BY ACCESSING OR USING ANY OF THE SITES OR ANY PART OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THIS AGREEMENT, WHICH CONTAINS AN ARBITRATION AGREEMENT AND WAIVER OF CLASS-ACTION RIGHTS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS ANY SITE OR USE ANY SERVICE.
This Agreement supplements, but does not supplant, any terms which governed your use of any of the Sites or any Services as of the Effective Date; provided, however, that if there is a conflict between this Agreement and such terms, this Agreement will control.
Some Services are subject to additional terms, which are presented to when you use or create an account to use such Services. If there is a conflict between these terms and the additional terms for a particular Service, the additional terms will control for that Service. Do not use any Services subject to additional terms unless you agree to the terms of this Agreement and those additional terms.
- Using the Sites and the Services.
- Grant of Rights. Subject to your compliance with the terms and conditions of this Agreement, Permobil grants you a limited, non-exclusive right to use the Sites and the Services, and any content and materials made available to you in connection with your use of the Sites or the Services, only for informational purposes, subject to the further limitations provided in this Agreement, any additional terms applicable to a particular Service, or any instructions for use that Permobil may provide from time to time.
- Accounts and Access. To use certain Services, you must create an account accessible through a username and password. You are solely responsible for keeping your password confidential and for all use of your username and password, including, without limitation, any use by any unauthorized third party. Permobil employees will never ask for your password. If you are asked for your password, or if you believe someone may have obtained your password, please contact Permobil. You are responsible for any internet access, hardware, or software that is necessary or appropriate to facilitate your use of or access to the Sites or Services.
- Termination. You may stop accessing or using the Sites or the Services at any time. Permobil may terminate your access to the Sites or the Services in whole or in part if it reasonably believes you have breached any of the terms and conditions of this Agreement. Following termination, you will not be permitted to access the Sites or use the Services. If your access to the Sites or the Services is terminated, Permobil may exercise whatever means it deems necessary to prevent unauthorized access to the Sites or the Services, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet service provider. This Agreement will survive indefinitely unless and until Permobil chooses to terminate it, regardless of whether any account you open is terminated by you or Permobil or whether you continue to use or continue to have the right to use the Sites or the Services.
- Intellectual Property Rights. Using the Sites or the Services does not give you ownership of or any rights to any materials or content that may be provided to you in connection with your use of the Sites or the Services, all of which is owned by Permobil, its licensors, or other entities and is protected by copyright and other intellectual property rights. You shall not use, display, perform, copy, reproduce, represent, adapt, create derivative works from, distribute, transmit, sublicense or otherwise circulate or make available by any means whatsoever any materials or content made available to you in connection with your use of the Sites or the Services, without express permission from the owner, except as expressly set forth in this Agreement or any additional terms applicable to a particular Service. Using the Sites or the Services does not give you any rights to use any trademarks, service marks, trade dress, trade names, or the like, used in connection with the Sites or the Services, without express permission from the owner.
- Your Feedback. If you submit ideas, suggestions or anything else about the Sites or Services (such as ways to improve any of the Services) to Permobil, you agree that Permobil can use that feedback for any reason, without payment or other compensation to you, forever and throughout the world. Do not submit any feedback to Permobil in which you do not wish to grant such rights.
- Third Party Websites and Content. Permobil may provide access to third party websites, materials or other third party information. Your use of such third party websites, materials or other information will be subject to those terms to which you and the third party agree. Permobil may use third party materials or other third party information in providing the Services to you. You agree that Permobil is not responsible for any third party materials or other information, whether such materials are accessed directly by you or used by Permobil in providing the Services, including whether the information is accurate or whether the information is suitable for your use or use in connection with the Services. You agree that Permobil is not responsible for whether third party information accessed by you is available for your use, for the performance or operation of any third party website, for any products or services advertised or sold by any third party (including on or through a third party’s website), or for any other action or inaction by any third party.
- Prohibited Conduct. In your use of the Sites or the Services, you may use the Sites or the Services and any materials or content made available to you in connection with your use of the Sites or the Services only as expressly permitted by this Agreement or any additional terms applicable to a particular Service, and, without limiting the foregoing, in no event shall you, in your use of the Sites or the Services or any materials or content made available to you in connection with your use of the Sites or the Services: (i) infringe, violate, or transgress any right of any party; (ii) disrupt or interfere with the security, user authentication, provision or use of the Sites or the Services; (iii) interfere with or damage the Sites or the Services; (iv) impersonate another person or entity, misrepresent your affiliation with a person or entity (including Permobil), or use a false identity; (v) attempt to obtain unauthorized access to the Sites or the Services; (vi) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Sites or the Services; (viii) submit false or misleading information to Permobil; (ix) violate any law, rule, or regulation; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Sites or the Services; (xi) frame portions of the Sites within another website; or (xii) assist any third party in engaging in any activity prohibited by this Agreement.
- Changes. Permobil may change or discontinue any of the Sites or the Services at any time without liability to you or any third party. Permobil may modify this Agreement at any time. Notification of modifications to this Agreement will be made available via the Sites or the Services. Modifications will become effective fourteen days after they are posted, unless a different effective date is provided in the notice of modification or applicable law requires earlier application. If you do not agree to the modified terms for a Site or a Service, you must discontinue your use of that Site or Service.
- Infringement of Rights. Permobil respects your rights. If you believe any third party is infringing your rights or misappropriating your confidential information by such third party’s use of or access to the Sites or Services, please contact us.
- DISCLAIMERS, EXCLUSIONS, LIMITATIONS, AND INDEMNITY.
- DISCLAIMER OF WARRANTIES. PERMOBIL PROVIDES THE SITES AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. PERMOBIL DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE SERVICES, THEIR USE, ANY INFORMATION PROVIDED IN CONNECTION WITH THE SITES OR THE SERVICES: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. PERMOBIL MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. PERMOBIL MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY MATERIALS, INFORMATION, GOODS, OR SERVICES, WHETHER RECEIVED OR ACCESSED VIA ANY LINKS PROVIDED BY OR IN CONNECTION WITH THE SITES OR SERVICES, USED BY PERMOBIL TO PROVIDE THE SERVICES, OR OTHERWISE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- EXCLUSION OF DAMAGES. PERMOBIL WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SITES OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
- LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PERMOBIL ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE SITES, OR THE SERVICES EXCEED THE AMOUNT PAID FOR THE SERVICES.
- STATE LAW RIGHTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
- Indemnity. You agree to indemnify, defend and hold Permobil and its employees, representatives, agents, affiliates, parents, subsidiaries directors, officers, members, managers and shareholders (“Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach by you of any provision of this Agreement or (ii) arising from, related to, or connected with your use of the Services. If you are obligated to provide indemnification pursuant to this provision, Permobil may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of Permobil.
- Governing Law. This Agreement shall be governed, construed and applied in all respects by the laws of the State of Tennessee without regard to any provision governing conflicts of law.
- Informal Resolution. If you have any dispute with us or any related third party arising out of, relating to, or connected with the Sites or the Services, you agree to contact us; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give Permobil 30 days within which to resolve the dispute to your satisfaction. If Permobil does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
- Arbitration Agreement. Any claims by Permobil, or claims by you that are not resolved by the informal resolution procedure, arising out of, relating to, or connected with this Agreement must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes. This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 USC §1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided below) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement. There are only three exceptions to this arbitration agreement: (1) if Permobil reasonably believes that you have in any manner violated or threatened to infringe the intellectual property rights associated with any of the Sites or Services, Permobil may seek injunctive or other appropriate relief in any court of competent jurisdiction; (2) certain Services are subject to different dispute resolution provisions, which are provided for in the terms applicable to such Services; or (3) any dispute arising from, related to, or connected with this Agreement may, at the option of the claiming party, be resolved in small claims court in Wilson County, Tennessee, provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court.
- Venue. In the event any matters related to this Agreement or your use of the Sites or Services are not subject to arbitration as set forth in these this Agreement or in connection with the entering of any judgment on an arbitration award in connection with this Agreement, you hereby expressly consent to exclusive jurisdiction and venue in the courts located in Wilson County, Tennessee.
- Limitations. You must assert any claims related to your use of the Sites, the Services, or under this Agreement, if at all, in writing to us within one (1) year of the date such claim first arose, or such claim is forever waived by you. Each claim shall be adjudicated individually, and you agree not to combine your claim with the claim of any third party.
- Force Majeure. Permobil will not be liable for failing to perform under this Agreement because of any event beyond its reasonable control.
- International Access. The Sites and Services are provided from the United States of America. The laws of other countries may differ regarding the access and use of the Sites or the Services. Permobil makes no representations regarding whether the Sites, the Services, or your access or use of the Sites or Services complies with applicable laws, rules, or regulations or any country other than the United States of America. If you use or access the Sites or the Services outside of the United States of America, it is your responsibility to ensure that your use complies with all applicable laws, rules, and regulations and, without limiting the generality of your obligations under Section 4.5 of this Agreement, you agree to indemnify, defend and hold the Indemnified Parties harmless from any Claim brought or asserted against any of the Indemnified Parties arising out of your use or access of any of the Sites or Services outside of the United States of America.
- About These Terms. This Agreement supersedes all prior and contemporaneous agreements and understandings between you and Permobil relating to the Sites or the Services, other than any additional terms applicable to a particular Service. You may not transfer your rights or obligations under this Agreement without the prior written consent of Permobil. Permobil may freely do so, in whole or in part. This Agreement will be binding upon the successors and permitted assigns of you and Permobil. This Agreement does not create any third party beneficiary rights. A party’s failure or delay in exercising any right, power or privilege under this Agreement will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under this Agreement. You and Permobil are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.
- Interpretation. Words such as “herein”, “hereinafter”, “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a section, paragraph or clause in which such words appear, unless the context otherwise requires. All definitions set forth herein will be deemed applicable whether the words defined are used herein in the singular or the plural. The singular shall include the plural, and each masculine, feminine and neuter reference shall include and refer also to the others, unless the context otherwise requires. The words “include”, “includes” and “including” are deemed to be followed by “without limitation” or words of similar import. Except where the context otherwise requires, the word “or” is used in the inclusive sense (and/or).
- Contacts. By providing your email address, you agree that Permobil may send emails to you related to the Sites or the Services and any account you may have. If you do not wish to receive general marketing emails, you can opt out by following the instructions in the messages. Permobil may send any legal notices to you via email, notification by a message to your account, or regular mail. If you wish to provide legal notice to Permobil, please do so by letter, deposited into the Unites States mail, return receipt requested, postage prepaid, and addressed as follows: Permobil, Inc., 300 Duke Dr., Lebanon Tennessee 37135.