Backyard-Pond-Guide.com Web Site Agreement
The Backyard-Pond-Guide.com Web Site (the “Site”) is an online information service provided by Backyard-Pond-Guide.com (“Backyard-Pond-Guide.com “), subject to your compliance with the terms and conditions set forth below. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. Backyard-Pond-Guide.com MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. Copyright, Licenses and Idea Submissions. The entire contents of the Site are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are Backyard-Pond-Guide.com, its affiliates or other third party licensors. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to Backyard-Pond-Guide.com a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to Backyard-Pond-Guide.com by all means and in any media now known or hereafter developed. You also grant to Backyard-Pond-Guide.com the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against Backyard-Pond-Guide.com for any alleged or actual infringement or misappropriation of any proprietary right in your communications to Backyard-Pond-Guide.com. Traffic Server
1.01 TRADEMARKS. Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or service marks of Backyard-Pond-Guide.com. Other product and company names mentioned in the Site may be the trademarks of their respective owners.
2. Use of the Site. You understand that, except for information, products or services clearly identified as being supplied by Backyard-Pond-Guide.com, Backyard-Pond-Guide.com does not operate, control or endorse any information, products or services on the Internet in any way. Except for Backyard-Pond-Guide.com- identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties, that are not affiliated with Backyard-Pond-Guide.com a. You also understand that Backyard-Pond-Guide.com cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE INTERNET. Backyard-Pond-Guide.com PROVIDES THE SITE AND RELATED INFORMATION “AS IS” AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NO INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY, AND Backyard-Pond-Guide.com SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY. Backyard-Pond-Guide.com DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU UNDERSTAND FURTHER THAT THE PURE NATURE OF THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. Backyard-Pond-Guide.com HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
LIMITATION OF LIABILITY IN NO EVENT WILL Backyard-Pond-Guide.com BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE, OR DOWNLOADED FROM THE SERVICE, OR ANY DELAY OF SUCH INFORMATION OR SERVICE. EVEN IF Backyard-Pond-Guide.com OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, Backyard-Pond-Guide.com LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Backyard-Pond-Guide.com makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access a non-Backyard-Pond-Guide.com web site, please understand that it is independent from Backyard-Pond-Guide.com, and that Backyard-Pond-Guide.com has no control over the content on that web site. In addition, a link to a Backyard-Pond-Guide.com web site does not mean that Backyard-Pond-Guide.com endorses or accepts any responsibility for the content, or the use, of such web site.
3. Indemnification. You agree to indemnify, defend and hold harmless Backyard-Pond-Guide.com, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing the Service.
4. Third Party Rights. The provisions of paragraphs 2 (Use of the Service), and 3 (Indemnification) are for the benefit of Backyard-Pond-Guide.com and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Service. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
5.Term; Termination. This Agreement may be terminated by either party without notice at any time for any reason. The provisions of paragraphs 1 (Copyright, Licenses and Idea Submissions), 2 (Use of the Service), 3 (Indemnification), 4 (Third Party Rights) and 6 (Miscellaneous) shall survive any termination of this Agreement.
6.Miscellaneous. This Agreement shall all be governed and construed in accordance with the laws of The United States of America applicable to agreements made and to be performed in The United States of America. You agree that any legal action or proceeding between Backyard-Pond-Guide.com and you for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in The United States of America . Any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. Backyard-Pond-Guide.com’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Backyard-Pond-Guide.com may assign its rights and duties under this Agreement to any party at any time without notice to you.
Sales & Terms
PAYMENTS: Payments shall be made in U. S. Dollars. Customer shall pay RAD Web Ventures, LLC (the “Company”) in full immediately upon the placement of the order with the Company for purchase of the goods. In the event Customer fails to make payment in full within the time period set forth or within the time period expressly agreed upon in writing by the parties, such failure to pay on time constitutes a material breach of contract by Customer permitting Company to suspend delivery under this or any other contract between Customer and Company, and Customer shall pay to Company interest on the unpaid amount at the maximum rate permitted by law or at the rate of 1.5% per month, whichever is less, and Company shall have, in addition, all other remedies permitted to Company by law, equity and this contract. If Company has to take legal action to collect any amount due hereunder, Customer shall pay all court costs plus reasonable attorney’s fees incurred by Company in bringing such legal action.
TAXES/PERMITS: To the extent legally permissible, all present and future taxes imposed by any Federal, state, foreign or local authority which Company may be required to pay or collect, upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of goods or services, including taxes upon or measured by the receipts therefrom (except net income and equity franchise taxes), shall, if paid by Company, be added to the purchase price of the services and/or goods.
RISK OF LOSS: Risk of loss shall pass to Customer upon delivery.
CANCELLATIONS: This order may be canceled only with Company’s consent and upon terms that will indemnify Company from any loss resulting from such cancellation.
FORCE MAJEURE: In the event either party’s performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of material or labor, delay in or lack of transportation, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond that party’s reasonable control, that party shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Customer to pay for goods or services delivered is never suspended.
WARRANTY: DISCLAIMERS: Company warrants that any goods supplied hereunder will substantially conform to the description thereof. Company will assign to Customer any third party warranties Company receives, if any, with respect to goods provided by third parties, but Company makes no warranties with respect to any such goods supplied by third parties. NO OTHER WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT NOR ANY OTHER REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE RESPECTING THE SERVICES OR GOODS.
LIMITATION OF REMEDIES: Company will replace any goods furnished hereunder that fail to conform to any warranty set forth above. Claims must be made within thirty (30) days following delivery of the goods to Customer (or such longer period as provided for in third party warranties) and Company must be given a reasonable opportunity to investigate and cure any nonconformance. In no case are goods to be returned to Company without Company’s prior written consent. Customer’s exclusive remedies with respect to any goods or services furnished by Company hereunder that are found to be defective or otherwise not in conformity with any warranty or this contract shall be limited exclusively to the remedies as above provided. Company’s liability for any other breach of this contract shall be limited to the difference between the delivered price of the goods covered hereby and the market price of such goods at the time of such breach. IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF PROFIT, DELAY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER ARISING FROM CONTRACT, BREACH OF CONTRACT, TORT, SELLER’S NEGLIGENCE, STRICT LIABILITY, OR ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBLITY OF THE SAME.
EXCLUSIVE TERMS AND CONDITIONS; ACCEPTANCE; MODIFICATION; SEVERABILITY: No terms or conditions other than those stated herein and no agreement or understanding, oral or written, in any way purporting to modify these terms and conditions shall be binding on Company unless hereafter made in writing, specifically stating that it is a modification of these terms and conditions, and signed by Company’s authorized representative. Customer’s placement of the order with Company and/or acceptance of the products sold hereunder by Customer shall constitute assent to these conditions and Company hereby objects to and rejects any and all additional or different terms proposed by Customer. All proposals, negotiations and representations, if any, made prior and with reference hereto are merged herein. If any provision of this agreement is void or unenforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby.
INDEMINIFICATION: Customer agrees to defend, indemnify and hold harmless Company, and its owners, members, employees, officers or agents, from any and all claims, losses, costs, expenses, damages and liabilities, including, without limitation, reasonable attorney fees, resulting from or arising out of (i) the use of the product purchased from Company and (ii) Customer’s breach of any its representations, obligations or undertakings set forth in these Terms and Conditions or the purchase order.
WAIVER: Waiver by Seller of any breach of these provisions shall not be construed as a waiver of any other breach.
ASSIGNMENT: Buyer may not assign its rights or obligations hereunder without the prior written consent of Seller.
GOVERNING LAW: This order and contract shall be governed exclusively by, and be construed in accordance with, the laws of the State of Ohio (except the conflicts of laws provisions thereof).
VENUE: The sole, exclusive, and binding forum for resolving any and all disputes arising under this transaction shall be the Court of Common Pleas of Lorain County, Ohio or the United States District Court for the Northern District of Ohio, Eastern Division.