INTELLECTUAL PROPERTY OWNERSHIP
Any and all intellectual property rights associated with the Dave's Discount Auto Parts and the text, software, music, sound, photographs, video, graphics, domain names, URL's, advertisements, commercially produced information, and other materials contained on the Dave's Discount Auto Parts, including without limitation any inventive concepts, know-how, publicity rights, trademarks, trade-dress, trade secrets, copyrights and patents (Intellectual Property), are the sole property of Automotive Distribution Network (The Network) or its third party licensors, and, except as provided in this Agreement, may not be copied, reproduced, modified, uploaded, downloaded, transmitted, or distributed in any way. Except as provided in this Agreement, The Network does not grant to you any express or implied rights to The Network's or any third party's Intellectual Property. The The Network Intellectual Property is protected by copyright, trade secret, and other intellectual property laws and by international treaties, all of which provide rights and obligations that are supplemental to the rights and obligations set forth in this Agreement.
USE OF The Network CONTENT
You understand and agree that you are permitted to use The Network content only as expressly authorized by The Network or its third party licensors, as applicable. You may download, view, copy and print The Network Content, subject to the following: (a) the The Network content may be used solely for personal, informational, non-commercial purposes; (b) proprietary rights notices may not be removed or altered; and (c) the The Network content may not be modified or altered in any way.
All The Network graphics, logos, page headers, button icons, scripts, commercial markings and service names are registered trademarks, trademarks or trade dress of The Network. The Network's trademarks and trade dress may not be used in connection with any product or service that is not The Network's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits The Network. All other trademarks not owned by The Network that appear on the The Network Sponsored Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Network.
LINKS TO OR COMMUNICATIONS WITH THIRD PARTY WEB SITES AND SERVICES
Any links, including click-through and other advertisements and promotions, on the Dave's Discount Auto Parts to third party web sites or resources are provided solely for your convenience. By clicking on any link to a third party web site you acknowledge and agree that, unless expressly stated otherwise: (1) you will be leaving the Dave's Discount Auto Parts; (2) The Network has not reviewed, does not monitor, and has no control over the content, advertising, order fulfillment, billing, customer service, products, or availability of any third party web sites or resources, and you bear all risks associated with the use of third party web sites or resources; and (3) The Network is not responsible or liable, directly or indirectly, for any loss or damage of any sort incurred or alleged to be caused by or in connection with your use of or reliance on any content, products, or services available on third party web sites or resources, or for your purchase of products from third party web sites whose products may also be offered through the Dave's Discount Auto Parts.
PERSONALLY IDENTIFIABLE INFORMATION
IDEA SUBMISSION POLICY
The Network will not accept or consider unsolicited ideas, including without limitation ideas for new products, services, advertising campaigns, promotions, technologies, processes, materials, marketing plans, or product names. The purpose of this policy is to avoid potential misunderstandings or disputes when The Network products or services (collectively, The Network Products) might seem similar to ideas submitted to The Network. Please do not send your unsolicited ideas or any original materials (e.g., creative artwork, samples, demos, or other works) to The Network or anyone at The Network. If, despite this request, you still send us your ideas and materials, please understand that The Network will not treat your ideas or materials as confidential or proprietary.
In consideration of your use of the Dave's Discount Auto Parts, you understand and agree that you are solely and entirely responsible for any and all activities that occur under your account. You agree to immediately notify The Network of any unauthorized use of your account or any other breach of security of which you are aware.
You agree not to:
(a) upload, download or transmit via the Dave's Discount Auto Parts any User Materials that are offensive, vulgar, profane, obscene, sexually explicit, pornographic, inflammatory, harassing, excessively violent, threatening, tortuous, invasive of another's privacy or publicity rights, abusive, hateful, libelous or defamatory, plagiarized, harmful to minors, racially, ethnically, or otherwise objectionable in any way, infringe any patent, trademark, copyright, rights of publicity, or other intellectual property right, would constitute or encourage a criminal offense, violate the rights of any party, would otherwise give rise to criminal or civil liability or violate any local, state, national, or international law, contain direct links (by a single click) to web sites that contain information of the kind described in this section, or constitute unsolicited promotions, advertising materials, "spam," chain-letters, or other such solicitation;
(b) use the Dave's Discount Auto Parts to publicly broadcast, transmit, or display User Materials for "pay-per-download" or other commercial purposes, or which include a virus, worm, Trojan-horse, sniffer, or other code designed to acquire information about other users or disrupt the functionality or availability of any computer program, database, the Dave's Discount Auto Parts or any Internet host;
(c) disguise your identity by spoofing, forging headers, using third-party relays, or otherwise obscuring the origin of transmitted User Materials including impersonating another person or entity;
(d) disrupt or interfere with the security of, or otherwise abuse, the Dave's Discount Auto Parts, or any services, system resources, accounts, servers or networks connected to or accessible through the Dave's Discount Auto Parts or affiliated or linked services, or use any device or software designed to circumvent technological measures employed to control access to the SophioSoft.com Site or products made available on the Dave's Discount Auto Parts;
(e) harvest or otherwise collect information about others, including e-mail addresses, without their express consent;
(f) sublicense, lease, rent, sell, resell, or otherwise transfer rights to the Dave's Discount Auto Parts or exploit for any commercial purposes any use of the Dave's Discount Auto Parts;
(g) modify, translate, decompile, reverse-engineer, disassemble, or create derivative works based on the Dave's Discount Auto Parts, or bypass the Dave's Discount Auto Parts and directly access any individual components of or products that are included in the Dave's Discount Auto Parts; or
(h) alter or remove any copyright, trademark, logo, symbol, or proprietary or other legal notices displayed on the Dave's Discount Auto Parts or in The Network Content printed or downloaded through the Dave's Discount Auto Parts, or contained in or included with products or services received through the Dave's Discount Auto Parts.
NO OTHER WARRANTIES
EXCEPT AS PROVIDED IN THE LIMITED WARRANTY IN THIS AGREEMENT AND ANY APPLICABLE AND END USER LICENSE AGREEMENT, THE SOPHIO SOFTWARE AND PRODUCTS OFFERED THROUGH THE Dave's Discount Auto Parts UNDER THIS AGREEMENT ARE PROVIDED "AS-IS" AND "AS-AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. The Network DOES NOT AUTHORIZE ANYONE TO MAKE WARRANTIES ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. The Network AND ITS VENDORS AND SERVICE PROVIDERS DO NOT WARRANT THAT YOUR USE OF THE The Network SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE. The Network AND ITS VENDORS AND SERVICE PROVIDERS DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY CONTENT, OR (B) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR THE The Network SOFTWARE OBTAINED FROM The Network OR A THIRD PARTY SOURCE OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW. YOU UNDERSTAND AND AGREE THAT ANY The Network CONTENT AND/OR MATERIAL DOWNLOADED, UPLOADED, STORED OR TRANSMITTED BY YOU THROUGH USE OF THE The Network SOFTWARE IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM THE DOWNLOAD, UPLOAD, STORAGE AND/OR TRANSMISSION OF SUCH CONTENT AND/OR MATERIAL. YOU UNDERSTAND AND AGREE THAT ANY THIRD PARTY PRODUCTS OR SERVICES PURCHASED THROUGH USE OF THE Dave's Discount Auto Parts ARE GOVERNED SOLELY BY THE THIRD PARTY'S TERMS AND CONDITIONS AND APPLICABLE END USER LICENSE AGREEMENTS, AND The Network HAS NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES. SOME JURISDICTIONS DO NOT ALLOW OR OTHERWISE GOVERN THE SCOPE OF EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN FULL.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL The Network, ITS LICENSORS, VENDORS, SERVICE PROVIDERS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF CONTENT, AND LOSS OR INACCURACY OF INFORMATION), ARISING OUT OF YOUR USE, OR INABILITY TO USE, THE The Network SOFTWARE, THE PRODUCTS OFFERED THROUGH THE The Network SOFTWARE WEBSITE, INCLUDING WITHOUT LIMITATION THE The Network PRODUCTS OR ANY THIRD PARTY PRODUCTS OR SERVICES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF The Network WAS ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OR MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (e.g., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, BODILY INJURY, PROPERTY DAMAGE, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. The Network CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE Dave's Discount Auto Parts. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF SOPHIO FOR DAMAGES WILL NOT EXCEED, IN THE AGGREGATE, $100.00.
You agree to indemnify and hold The Network and its suppliers, licensors, vendors, service providers, subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the The Network software, and User Materials you submit, transmit, store, upload or download through the SophioSoft.com Site, any product received by you through the Dave's Discount Auto Parts, or any violation of this Agreement or the rights of others.
COPYRIGHT POLICY - NOTICE TO The Network REGARDING ALLEGED COPYRIGHT INFRINGEMENT
The Network respects the Intellectual Property rights of others, and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (DMCA), The Network has designated an agent to receive notifications of alleged copyright infringement associated with the Dave's Discount Auto Parts. The Network will, upon receiving proper notice as set forth below, use commercially reasonable efforts to remove or disable access to any such material as set forth in the DMCA.
When notifying us of the alleged copyright infringement, please include all of the following information:
a) A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
b) Identification of the copyrighted work claimed to have been infringed;
c) Identification of the material that is claimed to be infringing and information reasonably sufficient to locate the material;
d) Information reasonably sufficient to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
e) A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f) A statement that the information in the notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Network reserves the right to terminate your use of the Dave's Discount Auto Parts for any actual or alleged copyright infringement.
All notices to a party shall be in writing and shall be made via e-mail to email@example.com for notices to Dave's Discount Auto Parts, or to the e-mail address that you provide to Dave's Discount Auto Parts as part of your Customer Information for notices to you, or such other address as either party may specify. Notice shall be deemed given 48 hours after the e-mail is sent, unless the sending party is notified that the e-mail address is invalid. The Network may also broadcast notices or messages, or other matters of importance, on this web site; such broadcasts will constitute notice to you.
You may not export from the United States or allow the export or re-export of any part of the SophioSoft.com Site or products obtained via the SophioSoft.com Site, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or applicable foreign agency or authority. You agree to defend and indemnify SOPHIO from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of any claim that the SophioSoft.com Site, or any product or other information or materials obtained from SOPHIO were exported or otherwise accessed, shipped or transported in violation of this Section and all applicable laws and regulations.
Entire Agreement. This Agreement (and any additions or modifications to this Agreement mutually agreed to in writing by the parties), and any applicable End User License Agreement(s), shall constitute the entire agreement and understanding between you and The Network with respect to the Dave's Discount Auto Parts and purchases made via the E-Store. While The Network reserves the right to modify this Agreement at any time, the terms and conditions contained in this Agreement may not be modified by you unless both you and an authorized representative of The Network execute a separate written agreement.
Severability. If any provision of this Agreement is held to be unenforceable for any reason, that provision will be reformed only to the extent necessary to make it enforceable, and that determination will not affect the enforceability of the provision at issue or of the remaining provisions of this Agreement.
Applicable Law. This agreement is subject to applicable United States federal laws and federal and state tariffs, if any, and the laws of the State of Florida, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts residing in the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.
Assignment. The Network may assign its rights and duties under this Agreement without the assignment being considered a change to the Agreement and without notice to you. We are then released from all liability. You may not assign this Agreement without the prior written consent of The Network. All rights and obligations under this Agreement will bind and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns.
The Network E-STORE
The following provisions specifically relate to the b2c portion of the Dave's Discount Auto Parts. All other provisions of this Agreement apply to the b2c as well:
Your receipt of an electronic or other form of order confirmation does not constitute The Network's acceptance of your order for products or services offered through the Dave's Discount Auto Parts, nor does it constitute confirmation of The Network's offer to sell you a particular product or service. The Network reserves the right at any time after receipt of your order to accept, decline, or limit your order for any reason. Your credit card will not be charged until The Network has accepted your order and prepared your order for shipment or for download. All orders placed over $2000.00 (U.S.) must obtain pre-approval with an acceptable method of payment, as established by our credit and fraud avoidance department. We may require additional verifications or information before accepting any order. Price and availability of products and services offered through the Dave's Discount Auto Parts are subject to change without prior notice. To the extent we provide information on the availability of The Network Products or products and services provided by third party vendors, suppliers, publishers, and manufacturers (collectively Third Party Products), we attempt to be as accurate as possible. However, The Network does not warrant that product descriptions, product availability or other information on the Dave's Discount Auto Parts is accurate, complete, reliable, current, or error-free. AND will not be liable for any lack of availability of The Network Products or Third Party Products you may order through the Dave's Discount Auto Parts. If your purchase order or any other communication with The Network contains provisions inconsistent with this Agreement, this Agreement will prevail.
Information regarding shipping and handling, discounts, returns, and other customer services for all products offered through the Dave's Discount Auto Parts will be as set forth in the "FAQ" section of the E-Store.
If you would like a receipt for any product or service ordered through the Dave's Discount Auto Parts, you must: (1) send an e-mail to firstname.lastname@example.org; and (2) enter your e-mail address and the date of purchase. You will then receive an e-mail from email@example.com with your receipt.
The purchase area of the b2c is designed to be secure. This means that any information you send us is protected by encryption. All messages are sent in an encrypted "digital envelope" and authenticated to verify the identity of both the sender and the receiver of the transaction. However, no connection to the Internet is completely secure. If you experience fraudulent use of your credit card as a result of shopping with The Network, notify your credit card company in accordance with its reporting rules and procedures. Most companies will either cover all of the fraudulent purchases or hold you liable for a maximum of $50. Should your credit card company discover credit card fraud and hold you liable for some portion of the unauthorized charges, and provided the purchase was made through our secure server, The Network will reimburse you for the maximum liability of $50. You can always order products or services by telephone or fax. Call us at 1-603-436-6868.
The Network offers through the b2c both The Network Products and Third Party Products. Certain The Network Products and Third Party Products may be subject to End User License Agreements in addition to this Agreement. In the event of a conflict between any provision of an The Network End User License Agreement and this Agreement, the provision of the The Network End User License Agreement will control as to the particular conflicting provision.
The Network Products: During the period within thirty (30) days after you download a The Network Product or within thirty (30) days after you receive a The Network Product if the product is shipped to you rather than downloaded (Warranty Period), The Network will, at The Network's sole option and without charge, replace the The Network Product if it fails to conform to the product's accompanying documentation in effect at the time of shipment or download, or refund the purchase price of the The Network Product, provided that The Network will not have any liability whatsoever for any damage to or defect in a The Network Product resulting directly or indirectly from your abuse or misuse of the product. For you to receive the benefit of this limited warranty, the following must occur: (1) you must notify The Network of your claim of an alleged defect or nonconformity within the Warranty Period; (2) you must return any The Network Product to Dave's Discount Auto Parts (if the product was shipped), or certify in writing to Dave's Discount Auto Parts that the product has been destroyed (if the product was downloaded); and (3) The Network must determine that the The Network Product is defective or nonconforming. If the The Network Product has been shipped to you and the package is unopened, you may return the The Network Product to The Network, at your expense, any time within the Warranty Period for a refund of the purchase price.
Third Party Products: All Third Party Products ordered through the b2c are subject to the terms and conditions of the End User License Agreement between you and the third party vendor (Third Party) (if any), and any other Third Party policies and procedures. All warranties, maintenance, updates, liabilities or other obligations related to Third Party Products will be provided for by the Third Party, and The Network will not be responsible for any Third Party Products, except that The Network will coordinate returns of Third Party Products to Third Parties in accordance with the customer service policies set forth in the FAQ.
Prices listed through the Dave's Discount Auto Parts do not include any tax or other governmental charge or assessment on the sale, shipment, download, or use of any products sold to you. Such taxes and charges, when applicable, may appear as separate additional charges. You will be solely responsible for, and will pay to Dave's Discount Auto Parts upon demand, any such tax, charge or assessment, unless you have furnished to The Network an appropriate valid certificate of exemption issued by or acceptable to the tax authority in question.
MODIFICATIONS TO AGREEMENT OR Dave's Discount Auto Parts
Acknowledgment. You acknowledge that (i) you have read and understand this Agreement; and (ii) the Agreement has the same force and effect as a signed agreementů