TERMS OF SALE
These terms were last updated on April 11th, 2019.
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Stir User License, Terms of Service and Terms of Sale
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StirWorks Inc. d/b/a “Stir” (“Stir,” “we,” “us” or “our”) provides the web pages available at www.stirworks.com, and all content or information therein and any subdomains thereof (collectively, the “Site”) as well as the Stir products purchased through the Site (“Products”). The term “Services” as used herein means the Site, the Products and the Product Software (as defined below). This User License, Terms of Service and Terms of Sale (collectively, “Terms”), together with our privacy policy (“Privacy Policy”), is a legal agreement between you and Stir and governs your purchase of, access to and use of the Services.
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THIS IS A LEGAL AGREEMENT. BY ACCESSING OR USING THE SERVICES (INCLUDING THE SITE) OR PLACING AN ORDER FOR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES AND SHOULD CEASE ACCESSING OR USING THE SERVICES. YOU MAY CHOOSE TO RETURN THE PRODUCT IN ACCORDANCE WITH THESE TERMS BY CONTACTING STIR AS DESCRIBED BELOW.
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AS DESCRIBED BELOW, THE SERVICES MAY INCORPORATE CERTAIN FEATURES ALLOWING FOR SOFTWARE UPDATES TO THE SERVICES AND PRODUCTS TO BE IMPLEMENTED IN THE FUTURE. TO THE EXTENT SUCH FEATURES OR ANY NEW FEATURES ARE ADDED TO, OR ENABLED FOR, THE SERVICES OR PRODUCTS, INCLUDING AUTOMATIC SOFTWARE UPDATES, YOU MAY BE REQUIRED TO AGREE TO REVISED OR ADDITIONAL TERMS WITH RESPECT TO SUCH FEATURES. IF YOU DO NOT AGREE TO THE FOREGOING, YOU SHOULD NOT USE THE SERVICES.
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AS DESCRIBED BELOW, SECTION 4 DESCRIBES IMPORTANT LIMITATIONS OF THE SERVICES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
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1. Overview, Eligibility, Customer Service, Term and Termination
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(a) Overview and Relation to Other Agreements. These Terms and the Privacy Policy govern your purchase and use of the Services. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by these Terms. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.
(b) Eligibility. You may use the Services only if you can form a binding contract with Stir, and if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Any use or access to the Services by anyone under the age of 13 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Stir.
(c) Term and Termination. These Terms will remain in full force and effect until terminated in accordance with the provisions of these Terms. The license to the Product Software granted hereunder shall continue for as long as you own the Product or until terminated in accordance with the provisions of these Terms. At any time, Stir may: (a) suspend or terminate your rights to access or use the Services or the Product Software, including for your failure to pay any amount when due; or (b) terminate these Terms with respect to you, if Stir in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. You may terminate these Terms effective immediately upon written notice to Stir. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Product or Services under your Account (as defined below) or otherwise, and will need to register for a separate Account with Stir in order to use the Services. Any new owner of a Product cannot use the Services or receive any remaining benefit of any limited warranty thereto, unless they create an Account and accept these Terms. Any new owner of a Product may visit our website with questions regarding the Products or Services. Upon any termination of these Terms, your Account and your right to use the Services, including the Product Software, will automatically terminate. This Section 1(c) along with Sections 3(d), 3(f), 3(g), 3(i), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive termination or expiration of these Terms for any reason.
2. Accounts. To use certain features and functionalities of the Services, you must create a user account (“Account”) and provide certain information about yourself as prompted by the applicable account form. You represent and warrant that: (a) all required information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You may not use another user’s account without the express permission of the account holder. You agree to use “strong” passwords (i.e., passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Stir of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Stir is not liable for any loss or damage arising from your failure to comply with the above requirements.
3. Access to Services
(a) Access and Use. Subject to these Terms, Stir grants you a limited, non-transferable, non-exclusive, right (without the right to sublicense): (a) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use to operate the Product and receive the Services for your personal, non-commercial purposes; and (b) to access and use the Services by using the Site in connection with, and solely for the purpose of, interacting with the Products installed on your property or otherwise accessing a service explicitly provided by Stir for your use.
(b) Updates. Stir may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). Some of these Updates may allow for future automatic software updates of the Services and the Product Software. You acknowledge that you may be required to install Updates to use the Services and the Product. To the extent any Updates which allow for future automatic software updates are enabled by Stir or included in a required Update, you may be required to agree to a revised version of these Terms to use such Updates.
(c) Interface to Third Party Products and Services. Over time, Stir may provide the opportunity for you to interface the Products and Services to one or more third party products and services, through and using the Services (“Third Party Products and Services”). You will decide whether and with which Third Party Products and Services you want to interface. Once your consent is given for a particular Third Party Product and Service, you agree that Stir may exchange information and control data regarding you and your Products, including your personally identifiable information, in order to enable the interface you have authorized. Once your personally identifiable information has been shared with Third Party Products and Services, such information is subject to the privacy policies of those third parties. We suggest contacting those third parties directly for information on their privacy policies.
(d) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to rent or lease (except as part of your rental or lease to a third party of an office location that contains the Product), license, sell, transfer, assign, distribute, host, or otherwise commercially exploit the Services, including the Product Software, or make the Product Software available to any third party; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services, including the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Stir and provide Stir an opportunity to create such changes as are needed for interoperability purposes); (iii) you agree not to access the Services, including the Product Software, in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services, including the Product Software, may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Stir; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including trademark, logo, copyright or other proprietary notices, legends, symbols or labels) which may be contained in or displayed in connection with the Services or the Product Software. Any future release, update, or other addition to functionality of the Services, including the Product Software, shall be subject to these Terms. The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product.
(e) Open Source. Certain items of independent, third party software code may be included in the Services, including the Product Software, that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). Open Source Software is licensed under the terms of the license that accompanies such Open Source Software and is not subject to these Terms. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL. If required by any license for particular Open Source Software, Stir makes such Open Source Software, and Stir’s modifications to that Open Source Software, available by written request to Stir at the email or mailing address listed below.
(f) Privacy Policy. Please review the Privacy Policy. The Privacy Policy is incorporated herein and describes practices regarding the information that Stir may collect from users of the Products and Services.
(g) Security. Stir cares about the integrity and security of your personal information. However, Stir cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(h) Modification. Stir reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Stir will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(i) Access Outside Certain Countries. Although the Site is accessible worldwide, the Products and Services provided or accessed through or on the Site are not available to all persons or in all countries, and have not been designed and tested for use outside of the 48 contiguous United States (the “Target Country”). If you choose to access the Site and/or use the Products outside of the Target Country, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. Any support services provided by Stir in accordance with these Terms are provided solely within the Target Country. You understand and accept that the Site is not designed for use in a non-Target Country and some or all of the features of the Site may not work or be appropriate for use in such a country. To the extent permissible by law, Stir accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Site in a non-Target Country. You will be bound by these Terms wherever you access or use the Site or use the Services.
4. Agreed Usage and Limitations of Services
(a) Intended Use of Services. The Services are intended to be accessed and used for non-time-critical information and control of Stir products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to interruptions and failures for reasons beyond Stir’s control, including Internet intermittency and service provider uptime, among others. You acknowledge these limitations and agree that Stir is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
(b) Temporary Suspension. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Stir does not offer any specific uptime guarantee for the Services.
(c) System Requirements. Certain aspects of the Services, including the Site, will not be accessible without: (i) a working Internet connection; (ii) an Account; and (iii) other system elements that may be specified by Stir from time to time. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. You acknowledge that you are responsible for all fees charged by your Internet service provider or any other service provider in connection with your use of the Services.
(d) Intended Use of Products. Each Product incorporates a work surface which is intended to be used in accordance with the Product specifications located on the Site (“Product Specifications”), as updated from time to time. You acknowledge that the Product is intended to provide a height adjustable work surface only, and that the Product is intended to lift standard desktop equipment and materials weighing no more than 150 lbs. You acknowledge that the Product has certain presence tracking capabilities with respect to the movement of a person near to the Product, and that such presence tracking capabilities do not identify any particular person and may not be 100% accurate. You acknowledge that environmental elements, such as temperature fluctuations, may interfere with the Product’s operations and presence tracking capabilities, and therefore such capabilities are not guaranteed. Your model of the product may provide access to certain calorie tracking capabilities. You acknowledge and that such capabilities may not be 100% accurate. Your model of the Product may include certain Wi-Fi and Bluetooth hardware and related software. You acknowledge that (i) the Product uses Wi-Fi hardware and related software for a variety of functions, including interfaces with Third Party Products and Services, (ii) Stir makes no representations regarding any Bluetooth functionality, and (iii) Stir’s removal, modification or provision of additional features using wireless communication functions, including the applicable timing thereof, will be at Stir’s sole discretion and may include required modifications to these Terms to be determined by Stir. You acknowledge these limitations and agree that Stir is not responsible for any damages allegedly caused by the failure of the Products to perform in any manner not specified in these Terms or the Product Specifications.
(e) Health Benefits. Stir does not guarantee or promise any specific level of health benefit or results from your use of the Products or Services or any feature of them, including caloric burn. Actual health benefits or results vary with factors beyond Stir’s control or knowledge. From time to time, Stir may use the Services to provide you with information that is unique to you and your health and suggests an opportunity to potentially receive health benefits or results if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you. You acknowledge that these promotions are not a guarantee of actual health benefits or results, and you agree not to seek monetary or other remedies from Stir if your health benefits or results differ.
(f) Product Information. The Services provide you information (“Product Information”) regarding the Products in your home, or other location, and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that the Product Information is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of such information in the home or other location.
5. Terms of Sale
If you purchased a Product from a third party entity (each such entity, a “Distributor”), the terms included in this Section 5 (Terms of Sale) do not apply to you or to Stir. If you purchased a Product from a Distributor, you are subject to the applicable terms of sale or policies of the applicable Distributor (as well as these Terms other than this Section 5). We suggest contacting the applicable Distributor directly for information regarding any applicable terms of sale or policies with respect to Products purchased from a Distributor.
If you have purchased a Product from Stir through the Site, the following Section 5 (Terms of Sale) are included in these Terms between you and Stir:
(a) Online Orders. You may place an offer to purchase the Products (an “Order”) by completing an order form on the Site. You are aware and agree that, upon your placement of an Order, Stir’s third party payment processor will process and charge the full price of the Products plus applicable taxes and shipping charges.
(b) Order Cancellation. You may cancel your Order at any time prior to shipment and you will receive a refund of any fees you have been charged for such Order as described herein. We or our third party delivery provider may attempt to contact you if all or a portion of your Order is cancelled by Stir, or if additional information is needed to complete your Order. If we or they are unable to contact you through the information you provided in your Order or Account to complete your Order, including to confirm delivery location, we will hold your Order for 30 days. Following such 30-day period, we will consider your Order to have been cancelled by you prior to shipment as described in this Section. Stir reserves the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed by Stir. If your Order is cancelled by Stir after you have been charged fees as described herein, you will receive a refund of such fees.
(c) Availability and Pricing. All Products are subject to availability. Prices for the Products, including shipping charges, are subject to change without notice at any time.
(d) Sales Tax. Depending on the Order, you may be charged sales tax in accordance with applicable laws.
(e) Resale and Title Transfer. Purchases of the Products are intended for end users only, and are not authorized for resale. Title for Products passes to the purchaser at the time of delivery by Stir to the freight carrier, but Stir and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.
(f) Shipping and Delivery. Delivery charges are as quoted on the Site from time to time. In the Target Country, we may offer delivery and assembly of the Products or other related services for certain fees specified on the Site. However, these services and fees may change depending on delivery location or other factors and Stir reserves the right to modify these services or fees at any time. The estimated arrival or delivery date is not a guaranteed delivery date for your Order. Refused deliveries will be returned. It may take up to 45 days for any returned items to be identified as refused and processed for any applicable repair, replacement, or refund in accordance with Section 5(h) (Limited Warranty) and Section 5(b) (Order Cancellation). The Products have been designed, marketed and sold for use by residents of the Target Country. All safety warnings, information, instructions, packaging, in-box materials, and support services are provided only in English. The Products are not intended for use outside of the Target Country and any support services provided by Stir in accordance with these Terms are provided solely within the Target Country. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you violate any such law.
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(g) Assembly and Acknowledgement. The Products ship unassembled to the delivery location specified in the applicable Order. In some instances, Stir or its third party delivery provider may assemble the Products at such delivery location. Following delivery (and assembly, if applicable), you agree to sign a form provided by Stir or its third party delivery provider stating that the Products delivered (and assembled, if applicable) are the Products you ordered from Stir in the applicable Order (such form, the “Acknowledgement Form”). You may refuse to sign the Acknowledgement Form solely in the event that the Products as delivered (and assembled, if applicable) contain a material defect in design or assembly and for no other reason. You hereby acknowledge that the Products contain materials made of wood grain and that the Products are finished by hand, therefore the Products may contain natural differences from the Products as shown on the Site or through the Services. You agree that such differences are not material defects. Stir is not responsible for any injury or damage caused by self-assembly. Stir works with a variety of third party delivery providers. These delivery providers are not Stir employees and are not affiliated with Stir. Stir is not responsible for any conduct of or liability associated with these delivery providers.
(h) Limited Warranty. If, within 90 days from the date of sale of the Product you purchased (the “Warranty Period”), such Product contains, in Stir’s sole judgment, a material defect in workmanship or assembly, you can return the Product in accordance with this Section. To initiate the return of the Product, you can contact Stir. In accordance with this Section, Stir will repair or replace such Product (or its components, as needed), or provide you with a refund of the price you paid for the Product provided that you notify Stir of the claimed defect within the Warranty Period, and further provided that Stir is able to confirm the defect is covered under this Section. Stir will request information to confirm coverage and the Product defect. In some instances, Stir may require photographs, documentation, an inspection, or other measures to qualify your claim. Stir, in its sole discretion, may dispatch a third party service provider to the location of the Product to perform any repairs or service. Stir will not be responsible for direct or indirect costs related to troubleshooting, removal, reassembly, transportation, permits, or testing of the Product. Return of defective parts or any Product to Stir is your responsibility. Stir will bear the cost of returning the Product or a replacement Product to you. In the event a repair or replacement is required, Stir may, at its option, use new, reconditioned or substitute parts or Product of similar quality and performance. Stir will warrant such repaired or replaced parts or Product for 90 days or the remainder of the original Warranty Period, whichever is greater. All returned parts and Product will become the property of Stir upon delivery to Stir. We will process any repair, replacement or refund due to you as soon as possible and, in any case, within 30 days from the date of receipt of the returned Product by Stir. This Section applies only to Product operated under normal assembly, use and service conditions. Any transfer of the Product by you to a third party shall void this Section with respect to you; provided that any such new owner who creates an Account and accepts these Terms will receive the benefit of any remaining limited warranty on such transferred Product in connection with these Terms. This limited warranty does not apply to any failure of the Product which in Stir’s absolute judgment is due to or as a result of: (i) failure to follow proper assembly, installation, operation, maintenance, and safety instructions; (ii) failure to follow these Terms; (iii) installation in environments for which the Product was not designed; (iv) negligence, abuse, accident, improper use, excessive corrosive build-up or other physical damage; (v) using the Product for purposes other than as intended; (vi) combining the Product with other components not intended or recommended for use with the Product; (vii) input voltage that creates operating conditions beyond the maximum or minimum limits listed in the Product Specifications; (viii) repairs, alterations, or modifications not authorized or performed by Stir or its authorized service technicians; (ix) use of any parts not provided by or approved for use by Stir; (x) defects in parts not provided by Stir; (xi) causes beyond Stir’s control including, but not limited to, fire, flood, wind, freezing, power failure, generalized corrosion, biological infestations, inadequate power supply, unusual atmospheric conditions, or acts of war or acts of God; or (xii) any violation of federal, state and municipal codes related to the installation, service or use of the Product. Further, this limited warranty also excludes periodic or preventative maintenance, normal wear and tear, all cosmetic repairs including those due to natural differences in the Products due to wood grain or hand-finishing, and any claims which are not reported prior to expiration of the Warranty Period. Claims under this Section cannot be made where the serial number on the Product has been altered, removed or cannot be confirmed. Refurbished or reconditioned Product (other than sold directly by Stir) is also not eligible for warranty service. Except as expressly provided in this Section 5(h), Stir has no responsibility to provide maintenance or support services with respect to the Products or Product Software. All Stir Refurbished Products are sold in AS-IS cosmetic condition.
(i) Customer Service. If you have any questions or concerns regarding the Products, the Services please visit our website.
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(j) Returns. Separate from the Limited Warranty as referenced above, if you wish to return a Product that you purchased, contact Stir to request a return authorization. Returns are accepted at Stir's sole discretion, must be made within 30 days of delivery, and shipping and handling fees for both directions will be subtracted from your refund along with additional fees for Product(s) not returned in brand new condition.
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6. Data Use and Protection.
By placing an Order for Products, you agree and understand that Stir may store, process and use data collected from your Order form or via phone/fax/email for the purposes of processing the Order or providing the Services. Stir shall protect your information in accordance with the Privacy Policy. Stir works with other companies that help Stir provide Products to you, such as freight carriers and credit card processing companies, and Stir may have to share certain information with these companies for this purpose in accordance with the Privacy Policy. Further, Stir may remotely access the Product and Product Software and collect, store, process and use data collected from the Product and Product Software. We may use and disclose such data in accordance with the Privacy Policy, and as long as any disclosure of any such data is aggregated, anonymized or otherwise does not individually identify you: (a) as part of Stir’s business operations, including as part of case studies or similar activities and materials; (b) for marketing research, promotions and communications; and (c) to operate, manage, create, test, maintain, develop, and enhance the Services, and other Stir products, programs or services.
7. Ownership and Intellectual Property
(a) You acknowledge that all intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, Site and Services are owned by Stir or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, Site and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Stir and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services, including the Product Software, are licensed to you, not sold, under these Terms. There are no implied licenses in these Terms. You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Stir, that any actual or threatened breach of Section 3(d) (Restrictions) of these Terms will constitute immediate, irreparable harm to Stir for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
(b) You may only copy parts of the Services (including the Site) onto your own computer for your own personal use. You may not use the content of the Services in any public or commercial way nor may you may copy or incorporate any of the content of the Services into any other work, including your own website, without the prior written consent of Stir. You must have a license from us before you can post or redistribute any portion of the Services. Stir retains full and complete title to all content on and in the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
(c) You may choose to, or Stir may invite you to, submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Stir under any fiduciary or other obligation. You agree that Stir does not waive any rights to use similar or related ideas previously known to Stir, developed by its employees, or obtained from other sources. Any and all (i) Ideas, and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by Stir or otherwise, relating to the Products or the Services (collectively, “Revisions”), are and will remain the property of Stir. You acknowledge and expressly agree that any contribution of Ideas or Revisions does not and will not give or grant you any right, title or interest in the Products, the Services or in any such Ideas or Revisions. All Ideas and Revisions become the sole and exclusive property of Stir and Stir may use and disclose Ideas and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Stir any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Ideas and Revisions. At Stir’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
8. Confidentiality.
“Confidential Information” shall mean the Product Software and all other non-public information disclosed to you by Stir, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Stir. You shall not use any Confidential Information other than as necessary to interact with Stir or use the Services.
9. For U.S. Government End Users.
The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
10. Export Compliance.
The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Stir harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
11. Indemnity.
You agree to indemnify and hold Stir and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of your violation of these Terms. Stir reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Stir under these Terms and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Stir’s prior written consent. Stir will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
12. Warranty Disclaimers
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(a) YOU ACKNOWLEDGE THAT YOUR VIOLATION OF THESE TERMS, INCLUDING WITHOUT LIMITATION YOUR MODIFICATION OF THE PRODUCT SOFTWARE IN BREACH OF SECTION 3(D), SHALL VOID THE LIMITED WARRANTY SET FORTH IN SECTION 5(H) (LIMITED WARRANTY).
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND UNLESS EXPRESSLY NOTED IN SECTION 5(H) (LIMITED WARRANTY) IN CONNECTION WITH THE PRODUCTS, THE SERVICES, PRODUCTS AND THE PRODUCT SOFTWARE ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND STIR AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. STIR DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES, PRODUCTS OR PRODUCT SOFTWARE.
(c) STIR AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE PRODUCTS, PRODUCT SOFTWARE OR THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK OR COMPUTER; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. STIR AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES, PRODUCTS OR THE PRODUCT SOFTWARE WILL BE FREE OF VIRUSES OR OTHER HARMFUL CODE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STIR OR THOUGH THE SERVICES, PRODUCTS OR PRODUCT SOFTWARE SHALL CREATE ANY WARRANTY.
(d) YOU USE THE SERVICES, ALL PRODUCT INFORMATION, THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND STIR AND ITS LICENSORS AND SUPPLIERS DISCLAIM) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO THE PRODUCT, ANY PERIPHERALS CONNECTED TO THE PRODUCT, YOUR COMPUTER, AND ALL OTHER ITEMS, PERSONS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE SERVICES, PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT, WHETHER IN ACCORDANCE WITH THESE TERMS OR IN VIOLATION THEREOF. YOU HEREBY ACKNOWLEDGE THAT ANY MODIFICATION OF THE PRODUCT SOFTWARE BY YOU OR BY A THIRD PARTY AT YOUR DIRECTION, WHETHER RESULTING IN UNEXPECTED FUNCTIONS OF THE PRODUCTS OR NOT, ARE PERFORMED AT YOUR SOLE RISK, RESPONSIBILITY AND LIABILITY.
13. Limitation of Liability
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) STIR BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES, PRODUCTS OR PRODUCT SOFTWARE, EVEN IF STIR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) STIR’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES, INCLUDING THE PRODUCTS AND THE PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO STIR FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. STIR DISCLAIMS ALL LIABILITY OF ANY KIND OF STIR’S LICENSORS AND SUPPLIERS.
14. Disputes and Arbitration
(a) Contact Stir First. If a dispute arises between you and Stir, our goal is to learn about and address your concerns. You agree that you will notify Stir about any dispute you have with Stir regarding these Terms by contacting Stir.
(b) Binding Arbitration. You and Stir agree to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services or Products to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services or Products (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
(c) Arbitration Procedures. You must first present any claim or dispute to us by contacting Stir to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Stir. Stir may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with Section 15(f) (Notifications/Electronic Communications). The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Los Angeles, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Stir nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
(d) NO CLASS ACTIONS. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS SUBJECT TO THIS ARBITRATION CLAUSE TO BE ARBITRATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (INCLUDING, BUT NOT LIMITED TO, AS A PRIVATE ATTORNEY GENERAL).
(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Stir. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(f) YOU MUST CONTACT STIR WITHIN NINETY (90) DAYS OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
15. General
(a) Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
(b) Changes to these Terms. Stir reserves the right to make changes to these Terms. You should ensure that you have read and agree with our most recent Terms when you use the Services. To the extent new features or modifications to the Product or Services are implemented by Stir, and such features or modifications result in changes to these Terms, you will need to agree to such revised Terms in order to continue use of the Product or Services. Continued use of the Services following the effective date of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. If you do not agree with the modifications, please cease use of the Product and Services.
(c) Governing Law. These Terms are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and we agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
(d) Entire Agreement/Severability. These Terms and the Privacy Policy constitute the entire agreement between you and Stir regarding the use of the Products and Services. Any failure by Stir to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Stir’s prior written consent. These Terms and any of Stir’s associated rights or obligations may be assigned by Stir without restriction. These Terms are binding upon any permitted successor or assignee.
(f) Notifications/Electronic Communication. Stir may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, hard copy, or posting of such notice on the Site. You are communicating with Stir electronically when you use the Site or send email to Stir. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you place an Order, we collect and store your email address. From that point forward, your email address is used to send you information about Stir’s products and services unless you opt-out of such emails using the opt-out link in the emails; provided that you may not opt out of email communications regarding your pending Orders or other operational matters with respect to your purchased Products. Stir is not responsible for any automatic filtering you or your Internet service provider may apply to email notifications. Stir recommends that you add @stirworks.com URLs to your email address book to help ensure you receive email notifications from Stir.
(g) Disclosures. You may contact us regarding the Products or Services at Stir on our website or by sending mail to our representative at 2953 Honolulu Ave. #5, La Crescenta, CA 91214. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
(h) Copyright/Trademark Information. Copyright © 2013, StirWorks Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Products or Services are the property of Stir or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Stir or such respective holders. Stir reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.