Terms and Conditions

Please read these Terms and Conditions (“Terms”) carefully before using the services offered by Company on engearment.com (“Website”). These Terms set forth the legally binding terms and conditions by which you (“User”) agree to be bound for use of the Website and the Service owned and operated by Company (collectively with the Website, the “Service”). By using the Website or Service in any manner, including but not limited to visiting or browsing the Website, User agrees to be bound by these Terms. These Terms applies to all Users of the Website or Service, including Users who are also contributors of content, information, and other materials or services on the Website.

1. Acceptance of Terms

A. Acceptance. The Service is offered subject to acceptance without modification of all of the Terms and conditions contained herein, which also incorporates the Privacy Policy available at engearment.com/privacy and all other operating rules, policies and procedures that may be published from time to time on the Website by Company, each of which is incorporated by reference and each of which may be updated by Company from time to time. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Company from time to time; User’s use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.

B. Ability to Contract. User represents and warrants that if User is an individual, User is of legal age to form a binding contract, and that all registration information User submits is accurate and truthful. Company may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.

C. Effectiveness. These Terms, when accepted by User after entering User’s full, legal name and checking the box to “acknowledge that you have read and agree to Engearment’s Terms and Conditions”, will create a binding and legally enforceable contract between User and Company, whether User is acting in an individual capacity or as the authorized representative or Agent for another individual, group, or corporation, in which case, “User” shall refer to the individual, group, or corporation on whose behalf User is acting and is authorized to act. If User enters anything other User’s full, legal name, User remains bound by these terms as outlined above.  Company suggests User consults with business or legal advisors before confirming these Terms.  The “Effective Date” of these Terms is the date on which User first checks the “I agree” box on any page on the Website.

2. Modification of Terms of Use

Company reserves the right, at its sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) from time to time and at any time by posting a notice on the Website or by sending User an email. Company may also impose limits on certain features and services or restrict User’s access to parts or all of the Service without notice or liability. It is User’s responsibility to check these Terms periodically for changes. User’s continued use of the Service following the posting of any changes to these Terms constitutes acceptance of those changes.  Company may update these Terms from time to time.  Company will attempt to keep User apprised of updates to these Terms.  It remains User’s responsibility, however, to be aware of the contents of these Terms upon use of the Website.

3. Rules and Conduct

As a condition of use, User promises not to use the Service for any purpose that is prohibited by these Terms. The Service is provided only for User’s own personal, non-commercial use (except with respect to Users performing duties as agents of others, as authorized through the Service). User is responsible for all of User’s activity in connection with the Service. For purposes of these Terms, the term “Content” includes, without limitation, any videos, audio clips, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Company or its partners on or through the Service.

Users shall not, and shall not permit any third party to, either (a) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service including, or (b) take any other action that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
  • is knowingly false, misleading, untruthful or inaccurate;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
  • involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
  • exploits people in a sexual or violent manner;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party;
  • impersonates any person or entity, including any employee or representative of Company;
  • imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure;
  • interferes or attempts to interfere with the proper working of the Service or any activities conducted on the Service;
  • bypasses any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
  • runs Maillist, Listserv, any form of auto-responder or “spam” on the Service;
  • uses unauthorized manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website.

User shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that User receives hereunder. User shall abide by all applicable local, state, national and international laws and regulations.

Company does not guarantee that any Content will be made available on the Website or through the Service. Company has no obligation to monitor the Website, Service, or Content. However, Company reserves the right to remove, edit or modify any Content, in its sole discretion, from the Website or Service at any time, without notice to User and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that User may have violated the Terms of Use), or for no reason at all.

4. Registration

Users may browse the Website and view Content without registering, but as a condition to using certain aspects of the Service, Users may be required to register with Company and select a password and screen name (“User ID”) to create an Account. Users shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of User’s Account. Users shall not (i) select or use as a User ID or domain a name of another person with the intent to impersonate that person; (ii) use as a User ID or domain a name subject to any rights of a person other than User without appropriate authorization; or (iii) use as a User ID or domain a name that is otherwise offensive, vulgar or obscene. Company reserves the right to refuse registration of, or cancel a User ID in its sole discretion.

Users are solely responsible for activity that occurs on User’s Account and shall be responsible for maintaining the confidentiality of User’s Company password.  Users shall never use another User’s Account without such other User’s express permission. User will immediately notify Company in writing of any unauthorized use of User’s Account, or other account-related security breach of which User becomes aware.

5. Mailing Lists

A. Newsletter Mailing List. Users may sign up for Company’s newsletter. By doing so, User gives Company permission to place User on a newsletter mailing list and to send User emails at the email address User uses to sign up for the newsletter. If User no longer wishes to receive the newsletter, User must unsubscribe using the unsubscribe button included at the bottom of each email.

B. Client Mailing List. By utilizing Service and providing User’s email address for contact regarding Service, User gives Company permission to place user on a client mailing list and to send User emails regarding Service including, but not limited to, any email necessary to provide Service and any email necessary to assess User satisfaction with Service.

6. Termination

Company may terminate User’s access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with User’s membership. If User wishes to terminate an Account, User may do so by sending an email to [email protected] with the subject line “Account Termination” and the following information included: (a)User’s username; and (b)the email address associated with User’s account. Any termination notice provided by User pursuant to this section shall be permanent and irreversible.  Any fees paid hereunder are non-refundable. All provisions of the Terms of Use which, by their nature, should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

7. Warranty Disclaimer

Company has no special relationship with or fiduciary duty to User. User acknowledges that Company has no control over, and no duty to take any action regarding: which Users gains access to the Website; what Content User accesses via the Website; what effects the Content may have on User; how User may interpret or use the Content; or what actions User may take as a result of having been exposed to the Content. User releases Company from all liability for User having acquired or not acquired Content through the Website. The Website may contain, or direct User to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Website, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Website or the Service.

The Service is provided “as is” and “as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. Company, and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the service will meet User’s requirements. User’s use of the service is solely at User’s own risk.

Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply.

Electronic Communications Privacy Act Notice (18USC 2701-2711): Company makes no guarantee of confidentiality or privacy of any communication or information transmitted on the Website or any website linked to the Website. Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment, transmitted over networks accessed by the Website, or otherwise connected with User’s use of the Service.

8. Force Majeure

Neither Company nor User shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under these Terms, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt notice, by mail, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

9. Limitation of Liability

In no event shall Company, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Service (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) one-hundred U.S. dollars ($100.00). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to User.

In cases in which Company is not the buyer or seller in any Transaction, if a dispute arises between one or more participants in a Transaction, User releases Company (and its affiliates, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If User is a California resident, User waives California civil code §1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” User, being aware of said code section, hereby expressly waives any rights User may have thereunder, as well as under any other statutes or common law principles of similar effect. User acknowledges and agrees that this waiver is an essential and material term of these Terms, and that without such waiver, these Terms would not have been entered into by Company.

In no event shall Company, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory if User suffers personal injury of any sort as a result of use of goods purchased through the Service.

10. Dispute Resolution

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. User and Company agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in The City and County of Denver, Colorado, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving real estate and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the District of Colorado. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.

11. Integration and Severability

The Terms of Use constitute the entire agreement between User and Company with respect to the Service and use of the Website, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between User and Company with respect to the Website. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

12. Terminology

Words importing a gender include any other gender. Words in the singular number include the plural and words in the plural number include the singular.

13. International/Non-Colorado Use

Company makes no representation that the Content is appropriate or available for use in locations outside of Colorado, and accessing the Service is prohibited from territories where such Content is illegal. If User accesses the Service from other locations, User does so at User’s own initiative and is responsible for compliance with local laws.

14. Miscellaneous

Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). The Terms of Use are personal to User, and are not assignable, transferable or sublicensable by User except with Company’s prior written consent or as defined by these Terms. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect.  All notices under the Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. The captions and headings in these Terms are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement.

15. Disclosure of Material Connection

Some of the links on Company’s website are “affiliate links.” This means if you click on the link and purchase the item, Company will receive an affiliate commission. Regardless, Company only recommends products or services it believes will add value to its readers. Copmany discloses this in accordance with the Federal Trade Commission’s 16 CFR, Part 255: “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”

16. Contact

User may contact Company at the following email address: [email protected]