YOU MUST BRING ANY CLAIM AGAINST NEWHALL LABORATORIES™ IN ACCORDANCE WITH THE ARBITRATION PROVISIONS HEREIN, IN ANY EVENT, WITHIN 60 DAYS OF THE EVENTS GIVING RISE TO SUCH CLAIM.
As used in this Agreement, “you” or “your” means the individual, corporation or other entity that uses the NEWHALL LABORATORIES, Websites or any portion thereof in any manner. Nothing herein permits you to use the NEWHALL LABORATORIES™ Websites or any services offered or contained therein without first obtaining any rights or consents necessary, as described herein, as set forth in another contract or as proffered by any applicable law.
Modifications of This Agreement
We reserve the right to change, modify, amend and/or update this Agreement at any time with or without prior notice. Your use of any NEWHALL LABORATORIES™ Website following any such changes, modifications, amendments and/or updates constitutes your unconditional agreement to follow and be bound by this Agreement as so changed, modified, amended and/or updated. You are responsible for reviewing this Agreement each time you use or access any NEWHALL LABORATORIES™ Website.
NEWHALL LABORATORIES™ is not affiliated or associated with the sponsors, owners or producers of any third party websites linked to or from any NEWHALL LABORATORIES™ Website. These linked sites are not under our control and we explicitly disclaim any responsibility for the accuracy, content or availability of the information products, and/or services found on or through such third party sites. We do not endorse and have not taken any steps to confirm the accuracy or reliability of any of the information, products or services contained on or through such third party sites. We do not make any representations or warranties as to the security of any information (such as credit card and other sensitive information) you might give on any third party site.
NEWHALL LABORATORIES Websites Solely Intended for United States Users of Requisite Age
Unless otherwise explicitly specified on the NEWHALL LABORATORIES™ Websites, the information on all NEWHALL LABORATORIES™ Websites is intended solely for use and access by persons residing in the United States, its territories and possessions. NEWHALL LABORATORIES™ controls and operates its Websites from offices located in the United States and makes no representations or warranties that the information, products or services contained on any of the NEWHALL LABORATORIES™ Websites are appropriate for use or access in other locations. Anyone using or accessing any of the NEWHALL LABORATORIES™ Websites from other locations assumes all responsibility for compliance with local United States laws, to the extent applicable, in connection with the Website.
The NEWHALL LABORATORIES™ Websites are intended for use by persons over age 18. If you are under the age of 18, you may not use the NEWHALL LABORATORIES™ Websites.
Your Limited License to Use the NEWHALL LABORATORIES, Websites
Unless otherwise explicitly specified herein, all materials that are included in or are otherwise a part of any NEWHALL LABORATORIES™ Website are copyrights, patents, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by NEWHALL LABORATORIES™ or by third parties who have licensed their materials to NEWHALL LABORATORIES™ and are protected by U.S. and international intellectual property laws. The compilation (i.e., the collection, arrangement and assembly) of all materials on any NEWHALL LABORATORIES™ Website is the exclusive property of NEWHALL LABORATORIES™ and is protected by U.S. and international copyright laws. Except as solely provided in the next paragraph, no material from any NEWHALL LABORATORIES™ Website may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way.
As used in this Agreement, “Content” means any and all information or materialsluding text, personal information, images, logos, graphics, commentary, literary works and any intellectual property rights contained therein, that you upload, submit, or otherwise provide or view in connection with your use or your agents’ use of the NEWHALL LABORATORIES™ Websites.
You hereby grant NEWHALL LABORATORIES™ a worldwide, royalty-free, non-exclusive, sublicensable, transferable license to perform such acts with respect to the Content as may be necessary, in NEWHALL LABORATORIES™’s sole discretion, in connection with the conduct of NEWHALL LABORATORIES™’s business or its administration of the Websiteluding the right to: (i) deliver Content in accordance with the preferences you set using your account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the NEWHALL LABORATORIES™ Websites and any administration thereof; and (iv) utilize Content to test NEWHALL LABORATORIES™’s internal technologies and processes.
Acceptable Use Guidelines
All NEWHALL LABORATORIES™ Websites and their contents are intended solely for, and may be used solely for, personal, non-commercial purposes.
In addition, you agree not to:
• use or access any NEWHALL LABORATORIES™ Website for any purpose that is unlawful or prohibited by this Agreement;
• use or access any NEWHALL LABORATORIES™ Website in a manner that could damage, disable, overburden, or impair any NEWHALL LABORATORIES™ server or the networks connected to any NEWHALL LABORATORIES™ server or the server of its service provider;
• use or access the NEWHALL LABORATORIES™ Website by any automated means (e.g., crawlers, scrapers, bots)luding in order to alter the order or appearance of the NEWHALL LABORATORIES™ Websites’ appearance in any search engine results;
• use or access the NEWHALL LABORATORIES™ Website to engage in, further or promote any illegal activity;
• use or access any NEWHALL LABORATORIES™ Website in a manner that would interfere with any third party’s use and enjoyment of any NEWHALL LABORATORIES™ Website or any other rights of a third party; or
• attempt to gain unauthorized access to accounts, computer systems or networks connected to any NEWHALL LABORATORIES™ server or the server of its service provider through hacking, password mining or any other means.
Registration, Authorization and Access
NEWHALL LABORATORIES™ will review the Application and determine, in NEWHALL LABORATORIES™ ‘s sole discretion, whether to accept the Application. NEWHALL LABORATORIES™ shall have the right, in its sole discretion, to refuse or restrict anyone from access to any or all of the NEWHALL LABORATORIES™ Websites at any time for any reason. Upon acceptance of your Application by NEWHALL LABORATORIES™, you may select your user ID and password (collectively “Password”) for access to and use of the applicable portion of the NEWHALL LABORATORIES™ Website.
NEWHALL LABORATORIES™ reserves the right to require you to periodically change your password. You agree to use your best efforts to maintain the security of your Password. You shall not disclose your Password to anyone else, and you shall not use anyone else’s Password. You agree to notify NEWHALL LABORATORIES™ immediately about any unauthorized use of your Password or any breach of security. You further agree that NEWHALL LABORATORIES™ shall not be responsible for your failure to comply with this Section or any loss or damage arising out of, or related to, your use of your Password by you or anyone other than NEWHALL LABORATORIES™.
Charges and Payment
NEWHALL LABORATORIES™ does not currently allow purchases through the Website. However, in the future, in certain instances, as part of NEWHALL LABORATORIES™’s acceptance of your Application, NEWHALL LABORATORIES™ may charge a user, subscription or other fee. In those instances where a fee may be charged, NEWHALL LABORATORIES™ will notify you of the fee prior to your submission of your Application, and your submission of your Application will serve as your authorization for NEWHALL LABORATORIES™ to charge your credit card automatically for the fee. In some cases, the fee may be a recurring fee, and your submission of your Application authorizes NEWHALL LABORATORIES™ to charge your credit card on such recurring basis for the applicable fees. If NEWHALL LABORATORIES™ does not receive payment from the card issuer, you agree to pay NEWHALL LABORATORIES™ all amounts due upon demand. NEWHALL LABORATORIES™ may take commercially reasonable actions to verify your credit card. You agree to pay all reasonable attorneys’ and collection fees arising from NEWHALL LABORATORIES™ efforts to collect any past due amounts from you to the extent allowed by law.
ALL NEWHALL LABORATORIES™ WEBSITES ARE PROVIDED BY THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEWHALL LABORATORIES™ MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF ANY NEWHALL LABORATORIES™ WEBSITE OR THE INFORMATION INCLUDED ON ANY SUCH WEBSITE. NEWHALL LABORATORIES™ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIEDLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, SYSTEM OPERATION AND FREEDOM FROM COMPUTER VIRUS. NEWHALL LABORATORIES™ DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN ANY NEWHALL LABORATORIES™ WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY NEWHALL LABORATORIES™ WEBSITE OR THE SERVER THAT MAKES ANY NEWHALL LABORATORIES™ WEBSITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTSLUDING VIRUSES. Newhall Laboratories™ [AB2] DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON ANY NEWHALL LABORATORIES™ WEBSITE
IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF ANY NEWHALL LABORATORIES™ WEBSITE, THAT YOUR USE IS AT YOUR SOLE RISK AND YOU BEAR RESPONSIBILITY FOR ANY DEFECTS IN THE NEWHALL LABORATORIES™ WEBSITES.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL NEWHALL LABORATORIES™ OR ANY OF ITS EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIALIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR ACCESS TO OR INABILITY TO USE OR ACCESS ANY NEWHALL LABORATORIES™ WEBSITELUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF NEWHALL LABORATORIES™ HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU, AND NOT NEWHALL LABORATORIES™, SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT WILL NEWHALL LABORATORIES™ BE LIABLE FOR ANY DAMAGES IN EXCESS OF ONE HUNDRED UNITED STATES DOLLARS ($100.00).
User Submissions, Postings and Email Communications
All submissions, postings and email communications to or through the NEWHALL LABORATORIES™ Websites shall be subject to the NEWHALL LABORATORIES™ Policy Regarding Submissions, Postings and Other Communications, which is incorporated into this Agreement by this reference. Such submissions constitute “Content” under this Agreement and are licensed to NEWHALL LABORATORIES™ as provided herein.
Online Copyright Infringement Notification Policy
If you believe that any NEWHALL LABORATORIES™ Websites contain materials that constitute copyright infringement, please notify NEWHALL LABORATORIES™ immediately.
To be effective, the notification must be in writing and contain the following information:
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the NEWHALL LABORATORIES™ Websites, with enough detail that we may find it on the NEWHALL LABORATORIES™ Websites;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Counter-Notice: If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your Content, you may send a written counter-notice containing the following information to the Copyright Agent:
• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts located within the State of Connecticut and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, NEWHALL LABORATORIES™ will send a copy of the counter-notice to the original complaining party, informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion. Please direct all notices or counter-notices to: email@example.com
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD NEWHALL LABORATORIES™ AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, SHARE HOLDERS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, AND EXPENSESLUDING ATTORNEYS’ FEES, RELATED IN ANY WAY TO (I) YOUR USE OF ANY NEWHALL LABORATORIES™ WEBSITE, (II) ANY OF YOUR CONTENT, AND/OR (III) YOUR BREACH OF ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
Term and Termination
NEWHALL LABORATORIES™ shall have the right to terminate your access to, and use of, any and/or all NEWHALL LABORATORIES™ Websites immediately in its sole discretion. NEWHALL LABORATORIES™ also reserves the right to investigate suspected violations of this Agreementluding without limitation any violation arising from any submission, posting or e-mails you make or send to the NEWHALL LABORATORIES™ Websites.
Upon termination of this Agreement, all rights granted to you under this Agreement will cease immediately, and you agree that you will: (a) immediately discontinue use of any applicable NEWHALL LABORATORIES™ Websites; and (b) as applicable, pay any amounts owed to NEWHALL LABORATORIES™ in full within thirty (30) days from the date of such termination.
This Agreement shall be governed by and construed under the laws of the State of Connecticut, without regard to conflicts of laws principles. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY NEWHALL LABORATORIES™ WEBSITE OR THE USE OR ACCESS THEREOF SHALL BE IN THE STATE OR FEDERAL COURTS LOCATED IN CONNECTICUT.
As used in this Agreement, the word “including” and variations thereof shall mean “including without limitation.” Headings and topics in this Agreement do not modify or supplement the terms of this Agreement in any way.
Commencement of Actions; Arbitration
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY NEWHALL LABORATORIES™ WEBSITE MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES. Within that year, you agree to notify NEWHALL LABORATORIES™ of your claim by sending a notice to the following agent explaining the basis for the claim: firstname.lastname@example.org
Any party refusing to comply with an order of the arbitrators will be liable for costs and expensesluding attorneys’ feesurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
The failure of NEWHALL LABORATORIES™ to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit NEWHALL LABORATORIES™’ rights with respect to such breach or any subsequent breaches. Neither the course of conduct between the parties nor trade practice shall act to modify this Agreement. NEWHALL LABORATORIES™ may assign its rights and duties hereunder to any party at any time without any notice to you. This Agreement may not be assigned by you without NEWHALL LABORATORIES™’ prior written consent. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement may not be modified except in writing, signed by both parties.
Forward Looking Statements
This Agreement and the documents incorporated by reference herein, if any, may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Such statements are based on management’s current expectations and assessments of risks and uncertainties and reflect various assumptions concerning anticipated results, which may or may not prove to be correct. Some of the factors that could cause actual results to differ materially from estimates or projections contained in such forward looking statements include the pattern of brand salesluding variations in sales volume within periods; competition within the relevant product marketsluding the ability to develop and successfully introduce new products, ensuring product quality, pricing, promotional activities, introduction of competing products and continuing customer acceptance of existing products; loss of distributorship rights; risks inherent in acquisitions and strategic alliances; the loss of one or more key employees; the effects of a prolonged United States or global economic downturn or recession; changes in costsluding changes in labor costs, raw material prices or advertising and marketing expenses; the costs and effects of unanticipated legal or administrative proceedings; and variations in political, economic or other factors such as currency exchange rates, inflation rates, tax changes, legal and regulatory changes or other external factors over which NEWHALL LABORATORIES™ has no control. NEWHALL LABORATORIES™ has no obligation to update any forward-looking statement in this Agreement or any incorporated document.
©2013 Newhall Laboratories™. All rights reserved.