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TERMS OF SERVICE

Effective date: 1/19/2018

 

Please read these terms of service carefully (“Terms”). These Terms, which incorporate our Privacy Policy, as amended from time to time, establish and govern the relationship between Swaoff, LLC, dba Yard-X (“Swaoff”, “Yard-X” “we” or “us”) and you, the end-user of the Site (“ End User” or “ you” or “ your”). Swaoff operates the web site www.yard-x.com (“Site”).

 

Agreement to these Terms

 

These Terms constitute a legal contract. As such, by accessing, and /or use the Site and /or creating an account for use at the Site and / or purchasing a product from the Site, you hereby acknowledge and agree to be bound by these Terms, as updated from time to time by Swaoff. If you do not agree to be bound by all of these Terms, do not access or use the Site.

 

Changes to Terms

 

Swaoff may, in its sole discretion, modify these Terms, at any time and without prior notice. If we do so we will let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the modified Terms whenever we revise them because your continued use of the Site shall constitute your agreement to be bound by the modified Terms. Your continued use will be governed by the modified Terms, as well. If the revised Terms are not acceptable to you, you must stop using the Site. We may change or discontinue all or part of the Site, at any time, without notice to you, at our sole discretion. We may also create limits related to use of the Site without notice or liability to you.

 

Eligibility

 

The Site is intended solely for businesses or persons who are 18 or older. Any access to or use of the Site via an account formed on the Site or the purchase of a product from the Site by anyone under 18 is expressly prohibited. By accessing or using the Site with an account or otherwise making a purchase via the Site you represent and warrant that you are 18 or older.

 

Content on the Site

 

For the purposes of these Terms:

 

“ Content” means design, text, graphics, images, photographs, illustrations, artwork, graphic material, databases, music, software, audio, video, information, works of authorship and all copyrightable or otherwise legally protectable elements of the Site, including, without limitation, the selection, sequence and 'look and feel' and arrangement of items, and all trademarks, service marks and trade names.

 

Subject to your compliance with the terms and conditions of these Terms, Swaoff grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Content solely for your personal and non-commercial purposes.

 

You acknowledge and agree not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Swaoff or its licensors, except for the licenses and rights expressly granted in these Terms. You agree that you have no right to, or title in or to, any Content.

 

Ownership of Intellectual Property

 

All Content unless expressly disclaimed, is the property of Swaoff, its suppliers or licensors and is legally protected, without limitation, under applicable U.S. Federal, State, and foreign laws, regulations and treaties. Unless the context clearly requires otherwise or we explicitly state in writing, the term Site includes "Content” as well.

 

You must not alter, delete or conceal any copyright notice, trademark notice, or other notices contained on the Site, including notices on any Content you download, transmit, display, print or reproduce from the Site. You may not, nor may you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Content without the express prior written consent of the owner. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws.

 

What Not to Do

 

The Site may be used and accessed for lawful purposes only. You agree that you will not do any of the following while using or accessing the Site:

 

· Access, tamper with, or use non-public areas of the computer systems of Swaoff and/or its host, or the technical delivery systems;

 

· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Swaoff or any other third party to protect the Site;

 

· Attempt to access or search the Site or download Content from the Site through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than via the software and/or search agents provided by Swaoff or its host, Shopify, or via other generally available third party web browsers;

 

· Use any meta tags or other hidden text or metadata utilizing a Swaoff trademark, logo URL or product name without Swaoff’s express written consent;

 

· Use the Site or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;

 

· Collect or store any personally identifiable information from other End Users without their express permission;

 

· Impersonate or misrepresent your affiliation with any person or entity;

 

· Take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;

 

· Deep-link to any portion of the Site for any purpose without our express written permission;

 

· "Frame", "mirror" or otherwise incorporate any part of the Site into any other website without our prior written authorization;

 

· Violate any applicable law or regulation; or,

 

· Encourage or enable any other individual to do any of the foregoing.

 

Swaoff reserves the right, at any time and without prior notice, to remove or disable accounts for any reason that Swaoff, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Site.

 

Products for Sale

 

Certain products or services may be available for sale online through the Site. Products or services may have limited quantities and are subject to return or exchange only according to our limited warranty, stated at https://yard-x.com/pages/limitedwarranty/ .

 

We have made every effort to display as accurately as possible the colors and images of our products that appear on the Site. We cannot guarantee that your computer monitor's display of any color will be accurate.

 

We reserve the rights to limit the sales of our products or services to any person, geographic region or jurisdiction, to limit the quantities of any products or services that we offer, to refuse any order placed with us and to limit or cancel quantities purchased per person, per household, per order, per credit card or per billing or shipping address. We may exercise these rights on a case-by-case basis, in our sole discretion. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

 

All descriptions of products or product pricing are subject to change at anytime without notice, at Swaoff’s sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. Prices for our products are subject to change without notice.

 

You agree to provide current, complete and accurate purchase and account information for all purchases made at the Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

Errors, Inaccuracies and Omissions

 

Occasionally there may be information on our Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Site is inaccurate at any time without prior notice (including after you have submitted your order).

 

Disclaimer of Warranties and Limitation of Liability

 

YOU UNDERSTAND AND AGREE THAT THE SITE AND CONTENT ARE PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS. WITH REGARD TO THE SITE AND CONTENT, SWAOFF DOES NOT MAKE ANY WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, AND SWAOFF EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PURPOSE.

 

SWAOFF WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE OR CONTENT, OR THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWAOFF HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

IN NO EVENT WILL SWAOFF’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS OR (II) THE USE OF OR INABILITY TO USE THE SITE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100.00).

 

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND CONTENT REMAINS WITH YOU.

 

Indemnity

 

You agree to indemnify and hold harmless Swaoff and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of litigation by third parties), arising out of, or in any way connected with (a) your access to or use of the Site or Content, (b) your violation of these Terms, or (c) your violation of any law.

 

How Disputes Will Be Handled

 

These Terms and any disputes related to them or to your use of the Site, or your purchase of or use of any Swaoff product will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You hereby consent to the exclusive jurisdiction and venue of the Superior Court in Middlesex County, Massachusetts and the United States District Court for the District of Massachusetts in all disputes arising out of or relating to these terms, your use of the Site or your purchase of or use of any Swaoff product.

 

You and Swaoff agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or your purchase of or use of any Swaoff product (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. YOU ACKNOWLEDGE AND AGREE THAT YOU AND SWAOFF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Swaoff otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding.

 

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org.) Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

 

General

 

The Site may contain hyperlinks to websites operated by parties other than Swaoff. Such hyperlinks are provided for your reference only. We do not control such websites and are not responsible for their contents or the privacy or other practices of such websites. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other websites) is free of such items as viruses, worms, Trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.

 

Please refer to our Privacy Policy (http://yard-x.com/pages/privacy/) for information on how we collect, use and disclose information from End Users.

 

Headings are for reference purposes only and do not limit the scope or extent of such Section.

 

The failure of Swaoff to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swaoff.

 

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Swaoff, as determined by Swaoff in its sole and absolute discretion, (i) via email (in each case to the address that you provide) or (ii) by posting via the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

 

Feedback

 

We welcome feedback, comments and suggestions for improvements to the Site or products offered for sale via the Site (“Feedback”) and you can submit Feedback by emailing us at contact@yard-x.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

 

Contacting Swaoff

 

If you have any questions about these Terms, please contact us at contact@yard-x.com

or at Swaoff LLC, 12 Wadsworth Avenue, Waltham, MA 02454.