1.Eligibility. You must be at least 18 years of age to use, including to place any order through, the Service, and you may not use the Service if you have previously been suspended or removed from the Service. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
2.Accounts and Registration. You may need to register with us in order to use certain aspects of our Service. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, in many cases you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected].
3.Payment. Certain activities through or features of the Service, such as placing an order, may require you to pay fees. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. A sales tax may be charged on any order placed through the Service, based on the location the order is billed to and the applicable sales tax in effect at the time of purchase. Please review the order-related terms available through the Service for more information about our pricing, shipping policy, returns policy, product warranty and information, which are hereby incorporated by reference and may be updated from time to time by VIRO. Each order will be subject to the applicable Terms in effect at the time of purchase. Except as expressly provided at the time you place an order or in any of the foregoing order-related terms, all fees are in U.S. Dollars and are non-refundable. VIRO may change the fees for any activity through, or feature of, the Service, including by adding additional fees or charges, on a going-forward basis at any time. VIRO, or its third-party payment processor, will charge the payment method you specify at the time of purchase. You acknowledge and agree that you may be responsible for the payment of certain processing or other transactional fees depending on the payment method you specify. You authorize VIRO to charge, or to have charged on its behalf, all sums described herein to such payment method. If you pay any applicable fees with a credit card, VIRO may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.Risk of Loss. Except as otherwise set forth herein or in any applicable Additional Terms (as defined in Section 12.2 below),the risk of loss for and title to products purchased on or through the Service passes to you upon delivery to the carrier. For more information about shipping and delivery of products ordered through the Service, please review our Shipping Policy which is hereby incorporated by reference into these Terms, or contact our Customer Service team at [email protected] for more information.
5.Returns and Refunds. If you are not fully satisfied with a purchase made through the Service, you may be able to return it as set forth in our Returns Policy, which is hereby incorporated by reference into these Terms. Please review the Returns Policy or contact our Customer Service team at [email protected] for more information.
6.Product Availability and Descriptions. Following your placement of an order through the Service, VIRO may send an email or otherwise acknowledge that the order has been received; however, unless expressly stated therein, this does not signify confirmation of a product’s price or availability or indicate that the order has been accepted or shipped. While VIRO strives to include accurate information and descriptions (including prices, images, specifications, and availability) of products on the Service, it does not warrant that such information is accurate, complete, reliable, current, or free of errors. VIRO reserves the right, but is not obligated, to modify, correct, or update information relating to any products available through the Service at any time in its sole discretion, without prior notice. If you receive a product which is not as described on the Service at the time of your order, your sole and exclusive remedy is to return the unused product as permitted pursuant to Section 5of these Terms.
7.UserContent/Digital Millennium Copyright Act
7.1–User Content/Submissions. Any User Content(defined below)you transmit to VIRO by e-mail, through the Service or otherwise will be treated as non-confidential and non-proprietary and will not be returned. The Service may invite you to participate in providing reviews, blogs, message boards, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast User Content. You represent and warrant that all User Content submitted by you to the Site or any Service is truthful, accurate, not misleading, not confidential property of others, not in violation of any other third party’s rights and offered in good faith. You agree that your User Content is wholly original with you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms without VIRO incurring any third party obligations or liability arising out of its exercise of the rights granted by you to in these Terms. Without limiting the foregoing, you shall not: (i) transmit or post any User Content that is copyrighted, unless you are the copyright owner or have obtained the permission of the copyright owner to transmit it; (ii) transmit or post any User Content that reveals trade secrets, unless you own them or have the permission of the owner to so transmit them; or (iii)transmit or post any User Content that infringes on any intellectual property rights of others or violates the privacy or rights of publicity of others. VIRO may delete, remove or refuse to permit any User Content to remain on the Service without notice to you and without liability. The term “User Content” means any materials submitted by you to the Service or otherwise sent to VIRO, including without limitation, text, photographs, data, questions, comments, ideas, images, writings, music, sounds, audiovisual effects, artwork, design elements, graphics, suggestions, concepts, biographical information, notes, chat or message postings, reviews, and content.
7.2–License Grant for User Content. You grant to VIRO the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, make derivative works from, re-title, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that VIRO is free to use any ideas, information, concepts, know-how or techniques contained in any User Content for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or the Service, and without remuneration of any kind. You further perpetually and irrevocably grant VIRO the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligations to you. You also grant to VIRO the right to sub-license and authorize others to exercise any of the rights granted to VIRO under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to VIRO under these Terms. Without limiting the generality of the foregoing, you authorize VIRO to publish your User Content in a searchable format that may be accessed by users of the Service and the internet. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in any User Content, even if such User Content is altered or changed in a manner not agreeable to you.
7.3-DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you believe that your copyrights work has been copied in a way that constitutes copyright infringement and is accessible through the Service, please notify VIRO’s copyright agent at the following address: Copyright Agent c/o Hammerton, Inc. 217 N Wright Brothers Drive Salt Lake City UT 84116 Or Email: [email protected] Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information: 1.an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; 2.a description of the copyrighted work or other intellectual property that you claim has been infringed; 3.a description of the material that you claim is infringing and where it is located on the Service; 4.Information reasonably sufficient to permit us to contact you, including your address, telephone number, and email address; 5.a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and6.astatement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.4-Repeat Infringers. VIRO will promptly terminate without notice the accounts of users that are determined by VIRO to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
8.Prohibited Conduct. Your rights to use the Service are expressly conditioned on your agreement not to:-use the Service for any purpose other than for your personal use only, solely as permitted by the provided functionality of the Service and these Terms;-use the Service for any illegal purpose, or in violation of any local, state, national, or international law;-unless expressly permitted in writing signed by an officer of VIRO, copy, reproduce, distribute, publish, display, perform, transmit, stream, broadcast, modify, create derivative works of, sell, license or in any way exploit any part of the Service;-violate the rights of third parties, including by infringing or misappropriating third party intellectual property rights;-post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;-bypass or interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine User Content or any other Materials (as defined in Section 14 of these Terms) from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;-interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by: (a) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; (b) making unsolicited offers or advertisements to other users of the Service; (c)accessing or attempting to access any password protected, secure, or non-public areas of the Service without the express written permission of VIRO; (d)attempting to collect, personal information about users or third parties without their consent; or (d) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;-use, display, mirror, frame or utilize framing techniques to enclose the Service, or any portion thereof, unless and solely to the extent VIRO makes available the means for embedding any part of the Service, such as materials related to products listed on the Service.-perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;-sell or otherwise transfer the access granted in the Terms or any Materials or any right or ability to view, access, or use any Materials; or-attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 8.
9.Third Party Services and Linked Websites. VIRO may provide links to third party websites or services or tools through the Service that enable you to export information to or allow you to link your account on VIRO with an account on a third party service, such as Pinterest or Twitter, or through our implementation of third party buttons (such as “Pin It” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. These third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also permit third parties to sell products through the Service or contain links to third-party websites. Those third parties and linked websites are not under our control, and we are not responsible for their actions, products, or content. You agree that VIRO is not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any goods or services available through the third party products, services, and websites.
10.Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, VIRO, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service or cancel orders (subject to a refund of any payments you have made with respect to unfulfilled orders) at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at [email protected]. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
11.2-Additional Terms Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service. All of these Additional Terms are hereby incorporated by reference into and made a part of these Terms.
12.Changes to the Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.
13.Offers, Promotions, and Customer Credits. VIRO may from time to time and in its sole discretion make available special offers to its customers and promotional codes (“Promo Codes”) that provide an opportunity for customers to receive store credits, coupons, prizes, or benefits. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by VIRO; (iii)may be disabled by VIRO at any time for any reason without liability to you; (iv) may only be used pursuant to the specific terms that VIRO establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Any such offers and promotions will expire on the dates specified in the offer or promotion. Credits, coupons, prizes, or benefits shall specify the terms that apply to their use and redemption and those terms shall apply. Credits, coupons, prizes, and benefits may not be combined with any other offers or promotions. We reserve the right at any time in our discretion, and without prior notice, to discontinue any offer or promotion or to add or change offer and promotion terms or conditions, including changing expiration periods or credit values for existing or future credits. Referral credits, if provided by VIRO, cannot accrue until or unless the referred customer completes a purchase through the Service and all other conditions of the relevant promotion have been met. VIRO reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that VIRO determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms. Certain already discounted items, such as everyday value products, are not eligible for coupons and cannot be combined with sales or promotions. Credits are only for use on products available for purchase on the Site and may not be used for the purchase of gift cards or services. Credits are promotional in nature without any exchange of money or value from you. Credits are not transferable to other accounts and as such, credits do not constitute property and you do not have a vested property right or interest in the credits. Customers who return or cancel their items may have credits voided and may not be eligible for future credits. VIRO reserves the right to suspend or terminate the account of any user it believes is engaged in fraudulent, illegal, or inappropriate conduct in relation to any offers or promotions, including without limitation, using multiple user accounts or email addresses to meet promotion or offer requirements, using false names, impersonating others, or engaging in any other fraudulent or misleading conduct. You agree to forfeit any credits, coupons, prizes, or benefits resulting from fraudulent, illegal, or inappropriate conduct. VIRO reserves the right to void any such credits, coupons, prizes or benefits granted if it suspects, in its discretion, that these were derived in a fraudulent manner, a manner that violates this Agreement or the terms of the offer or promotion, or in a manner otherwise not intended by VIRO. In addition, any fraudulent, illegal, or inappropriate conduct in relation to any offers or promotions, may subject you to liability for civil and/or criminal penalties under applicable law. If VIRO terminates your account, for any reason, any credit balances in your account will be cancelled, except as prohibited by law. Account balances are determined by VIRO and such determination is final.
14. Ownership; Proprietary Rights. The Service, its features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof)is owned and operated by VIRO. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by VIRO are protected from unauthorized use, copying and dissemination by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of VIRO or our third-party licensors. Except as expressly authorized by VIRO in writing, you may not make use of the Materials. VIRO reserves all rights to the Materials not granted expressly in these Terms.
15.Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless VIRO and its officers, directors, employees, consultants, affiliates, subsidiaries, suppliers, service providers, licensors and agents (collectively, the “VIRO Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in anyway connected with: (a) your access to, use of, or alleged use of the Service; (b)your User Content; (c)your violation of these Terms or any representation, warranty, or agreements referenced in the Terms, or any applicable law or regulation; (d) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (e) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
16.Disclaimers; No Warranties. EXCEPT FOR ANY WRITTEN WARRANTIES PROVIDED BY VIRO WITH RESPECT TO PRODUCTS YOU PURCHASE, (i) THE SERVICE AND ALL PRODUCTS, MATERIALS, AND CONTENT AVAILABLE FROM OR SOLD THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY; and (ii) THE VIRO ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL PRODUCTS, MATERIALS, AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE VIRO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE,OR ANY PRODUCTS (INCLUDING PRICES, PRODUCT IMAGES, SPECIFICATIONS, AVAILABILITY, AND OTHER DESCRIPTIONS THEREOF), MATERIALS, OR CONTENT OFFERED OR MADE AVAILABLE THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, ACCURATE, COMPLETE, RELIABLE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. IF YOU ARE NOT SATISFIED WITH ANY PRODUCT ORDERED THROUGH THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO RETURN THE UNUSED PRODUCT AS PERMITTED PURSUANT TO SECTION 5 OF THESE TERMS. NOTWITHSTANDING THE FOREGOING, CERTAIN SUPPLIERS OR PROVIDERS OF PRODUCTS SOLD THROUGH THE SERVICE MAY SEPARATELY PROVIDE LIMITED WARRANTIES WITH RESPECT TO THEIR PRODUCTS SOLD THROUGH THE SERVICE. THE DISCLAIMERS IN THIS SECTION 16 DO NOT APPLY TO SUCH PRODUCT WARRANTIES PROVIDED SEPARATELY BY THE SUPPLIERS OR PROVIDERS. PLEASE REVIEW THE RETURNS POLICY OR CONTACT THE VIRO CUSTOMER SERVICE TEAM AT [email protected] FOR INFORMATION REGARDING SUCH SPECIFIC PRODUCT WARRANTIES AND THE AVAILABILITY THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS ORCONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VIRO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
17.Limitation of Liability. IN NO EVENT WILL THE VIRO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUE, COST OF REPLACEMENT GOODS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS, CONTENT, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE VIRO ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE VIRO ENTITIES TO YOU FOR ANY AND ALLCLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS, PRODUCTS, SERVICES, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNTS YOU HAVE PAID TO VIRO FOR THE SERVICE OR PRODUCT TO WHICH YOUR DISPUTE RELATES IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18.Governing Law. These Terms will be governed by the laws of the State of Utah without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under the Terms, you and VIRO agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Salt Lake County, Utah for the purpose of litigating all such disputes.
20.Dispute Resolution and Arbitration
20.1-Generally.In the interest of resolving disputes between you and VIRO in the most expedient and cost-effective manner, you and VIRO agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VIRO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASSACTION.
20.2-Exceptions. Notwithstanding subsection 20.1, we both agree that nothing in the Terms will be deemed to waive, preclude, or otherwise limit either of our right to:(a) bring an individual action in small claims court; (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available;(c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address intellectual property infringement claims.
20.3-Arbitrator. Any arbitration between you and VIRO will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online atwww.adr.org, by calling the AAA at1-800-778-7879, or by contacting VIRO.
20.4-Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). VIRO’s address for Notice is: Hammerton, Inc., ATTN: Legal Department, 217 North Wright Brothers Drive, Salt Lake City UT 84116. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30days after the Notice is received, you or VIRO may commence an arbitration proceeding.
20.5-Fees. In the event that you commence arbitration in accordance with these Terms, VIRO will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Salt Lake County, Utah, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephonic hearing; or (c) by an in-person hearing as established by the AAA Rules in the county of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse VIRO for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision applying Utah law sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14days of the arbitrator’s ruling on the merits.
20.6-No Class Actions. YOU AND VIRO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and VIRO agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
20.7-Enforceability. If this Section 20 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
23.Trademarks. VIRO™ and its mark are trademarks of Hammerton, Inc. All rights are reserved. All other trademarks and service marks appearing on the Service are the property of their respective owners, including, in some instances, VIRO. All rights are reserved. VIRO’s trademarks and trade dress may not be used in connection with any product or service that is not VIRO’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits VIRO. Use of any of our trademarks, service marks or names as “metatags” on other websites is prohibited. You may not display our Materials in frames or “in-line links” without express written permission from VIRO. You agree not to encumber, license, modify, publish, copy, sell, transfer, transmit or in any way exploit, any of the Materials or content of the Service, nor will you attempt to do so. You agree not to copy, redistribute, publish or otherwise exploit material you download from the Service, except as expressly permitted herein, without the express prior written permission of VIRO and the owner of such materials (from whom you are solely responsible for obtaining permission).You further agree and acknowledge that you shall not acquire any ownership rights(including any rights to license such material) by downloading material from the Service.
24.Contact Information. The Service under these Terms is offered by Hammerton, Inc. located at 217 North Wright Brothers Drive, Salt Lake City UT 84116.You may contact us by sending correspondence to the foregoing address or by emailing us at [email protected].
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