THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS-ACTION WAIVER WHICH IMPACT YOUR RIGHTS IN THE EVENT OF A DISPUTE.
- License to Use Site. Align grants to User a non-transferable and non-exclusive license to use the Site and Services for permitted uses.
- Restrictions on Use. User may not use the Site to: (a) license, sub-license, sell, transfer, or otherwise exploit the Site; (b) alter, make derivatives of, reverse engineer, or any similar activity with respect to any part of the Site; (c) use the Site in order to compete with Align; (d) copy, distribute, display, or transmit any part of the Site; or (e) use the Site for any illegal purpose.
- Accounts. User must register for a Align account (“Account”) and provide certain information in that process. User warrants the accuracy and truthfulness of provided Account information. User is responsible for ensuring the security of Account log-in credentials and for all actions that take place by the Account. User shall also immediately notify Align of any suspected unauthorized conduct with respect to User’s Account. Align is not liable for any loss or damage arising from User’s failure to abide by the conditions contained within this Paragraph.
- Payments. This Site uses Shopify to process payments, which are subject to Shopify’s Terms of Service and which are incorporated herein by reference.
- Support and Maintenance. Align does not have any duty or responsibility to provide you with support regarding the Site or Services or to otherwise maintain the Site or Services.
- Ownership of Site and Services. Align is the owner or authorized licensee of all of the intellectual property rights associated with the Site and Services, including without limitation all copyrights, trademarks, patents, and trade secrets but excluding User Submitted Content, which is defined below. By using the Site or Services, User does not obtain any interest in the intellectual property associated with the Site or Services and Align reserves all rights not expressly granted herein.
7.1. Trademarks and Service Marks. All logos, product names, page headers, custom graphics, icons, trademarks, and service marks appearing on the Site, unless noted otherwise, are Align’s trademarks, service marks, and/or trade dress (“Align’s Marks”). All other trademarks, product names, company names, service marks, logos, and trade dress used on the Site are property of their respective owners. You may not use Align’s Marks in any fashion without Align’s permission and any unauthorized use of Align’s Marks is expressly prohibited.
- User Submitted Content. User retains all intellectual property rights in “User Submitted Content,” which means all information, including content, submitted or otherwise used by User in connection with the Site or Services. User is solely responsible for User Submitted Content and assumes all risks associated with the use of User Submitted Content, including without limitation its accuracy, usefulness, and the disclosure of any personally identifiable information associated with your User Submitted Content. User warrants that its User Submitted Content does not violate any applicable laws or regulations and will not be used for any illegal or unlawful purpose. While Align may store information related to User Submitted Content, it is under no obligation to do so and Align may delete any User Submitted Content at any time and without notice to User. User’s risk associated with its User Submitted Content extends to any and all liability associated with such content, including liability associated with infringing upon the rights of third parties, including without limitation intellectual property rights such as patent, trademark, copyright, and trade secret rights.
- Permitted Uses of Sites and Services. User may not use the Site and/or Services to, directly or indirectly:
9.1. infringe upon the rights of any third parties, including without limitation copyrights, trademarks, patents, trade secrets, moral rights, privacy rights, publicity rights, or any other similar or related intellectual property or proprietary rights;
9.2. violate any laws or regulations, including without limitation, any use that is unlawful, amounts to harassment, is tortious, harmful, false, defamatory, misleading, libelous, pornographic, obscene, offensive, or is otherwise offensive to common decency and/or moral standards;
9.3. create weapons, illegal items, or any other objectionable content and/or items;
9.4. upload, disseminate, or otherwise transmit any computer viruses, worms, or any other software designed to damage or alter computer operating system(s) and/or data;
9.5. transmit unsolicited and/or unauthorized advertisements, promotional materials, or spam;
9.6. collect personal information of other users such as e-mail addresses, names, addresses, phone numbers without their prior consent;
9.7. interfere with or otherwise disrupt, in any way, servers or networks connected to the Sites and/or Services in a fashion that violates such servers’ or networks’ regulation, policies, and/or procedures;
9.8. interfere with other users’ use and enjoyment of the Site and Services;
9.9. upload, disseminate, or otherwise transmit any software or other forms of automation, including without limitation agents and scripts, that result in the creation of multiple accounts, automated searches, requests, and/or queries, or to strip, scrape, or mine information and/or data from the Sites and/or Services (but specifically excluding, on a revocable basis, the ability of public search engines to use spiders to copy information and/or data from the Sites and/or Services for the exclusive purpose of and only to the necessary extent for creating publicly viewable and searchable indexes of such information and/or data while exempting from this revocable exclusion caches and/or archives);
9.10. link or otherwise associate content from your site, service, or platform to the Site and/or Services without Align’s prior written consent.
- Enforcement. Align reserves the right, but is under no obligation, to review User Submitted Content, including without limitation the right to review, investigate, evaluate, and/or take action against User for User Submitted Content that, in Align’s sole opinion, is in violation of these Terms or raises the possibility of liability for Align. Actions Align may take include, without limitation, the removal or modification of User Submitted Content, deletion of User’s Account, and/or reporting User’s actions to law enforcement.
- Indemnification. User agrees to indemnify and hold harmless Align, its officers, employees, and agents, including litigation costs, attorneys’ fees, and any other similar or related expense, from any and all claims, demands, lawsuits, or similar actions made by any third party due to or stemming from User’s use of the Sites and/or Services, User’s User Submitted Content, any action in nonconformity with these Terms, and any action in violation of applicable laws or regulations. Align may, but is not obligated to, assume exclusive control, at User’s expense, of any matter which requires indemnification. User agrees to fully cooperate with Align in the event that Align elects to take control of such action and agrees not to settle or otherwise resolve any matter without Align’s express written consent.
- Release. User hereby releases and discharges Align, it officers, employees, agents, parents, affiliates, successors, and assigns from each and every past, current, or future dispute, claim, controversy, demand, liability, action, omission, cause of action, and/or litigation, of any kind or nature, including without limitation breach of contract, tort, intellectual property suits, personal injury, death, and/or property damage, arising out of or related to, directly or indirectly, these Terms or any other interaction with the Site and/or Services. NOTE TO CALIFORNIA RESIDENTS: USERS RESIDING IN CALIFORNIA HEREBY WAIVE THE PROVISIONS OF CAL. CIV. CODE § 1542, WHICH PROVIDES THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS IN 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.”
13.1. THE SITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ALIGN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13.2. ALIGN MAKES NO GUARANTEE THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, WILL ALWAYS BE ERROR-FREE, SECURE, OR TIMELY, OR WILL BE RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL DATA AND/OR INFORMATION.
13.3. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, AS APPLICABLE, ALIGN DISCLAIMS ANY AND ALL RESPONSIBILITY, LIABILITY, OR OTHERWISE ARISING OUT OF DEATH OR PERSONAL INJURY RESULTING FROM, DIRECTLY OR INDIRECTLY, THE USE OF THE SITE, SERVICES, OR OPERATION OF ALIGN PRODUCTS.
13.4. ALIGN TAKES NO RESPONSIBILITY, NOR WILL IT BE LIABLE FOR, ANY DAMAGES TO USER’S PROPERTY, INCLUDING COMPUTER VIRUSES OR MALWARE, OR OTHER PROPERTY CAUSED BY OR STEMMING FROM USER’S USE OF THE SITE.
13.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT BE APPLICABLE IN YOUR SPECIFIC SITUATION.
- LIMITATION ON LIABILITY.
14.1. ALIGN SHALL NOT, IN ANY EVENT, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS; OR (B) DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATED TO THESE TERMS, USER’S USE OF THE SITES AND/OR SERVICES. ACCESS TO AND USE OF THE SITES AND SERVICES ARE AT USER’S OWN RISK AND DISCRETION.
14.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALIGN’S TOTAL LIABILITY TO USER FOR ANY DAMAGES STEMMING FROM OR OTHERWISE RELATED TO THESE TERMS, FOR ANY REASON WHATSOEVER AND IRRESPECTIVE OF THE FORM OR FORUM, IS LIMITED TO THE AMOUNTS PAID TO ALIGN IN THE TWELVE (12) MONTHS PRIOR TO THE ASSERTION OF SUCH CLAIM, DEMAND, OR OTHERWISE.
14.3. USER AGREES THAT ALIGN’S SUPPLIERS WILL HAVE NO LIABILITY, OF ANY KIND WHATSOEVER, STEMMING FROM THESE TERMS.
14.4. THE FOREGOING LIMITATIONS ON LIABILITY APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.5. CERTAIN JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- Term and Termination. These Terms, shall remain in full force and effect throughout User’s use of the Site and Services. Align may, in its sole discretion, suspend or terminate User’s Account, for any reason whatsoever, and may, also in its sole discretion, terminate these Terms. Termination of User’s Account does not relieve User of any other of User’s obligations contained within these Terms.
- Intellectual Property Infringement. Align respects the intellectual property rights of others and will terminate Accounts that repeatedly infringe such rights. Align reserves the right to take down any data and/or information believed to, in Align’s sole discretion, infringe upon third party rights.
16.1. Reporting Alleged Copyright Infringement. If you believe that a User is unlawfully infringing upon your copyright and wish to have the allegedly infringing or unauthorized content removed, please provide the following information in accordance with 17 U.S.C. § 512(c) in written form to Align’s Designated Copyright Agent at:
Align Machine Works, LLC Designated Copyright Agent
585 Barber Street, Studio G
Athens, GA 30601
16.2. Notices provided pursuant to this Paragraph must include the following information:
- Your physical or electronic signature;
- Identification of the work(s) or rights that you claim have been infringed;
- Identification of the material on the Site or Services that you claim is infringing and are requesting to be removed;
- Sufficient information to permit us to locate such allegedly infringing material, such as a URL;
- Your address, telephone, number, and e-mail address;
- A statement that you have a good faith belief that the allegedly infringing material is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information contained in the notice is accurate and, under penalty of perjury, that you are either the owner of the copyright that has been allegedly infringed or that you are authorized to act on behalf of the copyright owner.
16.3. Pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notice subjects the complaining party to liability for damages, costs, and attorneys’ fees incurred by Align in connection with your notice and allegation of copyright infringement.
- Modification. Align may occasionally revise these Terms. In the event Align makes substantial changes to these Terms, Align may notify User via email of such changes and/or by prominently posting notices of such revisions on the Site. Revisions to these Terms are effective upon their publication and User’s continued use of the Site and/or Services is indicative of User’s acceptance of such revised Terms.
- Dispute Resolution.
18.1. Mandatory Mediation and Arbitration. If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Athens, Georgia, USA. The arbitration shall be governed by the laws of the State of Georgia. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
18.2. Class Action Waiver. Except as otherwise required under applicable law, the Parties agree that neither of them will assert class action or representative action claims against the other, whether in arbitration or otherwise, which actions are hereby waived; and each of the Parties shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.
- Governing Law. These Terms, and any other agreement entered into between the parties, shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to conflicts of laws principles, except to the extent that United States federal law preempts Georgia law, in which case United States federal law will apply, without reference to conflicts of law principles.
- Severability. If any portion of these Terms are found to be unenforceable by a court of competent jurisdiction, such determination shall have no effect on the remainder of the Terms, which shall continue in full force and effect.
- Electronic Communications. By creating an Account, User is expressly giving Align permission to communicate via electronic means and it agrees that all such electronic communication, including without limitation, terms and conditions, agreements, notices, and disclosures, comply with any legal requirements to the same extent as if such communications were provided in writing.
- Headings. The headings contained in these Terms are inserted only as a matter of convenience and reference and in no way define, limit, or describe the scope or intent of these Terms and do not in any way effect its provisions.
- Align Contact. Should you have any questions regarding this Agreement or would like to contact Align for any other reason, Align’s address is Align Machine Works, LLC, 585 Barber Street, Studio G, Athens, Georgia, USA 30601.