTS THIS AGREEMENT AND RECEIVES PAYMENTS ON YOUR BEHALF FOR YOUR INVOLVEMENT). PLEASE READ THESE TERMS CAREFULLY BEFORE USING ANY ADYA SERVICES, ESPECIALLY SINCE THESE TERMS MAY AFFECT YOUR LEGAL RIGHTS, SUCH AS YOUR RIGHT TO BRING A LAWSUIT. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK THE ACCEPT BUTTON BELOW, AND PLEASE IMMEDIATELY CEASE USE OF ANY ADYA SERVICES. Supplemental terms and conditions may apply to certain Adya Services, such as rules for a particular contest, sweepstakes, competition, or activity, or terms that may accompany certain content, software or other materials accessible through the Adya Services ("Supplemental Terms"). Any Supplemental Terms will be disclosed to you (either in writing or by posting on the Adya web site) in connection with such other activities and shall govern such activities.
2. Term of this Agreement and Termination of this Agreement
Once you agree to the Terms of this Agreement by clicking the accept button below, you and Adya shall be bound to each other by the Terms herein on an At Will basis. For purposes of this Agreement, At Will means that either you or we may end/terminate this Agreement AT ANY TIME, with or without cause, by giving the other party written notice (once such notice is received by the other party there is a “Termination” and/or the Agreement has been “Terminated”). Written notice can be in the form of mail, email or fax.
3. Commissions to you.
Adya is pleased to offer its affiliates an extremely generous proportion of our sales revenue for which you help us, and are the direct cause for, generating sales revenue through customers purchasing our Products. Provided you are in good standing and are not in breach of any Terms of this Agreement, and this Agreement has not been Terminated, we will pay you a twenty five percent (25%) gross commission on purchasers from customers who purchase our Products through your HTML links between your web site(s) and the Adya Website; moreover, unless and until this Agreement is Terminated, you will continue to receive such 25% commission on subsequent purchases by such customer(s) until such customer(s) use another HTML link from a different affiliate in the Adya Affiliate Program. For purposes of this Agreement, gross commission shall mean the percentage of actual sales of Products pursuant to this paragraph that have been paid for by a customer, and no returns or chargebacks have occurred. You are not entitled to any commissions on shipping costs, taxes and any orders that are returned, or where we do not retain funds for such purchase due to a chargeback or any other reason. If we pay commissions to you for purchases where we end up not being paid for such purchases (or we must refund any funds), we have the absolute right to clawback any and all commissions paid to you for such purchases and/or you shall return to us such commissions. Commissions set forth in this paragraph are not payable for orders which you purchase for your own use; if we find out that you are using another party to purchase our Products for your personal use such that you are attempting to make commissions on your own purchases, we have the right to clawback such commissions and will likely terminate this Agreement. Commissions set forth in this paragraph are not payable for orders purchased through the Adya for Everyone™ Program.
4. Changes to These Terms.
We may in our sole and absolute discretion change these Terms from time to time to comply with laws or to meet our changing business requirements. These revisions shall be effective for new users immediately upon being posted to the Adya Website; however, for existing affiliates using the Adya Services, the applicable revisions shall be effective 30 days after posting unless otherwise stated. If you do not agree with any of the changes, you must discontinue use of the Adya Services. By continuing to use any Adya Services after any changes are posted (or after 30 days as stated above), you expressly accept any applicable changes. Please note our employees, customer service representatives, or other agents are not authorized to modify any provision of these Terms, either verbally or in writing.
5. Adya's Intellectual Property; Limited License to Adya Services.
A . Ownership.
You acknowledge and agree that the Adya Services, and any logos, names, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation any copyrights, patents, trademarks, proprietary or other rights arising therefrom, are owned by Adya. Furthermore, you acknowledge and agree that the source and object code of certain Adya Services and any format, directories, queries, algorithms, structure and organization of the same are the intellectual property, proprietary and confidential information of Adya. You expressly agree that you will do nothing inconsistent with Adya's ownership of the Adya Services, and that you gain no rights, title, or interest in or to any Adya Services, except as stated in these Terms. In addition, except as expressly set forth in these Terms, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Adya or any third party.
B. Limited License.
For any Adya Services which enable you to use any software, content, or other materials owned or licensed by us, only after you become validly authorized by us, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the specific Adya Services, and any related software, content, or other materials.
You are prohibited from, and expressly agree that you will not: (1) circumvent or disable any content protection system or digital rights management technology used with any Adya Services or Third Party services; (2) decompile, reverse engineer, disassemble or otherwise reduce any Adya Services to a human-readable form; (3) remove identification, copyright or other proprietary notices in or on the Adya Services; (4) access or use any Adya Services in an unlawful or unauthorized manner or in a manner that suggests a legal association with our content, products, services or brands; (5) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Adya Services or any part thereof, except as expressly authorized in these Terms or as part of the Adya Services provided to you; (6) introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Adya Services or connected network, or interfere with any person or entity's use or enjoyment of any Adya Services; (7) access, monitor, or copy any element of the Adya Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or (8) sell, resell, or make commercial use of the Adya Services other than outlined in this Agreement. By accessing or otherwise using any services, content or software through any Adya Services, you represent and warrant that: (9) your access to and use of the Adya Services, or any content or software therein, will comply with any and all requirements in these Terms; (10) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties; and (11) you will comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any Adya Services. (12) You are strictly forbidden to make any medical and/or health claims or publish, promote or otherwise disseminate testimonials and/or claims that Adya can be used to heal, cure, prevent, ameliorate or otherwise treat any disease or bodily abnormalities; and, you shall not promote Adya as a nutritional supplement, super food, vitamin or mineral compound.
D. Third Party Services and Content.
E. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THE ADYA SERVICES, INCLUDING WITHOUT LIMITATION, ANY PRODUCTS, GOODS, SERVICES, WEBSITES, APPLICATIONS, CONTENT AND ADVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE ADYA PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE MAKE NO GUARANTEE OR WARRANTY THAT THE ADYA PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. WE FURTHER MAKE NO GUARANTEE OR WARRANTY AS TO ANY PARTICULAR RESULTS, BENEFITS OR OUTCOMES THAT MAY BE ACHIEVED OR OBTAINED THROUGH USE OF ANY ADYA PRODUCTS OR SERVICES. YOU AGREE TO USE THE ADYA SERVICES AT YOUR SOLE RISK. YOU WILL NOT HOLD ADYA RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE ADYA SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE ADYA SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ADYA DISCLAIMS ANY WARRANTIES OR GUARANTEES REGARDING THE SERVICES OF OUR THIRD PARTY SERVICE PROVIDERS, WEBSITE HOSTING SERVICE AND/OR AFFILIATE HOSTING PROVIDER, AND YOU AGREE THAT THIS PARAGRAPH SHALL APPLY WITH RESPECT TO ANY CLAIMS YOU HAVE ABOUT OUR USE OF THESE THIRD PARTY PROVIDERS AS THEY RELATE TO THE ADYA SERVICES.
5. Your Content and Account.
A. User Generated Content.
B. License to Your User Generated Content.
We do not claim ownership to your User Generated Content; however, you grant us a perpetual, fully paid-up, non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works of, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in any and all media and channels now known or hereafter devised (including in connection with the Adya Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. This includes without limitation our use of your User Generated Content in connection with any advertising, product packaging, printed publications, presentations, promotional materials, events and associated marketing materials, television and digital commercials, videos, social media websites, or on our websites. We are not, however, obligated to use your User Generated Content. To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a limited, non-transferable, non-exclusive license to create a derivative work using our copyrighted works as required for the sole purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
C. Public Forums.
Certain Adya Services may include public forums, which include without limitation, discussion forums, message boards, blogs, chat rooms or instant messaging features. You acknowledge these public forums are for public and not private communications. You further acknowledge that any User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum and for the consequences of submitting or posting same.
D. User Conduct.
You must only use the Adya Services for lawful purposes, and you shall not use them in a way that infringes upon the rights of anyone else, or that restricts or inhibits anyone else's enjoyment of any Adya Services. YOU MAY NOT USE THE WORD “ADYA” OR “CLARITY” IN ANY domain name/URL’S or email addresses nor any names, logos, phrases/taglines and/or any material created by Adya. YOU MAY NOT ALTER THE ADYA CLARITY LOGO IN ANY WAY WHEN POSTING ON YOUR WEBSITES. You are free to promote your own web sites, but any promotion that mentions Adya could be perceived by the public or the press as a joint effort. Certain forms of advertising are always prohibited by Adya. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Adya so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Adya so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from Adya. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Adya Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Adya, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from Adya’s Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior. In using any Adya Services, and in particular, our websites, you expressly acknowledge you are prohibited from, and agree that you will not without our prior express written consent: copy, reproduce, or improperly use or access any content on our websites; modify, distribute, or re-post any content on our websites for any purpose; or use the content on our websites for any commercial exploitation of non Adya Products whatsoever; disrupt or interfere with the security of, or otherwise abuse, our websites, or any services, system resources, accounts, servers, or networks connected to or accessible through our websites or affiliated or linked sites; access content, data or portions of our websites which are not intended for you, or log onto a server or account that you are not authorized to access; attempt to probe, scan, or test the vulnerability of the Adya Services, including websites, applications, or any associated system or network, or breach security or authentication measures without proper authorization; access any Adya Services or our websites through any automated means, such as "robots," "spiders," or "offline readers"; interfere or attempt to interfere with the use of our websites or applications or the Adya Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing"; use any data mining, "scraping", web crawling, robots, or similar data gathering and extraction methods on our websites; harass, "stalk", disrupt or interfere with any other user's enjoyment of our websites or affiliated or linked sites; upload, post, or otherwise transmit through or on our websites any viruses or other harmful, disruptive, or destructive files; use, frame, or utilize framing techniques to enclose any Adya trademark, logo, or other proprietary information (including the images found at our websites, the content of any text, or the layout/design of any page or form contained on a page) without Adya's express written consent; use meta tags or any other "hidden text" utilizing an Adya name, trademark, or product name without Adya's express written consent; deeplink to our websites without Adya's express written consent; harvest or otherwise collect information about Adya users, including email addresses and phone numbers; download, "rip," or otherwise attempt to obtain unauthorized access to any Adya Services, content or other materials; and post any copyrighted material unless the copyright is owned by you. Moreover, you will not make, or allow to be made, directly or indirectly (whether by oral assertions or published in any form of media) any false, misleading, derogatory or disparaging representations and/or statements with respect to the Products, or Adya and its respective officers, employees, agents, subsidiaries and/or parent companies; you shall not engage in any trade practices which may have an adverse effect upon the image, credibility and/or reputation of the Products, Adya and its respective officers, employees, agents, subsidiaries and/or parent companies.
E. Your Account; Passwords.
Certain Adya Services permit or require you to create an account to enjoy services and benefits that we provide. You agree to provide and maintain accurate, current and complete information for your accounts, including as applicable, your name, contact, and payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person's username, password or other account information, or another person's name or likeness, or if applicable, provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide. We have adopted and implemented a policy that provides for the suspension or Termination, in appropriate circumstances and in our sole and absolute discretion, of the accounts of users who violate these Terms, are repeat infringers of copyright, or engage in, encourage or advocate for illegal conduct. You are responsible for maintaining the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You may not share your password or other login information with any person; any use of your account by any person other than yourself is grounds for suspension or Termination of your account. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Adya Services. You agree not to use the account, username or password of any other account holder at any time. Adya will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
F. Affiliate Public Profiles.
When you create an account with Adya, you may be asked to provide personal information like your name and email address. This information may be publicly viewable by others, such as other Adya affiliates. Adya relies on its affiliates to provide current and accurate information, and we do not, under typical circumstances, investigate information contained in affiliate public profiles. We do not represent, warrant or guarantee the accuracy of public profile information of any of our affiliates, and we hereby disclaim all responsibility or liability for any information provided by affiliates by means of public profiles or otherwise. You are solely responsible for your interactions with other affiliates. You acknowledge and agree that Adya does not normally (i) screen its affiliates; (ii) inquire into the backgrounds of its affiliates; or (iii) review or verify the statements of its affiliates, including without limitation, information or representations contained in public profiles. Adya does not warrant, endorse or guarantee the conduct of its affiliates or their compatibility with you, and you agree to exercise all precautions in your interactions with other affiliates. Like all open forums on the Internet or social media, you should always be careful about what you share in a public forum, and in particular, you should never share your password, social security number or any other personal information.
6. Adya's Products/Services; Websites; Orders.
A. Limited Guarantee.
Most of our products and services currently can be returned if unopened and not damaged. See the return section on Adyawater.com for our current return policy and please be aware that we retain the right to change our return policy at any time in our absolute and sole discretion. Since the majority of our products cannot be reused once shipped, our products and services are only returnable if they have a material defect or are otherwise damaged goods (for example if bottles of Adya are not properly sealed and/or our filtration products are broken or defective); Adya retains the right in our sole discretion whether we honor a return. To return or exchange a product, please call our Customer Service Department to see if we will accept your return. It is our right, in our sole discretion, whether you or we are responsible for paying to ship any products back to us which we deem are defective. We will not be responsible for any loss or damage to returned products that occur in transit. If returned products are lost or damaged in transit, we reserve the right to charge you for, or not refund any amounts attributable to, any such lost or damaged products. Although we make every effort to insure that we have enough products in stock to fulfill our business orders, Adya does make any guaranties or representations that we will have sufficient quantities of our products to adequately fulfill your orders and/or the orders from customers who find our products through your efforts.
B. Product and Service Descriptions, Price and Other Information.
We take reasonable precautions to make sure that our product descriptions, pricing and other information on our websites are correct and fairly described. However, when ordering products or services through our websites, please understand that:
we reserves the right to reject any orders if there is a material error in the description of the product or service, or if the price advertised is incorrect;
Adya reserves the right to refuse (or discontinue) the supply of any product to any customer, or change, suspend or discontinue any aspect of our websites at any time in our sole and absolute discretion; all prices are displayed in United States Dollars; packaging and contents may vary from that shown on our websites; any weights, dimensions, and capacities shown on our websites are approximate only; when orders are placed, we estimate the tax applicable to such order and include that estimate in the total billed to you (the tax amount is based on the current rate as set by the governing taxing authority, and is reflected in the order confirmation invoice we provide to you); and all products are subject to availability. Please understand that we reserve the right to change the terms of any of our Products, including but not limited to, changes to prices, taxes, shipping and handling amounts and delivery times. We will provide you with notice of any changes, by posting a notice on our websites, sending an e-mail to you at the address you provided at the time of purchase, or by including a notice in any products you receive on an automatic recurring or subscription basis. Adya will not incur any obligation as a result of such change. As a valued customer, you are always free to cancel future orders at any time by calling our Customer Service. By continuing to accept our Products after we have notified you of a change to any terms, you will be deemed to have accepted the change.
C. Order Processing.
We reserve the right to refuse or cancel any purchase order prior to delivery of our Products. Some situations that could result in your order being cancelled include, but are not limited to, system or typographical errors, inaccuracies in product descriptions or pricing information, product availability, fairness to our customers when supplies are limited, and/or issues with your payment card. We also reserve the right to require additional verification or information before accepting an order from you. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will refund your payment. All purchases are subject to applicable shipping and handling charges, and sales and/or other taxes, which will be added to your bill. Taxes shall be calculated based on the shipping address you provide to us.
D. Your Personal and Payment Information.
When you provide any information to us, you agree to only provide true, accurate, current, and complete information. If/when you submit any credit card, or other payment card information to us, you represent and warrant that such payment information is correct, and you have the authority to use such payment card. In the case of an email address, you must provide an accurate email address that is registered to you. You are responsible for updating your information with any changes as soon as possible, and you must keep your billing information current. You must promptly notify us if your payment card is cancelled (for example, for loss or theft). Changes to your payment information can be made by contacting our Customer Service department. You hereby authorize Adya to update your payment card information in our system when it is set to expire, or upon information received from the bank that issues your payment card. You agree that your placement of an electronic order on our websites is sufficient to satisfy any applicable Statute of Frauds, and that no further writing is required.
We will make commercially reasonable efforts to ship your products within the timeframe we expressed to you at the time of your purchase. Certain products shipped within the continental United States will, in most situations, be delivered within 3-6 business days if your product was chosen for express shipping and is eligible for express shipping. Packages shipped outside the United States or to Alaska, Hawaii or U.S. territories may take longer, and up to 7-21 days. Any timeframes we provide for shipping are good faith estimates and may be subject to change. We will take commercially reasonable steps to inform you in writing of any shipping delays. Product availability may be limited in some cases and not available for immediate shipment; in such cases, we have the right, but not the obligation, to deliver products in separate shipments. Since our Products are not available for sale in all jurisdictions, we may reject certain purchases based on the shipping address which you provide. We reserve the right to set appropriate shipping terms on shipments to certain foreign jurisdictions.
F. International Orders.
We may not offer certain products in certain jurisdictions in the United States and abroad as such products may not be approved for sale in all jurisdictions. While Adya may accept orders for purchases of our products from non-residents of the United States, the acceptance of such orders will based on the following conditions: you agree that unless Adya uses its preferred shipper for such orders, you accept and take full responsibility for the risk of loss or damage to products shipped; you shall be the principal importer of record, responsible for ensuring that the products to be imported can be lawfully imported into your country, and you assume responsibility for any and all applicable taxes, shipping cost, customs clearance, duties and import requirements from Adya's facilities in the U.S. to your chosen destination; and the United Nations Convention on the International Sale of Goods shall not apply to any purchase or sale, and Adya expressly opts out of such application. For products shipped outside of the United States, some Adya Services, may not be presented in the language of such destination; and the products, goods, services and accompanying materials may not be designed in accordance with such destination’s standards, specifications, and labeling requirements; in such cases, you expressly accept those Adya Services in the English language, and as they are sold in the United States.
7. Copyright Policy and Copyright Agent.
It is Adya's policy to respect the copyright and other intellectual property rights of others. Adya may remove content from its websites or other properties that appears to infringe the copyright or other intellectual property rights. In addition, Adya may terminate access by users who appear to infringe upon the copyright or other intellectual property rights of others. Furthermore, Adya does its best to be compliant with the Digital Millennium Copyright Act. If you believe that content available on or through the online Adya Services, or accessible via links posted on online Adya Services, infringes your copyright, you or your authorized agent may submit a notification to us, as set forth below. Please send a notification including all of the information described below ("Notification") to our copyright agent by mail or e-mail using the contact information provided below. You may be held liable for damages and attorneys' fees if you make any material misrepresentations in a Notification. Therefore, if you are not sure whether content infringes your copyright, you should contact an attorney. A Notification must include the following to be considered by us: Identification of the copyrighted material claimed to have been infringed upon, or, if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of works; identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material (preferably a link to the material); contact information for you, such as an address, telephone number, and preferably an email address at which you may be contacted; A statement that you have a good faith belief that use of the material in in question is not authorized by the rights owner, its agent, or the law; the physical or electronic signature of a person authorized to act on behalf of the owner of the copyrighted materials that is allegedly being infringed; and, a statement, under the penalty of perjury, that the information in the Notification is accurate and that you are authorized to act on behalf of the owner of copyrighted materials that are allegedly infringed. Please direct Notifications via email to: DMCA@Adya.com, or by mail to: Adya, 1430 Old 27, North Gaylord, MI 49735, USA, ATTN: Chief Legal Officer. Upon receipt of a properly prepared Notification regarding an alleged copyright violation, we will respond to remove, or disable access to, the material that is claimed to be infringing.
8. DISPUTES, BINDING ARBITRATION.
A. ARBITRATION MEANS, AMONG OTHER THINGS, THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. BY CLICKING BELOW YOU ARE AGREEING TO ARBITRATION AND THE FOLLOWING TERMS: Arbitration; Attorney’s fees and Costs. In the event of any dispute or controversy arising out of, or relating to, this Agreement, the parties hereto agree to submit such dispute or controversy to binding arbitration pursuant to either the JAMS Streamlined (for claims under $250,000.00) or the JAMS Comprehensive (for claims over $250,000.00) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure. A sole neutral arbitrator shall be selected from the list (the “List”) of arbitrators supplied by J.A.M.S. (“JAMS”) office in or around a venue agreeable to the parties in Michigan, USA, or if the parties cannot agree on a venue, then in Michigan, USA at a primary Jams location, or if JAMS no longer exists in Michigan, USA, than from a List supplied by the ADR Services, Inc. in Michigan, USA, (“ADR”) following written request by any party hereto. Such arbitrators shall be a former or retired judge or justice of any Michigan state or federal court with experience in complex litigation matters involving commercial transactions. If the parties hereto after notification of the other party(-ies) to such dispute cannot agree upon an arbitrator within thirty (30) days following receipt of the List by all parties to such arbitration, then either party may request, in writing, that JAMS or ADR, as appropriate, appoint an arbitrator within ten (10) days following receipt of such request (the “Arbitrator”). The arbitration shall take place at a place and time mutually agreeable to the parties or if no such agreement is reached within ten (10) days following notice from the Arbitrator, at a place and time determined by the Arbitrator in or around Michigan, USA. Such arbitration shall be conducted in accordance with the Streamlined Arbitration Rules and Procedures of JAMS then in effect, or if applicable, the Commercial Arbitration Rules of ADR then in effect. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this Section. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section, and stipulates that the Arbitrator shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. The decision of the Arbitrator shall be final and binding on all the parties to the arbitration, shall be non-appealable and may be enforced by a court of competent jurisdiction. The prevailing party shall be entitled to recover from the non-prevailing party reasonable attorney’s fees, as well as its costs and expenses. The Arbitrator may grant any remedy appropriate including, without limitation, injunctive relief or specific performance. Prior to the appointment of the Arbitrator, any party may seek a temporary restraining order or a preliminary injunction from the Lansing, Michigan County Circuit Court which shall be effective until a final decision is rendered by the Arbitrator.
9. Indemnification; Limitation of Liability.
A. To the fullest extent permitted by law, you shall indemnify and hold harmless Adya and each of its respective officers, officials, employees, agents, affiliates and volunteers from any and all losses, fines, penalties, forfeitures, liabilities, attorney’s fees, expenses and damages, whether constitutional, statutory, in contract, tort or strict liability, collectively referred to as a “Claim” arising from, resulting from or in connection with either: 1) your violation of these Terms or a breach of this Agreement by you, 2) your negligence or willful misconduct, 3) any misrepresentations or false and/or deceptive advertisements by you, 4) your violation of any local, state, or federal statute, regulation, or ordinance (criminal or civil), and/or your violation of any rights of a third party.
B. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ADYA OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY AND/OR IF WE WERE ADVISED OF SUCH DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO ADYA OR ITS SERVICE PROVIDERS, LICENSORS, THIRD PARTY SERVICE PROVIDERS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF ANY ADYA SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF ADYA AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST NINETY (90) DAYS TO ADYA FOR ANY ADYA SERVICES. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ADYA AND YOU. THE ADYA SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. ADYA WILL NOT BE LIABLE FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CIRCUMSTANCE BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
A. International Users. Our websites are controlled, operated, and administered by Adya from its offices within the United States of America. Adya makes no representation or warranty that the materials contained within our websites are appropriate or available for use at other locations outside of the United States, and access to them from territories where the contents or products available through the websites are illegal is prohibited. You may not use the websites or export the content or products in violation of U.S. export laws and regulations. If you access our websites from a location outside of the United States, you are responsible for compliance with any and all local laws, rules, regulations and ordinances.
B. Notices. All notices required or permitted to be given under these Terms must be in writing. Adya may provide you notice by sending you an e-mail to the address on file with us, which you agree electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR E-MAIL ADDRESS ON FILE WITH ADYA IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY ADYA OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Adya by means of U.S. mail, postage prepaid, to Adya, 1430 Old 27, North Gaylord, MI 49735, United States, Attn: Legal Department. Such notice to Adya shall be effective upon receipt of notice by Adya.
C. If any provision of this Agreement is determined to be void, invalid, inoperative or unenforceable by an arbitrator or court of competent jurisdiction, or by any other legally constituted body having jurisdiction to make such determination, such arbitrator, court or body shall redraft, modify, rewrite or interpret such provision as necessary, if possible, to include as much of its nature and scope as will render it enforceable, and such decision shall not affect any other provisions hereof, and the remainder of this Agreement shall be effective as though such void, invalid, inoperative or unenforceable provision had not been contained herein.
D. Termination. Notwithstanding anything to the contrary in these Terms, Adya reserves the right, without notice and in its sole and absolute discretion, for any reason or no reason, to terminate your access and use of any Adya Services and your membership in our Affiliate Program, including to block or prevent your access and use of any of our websites. You agree that Adya shall not be liable for any termination of your access and/or use of our websites.
E. No Third Party Beneficiaries. Except as set forth in these Terms, only you and Adya may enforce these Terms; no third party shall be entitled to enforce these Terms.
F. Survival. The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
G. Waiver. No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing signed by the Chief Legal Officer of Adya in order to be effective.
H. Assignment. Adya may assign these Terms to any person or entity at any time, for any reason, with or without notice to you.Amendments; Entire Agreement. These Terms may not be amended unless in a signed writing by an executive (Vice President or above in title) of Adya. These Terms constitute the final, exclusive and complete agreement between you and Adya regarding the subject matter hereof and supersede all agreements, communications and course of dealings between you and Adya.
I. Amendments; Entire Agreement. These Terms may not be amended unless in a signed writing by an executive (Vice President or above in title) of Adya. These Terms constitute the final, exclusive and complete agreement between you and Adya regarding the subject matter hereof and supersede all agreements, communications and course of dealings between you and Adya.
J. Language. It is the express intent of the parties that these Terms and all related documents have been written in English.
K. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan. If not otherwise agreed to, and subject to the arbitration provision herein, the parties consent to personal jurisdiction and venue in the United States District Court for Western Michigan in Lansing, Michigan and/or the Circuit Court in Lansing, Michigan.
L. You are hereby advised that you have the right to independent legal counsel of your choosing to review this Agreement prior to entering into this Agreement, and that you have either done so, or knowingly and voluntarily wave your right to such representation.