Acceptance of Terms of Service
By accessing and/or using the www.powderhook.com site or app (the “Site”), you agree to the terms contained and referred to in these Terms of Service (these “Terms”). This Site is maintained by Powderhook, Inc., and its affiliates and subsidiaries (collectively, “Powderhook”, “we” or “us”). We reserve the right, in our sole discretion, to amend these Terms at any time by posting the amended Terms to the Site. We may or may not provide notice to you of such amended Terms, and it is your responsibility to refer back frequently to become aware of and understand the same. Your continued access of and use of the Site after such amendments are posted will constitute your consent to such amendments. These Terms may not be amended by you.
As used in these Terms:
- “you” or “User” means both (a) the individual now registering as a user of the Site or the existing user of the Site now agreeing to these Terms, as the case may be, and (b) if applicable, the company or other business or governmental agency or land management entity specified by you as the User (any such entity, “Your Company”);
- “Content” means all information, data, communications, downloads, files, text, images, photographs, graphics, videos, webcasts, publications, content, tools, resources, advertising materials, promotional materials, contest materials, pricing information and programs made available or enabled via the Site, and may include Content provided by Powderhook, by Users or by other third parties;
- “Listing” means an opportunity, location, event, range, or other point of interest that is offered through the Site;
- “Opportunity” may mean any of the following, as offered to a prospective purchaser, renter, lessee or licensee thereof: (a) land or an object, building, etc. on land, (b) an activity that may be undertaken on physical property, such as hunting or fishing, (c) services, such as guided experiences, and (d) such other activities as may be offered from time to time; and
- “Services” means all services and resources offered, made available or enabled via the Site by Powderhook, or third party service providers featured on the Site.
You represent that you are at least 18 years of age, and of the age of legal majority in your state or country of residence. You represent that you have legal authority to form binding contracts under applicable law on behalf of yourself or Your Company (if applicable). You agree that you will not allow others to use your account, nor will you use your account or the Site on an outsourcing basis or on behalf of third parties. If Powderhook requests your reasonable assistance in connection with a claim that is made against it, you agree to provide such assistance. We will reimburse you for any reasonable out-of-pocket expenses that may be associated with such assistance (for example, photocopies and long distance charges), but we will not pay for your time. Nor, since we do not anticipate such fees will be necessary for the type of assistance we are requiring, will we pay the fees of any third party you may engage to assist you, such as legal or accounting fees.
We hereby grant You a limited, revocable, non-exclusive license to access and use the Site, the Content and the Services solely for the purpose of advertising an Opportunity, searching for an Opportunity, connecting with another User for the purpose of negotiating the purchase, rental, lease or license of one or more Opportunities, using the Services and any other purposes clearly stated on the Site, all in accordance with these Terms. Any use of the Site, Content or Services that is not for one of these purposes or otherwise in accordance with these Terms or as otherwise authorized by us in writing is expressly prohibited.
Registration on the Site
You will be required to register on the Site in order to access certain Services or Content. In order to be eligible to register, you must meet the following requirements:
- You must be a human to register. Accounts registered by “bots” or other automated methods are not permitted.
- You are responsible for maintaining the security of your account, handle and password. Powderhook will not be liable for any loss or damage from your failure to comply with this security obligation. If you become aware of any unauthorized use of your account or any other breach of security, you shall notify Powderhook immediately.
- All required registration information that you provide must be current, complete and accurate and kept up to date.
- You are responsible for all content posted and activity that occurs under your account (even when content is posted by others who have accessed the Site through your account).
- You may be able to access and use this Site by logging into your account via third party social networking sites (such as Facebook, Google+, and Twitter) (the “Social Media Sites”). You may be able to link your account with us with your account through such Social Media Sites (your “SMS Account”). You represent that you have the right to disclose your SMS Account login information to us through the Site or Services, and to allow Powderhook to access your SMS Account. You represent and agree that Powderhook has the right to, and may access, make available, store and use any Content that you have provided to and stored in your SMS Account. You have the ability to disable the connection between your Powderhook account and your SMS Account at any time.
We reserve the right to reject your User registration, to suspend or terminate your registered account, or to otherwise block, restrict, disable, suspend or terminate your access to all or part of the Site at any time in our sole discretion, without prior notice or liability to you. If we believe your actions may cause us or other Users liability, harm, or loss, we reserve the right to notify other Users of your actions. Should you object to any action taken or not taken by us, or become dissatisfied with the Site and related Services in any way, your only recourse is to immediately: (1) discontinue use of the Site and Services; (2) terminate your account; and (3) notify us of termination. You may terminate these Terms and your account with us by notifying us in accordance with the Notices section below. In addition, your account will be deemed inactive and closed if there is no activity on your account for one year or more. In the event your account is closed or terminated it will be marked inactive in our systems, but we will not delete your User information or transaction history without first notifying you.
Contribution to the Site
Portions or features of the Site will allow you to contribute or otherwise provide Content to the Site. You represent and warrant that all information given to us, posted to or otherwise made available by you on the Site (including your name, address and other information associated with your account (collectively, “User Information”)), and all information communicated to other users of the Site, is true, accurate, up-to-date and not misleading. Subject to the express limitations herein, you grant Powderhook and other Users an unrestricted, irrevocable, non-exclusive, worldwide, royalty-free and fully paid up license to use, reproduce, publicly display, publicly perform, copy, edit, modify, translate, reformat, transmit and distribute your Content, with or without having your name attached thereto, in any manner or form and for any lawful purpose, with full rights to sublicense such rights through multiple tiers of distribution. You agree that Powderhook shall not be liable for any damages arising out of or related to your Content. You represent and warrant that you own all right, title and interest in and to the Content that you post, or that you own or control, or have received the necessary licenses or other rights to, contribute such User Information to the Site.
We have the right, in our sole discretion (but have no obligation), to monitor, edit, refuse to post, or remove any Content you post to the Site. You consent to our disclosure of your registration information or Content that you provide in order to comply with applicable law, regulation, legal process or governmental request.
Consent to Email and Mobile Communications
The Site may contain Services and features that are available to certain mobile phones or devices. Your carrier’s normal rates and fees apply. If Powderhook charges you for a mobile Service, you will first be notified and asked to accept any charges. Not all mobile Services will work with all carriers or devices. You should check the rates and services offered by your carrier. By using Powderhook’s mobile Services, you agree that we may communicate with you by electronic means to your mobile device and that certain information about your use of these Services may be shared with us.
Personal Information and Privacy
Links to Third Party Websites and Advertisements
The Site, Services or Content may include links that will take you to other sites outside of the Site, including but not limited to Social Media Sites, company or agency websites, or other places on the internet (“Linked Sites”). The Linked Sites are provided by Powderhook to you as a convenience and the inclusion of the links do not imply any endorsement by Powderhook of any Linked Site. Powderhook has no control of the Linked Sites and you therefore acknowledge and agree that Powderhook is not responsible for the contents of any Linked Site, any link contained in a Linked Site or any changes or updates to a Linked Site. You further acknowledge and agree that Powderhook is not responsible for any form of transmission (e.g. email) received from any Linked Site.
Powderhook may run advertisements and promotions from third parties via the Site related to certain Services or Content, in any manner or mode and to any extent. Your communications, activities, relationships and business dealings with any third parties advertising or promoting via the Site, Services or Content, shall be solely matters between you and such third parties. You acknowledge and agree that Powderhook is not responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such non-Powderhook advertisers on the Site or in connection with the Services or Content.
Transactions on the Site
The Site is a Venue
We do not own or manage, nor can we contract for, any Opportunity listed on the Site. The Site is a venue for facilitating the purchase, rental, leasing, visiting or licensing of Opportunities between Users. We are not a party to any agreement or transaction between Users. As a result, any part of an actual or potential agreement or transaction between Users, including the quality, condition, safety, or legality of the Opportunities advertised, the truth or accuracy of the Listings (including the Content thereof or any property or review), the ability of a User to offer an Opportunity or to pay for one, are solely the responsibility of each User. You acknowledge and agree that you may be required to enter into a separate agreement and/or waiver prior to purchasing an Opportunity.
If you create a Listing, you must provide complete information for all required entries. Our Listings are made publicly available. You may not materially change any of the terms of the Opportunity (including the fee for the Opportunity) after another User has contacted you to negotiate the purchase, lease or licensing of the Opportunity. You are responsible for all Listings you post. You represent and warrant that you have the legal right to offer the Opportunity, that offering the Opportunity will not breach any agreement or understanding that you may have with any other person or entity and that another User’s purchase, lease or licensing of the Opportunity will not violate any laws. We disclaim any responsibility or liability that may arise out of or relate to the use of your property or services, and encourage you to obtain, maintain and understand the limits of your appropriate insurance therefor. We further disclaim any liability for any feedback that you may receive or that may be communicated to third parties regarding the User’s or any other person’s experience in utilizing the Opportunity, and consent to the posting of photos thereof, so long as such photos comply with the requirements of these Terms.
If you place a bid or contact the offeror of an Opportunity, you may not refuse to consummate the transaction on the terms stated in these Terms, any rules posted to this Site and in the Opportunity listing, if your bid is the winning bid. All payments for Opportunities purchased on the Site shall be remitted to the seller of such Opportunity. You agree that the use of the Opportunity will be conducted in compliance with all applicable laws. If you negotiate for and purchase, lease or license any Opportunity, you acknowledge and agree that we have not vetted the identity of the User or Entity offering such Opportunity, his/her/its legal right to offer the Opportunity, or the Opportunity itself and the legality thereof. IT IS YOUR RESPONSIBILITY TO CONDUCT APPROPRIATE DUE DILIGENCE ON THESE ITEMS AND ANY OTHER OPPORTUNITIES OR SERVICES AVAILABLE THROUGH THE SITE, AND TO ENGAGE ADVISORS TO ASSIST YOU AS NECESSARY. You acknowledge and agree that any remedy you may seek arising out of or relating to an action or omission of another User or Entity will be limited to claims against such a User or Entity, and that you will not seek to hold Powderhook liable therefor.
You agree to pay the applicable fees for using the Site, which are subject to change at any time, and you understand that ALL FEES PAID TO US ARE NON-REFUNDABLE. All payments must be made in United States dollars. Any returned check is subject to a $25.00 returned check fee. Payment terms are net 20 days. Inactive accounts with credit balances will be charged $1.00 per month until such time as the account has a zero balance. You may avoid these inactivity fees by logging in once each six months. We reserve the right to require ACH, a deposit, or other form of payment guarantee for accounts that are habitually past due, are past due more than 90 days, or for any other reason we deem necessary.
Credit Cards and ACH Direct Payments
We may also consolidate balances from any duplicate accounts you may have created on our Site and bill them to your card or account. You may revoke your authorization by sending us a written request to Powderhook, 317 S. 12th St. Suite 101, Lincoln, NE 68508. We may continue to bill your credit card or direct payment account for any fees for any services rendered or actions by you or by us taken prior to the receipt of your written revocation. Our billings may appear under the name “Powderhook” or “Powderhook PRO.” BY USING A CREDIT CARD YOU HEREBY UNCONDITIONALLY WAIVE ANY AND ALL CHARGEBACK RIGHTS YOU MAY HAVE. If you have any question about a charge on your credit card, contact us as described in the Notices section below. If you deliberately or inadvertently issue a chargeback to your credit card, your account will be terminated and you agree to pay a $50 processing and collection fee.
Past Due Accounts
If an account is past due, we reserve the right to void, suspend and/or terminate his or her Opportunity Listings, and may terminate his or her account. If any User’s account is more than 30 days past due, we reserve the right to report this transaction history to credit agencies, as well as to void promotional offers, including free or discounted Listings. Accounts that are, or have been, past due will have their credit limit reduced to zero and past due balances will be subject to a late fee of 1.5% per month or the highest amount permitted by applicable law, whichever is lower. If you fail to pay the past due amounts, we may turn your account over to a collection agency and we reserve the right to pursue civil and criminal legal actions to the fullest extent allowed under the law. If your account is past due, you also must pay any and all collection costs (including collection agency fees, court costs and legal fees) we might incur in connection with your past due account.
You agree that Powderhook bears no responsibility for the reporting, payment, collection and remittance of any sales/use tax, VAT tax, transaction tax, transfer tax or any other fee or tax that may be assessed on any sale or transaction conducted through the Site by any jurisdiction having taxing authority over the sale or transaction. You agree to defend, indemnify and hold us harmless from and against any and all liabilities, damages and costs that may result from inadequate reporting, payment, collection or remittance by you of any taxes relating to transactions conducted on the Site, except taxes imposed on or measured by our income.
Title, Possession and Ownership of Opportunities
You acknowledge and agree that we do not take title to or possession of any Opportunity (or any land, property or real estate therein) visible on the Site, and we are not a principal in the transactions facilitated through the Site, nor are we your agent or an agent of any User. Because we are not and cannot be involved in dealings between Users of the Site, in the event that you have a dispute with another User, you hereby release us, our directors, officers, employees and agents from and against any and all claims, demands and damages (actual and consequential, and including attorneys’ fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “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.”
The Site, Powderhook Content and Services, as well as their selection and arrangement, are protected by copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”), and any unauthorized use of the the same may violate such laws and these Terms. Except as expressly provided herein, Powderhook does not grant any express or implied right to use the Site, Powderhook Content and Services. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer the Site, Powderhook Content or Services, any portions of the Site, Powderhook Content or Services or the selection and arrangement of the Site, Powderhook Content or Services, except as expressly authorized herein. In addition, you agree not to use any data mining, robots or similar data gathering and extraction methods in connection with the Site, Powderhook Content or Services, or to otherwise take any action that may infringe on the Intellectual Property Rights of Powderhook. Your use of the Site, Powderhook Content and Services is expressly limited to use in accordance with the terms of these Terms.
The trademarks, service marks, logos, URLs and domain names displayed on this Site, including but not limited to the “Powderhook.com” domain name, the Powderhook logo, and other Powderhook names and logos and all related product and service names, design marks and slogans, (collectively, the “Marks”) are the property of Powderhook, its licensors or other third parties. You are not permitted to use the Marks without the prior written consent of Powderhook, its licensors or such third party that may own the Marks. No trademark or service mark license is granted in connection with the materials contained on the Site. Access to the Site does not authorize anyone to use any name, logo or mark in any manner.
You may not use meta tags or other hidden text utilizing the Marks without the express prior written consent of Powderhook.
Copyright Infringement Complaints
We respect the intellectual property rights of others and we prohibit users from posting on the Site any content that violates another party's intellectual property rights. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides a complaint procedure for copyright owners who believe that website material infringes their rights under U.S. copyright law. If you believe that your work has been improperly copied and posted on the website, please provide us with the following information: (1) name, address, telephone number, email address and an electronic or physical signature of the copyright owner or of the person authorized to act on his/ her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where on the Site the material that you claim is infringing is located; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. These requirements must be followed to give Powderhook legally sufficient notice of infringement. Send copyright infringement complaints to:
317 S. 12th St. Suite 101,
Lincoln, NE 68508
Attn: DCMA Notice
We suggest that you consult your legal advisor before filing a DMCA notice with Powderhook’s copyright agent. There can be penalties for false claims under the DMCA.
Use of Site, Content and Services
You shall pay all costs and charges, including phone charges and telecommunications equipment costs, that you incur in order to download, access or use the Site, Services and Content. You must adhere to all limitations on dissemination, usage and reproduction of anything that you download from the Site that are subject to such limitations. You agree to use the Site only to access, purchase, download, utilize or receive Content or the Services in an appropriate manner as related to the particular Content or Services being accessed or used by you. As some examples of improper activities when accessing or using the Site, Content or Services, you agree that you shall not (except as otherwise expressly permitted herein):
- Collect, harvest, mine or engage in any other activity to obtain e-mail addresses, phone numbers, personal information or any other information about others;
- Promote any unlawful activity or purpose, including without limitation, any activity that could give rise to criminal or civil liability;
- Provide any false personal information, or create an account for anyone other than yourself;
- Share your user name or password, let anyone else access your profile, or do anything else that might jeopardize the security of your profile;
- Use or attempt to gain access to or use another’s account, user name, password or computer systems, whether through hacking, password mining or any other means;
- (a) Select or use as a user name or any name of another person with the intent of impersonating that person, (b) use as a user name any name subject to any rights of a person other than you without appropriate authorization, or (c) use as a user name any name that is offensive, vulgar or obscene;
- Remove or falsely add to any Content any copyright, trademark or other legal or proprietary rights notices, author attributions or other information such as origin or source of the Content;
- Access or attempt to access any Content that you are not authorized to access or Content through any means not intentionally made available through the Site or Services;
- Use the Site, Services or any Content in any manner that infringes any Intellectual Property Rights or other rights of any party;
- Disrupt or interfere with the security of, or otherwise cause harm to, the Site or any Services, Content or systems resources;
- Transmit unsolicited or bulk communications to any Powderhook affiliated e-mail address or otherwise transmit or send spam emails or unsolicited emails to users of the Site;
- Contribute any name, material, opinion or information that is child pornography, defamatory, excessively violent, harassing, inappropriate, indecent, lascivious, lewd, obscene, profane, racist, unlawful or otherwise objectionable;
- Disrupt, interfere with or inhibit any other user from using and enjoying the Site or other affiliated or linked sites, Content or Services;
- Access or use the Site in any manner that could damage, disable, overburden or impair any Powderhook server or the network(s) connected to any Powderhook server;
- Violate any applicable laws or regulations related to the access to or use of the Site, Services or any Content or engage in any activity prohibited by these Terms;
- Prepare, compile, use, download or otherwise copy any user directory or other user or usage information or any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such directory or information to any third party;
- Violate the rights of Powderhook or any third party (including rights of privacy and publicity) or abuse, defame, harass, stalk or threaten another; an
- Use any Powderhook domain name as a pseudonymous return e-mail address.
Warranties and Disclaimers
THE SITE, SERVICES AND CONTENT ARE PROVIDED BY POWDERHOOK “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, PERFORMANCE, SECURITY, INTEGRATION, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, POWDERHOOK MAKES NO WARRANTY THAT (i) THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS; (ii) THE SITE, SERVICES OR CONTENT WILL BE ACCURATE, UNINTERRUPTED, COMPLETE, UP TO DATE, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES OR CONTENT WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY AND SAFETY OF THE SITE, OR OF ANY CONTENT OR OPPORTUNITIES OR SERVICES PURCHASED OR ACCESSIBLE BY YOU WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES OR CONTENT WILL BE CORRECTED.
THIS SITE, AND THE CONTENT AND SERVICES MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. POWDERHOOK MAY MAKE CHANGES TO THE SITE, CONTENT AND SERVICES, AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE. THE SITE, CONTENT AND SERVICES MAY BE OUT OF DATE, AND POWDERHOOK MAKES NO COMMITMENT TO UPDATE THE SITE, CONTENT AND SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT: (i) POWDERHOOK DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY OPPORTUNITIES, CONTENT OR SERVICES OFFERED BY THIRD PARTIES OR OTHER USERS; (ii) POWDERHOOK MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY SUCH THIRD PARTIES OR OTHER USERS, THEIR OPPORTUNITIES, CONTENT OR SERVICES; (iii) ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES OR OTHER USERS ARE AT YOUR OWN RISK; AND (iv) POWDERHOOK SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY OPPORTUNITIES, CONTENT OR SERVICES OFFERED BY THIRD PARTIES OR OTHER USERS;.
POWDERHOOK DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY DAMAGES, PERSONAL INJURY OR OTHER HARM THAT MAY BE CAUSED BY YOUR RELIANCE ON ANY ADVICE, SUGGESTIONS, RECOMMENDATIONS OR OTHER INFORMATION PROVIDED ON THE SITE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.
Indemnity and Liability
You agree to indemnify and hold Powderhook, its divisions and affiliates, and their respective officers, directors, partners, employees, shareholders, members, managers, owners and agents harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: (i) your access to, reliance on, use, offering of, purchase or, as applicable, consumption of the Site, Opportunities, Services or Content (including any use by your employees, contractors, customers, clients or agents and all uses of your account numbers, user names and passwords, whether or not actually or expressly authorized by you, in connection with the Site or any Opportunities, Services or Content); (ii) your connection to the Site, Services or Content; (iii) your violation of these Terms; (iv) your infringement of any third party’s Intellectual Property Rights when using the Site, Services or any Content or your violation of any applicable law; (v) your violation of any rights of any third party; (vi) your access to or use of Linked Sites and your connections thereto; (vii) any dealings between you and any third parties advertising or promoting via the Site, Opportunities, Services or Content; (viii) Powderhook’s use of your User Information; and (ix) any dispute with another user of the Site. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle or otherwise dispose of any matter without our prior written consent.
POWDERHOOK IS NOT LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION OR THE COST OF SUBSTITTUE PRODUCTS OR SERVICES, OR FOR DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACE ARISING OUT OF OR RELATING TO YOUR USE OF THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT POWDERHOOK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL POWERDERHOOK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THIS SITE EXCEED THE AMOUNTS YOU HAVE PAID, OWE, HAVE BEEN PAID OR ARE OWED IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR $100, IF NO SUCH PAYMENTS HAVE BEEN MADE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR CERTAIN OF THE DAMAGES SET FORTH ABOVE, SO SUCH LIMITATIONS MAY NOT APPLY TO YOU.
The Site is controlled, operated and administered by Powderhook, which is based within the United States. We make no representation that functions or information found at the Site are appropriate or available for use at other locations outside of the United States or Canada and access to them from territories where their contents are illegal is prohibited. You may not use the Site or export the information found on or at this Site in violation of U.S. or other export laws and regulations. If you access this Site from a location outside of the U.S., you are responsible for compliance with all laws applicable to you. These Terms, all matters arising from or relating to the your use of the Site, and any and all claims arising out of your relationship with the Parties shall be governed by and in accordance with the laws of the State of Nebraska, excluding (i) its conflicts of laws provisions, (ii) the United Nations Convention on Contracts for the International Sale of Goods, and (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended.
Dispute Resolution; Jurisdiction; Attorneys’ Fees
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY EXPRESSLY AGREE THAT ANY PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE SHALL BE INSTITUTED EXCLUSIVELY IN A STATE OR FEDERAL COURT SITTING IN THE COUNTY OF LANCASTER, STATE OF NEBRASKA, UNITED STATES OF AMERICA, AND YOU EXPRESSLY WAIVE ANY OBJECTION THAT YOU MAY HAVE NOW OR IN THE FUTURE TO SUCH VENUE, OR TO THE JURISDICTION OF ANY SUCH COURT OVER YOU OR YOUR ACTIVITIES ON THE SITE. Notwithstanding the foregoing, Powderhook reserves the right to institute proceedings in any jurisdiction in order to (i) obtain interim or provisional relief pending resolution of a dispute; or (ii) collect from you any monies due under these Terms or under an award of the court described above. You may not bring any action arising out of these Terms or your use of the Site, Content or the Services, regardless of form or the basis of the claim, more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). In the event that you bring an action in an improper forum or outside of the time limit in violation of this Section, Powderhook shall be entitled to recover from you its reasonable attorney’s fees in responding to such action.
Except as explicitly stated otherwise, any notices you send to us shall be given by means of email to email@example.com or by mail to Powderhook, Inc. 317 S. 12th St. Suite 101, Lincoln, NE 68508 or, in the case of notices we send to you, to the email address or street address listed in your User Information in your account. Notice shall be deemed given 24 hours after an electronic message is sent, unless the sending party is notified that the message did not reach the recipient or, in the case of mailing, three (3) days after the date of mailing.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to put into effect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect. The failure by either party to exercise or enforce any rights or provisions of these Terms shall not constitute a waiver of such right or provision. These Terms, including any other applicable terms and conditions or rules that govern your use of this Site or individual Services, which are either incorporated herein by specific reference or posted on the Site from time to time, comprise the entire agreement between you and Powderhook and supersede all prior representations, agreements or statements between us, written or oral, regarding the subject matter contained herein. All provisions in these Terms regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of these Terms. The titles and headings contained in these Terms are used for convenience only and are not intended to affect the meaning or interpretation of these Terms. These Terms are binding upon and inure to the benefit of the respective successors and assigns of the parties, but you may not assign these Terms to any person or entity without our prior written consent, which may be withheld or granted by Powderhook in its sole and absolute discretion, and any such assignments made without consent shall be null and void. These Terms are solely for the benefit of Powderhook, its affiliates, and you, and shall not be construed for the benefit of any third party. You and Powderhook are independent contractors. No agency relationship, partnership, joint venture, employer-employee relationship or franchisor-franchisee relationship is intended or created by these Terms.