DERIVE SYSTEMS, INC.
EFFECTIVE AS OF FEBRUARY 8, 2016
WHEN PLACING AN ORDER, YOU WILL BE REQUIRED TO CONFIRM YOUR AGREEMENT TO BE BOUND HEREBY. BY CLICKING THE "I AGREE” BUTTON, YOU CONFIRM YOUR AGREEMENT TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT CLICK THE "I AGREE” BUTTON WHEN PLACING AN ORDER, AND YOUR ORDER WILL NOT BE PROCESSED.
These Terms apply only to the use of certain websites which are owned and/or operated by or on behalf of Derive Systems, Inc., Derive Power, LLC, and Derive Efficiency, LLC and/or their affiliates ("Derive”) (each, the Site,” and collectively, the ""Sites",”), or available through our authorized third parties, or by any of the other means described herein.
Your use of this Site may be further governed by any agreement entered into between Derive and the Customer (the "Customer”) named therein (the"Customer Agreement”) governing Customer’s accounts with Derive. In the event of any inconsistency between the terms of the Customer Agreement and these Terms, the terms of the Customer Agreement shall control. You also represent and warrant to Derive that you are authorized to bind Customer to these Terms.
When we refer to "Derive", "we","us” or "our,” we mean Derive Systems, Inc., Derive Power, LLC, and Derive Efficiency, LLC or the specific division, subsidiary, or affiliate that operates the Site, provides its content, or processes information received through it, each as appropriate and applicable.
When we refer to "you” or "your,” we mean the person accessing the Site. If the person accessing the Site acts on behalf of, or for the purposes of, another person, including a business or other organization, "you” or "your” also means that other person, including a business organization.
This Site and any of the services provided by Derive in connection with this Site (the "Services”) are being provided to you expressly subject to these Terms, which govern your use of the site. "Services” under these Terms include financial services for businesses and business services offered to you directly by Derive.
Derive makes this Site available subject to the terms and conditions set forth herein and all applicable laws. By accessing, browsing or otherwise using (collectively, "use” or "using”) this Site, you acknowledge that you, the individual user of this Site, have read, understood and agree to be legally bound by these Terms, and to comply with all applicable laws and regulations, without limitation or qualification. By using this Site, you further acknowledge that you have the authority and do hereby legally bind the business entity, if any, which you serve as an agent, independent contractor or employee thereof to the same Terms, without limitation or qualification. These Terms shall take effect immediately on your first use of the Site. If you do not agree to these Terms, you are not authorized to access, browse or otherwise use this Site.
You warrant to Derive that you will not attempt to gain unauthorized access to any Services offered by Derive or computer systems or networks connected to any Derive server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Derive. When using the Site you agree not to pretend to be someone else or spoof their identity.
Any access or attempted access of other areas of Derive’s computer systems, third party- systems and Services that Derive utilizes or other information contained therein for any purpose is strictly prohibited. You agree not to interfere in any way with others’ use of or access to any Site. Derive reserves the right to report any activity that it reasonably suspects violates any law or regulation and to disclose any information to law enforcement officials or regulators or other appropriate third parties.
Derive has the right to modify, suspend or discontinue, temporarily or permanently, this Site, any Products or Services provided by Derive through this Site, or your right to access or use any portion of this Site, in Derive’s sole discretion, at any time and without prior notice, for any reason, including without limitation: (1) attempts by you (or another party) to gain unauthorized access to any Site or assist others in attempting to do so, (2) your (or another party’s) disabling of any security features on any Site, (3) your violation of these Terms,
(4)suspected or actual infringement of a third party’s intellectual property rights or (5)pursuant to requests by law enforcement or other government agencies.
USE OF THE SITE
As a user of the Site, you have a non-exclusive, non-transferable, limited, revocable license to use the Site solely for your internal business use. You may not use the Site for any other purpose whatsoever. Without limiting the previous sentence, you may not reproduce, modify, distribute, transmit, display, perform, reproduce, transfer, sell or publish any of the contents of the Site without the prior written consent of Derive, which may be withheld, conditioned or delayed in its sole discretion, except that you may print out a copy of the content solely for your internal business use. In doing so, you will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name or service mark or any other proprietary notice or legend appearing on the Site or any of the content. You are prohibited from including links from other websites to the Site without the prior written consent of Derive, which may be withheld, conditioned or delayed in its sole and absolute discretion.
COPYRIGHTS/TRADEMARKS/RESTRICTIONS ON USE
In order to access certain restricted portions of this Site, you may be required to register on this Site by completing a Registration Form or Enrollment Form (collectively, the "Registration Form”). Derive may accept or reject any Registration Form in its sole discretion. You represent and warrant that the information provided when registering is accurate, complete and current as of the date submitted and that you will update such information from time to time as necessary. These Terms shall be incorporated into, and form an integral part of, each Registration Form. As part of the registration process, you will select a user name based on your e-mail ("User Name”), and a password ("Password”) to access the User Name. Your User Name and Password are your credentials ("Credentials”) to access the restricted portions of this Site. Although you are not required to register, if you do not register, you may be required to accept these Terms each time you wish to access this Site or a Service or place an Order. You may not have a User Name that is vulgar, attempts to impersonate another person, or violates the rights of others. Derive may also reject any User Name that Derive determines in its discretion is unacceptable for use on this Site. You are solely responsible for all use of this Site under your User Name and Password and for maintaining the confidentiality of your User Names and Passwords and will (i) promptly notify Derive of any actual or suspected unauthorized use of this Site, and (ii) ensure that you exit from your account at the end of each session. If you disclose or otherwise allow discovery of your User Name and/or Passwords to or by any person(s) or entity, you assume all risks and losses associated with such disclosure. Please note that Derive will store a Password retrieval question and answer, which allows you the ability to retrieve your Password. If you do not answer the retrieval question correctly within the stated number of attempts, your User Name will be permanently deactivated, and you will need to re-register on the Site with a new User Name and Password, and your stored preferences will need to be re-entered.
- By ordering Products or Services on this Site, you shall be deemed to have ordered the specified Products and/or Services from Derive pursuant to these Terms. The acceptance and fulfillment by Derive of any order ("Order”) placed on this Site is subject to your acceptance of and compliance with all of these Terms. You will be required to confirm your acceptance of these Terms when placing an Order through this Site. All other contrary terms and conditions are hereby rejected by Derive, and no attempted addition or modification to these Terms by you shall be binding unless specifically agreed to in writing by Derive. Derive shall not be deemed to have accepted your Order unless and until Derive sends to you, through electronic means or other written communications, an acknowledgment that your Order has been received and accepted by Derive, and will be fulfilled by Derive. Derive’s acceptance of any Order by you is made only with the express understanding that these Terms shall govern any Order placed by you.
- To purchase any Products and/or Services on this Site, you must (a) be legally permitted to enter into a legally binding contract (at least eighteen (18) years old in most jurisdictions),
and (b) be a naturalized person residing in, one of the 50 states of the United States, Canada or Puerto Rico. Prior to the purchase of any Products or Services on this Site, you must provide a valid credit card number (or other payment method acceptable to Derive) and related payment information, including all of the following: (i) your name exactly as it appears on the credit card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge your credit card. By submitting that information, you hereby authorize Derive to charge your credit card for such purchases. The risk of loss and title for all Products and/or Services ordered on this Site passes to you when the Products is delivered to the shipping carrier.
- All prices for Products and Services on this Site are quoted in U.S. currency, are valid and effective only in the United States, Canada and Puerto Rico, are exclusive of taxes, shipping and handling charges, and are subject to change at any time without notice. User shall be responsible for any tax or other governmental charge related to the sale, use or delivery of the Products or Services, including, but not limited to, sales tax, use tax, retailer’s occupational tax, and value added tax. Derive shall automatically charge your credit card and withhold the applicable tax for Orders to be delivered to addresses in any states, localities or other jurisdictions that it deems is required, however Derive’s failure to do so shall not relieve User of any liability for such taxes.
- Products and Services availability is subject to change at any time. Derive makes no representations or warranties regarding the availability of Products and Services in all areas. Derive shall have the right to refuse or cancel any Orders for Products and/or Services listed at an incorrect price or rebate amount, or containing any other incorrect information or typographical errors. Derive shall have the right to refuse or cancel any such Orders whether or not the Order has been accepted by Derive and/or your credit card has been debited. If your credit card has already been charged for the Order and your Order is refused or canceled, Derive shall promptly issue a credit to your credit card account in the amount of the charge.
- Your credit card agreement with the issuer of such card shall govern your use of such credit card, and you must look only to that agreement and not to these Terms to determine your rights and obligations relating thereto. You agree to pay all fees and charges, including taxes incurred in connection with your Orders, at the rates in effect when the charges were incurred. Unless you notify Derive of any discrepancies in charges for Orders placed through this Site within sixty (60) days after they first appear on your credit card statement, you agree that such charges will be deemed accepted by you for all purposes hereunder. In the event Derive does not receive payment from your credit card issuer or its agent, you shall pay all amounts due upon demand by Derive. You shall remain responsible for any unauthorized charges to or Orders using your credit card including unauthorized use by a third party. If Derive does not receive payments when they are due, then you agree to pay all amounts owed to Derive upon demand by Derive. If Derive is unable to collect amounts owed on your accounts, Derive may refer those accounts to a collection agency, and you will be responsible for all costs of collection.
- By placing an Order on this Site, you indicate that you have read and agree to Derive’s[Ordering, Pricing and Returns Policy] ("Returns Policy”). The Returns Policy may be changed from time to time and is effective immediately after Derive posts such changes on this Site. In addition, when using particular Services on this Site, you agree that you are subject to any posted policies or rules applicable to any such Services you use through this Site, that may be posted on this Site from time to time. Any such posted policies or rules are hereby incorporated by reference into this Agreement as if fully set forth herein.
You agree to defend, indemnify, save and hold harmless Derive and its subsidiaries, affiliated companies, joint partners and licensees and their respective directors, members, shareholders, officers, employees and agents from and against all liabilities, claims, damages and expenses, including reasonable attorneys’ fees as incurred, arising out of your use of this Site, including any violation or alleged violation of these Terms, and any losses or claims arising out of your use of any products or services you may have obtained on any of our Sites.
USE BY INDIVIDUALS
Derive values your interest in its products or services and appreciates your visit to its Sites. Certain portions of this Site are intended to be used only by individuals authorized by the Customer in compliance with its Customer Agreement with Derive. Such individuals must use the User Name and Password assigned to them and not those of any other person. If you are not authorized by the Customer for this purpose, or if you are using someone else’s login information, you are deemed an unauthorized user and you should not use this Site. If nonetheless you continue, then by using this Site you undertake and agree that: (1) you will be personally liable for any and all expenses, costs or damages incurred by Derive in investigating or addressing your unauthorized use of this Site (such obligations shall be in addition to whatever other rights and remedies may be available to Derive for unauthorized use); and (2) you will be personally bound to the terms of the Customer Agreement for the entire debts and other commitments of the Customer, waiving any actual notice or knowledge of the terms of the Customer Agreement, all without any duties or obligations to you on the part of Derive.
This Site provides general information about Derive and its products and services. Use of this Site is limited to legitimate purposes. Derive may, from time to time, introduce new features to this Site, or modify or delete existing features, in its sole discretion. Derive shall notify you of any of these changes to features to the extent Derive is required by law to do so. By using any new or modified features when they become available, you agree to be bound by these Terms concerning such features.
You acknowledge and agree that any information, comments, documents, images or general content you enter in or post on this Site may be viewed by any other users with access to this Site, and therefore will not be considered confidential by you. By providing any such information, comments, documents, images or general content to Derive, you grant to Derive an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute such information, comments, documents, images or general content on this Site. You further agree that Derive is free to use any ideas, concepts or know- how that you, or individuals acting on your behalf, provide to Derive. You hereby agree that any comments, feedback or recommendations of you for the improvement or modification of this Site or the merchandise or services advertised herein shall be the sole property of Derive.
Any access or attempted access of other areas of Derive’s computer systems, third-party systems and services that Derive utilizes or other information contained therein for any purpose is strictly prohibited. You agree not to interfere in any way with others’ use of or access to any Site. Derive reserves the right to report any activity that it reasonably suspects violates any law or regulation and to disclose any information to law enforcement officials or regulators or other appropriate third parties. Derive has the right in its sole discretion, and without prior notice and from time to time, to modify these Terms with respect to your access to or use of any Site. Such modifications and additions shall be effective immediately upon posting the modified Terms to any Site, which posting shall be deemed notice to you. If you disagree with the changes to these Terms, you should discontinue your use of the Sites. Any access to or use of any Site after posting of modifications or additions to these Terms shall constitute and be deemed to be your agreement to such modified Terms. Therefore, you should frequently revisit this Site to determine the present terms and conditions to which you are legally bound.
Derive has the right to modify, suspend or discontinue, temporarily or permanently, this Site, any products or services provided by Derive through this Site, or your right to access or use any portion of this Site, in Derive’s sole discretion, at any time and without prior notice, for any reason, including without limitation: (1) attempts by you (or another party) to gain unauthorized access to any Site or assist others in attempting to do so, (2) your (or another party’s) disabling of any security features on any Site, (3) your violation of these Terms, (4) suspected or actual infringement of a third party’s intellectual property rights or (5) pursuant to requests by law enforcement or other government agencies. The obligations and liabilities you incurred prior to the termination date shall survive the termination of these Terms for all purposes. In the event of any such termination, the restrictions on your use of the material on this Site shall survive such termination, and you agree to be bound by those terms.YOU ACKNOWLEDGE AND AGREE THAT DERIVE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF ANY SITE OR ANY SERVICES OR INFORMATION PROVIDED ON THIS SITE OR ACCESSED BY YOU THROUGH THIS SITE.
Derive makes this Site available subject to the terms and conditions set forth herein and all applicable laws. By accessing, browsing or otherwise using (collectively, "use” or "using”) this Site, and/or by completing an Order, you acknowledge that you, the individual user of this Site, have read, understood and agree to be legally bound by these Terms, and to comply with all applicable laws and regulations, without limitation or qualification. By using this Site and/or completing an Order, you further acknowledge that you have the authority and do hereby legally bind the business entity, if any, which you serve as an agent, independent contractor or employee thereof to the same Terms, without limitation or qualification. These Terms shall take effect immediately on your first use of the Site. If you do not agree to these Terms, you are not authorized to access, browse or otherwise use this Site or place an Order.
INTELLECTUAL PROPERTY AND RESTRICTIONS ON USE OF INFORMATION AND CONTENT
All information and content provided on this Site, whether explicitly marked or not, are the property of Derive, its subsidiaries, affiliated companies or joint partners, or others, and are subject to U.S. and international copyright and unfair competition laws. The information and content provided includes, but is not limited to, the text, graphics, image, video, audio, animation and software, their related files and their arrangement on the Site.
All trademarks, service marks, logos, model and brand names, emblems and protectable trade dress elements (collectively, "Marks”), whether explicitly marked or not, used on this Site are owned by Derive, its subsidiaries, affiliated companies or joint partners, or used under license, and are subject to U.S. (federal and state) and international trademark and unfair competition laws.
You may not copy, reproduce, download, upload, post, broadcast, transmit, distribute, publish, republish or otherwise use any information, content or Marks provided on this Site in any form or by any means, or by any information storage or retrieval system for any commercial use without the express written permission of Derive. You may, however, copy, print or otherwise use the information, content or Marks provided on this Site, provided that the use is for your personal, educational or internal business use only and further provided that you: (1) maintain all copyright and other intellectual property notices together and intact with any information or content; (2) do not modify or otherwise alter any information or content; and (3) do not expressly or implicitly suggest an association with any services, product, brands or affiliates through the use of any information or content. Other use of any information, content or Marks, except as specifically permitted in these Terms or in a written instrument signed by Derive, is strictly prohibited.
Nothing contained in any Site shall be construed as conferring, by implication, estoppel or otherwise, any license or right to any copyright, patent, trademark or other proprietary interest of Derive or any third party.
You are not permitted to create a hyperlink to any page or portion of any Site or frame any page or portion of any Site without the prior written permission of Derive.
Any use of the information, content or Marks provided on any Site that does not comport with the above Terms shall be an unauthorized use and subject you to civil and criminal penalties as provided by U.S. and international intellectual property laws and other applicable laws.
Derive makes no representation that materials on any Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access any Site from other locations do so on their own initiative and are responsible for compliance with local laws.
USER CONTRIBUTIONS TO THE SITE
There may be opportunities for you to contribute information, data or materials to the Site, which may include, among others, uploading information, participating in chats, using our bulletin boards, etc., which information, data or materials we collectively call "User Content.” You grant Derive and its parents, subsidiaries and corporate affiliates (collectively, the "Derive Companies”) and the affiliated, co-branded and/or linked website partners through or for whom we provide services (collectively, the "Derive Affiliates”), a nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sub licensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such User Content throughout the world in any media, now known or hereafter devised; and (b) use the name that you submit in connection with such Submission. Derive is not liable or responsible for any User Content provided by its users or other third parties to the Site, including Suppliers. The contributions of third parties do not necessarily represent the view or opinions of Derive. Derive cannot preview User Content before it appears on the Site. You acknowledge that the Derive Companies may choose to provide attribution of your comments or reviews at our discretion, and that such Submissions may be shared with our supplier partners. You further grant the Derive Companies the right to pursue at law any person or entity that violates your or the Derive Companies’ rights in the User Content by a breach of these Terms. You acknowledge and agree that items comprising Content are non- confidential and non-proprietary. You expressly waive any and all ‘moral rights’ (including rights of attribution or integrity) that may subsist in your Content and agree that you have no objection to the publication, use, modification, deletion or exploitation of your Content by us, the Derive Affiliates or any of our partners or licensees. We take no responsibility and assume no liability for any Content posted or submitted by you. We have no obligation to post your comments; we reserve the right in our absolute discretion to determine which comments are published on the Site. If you do not agree to these Terms, please do not provide us with any Content.
You are fully responsible for your Content (specifically including, but not limited to, reviews posted to this Site). You are prohibited from posting or transmitting to or from this Site: (i) any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity and/or privacy or that would violate any law; (ii) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or Services); and (iii) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other proprietary right of any third party. You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to this Site. You acknowledge that Derive may exercise its rights (e.g., use, publish, delete) to any content you submit without notice to you. If you submit more than one review or comment for the same Service or topic, only your most recent submission is eligible for use. You agree that you will indemnify Derive against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys’ fees and costs) arising out of a claim by a third party relating to any material you have posted.
Derive’s policies with respect to claims by third parties that the content of the Site, including any Content, infringes the copyrights owned by said third party can be found in the DMCA section below.
PHOTO SUBMISSION GUIDELINES
All photos submitted are subject to our Photo Submission Guidelines, posted on this Site from time to time. Derive claims no ownership, affiliation with, or endorsement of any photos that are submitted by users through our Sites.
Any photos you submit must be in accordance with the following:
- All photos must be relevant to Derive or the Products or Services
- Do not submit any photos or materials that are illegal, obscene, pornographic, profane, vulgar, offensive or insulting; or that invade the privacy or violate any personal right of any person or entity.
- Do not submit photos or information about children or any third parties without their consent (or their parent’s consent in the case of a child).
- Children under 13 may not submit photos or other materials.
- Only submit your own photos -- do not submit photos from any other source, either personal or commercial. Do not submit photos that infringe the copyright, trademark, or other property right of any third party.
- Do not submit photos that include logos, branding, promotional material, or any other content intended for commercial purposes.
- Do not submit photos that contain viruses or other harmful code that is either intended or may result in damage to the computers and systems of Derive and/or those using it.
You can be held liable for any illegal or prohibited User Content you provide to any Site, including among other things, infringing, defamatory or offensive materials. If you discover this kind of material on any Site, please notify us at firstname.lastname@example.org. We will investigate your claim promptly and may then take the actions deemed appropriate.
LINKS AND SEARCH RESULTS
For the avoidance of doubt, the Sites may automatically produce search results that reference or link to third-party sites throughout the World Wide Web. Derive has no control over those sites or the content within them. Derive cannot guarantee, represent or warrant that the content contained in those sites is accurate, legal and/or inoffensive. Derive does not endorse the content of any third-party site, nor do we warrant that they will not contain viruses or otherwise impact your computer or other access device. By using the Sites to search for or link to another site, you agree and understand that you may not make any claim against Derive for any damages or losses whatsoever resulting from your use of the Site to obtain search results or to link to another site. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators. If you have a problem with a link from the Site, please notify us at email@example.com and we will investigate your claim promptly and take any actions we deem appropriate in our sole discretion.
For the avoidance of doubt, the Sites may not be used by our visitors for any commercial purposes other than to inquire about the products or services of Derive without the express consent of Derive. You must obtain our prior written consent to make commercial offers of any kind on the Site, whether by advertising, solicitations, links, or any other form of communication. Without limiting the foregoing, you may not resell or link to other sites for the purpose of selling Derive products or services of any kind. We will investigate and take appropriate legal action against anyone who violates this provision, including, without limitation, removing the offending communication from the Site and barring such violators from use of the Site. We reserve the right to block access to or cancel any order for any user known or reasonably believed to be in violation of this provision.
VIOLATION OF THESE TERMS
You understand and agree that in Derive’s sole discretion, and without prior notice, we may terminate your access to the Sites, cancel any transactions or exercise any other remedy available and remove any unauthorized User Content if we believe that the User Content you provided has violated or is inconsistent with these Terms or violated the rights of Derive, another user, or the law or constitutes a breach of the Customer Agreement. You agree that monetary damages may not provide a sufficient remedy to Derive for violations of these Terms and you consent to injunctive or other equitable relief for such violations. Derive may release user information about you if required by law or subpoena, or if release of the information is necessary or appropriate to address an unlawful or harmful activity. Derive is not required to provide any refund to you if you are terminated as a User because you have violated these Terms.
Derive is not responsible for the products, services, actions or failures to act of any third party referenced on any Site except as may be set forth in the Customer Agreement. Without limiting the foregoing, you may report the misconduct of users and/or third-party advertisers, service and/or product providers referenced on or included in any Site to us at firstname.lastname@example.org.We may investigate the claim and take appropriate action, in our sole discretion.
ADOPTION OF ADDITIONAL TERMS
These Terms expressly include any and all additional terms and conditions that are set forth in any of the Sites, including but not limited to any such terms and conditions that are specified in posted agreements and frequently asked questions listings therein. To the extent any of these Terms are in conflict with any terms and conditions set forth in any particular Site, the terms and conditions set forth in the Sites shall control with respect to the particular Site to which the terms and conditions are posted.
You agree to defend, indemnify, save and hold harmless Derive, Derive Companies and Derive Affiliates and licensees and its and their respective directors, members, shareholders, officers, employees and agents from and against all liabilities, claims, damages and expenses, including reasonable attorneys’ fees as incurred, arising out of your use of this Site, including any violation or alleged violation of these Terms, and any losses or claims arising out of your use of any Products or Services you may have obtained on any of our Sites.
YOU USE THE SITES AND THE PRODUCTS AND SERVICES OFFERED ON THE SITES AT YOUR OWN RISK. ALL INFORMATION AND CONTENT AND ALL PRODUCTS AND SERVICES OFFERED OR ACCESSED THROUGH THE SITES, INCLUDING CONTENT PROVIDED BY THIRD-PARTY PROVIDERS, ADVERTISERS AND SPONSORS ON ANY SITE, IS PROVIDED "AS IS” WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURCHASE, FREEDOM FROM VIRUSES OR HARMFUL CODE, TITLE OR NON-INFRINGEMENT. ALL INFORMATION, CONTENT, PRODUCTS AND SERVICES OFFERED OR ACCESSED THROUGH ANY HYPERLINKED SITE IS PROVIDED "AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, AND IS USED AT YOUR OWN RISK. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
IN NO EVENT WILL DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF THIS SITE OR ANY OF THE PRODUCTS OR SERVICES OFFERED OR ACCESSED THROUGH THIS SITE, OR ANY OTHER HYPERLINKED SITE, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, LOST PROFITS, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR SYSTEM OR OTHERWISE ARISING OUT OF THE USE OR MISUSE OF OR INABILITY TO USE ANY SITE OR THE INFORMATION, CONTENT, DOCUMENTS OR SOFTWARE THEREOF, EVEN IF DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES OR SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY A THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES AND SUPPLIERS IS TO DISCONTINUE USE OF THIS SITE AND ANY HYPERLINKED SITES AND TO DISCONTINUE THE USE OF PRODUCTS AND SERVICES OFFERED OR ACCESSED ON THIS SITE AND ANY HYPERLINKED SITES. CERTAIN STATE LAWS DO NOT ALLOW EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
Without limiting the above disclaimers, Derive and its subsidiaries, affiliated companies and joint partners: (1) make no warranties or representations whatsoever concerning this Site or any other Internet site, the access to, or the availability or use of, this Site or any other Internet Site, the information and content from whatever source posted on or referred to in this Site or any other Internet site or the accuracy, completeness or timeliness of such information or content; (2) do not warrant or represent that your access to, or use of, this Site or any other Internet site will be uninterrupted or free of errors or omissions, that defects will be corrected, or that this Site or any other Internet site is, or the information or content from whatever source available for use or downloading are, free of computer viruses, worms, Trojan horses or other harmful components; (3) do not represent or warrant that any services or products listed on, or accessed through, this Site will be available for purchase or not withdrawn at any time and makes no representation or warranty of any kind whatsoever concerning such products or services; and (4) do not represent or warrant the accuracy, functionality or specifications or any other aspect of items from whatever source posted or accessed through this Site. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you.
This Site may use hyperlinks as a convenience to you so that certain reference material, Derive- related subjects and other pertinent material is easily accessible. Linked and referenced sites may not be operated, controlled or maintained by Derive. Hyperlinks and references to other sites, including any Derive-affiliated entity, do not constitute sponsorship, endorsement or approval by Derive of the information, content, policies or practices of such linked or referenced sites. Derive, its subsidiaries, affiliated companies and joint partners do not accept any responsibilities for any information or content, availability, policies, practices or any use of such sites. You access, browse and use such sites at your own risk.
The above limitations of liability reflects the allocation of risk between the parties, and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose. The limitations of liability provided in these Terms inure to the benefit of Derive, the Derive Affiliates, and/or their respective suppliers.
If, notwithstanding the limitations of liability above, Derive or any of the Derive Affiliates are found liable for any loss or damage which arises out of or in any way connected with any Products or Services or operation of this Site, then the liability of Derive and the Derive Affiliates will in no event exceed, in the aggregate, the lesser of (a) the service fees you paid to Derive in connection with such transaction(s) on this Site, or (b) [One-Hundred Dollars (US$100.00)] (or the equivalent in local currency).
Derive has no obligation to update any information or content on any Site. Accordingly, Derive, its subsidiaries, affiliated companies and joint partners assume no responsibility regarding the accuracy of the information or content provided on the Site. Any use of the information or content provided on this Site is done so at your own risk.
In states where Derive has no physical presence, Derive is not required to collect and remit sales tax for Products and Services purchased through the Site. However, many states require that their residents file a sales or use tax return for Products or services purchased online. You should consult your state and local tax laws to determine compliance with tax laws and regulations in your geographic area. In some states, Derive collects and remits sales tax. For purchases where sales tax is applicable, the tax calculated will be reflected on the checkout page before you are asked to confirm the purchase. Derive uses commercially reasonable efforts to calculate and remit the correct amount of tax required on each taxable purchase, but Derive does not guarantee the accuracy of the amount of the tax Derive represents to you as the tax owed. Minor errors may occur owing to the inability to accurately track multiple taxing districts, state and local "tax holidays,” the timing of rate changes or the application of certain
taxes to categories of items advertised on this Site. As a result of any error, Derive may over collect or under collect the tax. In consideration of Derive allowing you access to and use of the Site, and in collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect and agree to hold harmless Derive, its officers, directors, employees, agents and representatives (and those of its affiliates), for any harm or other damages you may incur as a result of Derive’s error in calculating the taxes on your purchases.
SOFTWARE AVAILABLE/MOBILE APPS ON THIS SITE
Any software that we make available to access or download from this Site ("Software”) or through your mobile application store, [including the Derive mobile application (the "Mobile App”)] is the copyrighted work of the Derive Companies and/or our respective suppliers. Your use of such Software is governed by the terms of the end user license agreement, if any, which accompanies, or is included with, the Software ("License Agreement”). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms. For any Software made available for download on this Site not accompanied by a License Agreement, we hereby grant to you, the user, a limited, personal, non-exclusive, nontransferable license to download, install and use the Software and/or the Mobile App for viewing and otherwise using this Site and/or accessing the content and information available within the Mobile App in accordance with these Terms and for no other purpose.
Please note that all Software is owned by the Derive, Derive Affiliates, and/or our respective suppliers, and is protected by copyright laws and international treaty provisions. Any reproduction or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Without limiting the foregoing, copying or reproduction of the Software to any other server or location for further reproduction or redistribution is expressly prohibited. The Software is warranted, if at all, only according to the terms of the applicable license agreement.
If a currency converter is available on the Site, the following terms and conditions apply: Currency rates are based on various publicly available sources and should be used as guidelines
only. Rates are not verified as accurate, and actual rates may vary. Currency quotes are not updated every day. Check the date on the currency converter feature for the day that currency was last updated. The information supplied by the currency converter application is believed to be accurate, but the Derive, the Derive Affiliates, and/or our respective suppliers do not warrant or guarantee such accuracy. When using this information for any financial purpose, we advise you to consult a qualified professional to verify the accuracy of the currency exchange rates. We do not authorize the use of this information for any purpose other than your personal use and you are expressly prohibited from the resale, redistribution, and use of this information for commercial purposes.
BANK AND CREDIT CARD FEES
Some banks and credit card companies impose fees for international transactions. If you are making a purchase from outside of the United States on a US credit card, your bank may convert the payment amount to your local currency and charge you a conversion fee. This means the amount listed on your credit or bank card statement may be in your local currency and therefore a different figure than the figure shown on the order summary page for a purchase on this Site. In addition, a foreign transaction fee may be assessed if the bank that issued your credit card is located outside of the United States. The currency exchange rate and foreign transaction fee is determined solely by your bank on the day that they process the transaction. If you have any questions about these fees or the exchange rate applied to your booking, please contact your bank.
COPYRIGHT AND TRADEMARK NOTICES
All contents of this Site are © 2016 Derive Power LLC. All rights reserved. [List Marks and Logos] names and logos are either registered trademarks or trademarks of Derive in the United States and/or other countries. Other logos and Product and company names mentioned herein may be the trademarks of their respective owners. Derive is not responsible for content on websites operated by parties other than Derive.
If you are aware of an infringement of our brand, please let us know by e-mailing us at email@example.com. We address only messages concerning brand infringement at this e-mail address.
DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA”)
Derive respects the intellectual property of others, and we ask our users and visitors to do the same. In accordance with the DMCA and other applicable law, Derive has adopted a policy of terminating, in appropriate circumstances and at Derive’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Derive may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that an account holder or subscriber is a repeat infringer, please provide information sufficient for us to verify that the account holder or subscriber is a repeat infringer when filing your notice.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the Site’s designated agent (see below). ALL INQUIRIES NOT RELEVANT TO OR NOT COMPLYING WITH THE FOLLOWING PROCEDURE WILL RECEIVE NO
RESPONSE. Derive will process and investigate notices (each, a "Notice”) of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying with the DMCA, Derive will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Derive the following information in your Notice (to be effective, the notification must include ALL of the following):
- a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site;
- your address, telephone number, and email address and all other information reasonably sufficient to permit Derive to contact you;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- 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 behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claimed copyright infringement should be directed to Derive’s designated agent: By mail:
Derive Systems, Inc.
4150 Church Street, Suite 1024
Sanford, Florida 32771
Attn: Website Enquiries
THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING DERIVE THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT OR SERVICE RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ON PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
Communications Decency Act Notice
Pursuant to 47 U.S.C. Section 230(d) (as amended from time to time), please be notified you that parental control protections (such as computer hardware, software or filtering services) are commercially available to you that may assist you in limiting access to material that is harmful to minors. Please be advised that Derive does not endorse either above provider or any of the Products or services available at such sites.
NOTICE FOR CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact us by writing to:
Derive Systems, Inc.
4150 Church Street, Suite 1024
Sanford, Florida 32771
Attn: Website Enquiries
Telephone (407) 774-2447
Fax: (407) 260-6275
California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at:
1625 North Market Blvd.
Sacramento, CA 95834
(916) 445-1254 or (800) 952-5210.
NO RECOMMENDATIONS OR ADVICE PROVIDED
Although information and User Content may be available through the Sites, you should not construe such information and content as expressing the opinions of or endorsement by Derive. You alone bear the responsibility of evaluating any information or content available on the Sites. In exchange for using such information or content, you hereby agree to release Derive from any claim and to not hold Derive liable for any possible claim for damages arising from any decision you may make based on information or content available on the Site.
You warrant to Derive that you will not attempt to gain unauthorized access to any services offered by Derive or computer systems or networks connected to any Derive server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Derive. When using the Site you agree not to pretend to be someone else or spoof their identity.
Derive controls this Site (excluding linked sites) from its offices in Sanford, Florida, United States of America, and makes no representation that any content contained in this Site is appropriate or available for use in other locations. Accessing this Site in locations where the use of such content is illegal is prohibited. By accessing this Site you agree that the statutes and laws of the State of Florida, notwithstanding any principles of conflicts of law, will apply to all matters relating to use of this Site and that if you use this Site from any other location you are responsible for compliance with applicable local laws. Any claim relating to this Site shall be litigated in the state and federal courts having jurisdiction in the State of Florida and you hereby consent to the jurisdiction and venue of those courts. If any part of these Terms is deemed unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this Site or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles herein are for convenience only and have no legal or contractual effect.
By using this Site, you agree that Derive, at its sole discretion, may require you to submit any disputes arising from the use of this Site, or these Terms concerning or, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance or termination, to final and binding arbitration under the International Rules of Arbitration of the American Arbitration Association, by one or more arbitrators appointed in accordance with the said Rules. Notwithstanding these rules, however, such proceeding shall be governed by the laws of the state as set forth in the previous section. Any award in an arbitration initiated under this clause shall be limited to monetary damages (as further limited herein) and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this section, except as may be required by statute.
You agree that you will not use this Site or any materials available herein for any unlawful activity, or use it in any way that would violate any of these Terms. When applicable, you further agree, as a condition of using this Site, to ensure that all of your agents, employees and independent contractors adhere to these Terms.
© 2016 Derive Systems, Inc. All rights reserved.