BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Subject to Your compliance with the terms and conditions of this Agreement, ECOtanka grants You a non-exclusive, non-sub licensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. THE WEBSITE, OR ANY PORTION OF THE WEBSITE, MAY NOT BE REPRODUCED, DUPLICATED, COPIED, MODIFIED, SOLD, RESOLD, DISTRIBUTED, VISITED, OR OTHERWISE EXPLOITED FOR ANY COMMERCIAL PURPOSE WITHOUT THE EXPRESS WRITTEN CONSENT OF ECOTANKA. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of ECOtanka or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
6. PASSWORD PROTECTION
In connection with Your use of certain Services, You may be asked to provide, or may be given, a user name and password. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other Member at any time. You agree to notify ECOtanka immediately of any unauthorized use of Your account, user name, or password. ECOtanka shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by ECOtanka, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password. You must also promptly notify ECOtanka if any credit/debit card that You have provided to ECOtanka is lost, stolen or used without permission.
7. CONSENT TO BE CONTACTED BY ECOTANKA
By registering with the Website, You thereby consent to receive periodic email communications regarding the Services. As part of registration, You may also elect to receive periodic email communications regarding special offers and other promotions (collectively, "Special Offers"). You may opt-out of receiving Special Offers at any time by (a) following the unsubscribe instructions contained in each Special Offer; or (b) changing the email preferences in your account.
By completing and submitting information to ECOtanka via the Website, including through the "Add My Company" and "Contact Us" forms, You thereby consent to be contacted by ECOtanka by email, telephone, or other method provided by You concerning your submission.
8. PAID SERVICES; AUTOMATIC RENEWAL; CANCELLED ORDERS
You are responsible for all fees incurred as a result of any and all services performed by ECOtanka on Your behalf or at Your direction. By opting for paid services, You authorize ECOtanka, and/or its payment processor, to charge all applicable fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes. Such fees shall be due and collected in full before the services are rendered.
CERTAIN PAID SERVICES RENEW AUTOMATICALLY. ACCORDING TO THE TERMS OF AUTOMATIC RENEWAL, ECOTANKA WILL CHARGE AND COLLECT FROM YOU ALL APPLICABLE FEES AND CHARGES AT THE ONSET OF EACH NEW PAYMENT PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION SERVICES PRIOR TO THE NEW PAYMENT PERIOD.
NOTE: COMPANY PROFILE REPORT ORDERS PERMIT ECOTANKA MEMBERS TO ACCESS OBSCURED RECORDS. THESE ORDERS DO NOT PROVIDE ANY ADDITIONAL GUARANTEE OF ACCURACY. For additional information, see Section 9. Entity Information.
ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO CREDITS FOR PARTIALLY USED MEMBERSHIP PERIODS. ECOTANKA RESERVES THE RIGHT, IN ECOTANKA’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES ON THE WEBSITE OR PROVIDING NOTICE TO YOU.
9. ENTITY INFORMATION
ECOtanka’s Services include, but are not limited to, the provision of various fields of related information pertaining to business entities and pertaining to those entities’ related officers, members, managers, directors and partners (collectively, “Entity Information”). The Entity Information available on the Website is provided to ECOtanka by Website users and third parties, including government agencies.
a. General Disclaimer of Accuracy of Entity Information
ECOtanka does not investigate, review, or otherwise ascertain the accuracy of Entity Information. ECOTANKA MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE ACCURACY, RELIABILITY, COMPLETENESS, OR CURRENCY OF ENTITY INFORMATION. UNDER NO CIRCUMSTANCES WILL ECOTANKA BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ENTITY INFORMATION OR OTHER CONTENT AUTHORED OR PROVIDED BY YOU OR THIRD PARTIES.
b. Entity Information Provided by You
In connection with Your use of certain Services, including without limitation ECOtanka’s “Add My Company” feature, You may be required to complete a registration form and offered the opportunity to edit some information on certain webpages pertaining to Your company. You represent and warrant that all information, including Entity Information, You provide on the registration form or otherwise in connection with Your use of the Website and Services, will be current, truthful, complete, and accurate, and that You will update all of this information as necessary to avoid the presence of any non-truthful information and affirmatively maintain the completeness and accuracy of all information You provide. You represent and warrant that you will not use the Website or Services to post any incorrect, false, defamatory, fraudulent, or misleading information, including without limitation any Entity Information. ECOTANKA DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF ANY INFORMATION ON THE WEBSITE, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION, INCLUDING ENTITY INFORMATION, PROVIDED BY YOU.
c. Entity Information Provided by Third Parties
Opinions, advice, statements, or other information made available by means of the Website and Services by third parties, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content. ECOTANKA DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE WEBSITE;OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE WEBSITE AND SERVICES. UNDER NO CIRCUMSTANCES WILL ECOTANKA BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO OR BY ANY THIRD-PARTY.
d. Claiming a Profile
Upon claiming a profile, and upon completing the required declarations, ECOtanka may provide You with the opportunity to hide some of that profile’s data fields from the general public. You understand and agree that the process of hiding a profile’s data fields will not result in the deletion of these data fields from the Website. You further understand and agree that the data fields of a hidden profile will remain accessible to ECOtanka and to paid subscribers of the Website and Services. You further understand and agree that ECOtanka may, in its sole discretion, choose to disclose any or all of the data fields of a hidden profile to any person, entity, or government agency without any notice to You.
10. USER CONTENT
“User Content” is any content, materials or information that You upload or post to, or transmit, display, perform or distribute by means of the Website, whether in connection with Your use of Services or otherwise. YOU HEREBY GRANT ECOTANKA A PERPETUAL, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE, ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE WEBSITE, SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY. YOU FURTHER AGREE THAT ECOTANKA MAY PUBLISH OR OTHERWISE DISCLOSE YOUR INFORMATION IN CONNECTION WITH ITS EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY ECOTANKA OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided ECOtanka under this section.
You represent and warrant that You shall not use the Website or Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libellous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of hard core illegal substances and drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other ECOtanka agreement or policy; or (i) is generally offensive or in bad taste, as determined by ECOtanka; or (j) is inconsistent with the legitimate business interests of ECOtanka or the Services as determined by ECOtanka in its sole discretion (collectively, “Objectionable Content”).
ECOTANKA DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENT OF THE WEBSITE AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON.
Without limiting any of its other remedies, ECOtanka reserves the right to terminate Your use of the Website and Services for Your uploading, posting, transmission, display, performance or distribution of Objectionable Content and/or other abuse of the Website and Services. At the sole discretion of ECOtanka, if You are suspected or found to have posted numerous reviews, comments, or other content on the Website using different pseudonyms, Your content will be removed.
ECOtanka, in its sole discretion, may delete any Objectionable Content and/or other content from the Website and ECOtanka’s servers. ECOtanka intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
11. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that You may be held legally responsible for damages suffered by other Website users or third parties as a result of Your remarks, information, feedback or other content posted or made available on the Website that is deemed defamatory or otherwise legally actionable. ECOtanka is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally-actionable remarks, information, feedback, or other content posted or made available by You or other third parties on the Website.
12. THIRD-PARTY WEBSITES
The Website is linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with ECOtanka and some of whom may not. ECOtanka does not have control over the content and performance of Third-Party Websites. ECOTANKA HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, ECOTANKA DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. ECOTANKA DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
13. PROHIBITED USES
ECOtanka imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not: (a) provide false, misleading or inaccurate information to ECOtanka; (b) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (c) harvest or otherwise collect information about ECOtanka users, including email addresses and phone numbers; (d) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (e) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (f) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (g) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (h) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (i) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (j) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by ECOtanka in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
14. INTELLECTUAL PROPERTY
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. THE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS RESTS SOLELY WITH YOU.
ECOtanka, directory.ecotanka.com logo (collectively, the "ECOtanka Marks") are trademarks or registered trademarks of ECOtanka. Other trademarks, trade names, service marks, graphics, logos and domain names appearing on the Website are the trademarks and property of their respective owners. Neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the ECOtanka Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the ECOtanka Marks generated as a result of Your use of the Website and Services will inure to the benefit of ECOtanka, and You agree to assign, and hereby do assign, all such goodwill to ECOtanka. You shall not at any time, nor shall You assist others to, challenge ECOtanka's right, title, or interest in or to, or the validity of, the ECOtanka Marks.
All content and other materials available through the Website and Services, including without limitation the ECOtanka logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by ECOtanka or are the property of ECOtanka’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2012 to the present, ECOtanka ALL RIGHTS RESERVED.
As ECOtanka asks others to respect ECOtanka’s intellectual property rights, ECOtanka respects the intellectual property rights of others. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want ECOtanka to delete, edit, or disable the material in question, you must provide ECOtanka with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit ECOtanka to locate the material; (d) information reasonably sufficient to permit ECOtanka to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to ECOtanka’s Copyright Agent by contacting ECOtanka through the Contact Page on the Website.
15. DISCLAIMERS; LIMITATION OF LIABILITY
ECOTANKA, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, ECOTANKA, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER ECOTANKA NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ECOTANKA WILL RECEIVE DOCUMENTS YOU UPLOAD TO ECOTANKA’S SERVERS. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO CONFIRM RECEIPT BY ECOTANKA OF DOCUMENTS UPLOADED TO ECOTANKA’S SERVERS. NEITHER ECOTANKA NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE OR SERVICES.
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD ECOTANKA OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
THE LIABILITY OF ECOTANKA AND ITS LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ECOTANKA OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO ECOTANKA OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF ECOTANKA AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE EQUAL TO THE AGGREGATE PRICE YOU PAID TO ECOTANKA DURING THE SIX MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ECOTANKA AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND ECOTANKA OR BETWEEN YOU AND ANY OF ECOTANKA’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. ECOTANKA’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
16. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other ECOtanka policies, and with any applicable laws or regulations.
17. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You agree to defend, indemnify and hold harmless ECOtanka and its officers, directors, employees, agents, affiliates, representatives, sublicenses, successors, assigns, and Industry Professionals (collectively, the “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website or Services; (iii) Your provision to ECOtanka or any of the Indemnified Parties of information or other data; or (iv) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
18. GOVERNING LAW; JURISDICTION AND VENUE
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE.
If You and ECOtanka cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the New Zealand Dispute Resolution Centre Rules. More information can be found on the New Zealand Dispute Resolution Centre website at www.nzdrc.co.nz. If, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth, then the payment of all such fees will be governed by the Rules. In that case, You hereby agree to reimburse ECOtanka for all payments disbursed that are your obligation to reimbursed under the Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. ECOtanka may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
You and ECOtanka agree that any arbitration shall be limited to each Claim individually. YOU AND ECOTANKA HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR ECOTANKA’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If this specific provision is found to be unenforceable, then, to the full extent allowable under applicable law, (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
This agreement to arbitrate will not preclude You or ECOtanka from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or ECOtanka from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in New Zealand.
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in New Zealand and shall be governed by and construed in accordance with the laws of New Zealand without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE COUNTRY OF NEW ZEALAND. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, ECOTANKA RESERVES THE RIGHT TO, IN ECOTANKA’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, SUSPEND OR DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY FAILURE TO PAY FEES OWED ECOTANKA, ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by ECOtanka.
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to ECOtanka notice of Your intention to do so, in the manner required by this Agreement.
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, ECOtanka may, but has no obligation to, in ECOtanka’s sole discretion, rescind any services, and/or delete from ECOtanka’s systems all information provided by You or information that relates to Your use of the Website or Services. Subsequent to termination, ECOtanka reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP mapping and blocking and direct contact with Your Internet Service Provider.
If ECOtanka, in ECOtanka’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, ECOtanka will be entitled to recover from You as part of such legal action, and You agree to pay, ECOtanka’s reasonable costs and attorneys’ fees incurred as a result of such legal action. ECOtanka will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1-3, 6-17, and 19-20 will survive any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. ECOtanka shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to ECOtanka. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH ECOTANKA IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY ECOTANKA OF AN EMAIL TO THAT ADDRESS. You shall give any notice to ECOtanka by means of contacting ECOtanka through the Contact Page of the Website. You agree that any notice received from ECOtanka electronically satisfies any legal requirement that such notice be in writing.
This Agreement constitutes the entire agreement between ECOtanka and You concerning Your use of the Website and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of ECOtanka or by the unilateral amendment of this Agreement by ECOtanka and by the posting by ECOtanka of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of ECOtanka. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and ECOtanka are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for ECOtanka, the Indemnified Parties as and licensors and suppliers as and to the extent expressly set forth above, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to ECOtanka and ECOtanka’s licensors and suppliers, and would therefore entitle ECOtanka or ECOtanka’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.