IF YOU SUBSCRIBE TO ANY PRODUCTS OR SERVICES FOR A SPECIFIED TERM (THE "INITIAL TERM"), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THREE MONTHS AT BURST’S THEN-CURRENT FEE FOR SUCH PRODUCTS OR SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS OF SECTION 4 BELOW.
- USERS. You may simply browse the Site, or you may register with Burst and create an "Account" as a "subscriber" or as a "dental professional". You must register for an Account to order Products or participate in the Burst Dental Professional Referral Program described in Section 8. You must, however, only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
- ACCOUNTS. If you set up an Account, you are required to provide your name and email address and select a password (collectively, your "Account Information"), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of this Agreement. In no event and under no circumstances will Burst be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of Burst under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity
ORDERS. This Agreement shall govern any order you make through the Site for Products (such order, an “Order”). Burst only ships currently to addresses in the United States and Canada. When you place an Order, we will confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order. Your placement of an Order through our Site is an offer to purchase the Product(s) ordered and we may accept your Order by processing your payment and shipping the Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. No Order will be considered accepted by Burst until the Product(s) has been shipped. If some of Products in your Order are temporarily out of stock, we will ship the available Products only and notify you of any Products that cannot be fulfilled. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your Order, without prior notice to you, to supply less than the quantity you ordered of any item. Your Order will be deemed accepted by Burst upon our delivery of the Products that you have ordered. We may require additional verifications or information before accepting any Order.
- All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when Burst provides the Product(s) to a common carrier. Any estimated shipping date provided by Burst is based on Product availability and payment processing time, and does not include transit time.
- In the event you purchase Products from our Site, Burst will provide a limited two-year warranty on such Products as described in the documentation that is included with the Products that you purchase.
- You acknowledge and agree that the Products may continue to evolve or develop and may be different than as described when shipped (or not shipped at all).
- SUBSCRIPTIONS AND AUTO-RENEWAL. Certain Products are offered on a subscription basis. You can become a subscriber by purchasing a subscription to the quarterly service from the Site. Dental professionals can subscribe to our referral program (described in Section 8 below), subject to a three dollar ($3.00) subscription fee per month (“Dental Professional Subscription Fee”). Your subscription, as a subscriber or a dental professional, will continue indefinitely until terminated in accordance with this Agreement. As a subscriber, after your first quarter (i.e., three months from the date of first purchase), and again after any subsequent quarter your subscription will automatically commence on the first day of each quarter (each a “Renewal Commencement Date”) and continue for an additional quarter, at Burst’s then-current price for such subscription. As a dental professional, you will be automatically charged the Dental Professional Subscription Fee on a monthly basis, on the first of every calendar quarterly month during the term in which you agree to subscribe to the referral program. You, as a subscriber or a dental professional, agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Burst that your subscription will be automatically renewed, you will have thirty days from the date of the Burst notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Burst at "email@example.com or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current quarter; your subscription will not be renewed after the then-current quarter. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current quarter. By subscribing, you authorize Burst to charge your Payment Method now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Burst does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Burst may either terminate or suspend your subscription and continue to attempt to charge your Payment Method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
- PAYMENT. To pay for an Order, you will need to provide Burst with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
- PRICING AND PRODUCTS. We make efforts to display our Products and their colors as accurately as possible. Having said that, the displayed colors of the Products will depend upon your monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the Products. Products displayed may be out-of-stock or discontinued, and prices are subject to change. We cannot confirm the price of an item until you place an Order. Despite our best efforts, a small number of the items on our Site may be mispriced. We are not responsible for typographical errors regarding price or any other matter. Unless otherwise noted on the Site at the time of your Order, all prices exclude shipping and handling or sales taxes, if applicable, which will be added to your total purchase price. You shall use the Product only for personal purposes and not for resale. You shall not reverse engineer any Product or use the Product to create a competitive product.
- PROMOTIONAL OFFERS. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.
REFERRAL PROGRAM TERMS AND CONDITIONS.
- Referral Program. The terms and conditions set forth in this Section 8 are the terms and conditions applicable to the Burst Dental Professional Referral Program (the “Referral Program”). Under the Referral Program, Burst offers registered users who are dental professionals (each, a “Referring Party”) the opportunity to refer its clients and patients (a “Referred Client”) by sharing Referred Client contact information with Burst. Registered users who are dental professional that wish to take part in the Referral Program are bound by the terms and conditions of this Section 8. If you do not agree and abide by the terms and conditions of this Section 8 in their entirety, you are not authorized to participate in the Referral Program. We reserve the right to modify or amend, at any time, the terms and conditions of this Section 8 and the referral fees paid in connection with the Referral Program. We reserve the right to disqualify any Referring Party at any time from participation in the Referral Program.
- Eligibility. To participate in the Referral Program, a Referring Party must be a dental professional in the United States or one of the following territories and provinces of Canada: Alberta, New Brunswick, Prince Edward Island, Nova Scotia, the Northwest Territories, Yukon and Nunavut. You may not participate in the Referral Program if you practice in Ontario, British Columbia, Manitoba or Saskatchewan.
- How the Referral Program Works. To participate in the Referral Program, a Referring Party must pay a one-time twenty dollar ($20) refundable deposit to test the Products (which deposit will be returned following the first Referred Client’s placement of an Order for the Products), and provide one (1) or more Referred Client’s contact information to Burst through the Referring Party’s Burst account. By providing any Referred Client’s contact information, you represent and warrant that you have all rights and consents necessary to share such information with Burst for Burst’s marketing purposes. In the event any such Referred Client places an Order for the Products, then Burst agrees to pay to the applicable Referring Party a referral fee in an amount equal to: (a) ten U.S. dollars (US $10) per Order by Referred Client for the first toothbrush purchased; and (b) one U.S. dollar (US $1) for each replacement toothbrush head paid by and shipped to Referred Client thereafter for a period of two (2) years. All payments will be made to Referring Party on a semi-monthly basis.
- No Expectation of Referral Fees. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RECEIVED ANY ASSURANCES THAT YOU WILL OBTAIN ANY PARTICULAR AMOUNTS OF REFERRAL FEES AS A RESULT OF THIS REFERRAL PROGRAM OR THAT YOU WILL RECOUP ANY EXPENDITURES MADE IN CONNECTION WITH ANY REFERRALS OR OTHER ACTIVITIES WITH RESPECT TO THE SERVICES. BURST WILL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES, OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY YOU ARISING FROM OR INCIDENT TO ANY TERMINATION OF THIS REFERRAL PROGRAM, WHETHER OR NOT BURST IS AWARE OF SUCH DAMAGES, LOSSES, OR EXPENSES.
- Compliance with Laws. You are solely responsible for making any disclosures you are required to make to Referred Clients pursuant to the laws applicable in the jurisdiction in which you practice. You agree that you will not make any false or misleading statements about the Products and that you will comply with all laws, rules, regulations, and industry best practices (including, as applicable, the Canadian Dental Hygienists Association Code of Ethics) applicable to your advertisement and promotion of the Products, and participation in the Referral Program. For example, your obligations may include, but not be limited to:
- United States Professionals If you are a Referring Party practicing in the United States, you agree that any and all digital and/or social media postings, communications or statements (each a “Communication”) effected by or on behalf of you hereunder will be effected in a manner that complies with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising – https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), as well as the rules, regulations and policies of each applicable digital and/or social media platform, including with respect to disclosures necessary to clearly and conspicuously indicate to consumers that you received consideration in exchange therefor. Without limiting the generality of the foregoing, each Communication shall be preceded with (i) a clear and conspicuous disclosure of the paid nature of your relationship with us, or (ii) if the posting is a social media posting, either the disclosure in the foregoing clause (i) or “#ad or #BurstUSAsponsored,” or such other hashtags as may be required by Burst’s sponsorship or endorsement posting guidelines as may be provided by Burst from time to time. You agree to promptly edit any posts as may be requested by us.
- Alberta Professionals If you are a Referring Party practicing in Alberta, Canada, you must disclose to all Referred Clients and potential Referred Clients your relationship with us and the fact that you are receiving a benefit in exchange for endorsement of the Products.
- New Brunswick Professionals If you are a Referring Party practicing in New Brunswick, Canada, you have a fiduciary obligation to your clients and patients to place their interests above your personal interest.
- Prince Edward Island Professionals If you are a Referring Party practicing in Prince Edward Island, Canada, you may not announce or advertise the fact that you are a practicing dental hygienist in any marketing, promotion, or endorsement of the Products, including via social media.
- Nova Scotia Professionals If you are a Referring Party practicing in Nova Scotia, Canada, you may only provide services that you believe are necessary for a client’s oral health, and any advertising of the Products must be accurate, capable of being proven, directed to the general public and relevant to the public’s ability to make informed choices. Further, you have a fiduciary obligation to your clients and patients to place their interests above your personal interest.
- Indemnification By participating in the Referral Program, you agree to defend, indemnify and hold harmless Burst, its service providers, and their respective parent companies, affiliates, and subsidiaries, together with their respective employees, directors, officers, licensees, shareholders, attorneys and agents (collectively, the “Released Parties”), from any and all claims, actions, demands, losses, liabilities, cost, or expenses, caused by, arising out of, in connection with, or related to your participation in the Referral Program, including but not limited to any claim arising out of your failure to comply with applicable laws, rules, regulations and industry best practices, or any claim alleging a violation of privacy, publicity, confidentiality, or other right of any Referred Client.
- Suspension of Referral Program. Burst reserves the right to cancel or suspend the Referral Program for any reason, or no reason at all, in its sole discretion, including if Burst determines that the administration, security, or fairness of the Referral Program has been compromised in any way.
- Disclaimer of Warranties. YOU AGREE THAT (A) YOUR PARTICIPATION IN THE REFERRAL PROGRAM IS AT YOUR OWN RISK, THE REFERRAL PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND BURST EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, OR CUSTOM, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) BURST MAKES AND GIVES NO WARRANTY THAT (I) THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS, (II) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE RESULTS, INCLUDING ANY REFERRAL FEES, OBTAINED FROM THE USE OR PARTICIPATION IN THE REFERRAL PROGRAM WILL BE ACCURATE OR RELIABLE.
- OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site and/or Services, including the Products (“Our Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in this Agreement grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on Products, the Site or in the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Burst or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by this Agreement. Subject to this Agreement, Burst grants you a limited license to use the Site and Services for your personal or non-commercial purposes. Unless otherwise specified by Burst in a separate license, your right to use such materials that you access or download through the Site or the Services is subject to the Agreement. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Burst to monitor such materials and that you access these materials at your own risk.
RULES REGARDING INFORMATION AND OTHER CONTENT. When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call "Content." You agree not to revise Content posted by others, and you represent and warrant that you will not use any Content in any manner that:
- Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Violates the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
- Is false or inaccurate or becomes false or inaccurate at any time;
- Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
- Misrepresents your identity in any way;
- Contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Advocates or encourages any illegal activity; or
- Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
Though we strive to enforce these rules with all of our users, you may be exposed through the Site or Services to Content that violates our policies or is otherwise offensive. You access the Site and Services at your own risk. We may, but are not obligated to, remove Content from the Site for any reason, including if we determine or suspect that such Content violates this Agreement. We are merely acting as a passive conduit for such distribution and we take no responsibility for your exposure to Content on the Site or through the Services whether it violates our content policies or not.
GENERAL RULES OF USER CONDUCT. It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
- Conduct or promote any illegal activities while using the Site or Services;
- Upload, distribute or print anything that may be harmful to minors;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
- Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
- Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Use the Site or Services to generate unsolicited email advertisements or spam;
- Use the Site or Services to stalk, harass or harm another individual;
- Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
- Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
- Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
- Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
- FEEDBACK. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to Products, the Site or the Services (collectively “Feedback”), you agree we may use the Feedback to modify our Products, Site and Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
- MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services, including the Products, with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
- THIRD PARTY CONTENT AND OTHER WEBSITES. Content from other users, suppliers, advertisers, and other third parties may be made available to you through the Site and/or the Services. Because we do not control such content, you agree that we are not responsible for any such content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Site and Services may contain links to websites not operated by us. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Site and Services may contain links to websites that are operated by us but which operate under different Agreement. It is your responsibility to review the privacy policies and Agreement of any other website you visit. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH ANY WEBSITES, CONTENT, PRODUCTS, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY BURST "WITH ALL FAULTS" AND ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BURST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE CONTENT, PRODUCTS OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
We make no warranty that the Products, Site or Services will meet your requirements, or that the Site and/or Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Products, Site or Services, or that defects in the Site or Services will be corrected. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material and/or use of any Product. No advice or information, whether oral or written, obtained by you from us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in this Agreement.
LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE PRODUCTS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE TOTAL AMOUNT OF THE ORDER GIVING RISE TO OUR LIABILITY AND (II) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
- INDEMNIFICATION. You agree to indemnify, defend and hold harmless Burst, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents (“Burst Parties”), from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Products, Site or Services (except to the extent prohibited by law); (ii) your violation of this Agreement; (iii) your violation of any rights of any other person or entity; or (iv) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services. Burst reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement or your access to the Site and/or Services.
- ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of this Agreement by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
- INTERNATIONAL USERS. This Site can be accessed from countries around the world and may contain references to services and Products that are not available in your country. These references do not imply that Burst intends to announce such services or Products in your country. The Site and Services are controlled and offered by Burst from its facilities in the United States of America. Burst makes no representations that the Site or the Products are available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Burst’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Dispute Resolution. If you believe that Burst has not adhered to this Agreement, please contact Burst by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Arbitration Agreement; Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Burst and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, Services, Products, or to any aspect of your relationship with Burst, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Burst may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement (i.e., the date upon which you agreed to this Agreement) or any prior version of this Agreement.
- IF YOU AGREE TO ARBITRATION WITH BURST, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST BURST ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE BURST IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at Vcorp Services, LLC, 1013 Centre Road, Suite 403-B, Wilmington, DE 19805. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Burst will pay them for you. In addition, Burst will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Burst will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Burst. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND BURST HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Burst are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.d.i above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in federal or state courts located in Los Angeles, California.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Vcorp Services, LLC, 1013 Centre Road, Suite 403-B, Wilmington, DE 19805 or email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Burst username (if any), the email address you used to set up your Burst account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Burst.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Burst makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Burst.
- Governing Law. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export Control. You may not use, export, import, or transfer any Products or Burst materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Products or Burst materials, and any other applicable laws. In particular, but without limitation, the Products or Burst materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Products or Burst materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Products or Burst materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Burst are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Burst products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Release. You hereby release the Burst Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Site and/or Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Site and/or Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
- Force Majeure. Burst shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Compliance. If you believe that Burst has not adhered to the Agreement, please contact Burst by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
- Notice. Where Burst requires that you provide an e-mail address, you are responsible for providing Burst with your most current e-mail address. In the event that the last e-mail address you provided to Burst is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Burst’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Burst at the following address: BURST.USA.Inc. Vcorp Services, LLC, 1013 Centre Road, Suite 403-B, Wilmington, DE 19805 or email@example.com. Such notice shall be deemed given when received by Burst by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.