By accessing or Using the App and Services you confirm that you agree to the Terms and Conditions that are set out below. By receiving, purchasing, or using any services provided to you by the Company (collectively, the “Service”), and/or downloading, installing, accessing, or using any related website or Application provided by the Company (including without limitation, the DYRECT website located at www.mydyrect.com (collectively, the “Application”, “Application and Service”, or “App and Service”), you hereby definitively acknowledge and approve to be bound by the Terms and Conditions of the Agreement, and any forthcoming amendments and additions to this Agreement as published from time to time on the Dyrect website or through the App and Service. If you do not want to be bound by these terms Do Not Use the Application and Services. Dyrect offers information on cannabis dispensaries, services, and products, as well as how to obtain or purchase those products and services.
All the information provided to you including product information, images, text, articles, software, content, data, graphics, audio and video clips, and any other material, is intended for informational purposes only. Dyrect does not offer any medical advice or opinions. In no way is the information provided to you intended to be taken as professional medical diagnosis, advice, cure, or treatment. Such information includes third-party content, user content, and content derived from user content. Always consult a medical professional if you have questions about a medical condition. Never refrain from obtaining medical advice from a medical professional because of information or content you read on Dyrect.
2. ABOUT DYRECT
Dyrect provides a mobile app and web-based technology program that connects consumers with Medical and Adult-Use cannabis retailers (Collectively, “Dispensaries”) to enable product procurement through licensed cannabis delivery services (the “Platform”). Through the Platform consumers may browse through cannabis products and services provided by licensed delivery operators and request cannabis products be delivered to them from particular Dispensaries. Licensed Dispensaries can access the Platform and set prices for products, maintain a menu, and receive delivery requests. Dyrect is not a Licensed Medicinal or Adult-Use cannabis retailer or delivery service. Dyrect does not sell or provide medical or recreational cannabis and is not a Medical or Adult-Use Cannabis Dispensary or Delivery service provider. The Company’s Third-Party suppliers are responsible for providing State and Local Law compliant services, which may be scheduled, coordinated, and located through the use of this Application or Service. Additionally, Company gives users information about Dispensaries and their services, as well as a means to contact associated Dispensaries to obtain delivery services from them. Dyrect does not aim to provide delivery services or act in any way as a cannabis or cannabis products delivery service and has no liability for any delivery services provided to you by the App’s associated Third-Party Dispensaries.
As provided in greater detail in these Terms, you agree and acknowledge these material Terms:
- The App is licensed and not sold to you; you may use the Service only as set forth in these Terms;
- Your use of the Service may be subject to separate Third-Party terms of service and fees, including, and without limitation to, your mobile network operator’s (“Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- The Service is provided “as is” without warranties of any kind, and Dyrects’ liability to you is limited; and
- Disputes arising under these Terms will be resolved by binding arbitration.
BY ACCEPTING THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT. YOU AGREE TO WAIVE YOUR RIGHT TO LITIGATION TO ASSERT YOUR RIGHTS UNDER THIS CONTRACT, EXCEPT FOR MATTERS THAT CAN BE PROCESSED THROUGH SMALL CLAIMS COURT. YOUR CLAIMS WILL BE EVALUATED, YOUR RIGHTS WILL BE DETERMINED, BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. PLEASE REVIEW THE DISPUTE RESOLUTION AND ARBITRATION TERMS DISCUSSED IN SECTION 18 BELOW FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH COMPANY.
3. LICENSE TO USE PURSUANT TO TERMS
The Application is licensed, not sold, to you for use only under the terms of this license. Dyrect reserves all rights not expressly granted to you. Subject to your continuing compliance with these Terms, Dyrect grants you a personal, limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (1) access and use the Applications on your personal device solely in connection with your use of the Services; and (2) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Dyrect. Accordingly, Users may not rent, sell, lease, or sublicense the App and they may not modify, reproduce, alter, distribute or make the App available over a network where it could be accessed by multiple devices at the same time unless expressly permitted in this agreement. Licensed users must abide by the Usage Rules set forth in the APP Store Sourced Application Terms of Service (App Store, Samsung Apps Store & Android Market) and use the App Store Sourced Application as permitted.
Violation of the license restrictions or acting outside of the scope of the license granted in these Terms, by any user may be subject to legal damages, prosecution, as well as liability for infringement of intellectual property. Any upgrades or updates to the App that are provided to you will be regulated by these Terms. Dyrect reserves all rights in and to the Application not clearly granted to you under this Agreement.
4. RULES AND GOVERNING LAW
4.1 ACKNOWLEDGMENT OF THE LAWS OF USERS STATE OF RESIDENCY
Dyrect operates out of Southern California. The Company’s Services are currently only available to users located in California even though the Application can be accessed outside of California. If you are a Non-California resident you must abide by the laws of the state in which you reside. User expressly acknowledges and assumes full responsibility for cooperating with the laws of the state of user’s residency or the laws of the state where user engages in Dyrect’s services.
4.2 ACKNOWLEDGEMENT OF FEDERAL LAW
Dyrect is provided to Users who expressly acknowledge that the Company’s Application and Services are for California residents who have laws governing recreational and medicinal use of marijuana, medicinal cannabis collectives, and those Medical Marijuana Patients/Adult-Use consumers are recognized pursuant to California State laws. In the United States Marijuana and/or Cannabis is still a Schedule 1 substance under the United States Controlled Substances Act (CSA). Accordingly, cultivating; manufacturing; distributing; or dispensing for possession of cannabis is a federal offense in the United States of America, and individuals are subject to arrest, fines, and/or prosecution for violations of the CSA. Medical Marijuana is not recognized by the Federal Government and may not be used as a lawful defense under federal laws concerning marijuana. Further, Users accept that interstate transportation of cannabis is illegal under federal law.
4.3 ACKNOWLEDGEMENT OF CALIFORNIA LAW
Dyrect Users must expressly acknowledge that all medicinal and adult-use marijuana activities, such as cultivation; possession; use; distribution; and transportation, are illegal in California unless all members are acting entirely within the scope of California’s Medical and Adult-Use laws as set forth in the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) and any amendments thereto, including the regulatory laws of the Bureau of Cannabis Control (BCC), the California Department of Public Health (CDPH), the California Department of Food and Agriculture (CDFA), and the laws of any other regulatory agency granted regulatory authority under the MAUCRSA.
4.4 HEALTH INFORMATION
Dyrect Users must expressly acknowledge, agree, and understand that any statements relating to cannabis goods, accessories or any other products available on the Dyrect Platform (“Products”) have not been evaluated and are not approved by the FDA. Neither the Products nor the ingredients in any of the Products have been approved or endorsed by the FDA or any federal regulatory or health agency. The Products available on the Dyrect Platform are not intended to diagnose, treat, cure, mitigate, or prevent any medical condition, illness, or disease in humans or animals. The information provided is designed for educational purposes only and is not intended to be a substitute for informed medical advice or care. If you are pregnant, nursing, taking medication, or have a medical condition, we suggest consulting with a physician before using any Products.
5. ACCOUNT ELIGIBILITY AND ACCESS
- That you are at least 18 years old with a valid medical marijuana doctor’s recommendation (for medical marijuana user) or;
- That you are at least 21 years old (for adult marijuana user).
- That your registration and your use of the Service is in compliance with any and all applicable laws and regulations;
- That you have not previously been suspended or removed from the Service; and
- If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
5.1 CREATING AN ACCOUNT
In order to use certain features of the site, you must register for an account with Dyrect and provide certain personal information, such as your name, email address, home address, phone number, medical recommendation number, or other contact information, as prompted by the Site registration form. You represent and warrant that: (a) all required registration information submitted by you is truthful and accurate; and (b) you will maintain the accuracy of such information at all times. You may not create more than one Dyrect Account. Any information provided by you that is not current, accurate, and complete will be taken seriously and may constitute a termination of your account and/or inability to use the Services in the Application.
5.2 REGISTERING WITH SOCIAL MEDIA ACCOUNTS
The Application and Service may allow you to sign in using your social media account credentials from certain social media sites. If you login or otherwise associate your Dyrect account with your sign in credentials from a social media service, we may collect information about you from the service, in accordance with their terms and conditions and any related legal and user policy of the relevant social media service. If you choose to share your information with any number of social media website or services, we will then share your information with the websites you name, in accordance with your selection, and per their terms and conditions.
5.3 ACCOUNT RESPONSIBILITIES
You are responsible for maintaining the confidentiality of your Dyrect Account login information and are fully responsible for all activities that occur under your Dyrect Account. You agree to keep your password confidential and will be responsible for all use of your account information and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable. You agree to immediately notify Dyrect, through the Dyrect Support email, of any unauthorized use – or suspected unauthorized use – of your Dyrect Account or any other breach of security. Dyrect cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
5.4 ACCOUNT DELETION
You may delete your Dyrect Account at any time, for any reason, by sending an email to email@example.com which includes your Dyrect Account Username and your request to delete your account.
6. CHANGES IN TERMS
You may reject the new terms by sending an email appropriate contact provided by the company within 30 days of the Terms update firstname.lastname@example.org. The notice shall include your name, as well as the reason(s) for rejecting the new Terms. By rejecting the Terms, Dyrect has the choice to terminate your account or subject your account to the Terms you agreed upon prior to the Terms update. You will be notified of the acceptance of your written notice and updated on your account’s termination or limited use status after Dyrect has received and updated your account information. Any and all use of Dyrect’s services following notice of term rejection shall be governed by the rejected terms until Dyrect has responded to the Term rejection.
7. TERMINATION AGREEMENT
The Company has the right to Terminate these terms or any service with respect to you, or generally terminate offerings or reject access to the services or any portion thereof, at any time for any reason. Upon Termination your account will be ceased, and you will no longer be able to access it. Any restrictions imposed on you prior to termination, which include materials, content, disclaimers, limitations of liability, indemnities, and the Binding Arbitration Clause presented in these Terms shall endure Termination of your use. Dyrect has the right to Terminate or abolish its Application and Services at any time and for any reason. If Dyrect terminates its Application and Services, Users will receive an email informing Users of its termination.
7.1 PERSONAL TERMINATION
You have the right to Terminate your account at any time and for any reason. Termination of your account will require you to send an email or written notification to an appropriate contact or address containing your name and “Terminate Account” in the subject line. Emails will be directed to a Dyrect representative through email@example.com. You will be notified that your account has been Terminated once your request has been approved and executed by a Dyrect representative. You may continue to receive emails from Dyrect until your Termination has been processed. If for any reason you want to reapply for an account, you will be able to re-apply for an account by signing up and accepting these Terms or any updated Terms from the time of your Termination.
8. THIRD PARTY
The App is licensed to Delivery Dispensaries, Advertisers, and Sponsors that may offer information or services through the App. When using the App Users may purchase goods and services provided by the Delivery Dispensaries. Any Services provided to you by such Parties may require you to enter into an Agreement or alternative Terms and Conditions prior to your access of such goods and Services. In no way is Dyrect responsible or a party of any transaction that the user may enter with other businesses. Such activities are solely between you and the applicable Party including any Terms, conditions, representations, or warranties that are associated with such activities. Delivery Dispensaries may have a link to their Company’s website, which are not reviewed or authorized by Dyrect. All Third Party materials, content, or products are not endorsed by Dyrect, and in no way shall the Company be responsible for such materials, content, service(s), or products. Use of these websites may require you to enter into Agreements or Terms and Conditions established by owners of the website, and Dyrect disclaims any and all liability associated within.
8.1 THIRD PARTY DEALS, PROMOTIONS, GIVEAWAYS
Dyrect may allow Third Party Applicants to offer deals, promotions, or product giveaways through the Application and Service. Any such deals are considered material of the Third Party applicants and displayed on the Application as a form of advertisement for the Third Party displaying such materials. All such deals posted by Third Party applicants are offered to you solely by the Third Party who posted the materials, and not Dyrect. Accordingly, you may be subject to the Third Party terms, conditions, or restrictions under any other applicable law. Third Party applicants offering deals have the sole responsibility for the products and services they provide through the deal, redeeming the deal, compliance with all aspect of the deal, and any damages, illness, injuries, claims, liabilities, and costs it may cause you to suffer, directly or indirectly, in full or part, whether related to use or redemption of the deal or not.
9. USER CONTENT
User Content is defined as any content the User uploads, submits, or posts with the Application or Services. This includes User information; comments; videos, ratings, audio, favorited or liked products, and dispensaries. You recognize and approve that Dyrect is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Dyrect allows its Users to comment, rate/review, favorite, and/or like certain products and dispensaries that have been obtained or provided service to the User. Users may be allowed to edit, redact, or reorganize their User content. You represent and warrant that all User Content that has been provided by you such as User information, comments, ratings, materials, or any other information delivered by you to the Application and Services is property owned and controlled by you.
By providing User Content to the Application and Services, you hereby grant Dyrect and other Third Party applicants a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable and transferable rights and license to: modify, delete under special circumstances, use, copy, publicly display, distribute, create derivative works of, publicly perform, or otherwise exploit in any manner such User Content on the Application and Services and in all media channels now known or hereafter devised, without prior communication or consent from you. Additionally, you hereby grant Dyrect a license to any User Content and allow the company to feature your content on your User Account if we choose, again without notification and/or approval by you. Dyrect does not assume and will not have any responsibility or liability to you or any other person or User for your use or misuse of any User Content.
10. CODE OF CONDUCT
10.1 NEGATIVE CONDUCT DECLARATION
By Using the Application and associated Services you agree to not:
- Provide, transmit, post, or submit (a) any content that is hateful, libelous, violent, obscene, defamatory, unlawful, pornographic, or otherwise offensive, as determined by Dyrect in its sole discretion, whether or not such material may be protected by law; (b) any advertisements, chain letters, pyramid schemes, solicitations, or any other unsolicited commercial communications; (c) any material about companies that is not public without prior authorization; (d) any trade secret of any Third Party. Dyrect may, but shall not be obligated to, review, monitor, or remove User Content, at their sole discretion without notice and at any time and for any reason.
- Use the Application and Services in an unlawful manner; including using the Service to store or send any unlawful material for fraudulent reasons or using the App in areas that it is unlawful to access the Application and Services.
- Use the Application to cause inconvenience, nuisance, or annoyance.
- Redistribute or copy the Application’s content without permission to do so from Dyrect.
- Sign up for more than one account, or register an account for any other person or business.
Resell or redistribute the Application and Service license to any Third Party, or use the App and Services for any other purpose other than for personal use.
- Prevent anyone who is able to Use the Application and Services from Accessing the Application and Services.
- Impair any operations of the network or prevent anyone from using the Application or Services by means of hacking, introducing material with viruses, worms, or other harmful code into the Application and Service.
- Harm the Application or Service in any way whatsoever.
- Tamper with or use non-public areas of the Service, Dyrect’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Dyrect’s providers.
- Use the Application for Phishing or Scamming of any sort.
- Assemble or collect any of the Application’s or Site’s Users information without their stated consent.
- Use any robot, web crawler, or any other manual or automated means or devices not provided by us to access the Services or extra data or change the existing site’s appearance.
10.2 POSITIVE CONDUCT DECLARATION
By Using the Application and Services you acknowledge and agree:
- That you may acquire Third Party fees through you use of the Application and Services, these include Carrier charges for data and usage, or any other Third Party Charges, and you agree to pay all such fees.
- That you will check and make sure that you downloaded the correct Application for your device.
- That your inability to download the correct App or use the App is not a liability of the Company.
- That engaging in any of the actions outlined above, or assisting or permitting any entity with carrying out any of the actions outlined in this section is a violation of these Terms.
Any and all intellectual property owned by Dyrect, including the Application and Service, media, software, and any materials contained in the Application and Service, are exclusive property of the Company. Users have no rights or license to use any Dyrect or Third Party trademarked names of businesses or products, pictures, graphics, or logos that may appear in the Application or Service. Dyrect does not grant you any other rights, licenses, or immunities that are not expressly granted under these terms, either expressly or by implication, estoppel, or any other means. All rights not clearly granted by Dyrect in these terms are explicitly reserved.
12. COPYRIGHT POLICY
With respect to the individual property of others, Dyrect has adopted and applied a Copyright policy respecting copyright law that requires the elimination of any infringing materials and for the termination, in appropriate circumstances, of users of our Application and Services who are repeat infringers of intellectual property rights, including copyright material. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), Dyrect has implemented procedures for receiving written notification of claimed infringements. Dyrect has also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may complete and submit a written or email notification, which contains:
- Your Physical or Electronic Signature;
- A description of the copyrighted material that you claim has been infringed;
- A report specifying the location of infringed material on the website;
- An email address, physical address, and/or a telephone number;
- A good faith statement that you believe the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Dyrect may choose to request comments or Feedback on their Application and Services, including comments on bugs, fixes, or ideas on how to further develop the Application and Services. By submitting feedback to the Company you agree and give Dyrect freedom to use such feedback at its discretion without any responsibilities to you. This includes releasing information contained in your feedback to Third Parties. You hereby grant Dyrect a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable and transferable license under all rights necessary to incorporate and use your Feedback for any purpose that may not be outlined above.
14. DYRECT COMMUNICATIONS
14.1 TEXT MESSAGING
By using the Services or Software, you agree that the Company or anyone acting on behalf of the Company or third party Dispensaries may send text (SMS) messages to the phone number you provided upon registration. The messages sent may include communication regarding operational messages about your use of the Services, your User account, or use of the Dyrect Application; promotions through us or third party dispensaries; feature updates in the Application; as well as marketing and other promotional messages. The Company may send you messages until it processes your request, and to confirm the receipt of your Termination request. Use of the software and services is prohibited unless you agree to receive the operational messages. You may opt-out of the marketing/promotional messages by using the unsubscribe opportunities sent to you, but use of the Application or Services may be impacted by further restrictions or Termination of your account. If you change your number you must notify the Company so they do not send messages to a person who may have obtained your number. Standard data and message rates apply for SMS or MMS messages whether they are sent or received.
By registering and using our Software and Services you agree that we can send you emails concerning products, services, as well as those of third parties. You will have the option to unsubscribe from promotional emails within the unsubscribe link provided in emails sent to you from Dyrect.
14.3 PUSH NOTIFICATIONS
Push Notifications are messages that are sent to an application user’s phone and are displayed on the user’s screen even when the application is closed or not in use. By downloading and using the Application or Services you agree to receive push notifications from Dyrect, or those of Third Parties. If you want to opt-out of receiving push notifications simply go to the settings in the Application and/or Service and turn off the Push Notification setting.
14.4 DISCLOSURE OF COMMUNICATIONS
Your agreement to receive text messages from Dyrect implies your consent to the Company’s use of an electronic record to document your agreement. Your consent to the use of the electronic record may be withdrawn by contacting firstname.lastname@example.org with “Revoke Electronic Consent” in the subject line. You may retain a copy of this disclosure accessing it online and printing it out or saving it to storage on an electronic device with a web browser and Internet access.
15. SITE MANAGEMENT
We reserve the right, but not the obligation to (1) monitor the Application and Services for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including, reporting such Users to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access, limit the availability of, or disable any of your contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Application and Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Application and Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Application and Services.
16. INTERNET DELAYS
The Company’s Application and Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Dyrect is not responsible for any delays, delivery failures, or other damage resulting from such problems.
18. DISPUTE RESOLUTION & ARBITRATION
18.1 PRE-ARBITRATION DISPUTE RESOLUTION
If you have any trouble with the Application and/or services Dyrect encourages you to send a message to email@example.com so the Company may try to resolve any issue you may have. Most problems can be handled internally at a quick rate. However, if issues are not or cannot be resolved in a timely fashion (under 15 calendar days) then you, Dyrect, or Dyrect’s representatives may then bring a formal dispute.
18.2 FORMAL DISPUTE RESOLUTION
Any controversy or claim arising out of or relating to this contract that cannot be settled within the allotted 15 days, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
18.3 ARBITRATION PROCEDURE
The arbitrator(s) shall be a retired judge or an attorney licensed to practice law in the state of California with over 7 years of experience. You and Dyrect agree that the place of arbitration shall be Orange County, California. The arbitration shall be governed by the laws of the State of California. If your claim does not exceed $20,000 then arbitration will be based on the submission of documents to the arbitrator and there shall be no in-person or oral hearing unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $20,000, then your right to a hearing will be determined by the AAA Rules (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.). Subject to the AAA Rules, the arbitrator(s) will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of their attorney fees and expenses to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
The Arbitration proceeding will be kept confidential. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
18.4 EXCEPTIONS TO ARBITRATION AGREEMENT
If claims made by you or Dyrect qualify in small claims court in Orange County, California or any other United States County, then either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Application or Service, or intellectual property infringement without first engaging in arbitration or the informal dispute resolution process described above.
18.5 NO CLASS ACTIONS
Disputes between you and Dyrect may only be resolved on an individual basis. You may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. No class actions, private attorney general actions, class arbitrations, and consolidation with arbitration are allowed.
18.6 OTHER DISPUTES
You and Dyrect agree that any judicial proceeding will be brought in California or federal courts therein. Both you and Dyrect consent to said venue. Judicial proceedings will only be held in the event that the agreement to arbitrate does not apply to you or your claim or in the case of small claims actions.
DYRECT’S APPLICATION AND SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE APPLICATION AND OUR SERVICES WILL BE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION AND SERVICES AND YOUR USE THEREOF, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APPLICATION AND SERVICES CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE APPLICATION AND SERVICE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF THE CONTENT AND MATERIAL, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APPLICATION AND SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTIONS OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUS, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATION AND SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND OF INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION AND SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APPLICATION AND SERVICES, ANY HYPERLINKED SITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN NY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
20. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT, FOR: ANY PUNITIVE OR EXEMPLARY DAMAGES, OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. YOUR SOLE REMEDY WITH RESPECT TO THE SITE, THE APP, THE INFORMATION, SERVICES, OR ANY LINKED SITE IS TO STOP USING THE SITE, APP, INFORMAITON, SERVICE, OR LINKED SITE, AS APPLICABLE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK-UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. DYRECT’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, THE APP, INFORMATION AND/OR SERVICES, SHALL BE THE TOTAL AMOUNT PAID BY YOU FOR USE OF THE SITE, APP, INFORMATION AND/OR SERVICES, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
By agreeing to the Terms of this agreement and using the Application and Services provided by Dyrect, you agree that you shall indemnify, hold, and defend us and our processors (directors, affiliates, agents, employees, Users, representatives) harmless from and against any and all claims, costs, losses, judgments, damages, penalties, tax assessment, expenses, and interests (including reasonable attorney fees) arising out of any claim, action, investigation, audit, inquiry, or any other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any Third-Party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
22. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending the Company emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.