TERMS OF USE

Last updated: October 22, 2021

Acceptance of Terms of Use

By accessing, browsing, and/or using www.scalablecommerce.com (the “Site”), you acknowledge that you have read, understand, and agree to be bound to the following Terms of Use (including the arbitration and class action waiver provisions below), the Site’s Privacy Policy , and to comply with all applicable laws and regulations. Scalable Commerce, LLC, its subsidiaries and affiliated companies, and each of their respective officers, directors, members, owners, employees, agents, and representatives are included in any reference to the “Site”, “Us”, and/or “We” herein.

THESE TERMS OF USE CONTAIN WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE READ THESE TERMS OF USE CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF USE, THEN PLEASE DO NOT USE THE SITE.

By using this Site, you represent that you are at least 18 years old and that you are legally able to agree to these Terms of Use.

Limitations on Use

The Site is based in the United States for use by United States residents, and may not be used by others or used outside of the United States. We may change, suspend, or discontinue all or any part of the Site, or deny you access to all or any part of the Site, without notice and without reason.

The Site hereby grants you a limited license to use the Site solely for your use subject to these Terms of Use. No other use of the Site is authorized, and the design and layout of the Site are specifically excluded from the above limited license. Framing of the Site is strictly prohibited.

You are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; or (d) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used to provide the Site. Any violation of system or network security may subject you to civil and/or criminal liability.

By accessing the Site, you agree that you will not:

use the Site for any unlawful purpose, impersonate any person or entity, or misrepresent your affiliation with a person or entity;
decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Site;
obscure, block, or interfere with any advertisements or safety features on the Site;
circumvent, remove, alter, degrade, or thwart any protections in the Site;
engage in systematic or automated access to or any extraction of content from the Site, including but not limited to through the use of “bots,” “spiders,” or “scraping” technology within a browser or browser-like program;
take any action that imposes or may impose (in Our discretion) an unreasonable load on Our technical infrastructure;
interfere with the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means; or
reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the text, images and/or information received through the Site to anyone without Our express prior written consent.

We do not guarantee that the Site will be accessible or available, and provide the Site on an as-is basis. We reserve the right, without notice and in Our sole discretion at any time, to terminate your right to access and use the Site, and to block or prevent future access to and use of the Site.

Privacy Policy

All personal data that you provide to Us via this Site is subject to Our Privacy Policy located at https://www.scalablecommerce.com/privacy.html , which is expressly incorporated into these Terms of Use by reference. Additional information for California residents is provided in the “California Residents – Your Privacy Rights” section of Our Privacy Policy.

Intellectual Property

The Site contains intellectual property owned by Us, including but not limited to any trademarks displayed on the Site. Except for the limited license granted above, nothing contained herein shall be construed as conferring to you in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of the Site or any third party (including any trademarks). You are prohibited from using these trademarks for any purpose without written permission. All right, title, and interest in the Site and any content contained herein is Our exclusive property, except as otherwise stated.

Disclaimer; Limitation of Liability

THIS SITE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PROVIDED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THERE SHALL BE NO LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, AND/OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM OR ARISING IN CONNECTION WITH YOUR ACCESS TO, INABILITY TO ACCESS, OR USE OF THE SITE, OR FROM YOUR RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SITE, EVEN IF THE SITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND ANY OTHER TORT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Indemnification

You hereby agreed to indemnify, defend, and hold harmless the Site, its parent, subsidiary, and affiliated companies, and each of their respective officers, directors, members, owners, employees, agents, representatives, and affiliates (collectively, the “Indemnified Parties”) from and against any and all liability and costs, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of or related to your breach of these Terms of Use. You shall cooperate as fully as reasonably required in defense of any such claim. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and You shall not in any event settle any matter without Our written consent.

Enforcement

In the event that We determine, in Our sole discretion, that you have violated these Terms of Use, We shall have the right to immediately terminate your use of the Site, in addition to electing to pursue any other remedies available to Us under applicable law.

Choice of Law

The law of the State of California without regard to any conflicts of law provisions, shall govern your use of the Site, the validity and construction of these Terms of Use and the Privacy Policy, and the interpretation of the rights and duties arising under such. Our failure to exercise or delay in enforcing any of our rights shall not constitute a waiver of such rights.

Arbitration

Except as otherwise provided by applicable law, any and all controversies and disputes arising out of or related to use of the Site, these Terms of Use, and the Privacy Policy shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be a location reasonably convenient to you. Arbitration hereunder shall be conducted by one neutral arbitrator appointed by the AAA. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to this arbitration clause. Any disputes, including any threshold disagreement about the arbitrability of any claim, shall be delegated to the arbitrator (and not a court). In no event shall the arbitrator have any authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator shall not determine or award any alternative allocation of costs and expenses, including any attorneys’ fees, unless a statute specifically authorized such an award. The parties’ respective responsibilities to pay any AAA filing, administrative, and arbitrator fees will be solely in accordance with the AAA Rules. Except as otherwise provided herein and irrespective of the outcome of arbitration, each party shall bear its own costs and expenses, including its own attorneys’ fees. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. You agree and submit to the personal jurisdiction and venue of any such court of competent jurisdiction. In the event that this arbitration clause is deemed to be invalid or otherwise unenforceable or illegal, the remaining terms contained in these Terms of Use shall remain in full force and effect, including the waiver of the right to proceed in a class action. THE PARTIES UNDERSTAND THEY WILL NOT HAVE THE RIGHT TO A TRIAL BY A COURT OR A JURY AND THAT THE INFORMATION THAT CAN BE OBTAINED IN DISCOVERY FROM EACH OTHER OR FROM THIRD PERSONS IN ARBITRATION IS GENERALLY MORE LIMITED THAN IN A LAWSUIT. IN ADDITION, OTHER RIGHTS THAT THE PARTIES WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU SHALL HAVE THIRTY (30) DAYS TO OPT OUT OF THIS ARBITRATION SECTION. AFTER THIRTY (30) DAYS, THE TERMS OF THIS SECTION HEREBY BECOME FINAL AND BINDING.

Class Action Waiver and Limitation

EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES AGREE TO WAIVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CONSOLIDATED OR CLASS ACTION OR CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY AND AGREE THAT ALL FORMS OF CONSOLIDATED OR CLASS ACTION, CLASS WIDE ARBITRATION, AND CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY ARE EXPRESSLY PROHIBITED. YOU SHALL HAVE THIRTY (30) DAYS TO OPT OUT OF THIS CLASS ACTION WAIVER SECTION. AFTER THIRTY (30) DAYS, THE TERMS OF THIS SECTION HEREBY BECOME FINAL AND BINDING. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site and/or these Terms of Use must be brought within one (1) year after such claim or cause of action arose or be forever barred.

Severability; Waiver

If for whatever reason, any term or condition in these Terms of Use is determined to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

Updates

These Terms of Use were published and last updated on the date noted above. We may update these Terms of Use at any time in Our sole discretion by updating this posting, without specific notice to you, so please review them periodically. Any changes will become effective when posted on the Site, and your continued use of the Site constitutes your agreement. However, any amendment or modification to the arbitration provisions, prohibition on class actions provisions or any other provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification.

Contact Us

To contact Us with any inquiries, including any regarding these Terms of Use, you may contact Us via email at [email protected], or by mail at 3905 State Street Suite 7-228, Santa Barbara, CA 93105.