This Agreement and the terms contained herein is subject to change by EFS at any time, in its sole and absolute discretion, and without notice. Therefore, you are instructed to review the terms of this Agreement prior to using the Website. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Your continued use of the Website after a replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.
A. Eligibility to Use the Website
The Website is open to use to those who are age eighteen or above. By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.
C. Acceptable Use of the Website
When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by EFS for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:
- Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by EFS through a separate, written agreement;
- Accessing or attempting to access the Website through automated means;
- Circumventing the technological protection measures of the Website;
- Imposing a disproportionate load on the servers or content delivery network of the Website;
- Injecting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
- Disrupting or otherwise interfering with the Website or its associated servers or networks;
- Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;
- Diverting or attempting to divert customers of the Website to another website or service;
- Sending unsolicited or unauthorized communications to users of the Website or third parties;
- Reverse engineering, decompiling, translating, or disassembling the Website or its content; and
- Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.
EFS reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. EFS also reserves the right to refuse service or access to the Website to any person or business entity at any time and without notice.
D. Limited License to Use the Website
You acknowledge and agree that the Website is the property of or is licensed by EFS and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. EFS reserves all rights not expressly granted through this Agreement.
EFS provides you with a limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.
E. Idea Submission Policy
EFS may provide you with the ability to submit ideas to EFS through the Website. If you submit ideas to EFS, you agree that any ideas that you submit to EFS will automatically become the property of EFS and that you will not be compensated for the submission, use, or implementation of the idea that you submitted to EFS. You understand and agree that EFS may use or redistribute any ideas that you submit to EFS for any purpose and in any way and that EFS has no obligation to keep any ideas submitted to EFS confidential.
F. User Account
EFS may provide you with the ability to register a user account (“User Account”), which may provide access to additional areas of the Website, including the EFS Control Panel. Your User Account is protected by a username and password. You recognize that you are solely responsible for maintaining the security and confidentiality of your username and password and that you are responsible for any unauthorized access to your User Account. In the event your User Account is accessed without your authorization, you agree to notify EFS immediately. EFS reserves the right to restrict access to, suspend, disable, or delete your User Account at any time, in its sole discretion, and without prior warning. By creating a User Account, EFS may contact you by any available means, including, but not limited to, by email.
G. Proprietary Rights
You understand and agree that the Website, including, but not limited to, its source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of EFS. Under the terms of this Agreement, you do not acquire any ownership rights to the Website or the data or content contained therein. You acquire only a limited license to use the Website subject to the terms of this Agreement. All other rights are reserved by EFS.
You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Website by EFS, including, but not limited to, EFULFILLMENT SERVICE and its associated design mark, are common law or registered trademarks owned by or licensed to EFS. You are expressly prohibited from using the trademarks of EFS to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of EFS in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
I. Copyright Policy
- EFS will respond to all duly authorized notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that a user of the Website has infringed upon your copyright rights, you may provide EFS with a notice of copyright infringement that complies with § 512 of the Digital Millennium Copyright Act. Upon receipt of a notice that complies with the Digital Millennium Copyright, EFS will make a good faith attempt to notify the owner or uploader of the allegedly infringing content so that they can respond with a counter-notification under the Digital Millennium Copyright Act.
- All notices of copyright infringement submitted to EFS must contain the following:
- the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- identification of the copyrighted work(s) alleged to have been infringed;
- the location of the copyrighted work(s) in the Website;
- your contact information, such as an address, telephone number, fax number, or email address;
- a statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and
- a statement, under penalty of perjury, that the information contained in the notification is accurate and that you are authorized to act on behalf of the copyright owner.
- Upon receipt of a duly authorized notice of infringement, EFS will undertake reasonable efforts to notify the poster of the allegedly infringing content so that the poster may issue a counter-notification. Counter-notifications must contain the following:
- The physical or electronic signature of the User;
- Identification of the material that has been removed or the location where the material previously appeared;
- A statement, under penalty of perjury, that the subscriber has a good faith belief that the material was removed due to mistake or misidentification; and
- The subscriber’s name, address, and telephone number and a statement that the subscriber consents to the jurisdiction of the federal district court in which the subscriber is located.
- All notices of infringement may be submitted at: https://www.efulfillmentservice.com/contact/copyright
J. Term and Termination
The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) EFS terminates your access to the Website; or (ii) you cease using the Website and terminate your Account. EFS reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.
K. Disclaimer of Warranties and Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE WEBSITE AND SERVICES PROVIDED BY EFS, THEIR USE, AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EFS MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. EFS WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABLITY FOR ITS FAILURE TO MEET SAID DATES.
EFS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO THE USE OR MISUSE OF CLIENT GOODS OR THE USE OR MISUSE OF THE EFS WEBSITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES, OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS YOU HAVE PAID TO EFS.
You agree to indemnify, defend, and hold harmless EFS, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website, (ii) your purchase of any services through the Website, (iii) your violation of any term or condition of this Agreement; (iv) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (v) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Your obligation to defend EFS will not provide you with the ability to control EFS’s defense, and EFS reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
M. Choice of Law and Stipulation to Jurisdiction
You and EFS agree that any dispute arising out of or related to this Agreement or your use of the Website will be governed by the laws of the State of Michigan without regard to its conflict of laws rules. Except for claims for injunctive relief by either party, you and EFS agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your use of the Website including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Traverse City, Michigan or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.
This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.
ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PURCHASE OR USE OF ITEMS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND EFS EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
Any claims must be brought within one year of each applicable invoice or will otherwise be barred.
N. Force Majeure
EFS will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond EFS’s control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, or other accidents.
The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your Account, or the Website, including, but not limited to, your duty to indemnify and defend EFS.
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
You are expressly prohibited from assigning your rights and duties under this Agreement. EFS reserves the right to assign its rights and duties under this Agreement, including in a sale of EFS or its Website.
R. Waiver and Integration
No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties with respect to access to and use of the Website and supersedes all previous agreements or representations between the parties concerning the same subject matter. Should you execute a master service agreement or pricing for services form with EFS, the terms of such master service agreement or pricing for services form shall control EFS’s provision of services to you in the event of a conflict in terms with this Agreement.