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1.
INTRODUCTION.
Welcome to the web site (“Site”) for
Capacity Energy Solutions, LLC. (“Capacity Energy Solutions”, ” Capacity Energy” or the “Company”
).
2. ACCESS TO THE SITE.
BY ACCESSING, BROWSING AND/OR USING THE SITE,
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND
AGREED TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE
(”TERMS AND CONDITIONS OF USE”) INCLUDING THE PRIVACY
POLICY (”PRIVACY POLICY”) (COLLECTIVELY THE “TERMS”) AND
TO COMPLY WITH ALL APPLICABLE U.S. LAWS AND REGULATIONS.
In addition, you hereby represent and certify that you
are at least eighteen (18) years of age. If you do not
or cannot agree to the Terms, you are not authorized to
use the Site or any of the services offered through the
Site. The Company reserves the right, in its sole
discretion, to update, revise, supplement and to
otherwise modify these Terms, and to impose new or
additional terms and conditions on your use of the Site
from time to time. Such updates, revisions, supplements,
modifications and additional rules, policies, terms and
conditions (collectively referred to in these Terms as
“Additional Terms”) shall be effective
immediately and incorporated into these Terms upon
notice thereof, which may be given by any reasonable
means including by posting to the Site. Your continued
viewing or use of the Site following such notice shall
be deemed to conclusively indicate your acceptance of
any and all such Additional Terms.
3. ACCEPTABLE USE OF THE SITE.
In order to use the Site, you must obtain access to the
Internet and pay any and all service fees associated
with such access.
(a) Individual Use. You agree that you
are only authorized to visit, view and to retain a
single copy of pages of the Site for your own internal
use and not on behalf of any other person or entities,
and that you shall not duplicate, download, publish,
modify or otherwise distribute any material on the Site
for any purpose other than for your own internal use
unless otherwise specifically authorized by Company in
writing. Company posts legal notices and various credits
on pages of the Site, which you shall not remove even in
your permitted copies.
(b) Deep Links; Linking. You agree not
to “deep-link” to the Site, meaning that you shall not
create, post, display, publish or distribute any link to
any page other than the front (home) page of the Site
for any purpose, unless specifically authorized by
Company in writing to do so. If you do want to link to
the Site in any manner, you may contact the Company
Webmaster at sales@capacityes.com
to seek approval.
(c) Framing. You agree not to create any frames
at any other web sites pertaining to or using any of the
content located at the Site for any purpose, unless
specifically authorized by Company in writing to do so.
(d) Security, Cracking and Hacking. You are
prohibited from violating or attempting to violate the
security of the Site. Accordingly, you agree not to: (i)
access data or materials not intended for you; (ii) log
into a server or account which you are not authorized to
access; (iii) attempt to probe, scan or test the
vulnerability of a system or network or to breach
security or authentication measures without proper
authorization; or (iv) attempt to interfere with service
to any user, host or network, including without
limitation, by means of submitting a virus to the Site,
overloading, “flooding”, “mailbombing” or “crashing” the
Site. Violations of system or network security may
result in civil or criminal liability. Company reserves
the right to investigate occurrences which may involve
such violations and may involve, and cooperate with, law
enforcement authorities in prosecuting users who have
participated in such violations. You understand that
data and communications, including e-mail and other
electronic communications, may be accessed by
unauthorized third parties when communicated over the
Internet.
(e) You Are Responsible For All of Your Activities and
All of The Content You Post or Submit. You
represent and warrant that any information and/or
material you post or provide to Company by means of the
Site, including, without limitation, as part of any
registration or subscription or to gain access to or use
any services offered on the Site (”Submissions”), is
truthful, accurate, not misleading, not confidential
property of others, not in violation of any other third
party’s rights and offered in good faith. You agree NOT
to use the Site for or in connection with any of the
following activities: (i) transmitting or relaying spam,
spoofing or otherwise impersonating any person or
entity, or falsely stating or otherwise misrepresenting
your identity or affiliation in any way; (ii) using the
Site for any fraudulent or illegal purpose; (iii)
e-mailing, uploading, or otherwise transmitting or using
the Site in furtherance of the use, distribution or
transmission of any unlawful, harassing, defamatory,
tortious, libelous, sexually explicit, obscene, hateful,
racially, ethnically or otherwise objectionable material
of any kind; and (iv) transmitting material that
contains viruses, Trojan horses, worms, time bombs,
cancelbots or other computer programming routines or
engines that are intended to damage, destroy, disrupt or
otherwise impair a computer’s functionality or the
operation of the Site.
(f) Information Disclosed via the Site. IN
ADDITION TO ANY OTHER WARRANTY DISCLAIMER PROVIDED IN
THE TERMS, ANY INFORMATION DISCLOSED TO YOU VIA THE SITE
INCLUDING, WITHOUT LIMITATION, ANY CONTENT, HEALTHCARE
PROFESSIONAL RECOMMENDATIONS, PRODUCT RECOMMENDATIONS,
PRODUCT DESCRIPTIONS, PRODUCT SAFETY AND/OR
EFFECTIVENESS MATERIALS, ARE NOT OFFERED WITH ANY
WARRANTY OR REPRESENTATION AS TO ABILITY, ACCURACY,
PERFORMANCE OR SUITABILITY FOR YOUR INTENDED PURPOSE OR
COMPLIANCE WITH APPLICABLE LAW. ASSUMES NO
RESPONSIBILITY, AND DISCLAIMS ANY LIABILITY FOR, ANY
ILLNESS OR INJURY RESULTING FROM USING ANY PRODUCTS OR
FOLLOWING ANY ADVICE CONTAINED ON THIS SITE. YOU
ACKNOWLEDGE AND AGREE THAT USE OF ANY DIETARY SUPPLEMENT
PRODUCT INVOLVES UNFORESEEABLE RISKS AND UNCERTAINTIES,
INCLUDING, WITHOUT LIMITATION, THE RISKS OF: (A)
INDIVIDUAL’S BIOLOGICAL VARIATION AND RESPONSE TO
HERBAL/BOTANICAL PRODUCTS; (B) PRODUCT INTERACTIONS WITH
OTHER HERBAL AND DRUG INGREDIENTS; AND (C) OTHER HEALTH
RISKS AND UNCERTAINTIES.
(g) Do Not Violate Third Party Intellectual
Property Rights. Without limiting the
foregoing, you shall not, and by using the Site you
agree not to, use the Site to: (i) transmit or post any
Submissions that are copyrighted, unless you are the
copyright owner or have obtained the permission of the
copyright owner to transmit it; (ii) transmit or post
any Submissions that reveal trade secrets, unless you
own them or have the permission of the owner to so
transmit them; or (iii) transmit or post any Submissions
that infringe on any Intellectual Property Rights (as
defined below) of others or violates the privacy or
rights of publicity of others. Furthermore, unless
otherwise expressly provided, you acknowledge and agree
that: (a) all Submissions shall become property of
Company; (b) Company has the right to publish the
Submissions for any type of use including for
promotional and advertising purposes, in accordance with
the terms set forth in the Privacy Policy, without
compensation to you of any kind; (c) any Submissions
that you submit to any part of the Site are
non-confidential for all purposes; and (d) that if you
make any such Submission, you automatically grant,
represent and warrant that the owner of such content has
expressly granted Company a royalty-free, perpetual,
irrevocable, world-wide exclusive license to use the
Submissions in any manner, media or form now known or
hereafter developed. Company shall have the right to
sublicense its rights. The term “Intellectual Property
Rights” shall mean, collectively, rights under patent,
trademark, copyright and trade secret laws, and any
other intellectual property or proprietary rights
recognized in any country or jurisdiction worldwide,
including, without limitation, moral rights and similar
rights.
(h) Ownership. Company puts a lot of
content on the Site for you to examine from time to time
including, without limitation, text, graphics,
photographs, pictures, drawings, animation, audio,
video, literature and any other material distributed by
Company on, through or in connection with the Site.
Moreover, Company attempts to display the content in a
way that will be easily accessible and useful for you,
the user. All content and materials on the Site
including, without limitation, text, graphics, logos,
button icons, images, audio clips and software included
in the Site and any services offered on the Site, are
the property of Company, its sponsors or business
affiliates, and/or their respective licensors, and are
subject to U.S. and international Intellectual Property
Rights laws. The compilation of all content on the Site
is the exclusive property of Company and is protected by
U.S. and international copyright laws. All software used
on the Site is the property of Company or its licensors
and is subject to U.S. and international copyright laws.
Except to the minimum extent otherwise expressly
permitted under copyright law, no copying or
exploitation of material from the Site is permitted
except expressly in accordance with these Terms or with
the express written permission of Company and any other
applicable copyright owner. You acknowledge that you do
not acquire any ownership rights by virtue of
downloading copyrighted material from the Site. All
rights not expressly granted hereunder are expressly
reserved to Company
4. WARRANTY DISCLAIMER.
THE CONTENT, SERVICES, INFORMATION AND ACCESS TO THE
SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY
AND NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT ANY
PART OF THE SITE WILL OPERATE UNINTERRUPTED OR
ERROR?FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE
SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT TRANSMISSION
TO OR FROM THE SITE AND ACCESS TO THE SITE WILL BE
UNINTERRUPTED, CONTINUOUS OR ERROR-FREE. COMPANY DOES
NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE
USE OR THE RESULTS OF THE USE OF THE SITE IN TERMS OF
ITS QUALITY, CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE. YOU SHOULD THEREFORE VERIFY ANY INFORMATION
OBTAINED FROM THE SITE BEFORE ACTING ON IT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, COMPANY
EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY,
CONTENT, AVAILABILITY OF INFORMATION, PRODUCTS, SERVICES
OR MERCHANDISE FOUND ON THIRD PARTY SITES THAT LINK TO
OR FROM THE SITE. COMPANY DISCLAIMS ANY RESPONSIBILITY
FOR PRODUCT OR SERVICE ORDERING FUNCTIONS, ORDER
FULFILLMENT OR COMPLIANCE OF PRODUCTS OR SERVICES WITH
ANY MANUFACTURER’S WARRANTIES OR SPECIFICATIONS. COMPANY
CANNOT BE HELD RESPONSIBLE FOR THE MATERIAL CONTAINED ON
THIRD PARTY SITES AND/OR RELATED SERVICES NOR DOES
COMPANY MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE
SECURITY OF ANY INFORMATION YOU MIGHT BE REQUESTED TO
GIVE TO THIRD PARTY SITES.
5. LIMITATION OF LIABILITY.
YOUR USE OF THE SITE IS AT YOUR OWN RISK. TO THE
FURTHEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES
INCLUDING, WITHOUT LIMITATION, COMPANY NEGLIGENCE, SHALL
COMPANY, ITS AFFILIATES, RELATED ENTITIES, VENDORS OR
CONTENT PROVIDERS, BE RESPONSIBLE OR LIABLE FOR ANY
DAMAGES INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL,
INDIRECT, PUNITIVE, CONSEQUENTIAL, EXEMPLARY AND/OR
INCIDENTAL DAMAGES THAT RESULT FROM YOUR USE OR
INABILITY TO USE THE SITE, ANY CONTENT AND/OR ANY
RELATED SOFTWARE, EVEN IF COMPANY OR AN AUTHORIZED
COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING
ELSE CONTAINED IN THESE TERMS, IN THE EVENT THE TERMS OF
THIS SECTION, OR ANY PART OF THIS SECTION, SHALL BE HELD
INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, IN NO EVENT SHALL COMPANY’S TOTAL
LIABILITY TO YOU, OR ANYONE CLAIMING BY OR THROUGH YOU,
FOR ANY DAMAGES, LOSSES, CLAIMS AND/OR CAUSES OF ACTION,
WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE
EXCEED ONE HUNDRED DOLLARS ($100).
6. INDEMNIFICATION.
You shall indemnify, defend and hold harmless Company
and its sponsors, business affiliates, vendors, content
providers, subsidiaries, related entities, affiliates,
officers, directors, employees, attorneys and agents,
from and against any and all damages, claims and actions
brought by you or any third party resulting from your
use of the site in violation of these terms or the
infringement by you of any intellectual property rights
of any person or entity.
7. GOVERNING LAW AND ARBITRATION.
The laws of the State of Ohio (excluding any
principles of conflicts of laws) govern your use of the
Site, the services and these Terms. You agree that the
parties shall settle any claim or dispute relating to
these Terms by binding arbitration in Melbourne, FL
under the Commercial Arbitration Rules of the American
Arbitration Association. To the fullest extent permitted
by applicable law, no arbitration under these Terms
shall be joined to an arbitration involving any other
party subject to these Terms, whether through class
arbitration proceedings or otherwise. NOTWITHSTANDING
THE DISPUTE RESOLUTION REQUIREMENTS SET FORTH ABOVE, FOR
ANY INJUNCTIVE RELIEF RELATING TO YOUR ACCESS TO, OR USE
OF, THE SITE INCLUDING, WITHOUT LIMITATION, RELATED
SERVICES, YOU AGREE AND HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION AND VENUE OF THE APPROPRIATE STATE OR
FEDERAL COURTS LOCATED IN CINCINNATI, OHIO, U.S.A.
8. WAIVER AND SEVERABILITY.
Furthermore, no delay or omission by Company to
exercise any right or any noncompliance on your part
with respect to the Terms shall impair any such right or
be construed to be a waiver by Company. If any provision
of the Terms is found by a court of competent
jurisdiction to be invalid or unenforceable in whole or
in part, such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the
validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any
jurisdiction, provided, however, if such invalid or
unenforceable provision may be modified so as to be
valid and enforceable as a matter of law, such provision
will be deemed to have been modified so as to be valid
and enforceable to the maximum extent permitted by law.
9. CONTRACT ELECTRONICALLY.
You agree that the Terms, combined with your act of
using the Site and/or the services offered on or through
the Site have the same legal force and effect as a
written contract with your written signature and satisfy
any laws that require a writing or signature, including
any applicable Statute of Frauds. You further agree that
you shall not challenge the validity, enforceability or
admissibility of the Terms on the grounds that it was
electronically transmitted or authorized. In addition,
you acknowledge that you have had the opportunity to
print the Terms.
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