Terms of Service
Effective July 27, 2015
A. About Us:
BY ACCESSING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU SIGNED THESE TERMS.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.
B. Our Terms of Service:
1. Service Conditions. You cannot not use the Services unless: (a) you are at least 18 years of age, or (ii) you are 13 years of age or older, obtain the consent of your parent or legal guardian to use the Services, and your parent or legal guardian agrees to be bound by these Terms and agrees to be responsible for your use of the Services on your behalf. By accessing the Services, you represent and warrant to us that: either subsection (a) above is true; you the right, authority and capacity to agree to, and abide by these Terms; and you shall not use any rights granted hereunder for any unlawful purpose or for any purpose which violates these Terms, as determined by us.
2. Grant of License. These Terms provide you with a personal, revocable, non-exclusive, non-assignable, non-transferable, limited and temporary license to access and use the Services. We shall be entitled to terminate, restrict, or suspend this license granted to you with immediate effect and without notice, including removing your ability to access or use the Services, for any reason or no reason, as determined by us.
3. Mobile Devices If you are accessing the Services via a mobile device or tablet which is owned or controlled by you (a “Device”) then, subject to your compliance with these Terms and our Policies, the license granted hereunder allows you to access the Services using your Device. You understand and agree that use of the Services via your Device may result in data or other charges from your mobile communication service provider and you expressly release, indemnify, hold harmless, and defend us from any and all liability relating to any such charges and/or your Device.
(a) To use certain aspects of the Services, you must create an Account. In connection with the Services, you agree to provide true, accurate, current and complete information as prompted by our registration forms, and to maintain and promptly update the information you provide to us in order to keep your information true, accurate, current and complete. It is your obligation to maintain and control passwords to your Account. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES AND/OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You agree to immediately notify us of any unauthorized uses of your username and password and/or any other breaches of security. There is no assumption by us of your responsibility to notify your local law enforcement agency of any identity theft. You agree we will not be liable for any loss or damages caused by your failure to comply with your security obligations.
5. Payment, Shipping, and Returns.
(a) Payment. In connection with any services or Items you purchase using the Services, you agree to pay us the amounts displayed on the Website or in an applicable purchase order, together with any shipping charges that may apply to a given transaction, each as determined by us. The policies and prices that are disclosed to you when you purchase an Item are a part of these Terms. Further, you authorize us to charge your chosen payment method (credit card, debit card, et cetera) in connection with all fees, costs, and other amounts incurred by you in the Services, as determined by us. In connection with any fees, costs, and other amounts paid by you, you agree: (i) to only provide valid and current payment information; (ii) that we may use the tools, software or services of the payment processor selected by us (currently, paypal.com, our “Payment Processor”) to process fees, costs, and other amounts as well as transactions on our behalf; (iii) to promptly pay all amounts which are due and payable to us upon demand; and (iv) to abide by the terms and policies of our Payment Processor. We are not responsible or liable for any activities or conduct of our Payment Processor, and you agree to hold us harmless, indemnify, defend, and expressly release us, from any and all liability relating to the conduct of our Payment Processor. All amounts shall be paid in US Dollars.You understand and agree that we do not accept, offer, or issue any exchanges of any Items that you purchase from us.
(b) Shipping. Floatation Locations will ship all Items purchased from us through the Services to the address specified in the shipping address section of the order form. Shipments will be made in accordance with the method specified at the time of purchase. The time period from order to delivery will vary depending on location. Floatation Locations reserves the right to charge additional shipping fees if you request that any Items be re-shipped, whether due to your submission of incorrect shipping information or otherwise. We further reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. All Items purchased from or via the Service are transported and delivered to you by an independent carrier not affiliated with, or controlled by, Floatation Locations. Title to Items purchased on the Service, as well as the risk of loss for such items, passes to you when Floatation Locations or our supplier delivers these items to the carrier.
(c) Returns and Refunds. Items are sold “AS IS” and all sales are final. We do not offer any returns, refunds, credits, or exchanges of any kind.
6. Linking To The Website. You are granted a limited, revocable, non-exclusive right to create a text hyperlink to the Website, provided that such link does not portray Floatation Locations or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking website does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time and for any reason or no reason, as determined by us in our sole discretion. Upon such time as we notify you that your limited right to link to the Website has been revoked by us, you agree to immediately cease using and remove any and all links to the Website which were previously created, used, or controlled by you. You may not use a Floatation Locations logo or other proprietary graphic of Floatation Locations to link to this Website without the express written permission of Floatation Locations which we may withhold in our absolute discretion. Further, you may not use, frame or utilize framing techniques to enclose any Floatation Locations trademark, logo or other proprietary information, including the images found on the Website, any text or the layout/design of any page or form contained on a page of the Website without Floatation Locations’ express written consent. Except to the extent you may link to the Website as noted above, you are not conveyed any other right or license by implication, estoppel or otherwise.
7. Content and User Content.
(a) By Us. All Content on the Services, or obtained from a Linked Site (defined below) are provided to you ‘AS IS’, ‘AS AVAILABLE’ and ‘WITH ALL FAULTS’. Floatation Locations provides the Services for informational purposes only and any statements made by us are opinions only. We expressly disclaim all liability related to the accuracy or reliability of any opinion, advice, or Content on the Services or reliance on any opinion, advice, or Content on the Services. All features, Content, specifications, Items and prices of Items and services described or depicted on the Website are subject to change at any time without notice. Floatation Locations makes all reasonable efforts to accurately display the attributes of its Items, including the applicable colors. However, the actual color and attributes that you see will depend on your Device and we cannot guarantee that your Device will accurately display such colors or attributes. The inclusion of any Items or services on the Website at a particular time does not imply or warrant that these Items or services will be available at any time.
(b) Linked Sites.
(ii) Third Party Products and Services. When you use the Services to purchase products or services from a Linked Site, you are purchasing that product or service directly from the third party Linked Site. Your order is placed with, filled by, and shipped by that third party Linked Site. We have no involvement in any shipment, fulfillment, returns, or refunds associated with any products or services that you purchase from a Linked Site or third party. You understand that you must contact the third party Linked Site directly for inquiries related to your purchase, including but not limited to: returns, shipping, customer service, refunds, or general information. By using the Services, you expressly represent and warrant that you will abide by and will not violate any policies, rules, terms, or conditions of that third party Linked Site.
(c) Transmitted by You.
(i) You are solely responsible for and retain all rights in the Content that you create using the Services or Transmit on the Website or to us or other Users, including but not limited to any Content relating to Image Items that you transmit to us (“User Content”). You agree that you will not: Transmit User Content that: (A) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, (B) may cause loss or damage to any person or property; (iii) potentially harms children, including but not limited to by exposing children to inappropriate content, or asking for personally identifiable information; (iv) involves or contributes to a violation of criminal or civil law; (v) contains Content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, sexually explicit, or otherwise objectionable; (vi) contains Content that you do not have a right to disclose under any law or under contractual or fiduciary relationships; (vii) infringes on the intellectual property rights of others; or (viii) violates any provision of the use restrictions in Section 10. WE ARE NOT RESPONSIBLE FOR ANOTHER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST USING THE SERVICES.
(ii) You will retain ownership of your User Content. However, you also agree that by Transmitting User Content anywhere within, on, or using the Services, you automatically grant and represent and warrant to that you have all rights necessary to grant to us an irrevocable, perpetual, non-exclusive, paid-up, royalty free license to use, copy, sell, and distribute such User Content in any way and to prepare derivative or collaborative works of such User Content of any kind, as well as authorize us to sublicense any of the aforementioned User Content, each as determined by us. You further agree that we have the right to promote any User Content through any Social Media Profiles, as determined by us in our sole discretion. You agree that any User User Content you Transmit is not being disclosed in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type. To the extent any ‘moral rights’, ‘ancillary rights’, or similar rights in or to the User Content exists and are not exclusively owned by us and to the extent you are able to do so under applicable law, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights. Without limiting the scope of the license granted to us by you hereunder or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to User Content, and to the extent allowed by applicable law, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to User Content you Transmit on the Website or to us or other Users.
(iii) You represent and warrant that you own or otherwise possess all necessary rights with respect to your User Content, and that your User Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that your User Content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, as determined by us.
(iv) You agree that we may but are not obligated to: filter any Content including but not limited to, deleting or replacing expletives or other harmful or offensive language; refuse to display any Content; remove Content from the Services for any reason or no reason, as determined by us; and/or disclose any Content and the circumstances surrounding the use thereof, to any third party for any reason or no reason, as determined by us. We are not responsible for, and will have no liability for, the removal or non-removal of any Content from the Services.
(v) You agree and understand that you may be held legally responsible for damages suffered by other Users or third parties as the result of your remarks, information, feedback or other Content Transmitted on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Floatation Locations is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other Content posted or made available on the Services.
(d) Transmitted by Users or Others.We do not endorse and are not responsible for (i) the Content provided by other Users, (ii) the accuracy or reliability of any opinion, advice, statement, or Content made through the Services, (iii) any Content provided on Linked Sites, or (iv) the capabilities or reliability of any items or service obtained from a Linked Site. There are risks involved with relying on information on the Services, and you expressly assume those risks when using the Services. Under no circumstance will we be liable for any loss or damage caused by your reliance on any Content, items, other information, or services obtained through the Services or a Linked Site. Further, you agree to indemnify, hold harmless, and defend us from any liability and/or damages relating to any Content Transmitted by you or by a third person using your Account.
8. Classifieds. We may allow you to Transmit and post Content on or Website in the form of a classified ad relating to performing services, or offering to buy or sell an item or service (a “Listing”). Listings will be made publicly available via our Services. Other Users will be able to arrange a transaction with you, on terms agreed to by the buyer and seller. We shall have no responsibility relating in any way to transactions between Users that are buyers or sellers of goods relating to Listings. You acknowledge and agree that you are responsible for any and all Listings you Transmit. Accordingly, you represent and warrant that any Listing you Transmit and the provision of services or selling of any goods in a Listing you Transmit: (i) will be in compliance with all applicable laws, tax requirements, and regulations that may apply to any such transaction, and (ii) will not conflict with the rights of third parties. We assume no responsibility for a User’s compliance or lack of compliance with any applicable laws, rules or regulations in connection with a Listing or otherwise. We reserve the right, at any time and without prior notice, to delete any Listing for any reason or no reason.
9. Intellectual Property.
(a) Trademarks. FLOATATION LOCATIONS, FLOATATIONLOCATIONS.COM, and all other graphics, logos, page headers, button icons, scripts, service names and other Content that we use, manage or control are trademarks, registered trademarks or trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives, Advertiser s, licensors, licensees, successors, assigns, agents, partners, or other affiliate (collectively “Affiliates”) in the United States or other countries or both. No one may use these trademarks or trade dress in connection with any product or service that is not our product or service without our express written permission. All other trademarks that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by us or any of our Affiliates.
(b) Copyright. Except in the case of Content under license to us, we claim a copyright, and all copyright protection afforded, under international, United States and the State of New Jersey laws to all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other Content on the Services. The compilation of all Content on the Services is our exclusive property, and it is similarly protected. We also claim a copyright, and all copyright protection afforded, under international, United States and the laws of the State of New Jersey to all material described in the trademarks section above. Your access to all information and Content located on the Services is strictly permitted through the license granted to you under these Terms. Except for the license granted in these Terms, all rights, title and interest in Content, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of ours and other parties. Except as permitted by these Terms, you are prohibited from modifying, copying, distributing, displaying, publishing, selling, licensing, creating derivative works, or using any Content available on or through the Services without our prior written permission, or in the case of Content owned by a third party, without first receiving permission from the owner of that Content. You may not alter or remove any trademark, copyright or other notice from copies of the Content.
(c) Infringement Claims.We respect the intellectual property of others and ask that Users do the same. In connection with the Services, we have adopted and implemented a Digital Millennium Copyright Act (“DMCA”) policy respecting intellectual property that provides for the removal of any infringing or unauthorized materials and for the termination of a User’s ability to use our Services, in appropriate circumstances, if we determine that User is infringing on the intellectual property rights of others. If you believe that a User is, through the use of the Services, unlawfully infringing by submitting unauthorized Content, and wish to have the allegedly infringing or unauthorized material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512) must be provided to our designated copyright agent (“Designated Agent”): your physical or electronic signature; identification of the works or rights that you claim to have been infringed; identification of the Content on the Services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such Content; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable Content is not authorized by the copyright or other rights owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright or other right that has allegedly been infringed or violated or that you are authorized to act on behalf of the copyright or other rights owner. Note that, pursuant to 17 U.S.C. § 512, any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our Designated Agent is:
Dunlap, Bennett & Ludwig PLLC
ATTN: David Ludwig
211 Church Street, SE
Leesburg, VA 20175
10. Use Restrictions. You may not use or plan, encourage or help others to use the Services for any purpose or in any manner that is prohibited by these Terms or by applicable law. In using the Services, you agree at all times that you shall not: (a) infringe on the copyrights or other intellectual property rights of Floatation Locations, a User, or a third party (b) copy, distribute, or modify any part of the Services without our prior written authorization; (c) Transmit inappropriate, inaccurate, false, misleading, or objectionable Content to the Services, as determined by us; (d) Transmit any Content which contains software viruses, or other harmful computer code, files or programs; (e) Transmit Content that falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present; (f) make threats or use profanity; (g) harass, stalk or intimidate other Users; (h) manipulate or exclude identifiers in order to disguise the origin of any Content; (i) disrupt the networks connected to the Services, including but not limited to by: attempting to probe, scan or test the vulnerability of the Services, attempting to breach security or authentication measures without proper authorization, or attempting to interfere with the Services or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’; (j) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (k) collect Content, personally identifying information, and/or other information from the Services, or otherwise access the Services, by using any automated means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written approval which we may withhold in our discretion; (l) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, sell, or distribute the Services; (m) rent or lease any rights in the Services in any form to any third party or make the Services available or accessible to third parties; (n) use any communications systems provided by the Services to send unsolicited or unauthorized commercial communications, including but not limited to by email, SMS, MMS, or any other means; (o) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices displayed on the Services; (p) mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or other information that you provide to us; (q) link, deep link, ‘frame’ or ‘mirror’ any part of the Services without our prior consent; or (r) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, or inappropriate purpose, or in any manner that breaches these Terms or is otherwise objectionable, as determined by us in our sole discretion.
11. Termination, Restriction, and Suspension.
(a) Termination By You. You may cancel your Account at any time for any reason or no reason by using your Account dashboard or notifying us in writing (email to email@example.com is acceptable). Upon cancellation of your Account, access to certain features of the Services may be restricted. Termination of your Account will be effective within a reasonable time after we receive notification of your desire to cancel, as determined by us.
(b) By us. We retain the right to terminate, restrict, or suspend these Terms, your Account, and/or your license to access or use the Services at any time in our absolute and sole discretion, without prior notice, for any reason or no reason, as determined by us.
(a) WITH RESPECT TO ITEMS AVAILABLE ON OR THROUGH OUR SERVICES, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE ITEMS LISTED OR PURCHASED ON OR THROUGH THE WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY FURTHER EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION RELATING IN ANY WAY TO ITEMS PURCHASED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLOATATION LOCATIONS OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
(b) THE WEBSITE, CONTENT, AND SERVICES ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES FLOATATION LOCATIONS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLOATATION LOCATIONS MAKES NO WARRANTY THAT THE WEBSITE AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. FLOATATION LOCATIONS MAKES NO WARRANTY REGARDING THE QUALITY OF THE WEBSITE OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLOATATION LOCATIONS OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
13. Release and Waiver of Claims. To the maximum extent permitted by applicable law, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE all claims, actions, demands, suits, or proceedings (“Claims”) against US and our AFFILIATES, including any and all liability for damages (actual and or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to: (A) THE SERVICES or THESE TERMS, (B) AN ITEM, (C) YOUR DEVICE (D) any inaccuracy, untimeliness or incompleteness of a USER’S representations OR WARRANTIES, and/or (E) any inaccuracy, untimeliness, or incompleteness of ANY AND ALL information and/OR CONTENT obtained or accessed by or through the Services. FURTHER, if YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, you waive your rights under California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You understand that any fact relating to any matter covered by THESE TERMS may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights which you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
14. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY RELATED TO OR RESULTING FROM AN ITEM, ANY ASPECT OF THE SERVICES, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THESE TERMS, (B) ANY ITEM, AND (B) ANY ASPECT OF OUR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages exceed an amount equal to the sums paid by you to us in connection with the Items or Services out of which the Claims arose. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
15. Dispute Resolution.
(a) In the event that any dispute arises with respect to the Services, an Item, these Terms, or any of our Policies, upon our election in our sole discretion, such dispute shall be resolved by binding arbitration in accordance with the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association, in Ocean County, New Jersey, and at our option, such arbitration shall be before a single neutral arbitrator selected in our sole and absolute discretion. In the event we elect not to require that a dispute arising with respect to the Services, Terms, or any of our Policies be submitted to binding arbitration as described above, any such dispute shall nevertheless be litigated by you and us in the State courts located in Ocean County, New Jersey or in the U.S. District Court for the District of New Jersey, as the case may be. You shall be liable for and shall reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises out of, under, or relating to these Terms or any of our Policies, or your use of the Services. By using the Services, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection in the state courts located in Ocean County, New Jersey or in the U.S. District Court for the District of New Jersey as the case may be, whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
(c) You agree that irreparable harm to us would occur in the event that any of the provisions of these Terms, including but not limited to the provisions of Sections 7, 9, and 10 were not performed fully by you or were otherwise breached by you, and that money damages are an inadequate remedy for breach of the Terms because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that these Terms are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby acknowledged that, notwithstanding any provision of this Section 15, we shall be entitled to petition the courts mentioned in Section 15(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform these Terms by you, without positing bond or other security, and to enforce specifically such provisions of these Terms.
(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any above-mentioned dispute to arbitration or to the above class action wavier according to this Section 15, the parties agree to litigate any such dispute according to Section 15(a) above and to replace any other such terms or provisions of Section 15(a) or Section 15(b) with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 15 shall be enforceable as so modified. In any event, the remainder of these Terms will continue to apply.
16. Indemnification. You agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: your use, misuse, or inability to use the Services; any infringement of a third party’s rights (including but not limited to intellectual property rights); your Device; a breach of representation or warranty; your User Content; an Item; alterations of, loss of, or unauthorized access to any information sent or received or not sent or received by you or us; any defamatory, offensive, fraudulent, or illegal use of the Services by you; any accidental or improper disclosure of information; and any violation by you of these Terms or any of our other Policies.
17. Survival. Notwithstanding anything herein to the contrary, the provisions of Sections 3, 4, 5, 7, 8, 9, and 11 through 28 of these Terms, as well as any provision of these Terms which in accordance with its terms is intended to survive the termination of these Terms, your Account and/or your license to use or access the Services shall survive any such termination.
18. Contacting You.By using the Services, you agree that we and our Affiliates may provide you with any notices or other communications about the Services electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is Transmitted. We will use best efforts to honor a User’s request to opt out of promotional messages, but under no circumstances will we be liable for Transmitting any Content to Users.
19. Severability; No Waiver; Assignment. The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in these Terms is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.
20. Advertisers. With respect to any Affiliate or third party that Transmits ad Content on the Website, including but not limited to by placing banners on the Website (each an “Advertiser”), each Advertiser and any ads Transmitted by the Advertiser are subject to the terms of this Section 20 in addition to being subject to all other provisions of these Terms:
(a) Definitions. Capitalized terms in this Section 20 shall have the meanings set forth below or elsewhere in these Terms:
(i) “Publisher” means Floatation Locations LLC.
(ii) “Ad Order” is the order form completed by an Advertiser relating to Transmitting ad Content on the Website for a fee.
(iii) “Impression” is the appearance of ad Content on the Website.
(b) These Terms are incorporated into each Ad Order between the Publisher and the Advertiser whether or not the Ad Order or other documentation makes reference to them. Receipt of any communication confirming the Ad Order will be deemed acceptance of these Terms.
(c) Our obligations as a Publisher. We shall provide the services described in the Ad Order, as determined by us. We may provide you with an estimate of usage statistics. However, we do not make any guarantee of usage levels, Impressions served or click-through rates for any particular ad Content.
(d) Advertiser represents and warrants that the Advertiser has the right have the right to publish the ad Content that Advertiser Transmits on our Website and that the same will not infringe on any third party’s rights including, without limitation, intellectual property rights. Advertiser agrees that Advertiser assumes full responsibility for the terms (including, without limitation, product description, price and compliance with all applicable laws and regulations) of any offer of sale of goods or services displayed in the ad Content by the Publisher.
(e) Advertiser acknowledges that all ad Content is subject to the approval of the Publisher. Publisher reserves the right to reject or cancel any ad Content, Ad Order, space reservation or position commitment at any time, or remove any ad Content from the Website, or reject any URL link embodied within any ad Content. Advertiser agrees not to collect or use personal information through the ads Content on the Website without permission from the User. If Advertiser does collect data with permission from Users, Advertiser represents and warrants that it has done so in accordance with applicable laws, rules, and regulations.
(f) Advertiser agrees to indemnify, hold harmless, and defend the Publisher against any and all expenses, damages costs (including attorneys’ fees and costs) and losses of any kind incurred by the Publisher in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, fraud or breach of any industry advertising codes or sales practices) arising from the Advertiser’s ad Content and/or any material of the Advertiser displayed on the Website.
21. Our Relationship with You. With respect to you, we are an independent contractor only. Nothing in these Terms shall be deemed or is intended to be deemed, nor shall it cause, you and Floatation Locations to be treated as partners, joint venturers, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other.
22. Third Parties. From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services to you, as determined by us.
23. Entire Agreement; Modification. These Terms together with our Polices any other document referenced herein, constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we may amend, modify, or alter these Terms and/or our Polices at any time in our sole discretion. We will notify you about changes to these Terms by placing the updated Terms on the Website. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to the Terms.
24. Headings. Headings in these Terms are for convenience only, and shall not govern the meaning or interpretation of any provision of these Terms. Further, whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neuter, and each word will include the singular form, plural form, and other conjugations of that word.
26. Compliance. You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Service. We will cooperate with law enforcement agencies in any investigation of alleged unlawful activity of which we are made aware of regarding the use of our Services and may contact law enforcement if we are made aware of any use of our Services which potentially violates any applicable laws, statutes, ordinances, or regulations. The Services are designed and targeted to Users who reside in the United States. We make no representation that the Services are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services you certify that you meet the age and other eligibility requirements for use of the Services. Those who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law. Further, you agree to comply with all laws, restrictions and regulations relating to the export of items, Content, and the Services. For purposes of the U.S. Export Administration Act (“Export Laws”), you state you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”)) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving the Services and Content.
28. Feedback. We may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use Feedback without any additional compensation to you, and/or to disclose the idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your Feedback, we do not waive any rights to use similar or related ideas previously known to us, or developed by its employees, or obtained from sources other than you. We value your comments and opinions. If you have questions, comments or a complaint about these Terms, you may send a written notice to us at: firstname.lastname@example.org.
Effective July 27, 2015
A. About Us:
Please read this Policy as it includes important information regarding your Personal Data and other information. Capitalized terms not defined in this Policy shall have the meanings given to such terms in our Terms of Service. If you have any questions or concerns, please do not hesitate to contact us at: email@example.com.
1. Information We Collect.
(a) Personal Data. Personal Data and other information are collected from you when you create an Account with us or when you otherwise disclose Personal Data or other information to us or third parties when using the Services. “Personal Data” means any information that may be used to identify an individual. Personal Data does not include aggregate information. To use certain aspects of our Services you may be asked to provide us the following information: your name, email address, zip code, password, and payment information (if applicable).
(b) Location Data. We and third parties with whom we may partner may collect location information in relation to a User’s Device and use of the Services (“Location Data”) with respect to you. If you use the Services, then you are providing consent to collect Location Data such as the physical location of your Device which will be used to provide you with certain features of the Services. This Location Data is collected anonymously in a form that does not personally identify you. Location Data is aggregated with data from Devices of other Users to enhance the quality of Content Users provide to us and to enhance the quality of the Services we provide to you. We may also share your Location data with third parties. Location Data is shared anonymously in a form that would not personally identify you.
(c) Use Data. When you send or receive Content using our Services, we collect data about that Content.
(d) Log Information. When you browse our Services, you do so anonymously, unless you have previously created an Account with us. However, we may log your IP address to give us an idea of which part of our Services you visit and how long you spend there. However, we do not link your IP address to any Personal Data unless you have logged into our Services. Also, our Services may use a standard technology called a ‘cookie’ to collect information about how you interact with our Services. Please see Section 7 below for more information.
(e) Ad Data. The Website may use ‘Google AdSense’ by Google, Inc. (“Google”) to integrate advertisements on the Services. Google AdSense uses ‘cookies’ and ‘web beacons’. If this Website uses ‘Google AdSense’, then information about the use of this Website (including your IP address) and the delivery of advertising formats generated by cookies and web beacons will be processed to a server of Google in the United States and will be saved there. This information may be processed to contractual partners of Google by Google. Google will not associate your IP address with any other Google data. Through the use of this Website, you express your consent to the processing of data collected by Google about you in the manner and for the purposes described in this Policy and in Google’s partner data policy here: http://www.google.com/policies/privacy/partners/.
(f) Aggregate Data. Certain aspects of our Services are set up to collect and report aggregate information. Aggregate information is data we collect about the use of the Services or about a group or category of products, services or Users, from which individual identities or other Personal Data has been removed. In other words, information about how you use the Services may be collected and combined with information about how others use the Services. Aggregate data helps us understand trends and User’s needs so that we can better consider new features or otherwise tailor our Services. This Policy does not restrict what we can do with aggregate information.
(h) Device Information. We may collect data about the computer or Device you use to access our Services, including the hardware model, operating system and version, MAC address, unique device identifier (‘UDI’), phone number, and mobile carrier information.
(i) Tracking Technologies. We collect information through technology, such as cookies, flash cookies and web beacons, including when you visit our Services or Linked Sites. Please see Section 7 below for further information regarding tracking technologies.
(j) From Third Parties. We acquire information from other trusted sources to update or supplement the information you provided or we collected automatically. Local law may require that you authorize the third party to share your information with us before we can acquire it.
2. How We Use It. We use your Personal Data to:
(a) enable us to provide the Services to you;
(b) notify you regarding Services, your Account, or fees;
(c) increase the usability of the Services;
(d) provide information about promotional offers;
(e) deliver advertisements on our Services and on the websites of third parties, to improve and monitor advertising, and to provide you with targeted advertisements;
(f) investigate objectionable use of the Services;
(g) respond to requests for assistance from our customer support team;
(h) analyze trends and use of our Services; and
(i) carry on our business, as determined by us.
3. Who We Share It With.
We will share Personal Data with third parties when:
(a) When you have enabled us to share your Personal Data with another company or our Affiliates by using the Services. Once we share your Personal Data with another company, the information received by the other company becomes subject to the other company’s privacy practices.
(b) When necessary, as determined by us in our sole discretion, to provide Services to you. This includes for the uses listed in Section 2 above.
(c) When required by law or by court order.
(d) To protect our rights and property, to prevent fraudulent activity or other deceptive practices of Users or third parties, or to prevent harm to others.
(e) If we are acquired by or merged with another company, or if our assets are sold to another company. In all of these circumstances, you understand and agree that our Terms of Service and this Policy will be assigned and delegated to the other company.
(f) To perform tasks for us or in connection with our business, as determined by us. We may use third parties to help operate the Services and perform other aspects of the Services. You agree we may share your Personal Data with our Affiliates and other third parties that provide services to us in connection with our business (such as website or database hosting companies, address list hosting companies, email service providers, analytics companies, distribution companies, and other similar service providers that use such information on our behalf). Unless otherwise stated, these third parties do not have any right to use the Personal Data we provide to them beyond what is necessary for them to assist us, as determined by us.
4. Your Choices.
(a) Any Content that you Transmit may be searchable by other Users and third parties as well as subject to use by others. Once you have Transmitted Content or made it viewable to others, that Content may be re-shared by others and we have no control or liability regarding how others my use the Content you Transmit. We make every effort to prevent undesired disclosure of Content or Personal Data. However, we are not responsible for how others may use Content or Personal Data that is disclosed by you to Users or third parties using the Services.
(b) The Services may allow you to share Content on Social Media Profiles. If you use such functionality of the Services, then you should use caution when determining to whom you want to make Content available. If you choose to Transmit Content on third party Social Media Profiles, then, depending on the privacy settings of your Social Media Profiles, it is possible that persons in addition to those to whom you intended to view that Content could have access to that information. Accordingly, you should use caution when sharing Content via third party Social Media Profiles and you should carefully review the privacy practices of such Social Media Profiles.
(c) If you remove information, Personal Data, or Content that you Transmit to the Services, copies may remain viewable in cached and archived pages of the Services, or if other Users or third parties copied or saved that information.
(d) You may opt out of targeted advertisements from some third party companies by visiting the Network Advertising Initiative or Digital Advertising Alliance Consumer Choice Page, which provide simple ways to opt out of ad targeting from participating third party companies. When you opt out, your selection will be stored in a cookie that is specific to your Device or computer and the web browser you are using. The opt out cookie has an expiration date of five years. If you delete the cookies on your computer or Device, you will need to opt out again.
(e) We will contact you from time to time for marketing purposes. Unless you have opted out, this could include contacting you by phone or email. You may opt-out of receiving marketing communications from us by the following means: (i) contacting us at firstname.lastname@example.org; or (ii) following the instructions in the communication.
5. Security of Your Personal Information.We exercise care and prudence in protecting the security of Personal Data provided to us. We and our Payment Processors carefully protect your data from loss, misuse, unauthorized access or disclosure, alteration, or destruction. Personal Data is stored in password-controlled servers with limited access. However, you have a significant role in Account security. Someone may see or edit your Personal Data if that person gains access to your username and password, so do not share these with others. WE TAKE THESE PRECAUTIONS IN AN EFFORT TO PROTECT YOUR INFORMATION AGAINST SECURITY BREACHES. HOWEVER, THIS IS NOT A GUARANTEE THAT SUCH INFORMATION MAY NOT BE ACCESSED, DISCLOSED, ALTERED, OR DESTROYED BY BREACH OF SUCH FIREWALLS AND SECURE SERVER SOFTWARE. BY USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO ASSUME THESE RISKS.
6. Your Account.Users may review and update Personal Data by logging into their Account. To protect your privacy and security, we will also take reasonable steps to verify your identity, such as password and username, before granting access to any Personal Data. If your Account is terminated by you or us, we will remove your name and other Personal Data from our publicly viewable database. If you close your Account, we have no obligation to retain your information, and may delete any or all of your Account information without liability. However, we may retain Content related to you for any reason or no reason, as determined by us. We may also retain and use your Content if necessary to provide Services to other Users. We disclaim any liability in relation to the deletion or retention (subject to this Agreement of this Policy) of Content or any obligation not to delete the Content.
8. Compliance with the Children’s Online Privacy Protection Act.We recognize the need to provide further privacy protections with respect to Personal Data we may collect from Children who use our Services. For that reason, we make every effort to comply with the regulations of the Children’s Online Privacy Protection Act of 1998 (at 15 U.S.C. § 6501 – 6506). We never collect or maintain Personal Data through the Services from those we actually know are under thirteen years of age, and no part of the Services are structured to attract anyone under thirteen years of age. We expressly disclaim, and you expressly release us from, any and all liability whatsoever for any controversies, claims, suits, injuries, harm, loss, penalties, damages, arising from and/or in any way related to any misrepresentations regarding the age of any User. We reserve the right to suspend and/or terminate with or without notice the Account of User who we believe has provided false information when registering for and/or using the Services and each User agrees to make no further use of the Services after termination and/or during suspension.
9. Linked Sites.The Services and/or third parties may provide links to Linked Sites and data provided by third parties. However, we are not responsible for the privacy practices employed by Linked Sites, nor are we responsible for the information or materials that third party data contains. This Policy applies solely to information collected by us through the Services; thus when you use a link to go from the Services to a Linked Site, this Policy is no longer in effect. We encourage Users to read the privacy policies of Linked Sites before proceeding to use them. When you conduct e-commerce with a Linked Site, certain Personal Data s may be collected by the Linked Site and made available to us.
10. Advertisement Revenue. The Services may display advertisements operated by us, our Affiliates, and/or third parties. Some of the advertisements we display are targeted to you based on your online behavior and your click habits and we may receive compensation based on your clicks.
11. Changes to our Policy; Miscellaneous.We reserve the right to change this Policy, our Terms of Service, and our other Polices at any time. We will notify you about changes to this Policy by placing the updated Policy on the Services. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to our Policy. This Policy is and any disputes in connection with this Policy are subject to our Terms of Service and our other Policies which are each hereby incorporated herein by reference. In the event of any conflict between the provisions of this Policy and our Terms of Service, our Terms of Service shall control and the remaining provisions this Policy shall be supplemental.
12. Questions or Comments Regarding this Policy. We value your comments and opinions. If you have questions, comments or a complaint about compliance with this Policy, you may send a written notice to us at: email@example.com.