Terms and Conditions
Tormach, Inc., d/b/a BladeSerpent™ ("BladeSerpent"), owns and operates the BladeSerpent, website, found at www.tormach.com/_____________ and related sites (the "Site"). These Terms and Conditions ("Terms") govern BladeSerpent's sale of products through and your ("User" or "Users") purchase of products from the Site and your other access to and use of the Site. Any order of products from, or access to or use of, the Site by any User, including, but not limited to, the User clicking to accept or agree to these Terms, constitutes the User's acknowledgement that the User has read and understands these Terms and the User's agreement to adhere to and be bound by these Terms. BladeSerpent expressly rejects any different or additional terms or conditions contained in any document submitted by any User. If any User does not want to agree to adhere to and be bound by these Terms; is not of legal age to form a binding contract with BladeSerpent; or is prohibited by applicable law from accessing or using the Site, any of its contents, functionalities, or services offered ("BladeSerpent Content"), or products posted for sale on the Site; the User shall not order any products from, or access or use, the Site.
A. SALE AND PURCHASE
A.1. Order is Offer; BladeSerpent's Acceptance of Order and Offer. Any User's order of any product from the Site is deemed the User's offer to purchase the product under these Terms. Such order and offer must be accepted by BladeSerpent before BladeSerpent becomes obligated to sell the product to the User. BladeSerpent may choose, for any or no reason, to not accept any order and offer at any time, including, but not limited to, at any time after BladeSerpent provides confirmation, by email or otherwise, of the order and offer. A product associated with any order from the Site by any User that is accepted by BladeSerpent is referred to in these Terms as a "Product."
A.2. Prices. All prices, discounts, and promotions posted on the Site are subject to change without notice. The price charged to any User for any Product will be the price posted on the Site at the time the User placed the order for the Product, subject to the terms of any discounts or promotions that may be applicable to the order. BladeSerpent expressly reserves the right to correct any errors, inaccuracies, or omissions relating to posted prices at any time and to not accept or cancel any orders involving any such errors, inaccuracies, or omissions. Posted prices include all sales tax.
A.3. Payment Terms. BladeSerpent must receive payment, by an approved credit card through the Site or, if applicable, redemption of promotional incentives, for any User's order and any applicable shipping or handling fee before BladeSerpent is deemed to have accepted the order. The User represents and warrants to BladeSerpent that: (A) all credit card information the User supplies to BladeSerpent is true, correct, and complete; (B) the User is duly authorized to use the credit card for the order; (C) charges incurred by the User will be honored by the User's credit card company; and (D) the User will pay charges incurred by the User at the posted prices and for any applicable shipping or handling fee.
A.4. Shipments. In the event BladeSerpent accepts any order placed by any User, BladeSerpent will arrange for shipment of the Products associated with the order to the User.
A.5. Shipping and Handling Fees. BladeSerpent will not charge any shipping or handling fee for any Products associated with a single order placed by any User that exceed $100.00 in total price and that are to be shipped to any state in the United States other than Alaska or Hawaii. BladeSerpent expressly reserves the right to charge a shipping or handling fee for any Products associated with a single order placed by any User that total $100.00 or less in price or that are to be shipped to Alaska or Hawaii.
A.6. Title and Risk of Loss. Title to and risk of loss of any Product passes to the User who ordered the Product upon BladeSerpent's transfer of the Product to any carrier for shipment to the User. Shipment dates provided to any User are estimates only and cannot be guaranteed. BladeSerpent shall not be liable for any delays in any shipment.
A.7. Returns and Refunds. BladeSerpent will accept a return of any Product from any User for a refund of the price paid or, if applicable, promotional incentives redeemed, by the User for the Product (but not a refund of any applicable shipping or handling fee associated with the Product), provided that: (A) User emails BladeSerpent's Customer Service Department at firstname.lastname@example.org and obtains a Return Merchandise Authorization Number; (B) User pays all shipping and handling fees required to return the Product to BladeSerpent; (C) User retains title to and the risk of loss of the Product until BladeSerpent receives the Product; (D) the Product is received by BladeSerpent in its original condition no later than thirty (30) days after the User first received the Product; and (E) User authorizes BladeSerpent to credit the refund to the credit card the User used to purchase the Product (to the extent money was paid for the Product), and to credit the User's Account (to the extent promotional incentives were used to purchase the Product).
A.8. Limited Warranty for Business Users.
(A) BladeSerpent warrants to any User who purchases any Product for use in business ("Business User") that for a period of one (1) year after the Business User first receives the Product, the Product will be free from material defects in material and workmanship.
(B) EXCEPT FOR THE WARRANTIES SET FORTH IN SUBSECTION A.8(A), ABOVE, BLADESERPENT MAKES NO WARRANTY WHATSOEVER TO ANY BUSINESS USER AND HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WITH RESPECT TO ANY PRODUCT PURCHASED BY ANY BUSINESS USER.
(C) BladeSerpent shall not be liable for a breach of the warranties set forth in Subsection A.8(A), above, unless: (i) the Business User to whom BladeSerpent made such warranties provides notice in accordance with Section E.12, below, of the defective Product, with defects reasonably described (the "Notice of Defects"), to BladeSerpent within ten (10) days after the Business User discovers or should have discovered the defects; (ii) upon BladeSerpent's request, the Business User, at the Business User's expense, returns the defective Product to BladeSerpent within ten (10) days after receipt of BladeSerpent's request; (iii) if applicable, BladeSerpent is given a reasonable opportunity after receipt of the defective Product to examine the defective Product; and (iv) BladeSerpent reasonably verifies the Business User's claim that the Product is defective.
(D) BladeSerpent shall not be liable for a breach of the warranty set forth in Subsection A.8(A), above, if the Business User to whom BladeSerpent made such warranties: (i) uses any Product described in the Business User's Notice of Defects after the Business User discovered or should have discovered defects in the Product; (ii) failed to follow BladeSerpent's instructions as to the storage, installation, commissioning, use, or maintenance for any Product described in the Business User's Notice of Defects; or (iii) altered or repaired any Product described in the Business User's Notice of Defects without BladeSerpent's prior written consent.
(E) In the event BladeSerpent reasonably verifies any Business User's claim that any Products described in the Business User's Notice of Defects are defective, in accordance with Subsection A.8(C), above, and subject to Subsection A.8(D), above, BladeSerpent shall either, in BladeSerpent's sole discretion: (i) repair or replace the Product or defective part or parts of the Product; or (ii) credit or refund to the Business User the amounts paid or, if applicable, promotional incentives redeemed, by the Business User for the Product, provided that, upon BladeSerpent's request, the Business User, at the Business User's expense, returns the Product to BladeSerpent if not previously returned to BladeSerpent. THE BUSINESS USER'S REMEDY SET FORTH IN THIS SUBSECTION A.8(E) SHALL BE THE BUSINESS USER'S SOLE AND EXCLUSIVE REMEDY AND BLADESERPENT'S ENTIRE LIABILITY TO THE BUSINESS USER FOR ANY BREACH OF THE WARRANTIES SET FORTH IN SUBSECTION A.8(A), ABOVE.
A.9. Limited Warranty for Non-Business Users.
(A) THE LIMITED WARRANTY SET FORTH IN THIS SECTION A.9 GIVES ANY USER WHO PURCHASES ANY PRODUCT FOR NON-BUSINESS USE ("INDIVIDUAL USER") SPECIFIC LEGAL RIGHTS, AND THE INDIVIDUAL USER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
(B) BladeSerpent warrants to any Individual User that for a period of one (1) year after the Individual User first receives any Product purchased by the Individual User, the Product will be free from defects in material and workmanship.
(C) BLADESERPENT LIMITS THE DURATION OF ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WITH RESPECT TO ANY PRODUCT PURCHASED BY ANY INDIVIDUAL USER TO A PERIOD OF ONE (1) YEAR AFTER THE INDIVIDUAL USER FIRST RECEIVES THE PRODUCT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY TO AN INDIVIDUAL USER LASTS, SO THE LIMITATION SET FORTH IN THE PRECEDING SENTENCE MAY NOT APPLY TO SOME INDIVIDUAL USERS.
(D) BLADESERPENT'S RESPONSIBILITY FOR ANY DEFECTIVE PRODUCT PURCHASED BY ANY INDIVIDUAL USER IS LIMITED TO REPAIR, REPLACEMENT, OR REFUND AS SET FORTH IN THIS SECTION A.9.
(E) NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT, OR ADVICE PROVIDED BY BLADESERPENT OR ANY REPRESENTATIVE (AS DEFINED BELOW) WILL CREATE A WARRANTY TO ANY INDIVIDUAL USER OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION A.9.
(F) (i) Who May Use This Warranty?
The limited warranty set forth in this Section A.9 extends only to the Individual User who was the original purchaser of any Product. It does not extend to any subsequent or other owner or transferee of the Product.
(ii) What Does This Warranty Cover?
The limited warranty set forth in this Section A.9 covers defects in materials and workmanship in any Product purchased by an Individual User.
(iii) What Does This Warranty Not Cover?
The limited warranty set forth in this Section A.9 does not cover any damages due to: (a) transportation; (b) storage; (c) improper use; (d) failure to follow the Product instructions or to perform any preventative maintenance; (e) modifications; (f) combination or use with any products, materials, processes, systems, or other matter not provided or authorized in writing by BladeSerpent; (g) unauthorized repair; (h) normal wear and tear; or (i) external causes such as accidents, abuse, or other actions or events beyond BladeSerpent's reasonable control.
(iv) What is the Period of Coverage?
The limited warranty set forth in this Section A.9 starts on the day any Individual User first receives any Product purchased by the Individual User and lasts for one (1) year thereafter. Such period is not extended if BladeSerpent repairs or replaces a warranted Product. BladeSerpent may change the availability of the limited warranty set forth in this Section A.9 at BladeSerpent's discretion, but any changes will not be retroactive.
(v) What Are An Individual User's Remedies Under This Warranty?
BladeSerpent will, in its sole discretion, either: (a) repair or replace any defective Product (or the defective part) purchased by any Individual User free of charge; or (b) refund the price paid or, if applicable, promotional incentives redeemed, for the Product. BladeSerpent will pay for shipping and handling fees to return any repaired Product or replacement product to the Individual User.
(vi) How Does An Individual User Obtain Warranty Service?
To obtain warranty service, an Individual User must email BladeSerpent's Customer Service Department at email@example.com to obtain a Defective Merchandise Authorization Number.
(G) THE REMEDIES DESCRIBED IN THIS SECTION A.9 SHALL BE ANY INDIVIDUAL USER'S SOLE AND EXCLUSIVE REMEDY AND BLADESERPENT'S ENTIRE LIABILITY TO THE INDIVIDUAL USER FOR ANY BREACH OF WARRANTY BY BLADESERPENT.
A.10. Limitation of Liability.
(A) TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLADESERPENT SHALL NOT BE LIABLE TO ANY USER OR THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ANY PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR DIMINUTION IN VALUE, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, WHETHER BLADESERPENT WAS OR WAS NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR CAUSED BY TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(B) IN NO EVENT SHALL BLADESERPENT BE LIABLE TO ANY USER IN AN AMOUNT EXCEEDING THE PRICE PAID BY THE USER TO BLADESERPENT FOR THE PRODUCTS TO WHICH SUCH LIABILITY RELATES OR OUT OF WHICH SUCH LIABILITY ARISES.
(C) SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES AS SET FORTH IN SUBSECTIONS A.10(A) AND (B), ABOVE, THEREFORE, SUCH LIMITATION OR EXCLUSION MAY NOT APPLY TO SOME USERS.
A.11. Products Not for Resale or Export. Each User represents and warrants that: (A) any Products purchased by the User will be only for the User's use and will not be for resale or export; and (B) all Products purchased by the User are intended for final delivery to locations within the United States. In no event shall BladeSerpent be responsible for any User's compliance or non-compliance with any applicable export or import laws or regulations.
B. SUBSCRIPTION PLAN
B.1. Subscriptions Vary. BladeSerpent offers various subscription plans for its BladeSerpent™ band saw blades and accessories (each, a "Subscription"). The fees for each Subscription can be found at www.tormach.com/_____________ and are subject to change. If BladeSerpent changes the fees associated with any Subscription, BladeSerpent will provide notice to Users subscribed to the Subscription (each, a "Subscription User") in accordance with Section E.12, below.
B.2. Payment; Continuous Subscription. When a Subscription User subscribes to a Subscription, the Subscription User expressly acknowledges and agrees that: (A) BladeSerpent or its third-party payment processor is authorized to charge the credit card maintained in the Subscription User's Account (as defined below) in the amount and at the frequency associated with the Subscription for as long as the Subscription continues; (B) the number and type of BladeSerpent™ band saw blades and accessories the Subscription User receives and the amount and frequency BladeSerpent charges the Subscription User may vary depending on the Subscription selected by the Subscription User; and (C) the Subscription is continuous until cancelled by the Subscription User in accordance with Section B.3, below, or BladeSerpent limits, suspends, restricts, or terminates the Subscription or the Subscription User's Account (as defined below) or other access to or use of the Site in accordance with Section C.7, below. BladeSerpent is not responsible for interruptions to a Subscription resulting from the Subscription User's credit card being declined or expired.
B.3. Subscription Cancellation. Any Subscription User may cancel his, her, or its Subscription at any time by emailing BladeSerpent's Customer Service Department at firstname.lastname@example.org. Notwithstanding the foregoing sentence, BladeSerpent expressly reserves the right to charge the Subscription User for any BladeSerpent™, band saw blades or accessories: (A) already shipped in accordance with the Subscription at the time of such cancellation; or (B) scheduled to be shipped in accordance with the Subscription within two (2) business days after such cancellation.
C.1. Intellectual Property. The Site, BladeSerpent Content, the names "Tormach®," "BladeSerpent™, and other logos, symbols, and slogans, are copyrights, trademarks, patents, service marks, or trade dress by or of Tormach, Inc. ("Tormach Intellectual Property"). Tormach Intellectual Property may not be copied, modified, republished, or distributed without the prior written consent of Tormach, Inc. No User has any rights in or to Tormach Intellectual Property except to order BladeSerpent™ products from the Site or to access and use the Site and BladeSerpent Content in accordance with these Terms.
C.2. Accounts. Each User who orders any product from the Site, subscribes to a Subscription, or enrolls in the Program must register with the Site by creating an account on the Site ("Account"). In so registering and creating an Account, each User must designate an Account password and provide his, her, or its physical and email addresses, credit card information, and other information required by BladeSerpent for the User to order BladeSerpent™, products from, or otherwise access or use, the Site, subscribe to a Subscription, or enroll in the Program. All information provided by any User in creating an Account must be accurate, current, complete, and maintained and updated to remain accurate, current, and complete at all times. Each User is responsible for all activity that occurs under the User's Account and must log out of such Account at the end of each session. No User may create more than one (1) Account, disclose such User's Account password to any third party or entity other than BladeSerpent or its affiliates or their respective shareholders, members, owners, directors, officers, employees, independent contractors, agents, successors, or assigns (collectively, a "Representative"), or allow any third person or entity other than a Representative to use such User's Account. Each User must notify BladeSerpent immediately after the User becomes aware that any third party or entity other than a Representative used such User's Account.
C.3. Notices and Messages. Each User consents to BladeSerpent sending to the email address maintained in such User's Account: (A) all notices related to the Site, BladeSerpent Content, these Terms, BladeSerpent™, products, Products, or BladeSerpent, including, but not limited to, notices of amendments to these Terms in accordance with Section E.13, below, and notices required by any statute, regulation, ordinance, or other law or any law enforcement agency or other governmental authority; and (B) messages, including, but not limited to, regarding the Site, BladeSerpent Content, BladeSerpent Products, other Tormach, Inc. products or services, or Tormach, Inc. marketing, advertising, or special offers.
(A) BladeSerpent may:
(i) When any User creates an Account, collect and store personal information such as the User's name, physical and email addresses, credit card information, and Account password;
(ii) When any User uses the Site, automatically record and store information from the User's device, software, or activity using the Site, including, but not limited to, the User's IP address, browser type, access times, referring website addresses, or other information contained in HTTP headers;
(iii) Use technologies, including, but not limited to, third party technologies, analytics tools, cookies, and web beacons, to: (a) keep track of and store any User's Site visits, preferences, and Account information; and (b) collect information in the form of various usage or User metrics; and
(iv)(a) Use persistent cookies to save any User's Account email and password for future logins to the User's Account; or (b) use session ID cookies to enable certain features of the Site, better understand how any User uses the Site, and aggregate usage and web traffic routing on the Site.
If any User does not accept cookies, the User may not be able to access or use the Site. All information BladeSerpent collects, stores, saves, records, keeps track of, or otherwise uses, obtains, or retains, as described in Subsection C.4(A), above, is referred to as "User Information."
(B) BladeSerpent may use any User's User Information to: (i) process the User's requests or transactions; (ii) provide the User with requested information or services; (iii) facilitate the User's access to and use of the Site; (iv) inform the User about any products, services, or promotions; (v) request feedback that enables BladeSerpent to develop, customize, and improve the Site or BladeSerpent Content; (vi) conduct research and analysis about the Site or BladeSerpent Content; or (vii) otherwise serve the User.
(C) BladeSerpent may share any User Information with any person or entity: (i) for the purpose of satisfying any statute, regulation, ordinance, or other law or any request by any law enforcement agency or other governmental authority; (ii) when BladeSerpent reasonably believes disclosure of User Information is necessary to protect BladeSerpent's rights or any person's safety; (iii) for the purpose of investigating fraud; (iv) in connection with a corporate change of BladeSerpent, including, but not limited to, any merger, acquisition, or sale of assets; (v) who helps BladeSerpent with its business activities; (vi) as aggregate data (information BladeSerpent collects about a group or category of services or Users for which individual User identities have been removed) for any purpose, including, but not limited to, advertising or marketing activities; (vii) for the purpose of helping BladeSerpent tailor its advertising to any User or collect and use data about any User's use of the Site; (viii) who is a Representative for any purpose, including, but not limited to, advertising or marketing purposes; (ix) to fulfill the purpose for which the User Information was provided; (x) with the consent of the applicable User; or (xi) as expressly provided elsewhere in these Terms.
(D) BladeSerpent may retain any User's User Information: (i) for as long as the User's Account is active; (ii) for as long as backed-up versions of any User Information exist after the User's Account is deactivated; or (iii) as necessary to comply with BladeSerpent's legal obligations, resolve disputes, or enforce any agreement, including, but not limited to, these Terms.
(E) California Civil Code Section 1798.83 permits Users that are California residents to request certain information regarding BladeSerpent's disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please provide BladeSerpent notice of such request in accordance with Section D.12, below.
C.5. Prohibited Conduct. Each User agrees to use the Site only for lawful purposes and in accordance with these Terms. Without limiting the foregoing sentence, each User is prohibited from using or accessing the Site: (A) in any unlawful, offensive, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, or racially, ethnically, or otherwise objectionable manner, including, but not limited to, any manner that constitutes or encourages conduct that would constitute a criminal offense, gives rise to civil liability, or otherwise violates any applicable statute, regulation, ordinance, or other law; (B) to introduce any material that contains computer viruses, worms, or other harmful materials; (C) to transmit any spam, unsolicited or bulk electronic communications, or altered, deceptive, or false-source identifying information; (D) in any manner that interferes with the operation of the Site or that imposes an unreasonable or disproportionately large load on the Site's infrastructure; (E) in any manner that violates or infringes upon any intellectual property, privacy, or other right of any person or entity; (F) with any robot, spider, or other automatic device, process, or means for any purpose, including, but not limited to, monitoring or copying any BladeSerpent Content; or (G) to access or use or attempt to access or use another User's Account (collectively, "Prohibited Conduct").
C.6. USA Based. BladeSerpent is based in the State of Wisconsin in the United States, provides the Site for use only by persons or entities located in the United States, and makes no claims that the Site or any BladeSerpent Content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Each User hereby consents to the collection, storage, saving, recording, keeping track, or other use, receipt, or maintenance by BladeSerpent of such User's User Information, as provided in these Terms and Conditions, in the United States.
C.7. BladeSerpent's Rights and Remedies. BladeSerpent has the right, but not the obligation, for any reason, including, but not limited to, any engagement in Prohibited Conduct or other unauthorized or improper use of the Site or BladeSerpent Content by any User and any User's failure to use such User's Account for any period of time, or for no reason, with or without notice, and without limiting other legal or equitable remedies that may be available to BladeSerpent, to: (A) limit, suspend, restrict, or terminate any User's Account or other access to or use of the Site or any portion of the Site, by disabling such Account's password or any other method; (B) remove, supplement, modify, refuse to display, or relocate any BladeSerpent Content or any portion thereof from or on the Site; or (C) terminate these Terms, the Site, or any portion of the Site. BladeSerpent has no obligation to store or preserve any BladeSerpent Content at any time.
C.8. No Warranties. EACH USER AGREES THAT THE USER'S ACCESS TO OR USE OF THE SITE OR BLADESERPENT CONTENT IS UNDERTAKEN AT SUCH USER'S OWN RISK. BLADESERPENT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY: (A) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTHFULNESS, AVAILABILITY, SECURITY, ACCURACY, OR COMPLETENESS OF THE SITE OR BLADESERPENT CONTENT; (B) THAT THE SITE OR BLADESERPENT CONTENT WILL OPERATE IN COMBINATION WITH ANY PARTICULAR HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THAT THE SITE OR BLADESERPENT CONTENT WILL MEET ANY USER'S REQUIREMENTS OR EXPECTATIONS; OR (D) THAT THE SITE, THE SERVER(S) THAT MAKE THE SITE AVAILABLE, OR BLADESERPENT CONTENT ARE FREE OF VIRUSES, OTHER DESTRUCTIVE CODE, OR OTHER HARMFUL COMPONENTS. THE SITE AND BLADESERPENT CONTENT ARE PROVIDED TO EACH USER STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. BLADESERPENT HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WITH RESPECT TO THE SITE OR BLADESERPENT CONTENT.
C.9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BLADESERPENT NOR ANY REPRESENTATIVE SHALL BE LIABLE FOR, AND EACH USER HEREBY AGREES TO HOLD BLADESERPENT AND ANY REPRESENTATIVE HARMLESS FROM, ANY LIABILITY OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ANY PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, OR CAUSED BY TORT, BREACH OF CONTRACT, OR OTHERWISE, RESULTING FROM OR ARISING OUT OF: (A) THE USER'S USE OF OR ACCESS TO OR INABILITY TO USE OR ACCESS THE SITE OR BLADESERPENT CONTENT; (B) PROHIBITED CONDUCT, VIOLATION OR INFRINGEMENT OF THESE TERMS, ANY STATUTE, REGULATION, ORDINANCE, OR OTHER LAW, OR ANY INTELLECTUAL PROPERTY, PRIVACY, OR OTHER RIGHT OF ANY PERSON, OR ANY OTHER UNAUTHORIZED OR IMPROPER USE OF THE SITE OR BLADESERPENT CONTENT BY ANY PERSON; (C) BLADESERPENT'S LIMITATION, SUSPENSION, OR TERMINATION OF THE USER'S ACCOUNT OR OTHER USE OF OR ACCESS TO THE SITE OR BLADESERPENT CONTENT; (D) DELAYS OR DISRUPTIONS WITH THE SITE OR BLADESERPENT CONTENT; (E) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING, USING, OR LINKING TO THE SITE OR BLADESERPENT CONTENT; (F) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND WITH RESPECT TO THE SITE OR BLADESERPENT CONTENT; (G) DAMAGE TO THE USER'S HARDWARE DEVICE RESULTING FROM USE OF THE SITE OR BLADESERPENT CONTENT; (H) ANY DISCLOSURE, TRANSMISSION, DELETION, DESTRUCTION, MODIFICATION, DAMAGE, OR LOSS OF ANY USER INFORMATION, INCLUDING, BUT NOT LIMITED TO, AS A RESULT OF HACKING, TAMPERING, OR OTHERWISE UNLAWFUL USE OF THE SITE BY ANY PERSON OR FOR THE PURPOSE OF SATISFYING ANY STATUTE, REGULATION, ORDINANCE, OR OTHER LAW OR ANY REQUEST BY ANY LAW ENFORCEMENT AGENCY OR OTHER GOVERNMENTAL AUTHORITY; (I) ANY USE OF ANY USER'S ACCOUNT BY ANY THIRD PERSON OR ENTITY OTHER THAN A REPRESENTATIVE; (J) SUCH USER'S USER INFORMATION; OR (K) ANY ACTION TAKEN BY BLADESERPENT OR ANY REPRESENTATIVE DURING OR AS A CONSEQUENCE OF INVESTIGATIONS BY LAW ENFORCEMENT AGENCIES OR OTHER GOVERNMENTAL AUTHORITIES. EXCEPT AS PROVIDED IN SECTION A.10(B), ABOVE, IN NO EVENT SHALL BLADESERPENT OR ANY REPRESENTATIVE BE LIABLE TO ANY USER IN AN AMOUNT EXCEEDING $100.00.
C.10. Applicability of Sections C.8-9. Some jurisdictions do not allow, or limit, the disclaimer of warranties and/or waiver or limitation of damages. Accordingly, Sections C.8 and C.9, above, may not apply to particular Users in these jurisdictions, but shall apply to the fullest extent permitted by law.
C.11. Indemnification. Each User hereby agrees to indemnify, defend, and hold harmless BladeSerpent or any Representative from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) suffered by BladeSerpent or such Representative resulting from or arising out of the User's: (A) violation or infringement of these Terms, any statute, regulation, ordinance, or other law, or any intellectual property, privacy, or other right of any person; or (B) unauthorized or improper use of the Site or BladeSerpent Content.
D.1. Force Majeure. BladeSerpent will not be liable or responsible to any User, or be deemed to have defaulted or breached these Terms, for any failure or delay in BladeSerpent's performance under these Terms in the event and to the extent such failure or delay results from or arises out of acts or circumstances beyond BladeSerpent's reasonable control, including, but not limited to, acts of God; acts of any User; flood; fire; earthquake; explosion; accidents; governmental actions; war; invasion; hostilities; terrorist threats or acts; riot or other civil unrest; national emergency; revolution; insurrection; epidemic; lockouts; strikes; other labor disputes; restraints or delays affecting carriers; inability to obtain, delay in obtaining, or material increases in the cost of, supplies of adequate or suitable materials; repairs in equipment; telecommunication or material breakdown; or power outage.
D.2. No Use by Minors. Each User hereby represents and warrants that the User is eighteen (18) years of age or older and is lawfully able to enter into contracts. No individual under the age of eighteen (18) years or who is otherwise unable to lawfully enter into contracts may order products from or otherwise use the Site.
D.3. Wisconsin Law. These Terms shall be governed by and construed in accordance with the laws of the State of Wisconsin.
D.4. Exclusive Wisconsin Jurisdiction. Any lawsuit between BladeSerpent and any User shall be brought exclusively in Dane County, Wisconsin Circuit Court or in federal court in the Western District of Wisconsin, to the exclusion of all other courts and venues. Each User hereby agrees to submit to and consents to the personal jurisdiction of these courts located in Dane County, Wisconsin.
D.5. Assignment; BladeSerpent's Successors and Assigns. No User may assign his, her, or its Account or rights or obligations under these Terms. BladeSerpent may assign its rights and obligations under these Terms without restriction. These Terms shall be binding upon and inure to the benefit of each User's successors and BladeSerpent's successors and assigns.
D.6. Entity Use.Each User who orders any Products or otherwise uses the Site on behalf of any business or other entity hereby represents and warrants that the User is authorized to purchase the Products and otherwise act on behalf of such entity and bind such entity to these Terms.
D.7. Headings. Headings included in these Terms are for convenience only and are not intended to limit or expand the rights of BladeSerpent or any User.
D.8. No Waiver. Any provision of these Terms may be waived only by a written instrument executed by BladeSerpent. The failure of BladeSerpent at any time to require performance of any provision contained in these Terms by any User shall, in no manner, affect the right of BladeSerpent at a later date to enforce the same. No waiver by BladeSerpent of any provision contained in these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such provision or any other provision of these Terms.
D.9. Severability. If any provision contained in these Terms shall be held to be invalid, illegal, or unenforceable in any respect, in whole or in part, by a judgment, order, or decree of any court of competent jurisdiction, the validity of the remaining provisions, and of the remaining part of any provision held to be partially invalid, illegal, or unenforceable, shall continue in full force and effect to the extent permitted by the terms of such judgment, order, or decree.
D.10. No Third-Party Beneficiaries. Except as expressly provided elsewhere in these Terms, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than BladeSerpent and the User who agrees to adhere to and be bound by these Terms.
D.11. Entire Agreement. These Terms contain and constitute the entire agreement between BladeSerpent and each User with regard to their subject matter and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with regard to the subject matter.
(A) BladeSerpent may provide any notice to any User under these Terms by: (i) sending a message to any email address the User maintains in such User's Account or otherwise provides to BladeSerpent; or (ii) posting to the Site.
(B) To give BladeSerpent any notice under these Terms, any User must send such notice by certified mail to BladeSerpent at 1071 Uniek Drive, Waunakee, WI 53597-9588. Any such notice shall be deemed effective upon BladeSerpent's receipt of such notice.
D.13. Amendment. BladeSerpent may, in its sole discretion, amend these Terms from time to time. Each User will be notified in accordance with Section D.12, above, when BladeSerpent amends these Terms. Any order of products from, or access to or use of, the Site by any User after any such amendment constitutes the User's acknowledgement that the User has read and understands these Terms as amended and the User's agreement to adhere to and be bound by these Terms as amended. If any User does not agree with these Terms, as amended from time to time, the User shall not order any products from, and discontinue his, her, or its use of, the Site. These Terms may not be amended except as provided in this Section D.13.