TERMS AND CONDITIONS OF USE
Your use of this website is governed by these Terms and Conditions of Use.
LAST UPDATED: January 26, 2017
These Terms and Conditions of Use (“Terms”) apply to the www.milady.farouk.com website and all other sites, mobile sites, services, applications, platforms and tools where the Terms appear or are linked (collectively, the “Site”). As used in these Terms, “FSI”, “us” or “we” refers to Farouk Systems, Inc. and its subsidiaries and affiliates. As used in these Terms, “you”, “your”, or “yourself” refers to an individual who interacts with the Site, whether in a personal capacity or on behalf of any entity.
Agreement to the Terms
BY ACCESSING OR OTHERWISE USING THE SITE YOU AGREE TO THESE TERMS. Any person or entity who interacts with the Site through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is considered to be using the Site. If at any time you do not accept all of these Terms, you must immediately stop using the Site.
Ownership of the Site and Content
FSI is the sole and exclusive owner or licensee of all right, title, and interest in and to all content included on the Site, such as text, graphics, logos, images, audio clips, video, data, music, software, and other material (collectively “Content”). Graphics, logos, page headers, button icons, scripts, and service names included in or made available through the Site are trademarks or trade dress of FSI or its licensors. FSI’s trademarks and trade dress may not be used in connection with any product or service that is not FSI’s or in any manner that is likely to cause confusion among customers. All other trademarks not owned by FSI that appear on any Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by FSI. All Site content, design, text, graphics, images, logos, buttons, icons, interfaces, audio and video clips, and the selection and arrangements thereof are the exclusive property of FSI, or its respective content providers, and are protected by U.S. and international copyright laws. All software used on the Site is the property of FSI or its respective software suppliers, and such software is protected by U.S. and international copyright laws and other laws and treaties. The collection, arrangement, and assembly of all content on the Site is the exclusive property of FSI and is protected by U.S. and international copyright laws. FSI reserves all intellectual property rights in all Content.
License and Access
FSI grants you a limited license to access and make personal use of the Site and the Content for NONCOMMERCIAL PURPOSES ONLY and only to the extent such use does not violate these Terms. Accessing, downloading, printing, posting, storing or otherwise using the Site or any of the Content for any commercial purpose, whether on behalf of yourself or any third party, constitutes a material breach of these Terms. The Site is intended for use by individuals 13 years of age or older. If you are under 18, you may use this Site only with involvement of a parent or guardian.
Prohibited Uses of the Site
The Site may only be used for lawful purposes in accordance with the terms of the license granted in these Terms. As a condition of your use of this Site, you warrant to FSI that you will not use the Site for any purpose that is unlawful or prohibited by these Terms.
Whether on behalf of yourself or any third party, YOU MAY NOT:
- make any commercial use of the Site or its Content, other than purchasing products;
- download, copy or transmit any Content for the benefit of any third party;
- use or attempt to use any engine, software, tool, agent, data or other mechanism, including browsers, spiders, robots, avatars or intelligent agents, to navigate or search the Site other than the search engine and search agents provided by generally publicly available browsers;
- frame, mirror or use framing techniques on any part of the Site without FSI’s express prior written consent;
- make any use of data extraction, scraping, mining or other data gathering tools, or create a database by systematically downloading or storing Site content, except pursuant to the limited license granted by these Terms;
- use any meta tags or any other hidden text utilizing FSI’s name or marks;
- misrepresent the identity of a user, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site, or express or imply that FSI endorses any statement you make;
- conduct fraudulent activities on the Site;
- violate or attempt to violate the security of the Site, including, without limitation: (i) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (ii) trying to change the behavior of the Site; (iii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures; (iv) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting malware to the Site, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”; (v) forging any header or any part of the header information in any email or posting; or (vi) forging communications on behalf of the Site (impersonating the FSI Site) or to the Site (impersonating another user);
- send unsolicited or unauthorized email on behalf of FSI, including promotions or advertising of products or services;
- tamper with the Site or use or attempt to use any device, software, routine or data that interferes or attempts to interfere with the working or functionality of the Site or any activity being conducted on the Site;
- use the Site to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
- harvest or collect personally identifiable information about other users of the Site;
- restrict or inhibit any other person from using the Site, including, without limitation, by hacking or defacing any portion of the Site;
- use the Site to advertise or offer to sell or buy any goods or services without FSI’s express prior written consent;
- reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any portion of, use of or access to the Site;
- modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site; or
- remove any copyright, trademark, trade dress, or other proprietary rights notice from the Site or materials originating from the Site.
You may be required to register with FSI in order to access certain services or areas of the Site. With respect to any such registration, we may refuse to grant to you the user name you request. Your user name and password are for your personal use only. If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to FSI including those set forth in these Terms, FSI reserves the right, in its sole discretion, to terminate your account, refuse service to you or cancel orders.
Modification and Termination
FSI may at any time: (i) modify or discontinue any part of the Site; (ii) charge, modify or waive fees required to use the Site; or (iii) offer opportunities to some or all Site users. FSI reserves the right to make changes to these Terms at any time, without prior notice to you, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site, you should review the current Terms. You can determine when these Terms were last revised by referring to the “LAST UPDATED” legend at the top of these Terms. Your continued use of the Site will indicate your acceptance of the current Terms. Any change to these Terms after your last usage of the Site will not be applied retroactively. FSI reserves the right, without notice and at its sole discretion, to terminate your account or your use of the Site and to block or prevent future access to and use of the Site (i) if you violate any of these Terms, (ii) for any other reason or (iii) for no reason. Upon any such termination, your right to use the Site will immediately cease.
You agree that we shall not be liable to you or any third party for any termination of your access to the Site. Upon termination, all provisions of these Terms which are by their nature intended to survive termination, all representations and warranties, all limitations of liability and all indemnities shall survive such termination.
User Reviews, Comments and Submissions
FSI welcomes your reviews, comments and other communications, photos, videos or any other content that you submit through or to the Site, or any content or information you publish through any social media site and allow FSI to feature, such as your name, social media handle, accompanying text and any images from your social media accounts (collectively, “User Content”) as long as the User Content submitted by you complies with these Terms. User Content will not include any photographs or images you submit as part of a Transaction, as defined below.
You agree that any User Content: (i) will be accurate; (ii) will not violate or facilitate the violation of any law or regulation; (iii) will not violate any right of a third party, including copyright, trademark, trade dress, privacy or publicity rights; (iv) will not cause injury to any person or entity; and (v) will not contain, or provide links to, obscene, profane or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam” or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive or degrading.
You are solely responsible for the User Content you submit, and FSI assumes no liability for any User Content submitted by you. You acknowledge and agree that we reserve the right, but have no obligation, to do any or all of the following, in our sole discretion: (i) monitor User Content; (ii) alter, remove or refuse to post or allow to be posted any User Content; or (iii) disclose any User Content, and the circumstances surrounding its transmission, to any third party. For any User Content you submit, you grant to FSI a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, worldwide, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such User Content and to incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to you. For this reason, do not post to the Site or send FSI any User Content that you do not wish to license to FSI, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, you grant to FSI the right to include the name provided along with the User Content submitted by you, provided, however, that FSI shall have no obligation to include such name with such User Content. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
Content is also provided by third party visitors to the Site. Please note that Site visitors may post content that is inaccurate, misleading or deceptive. FSI neither endorses nor is responsible for any opinion, advice, information or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect the opinions of FSI.
Your order of products using the Site shall be considered purchase orders and offers which FSI may accept in its sole discretion. Such purchase orders are deemed to incorporate all of the terms of these Terms. No other additional or supplemental terms, even if stated in any communication, shall be binding on FSI. FSI objects to any attempt by you to include on any order additional or supplemental terms which are not contained in these Terms or on the Site and FSI’s acceptance of any purchase order shall not be a waiver of that objection. The prices at which you may purchase the products are as maintained by FSI on the Site, which may be changed, at FSI’s sole discretion, at any time without notice to you, but such price changes shall not be applicable to any purchase order which FSI has accepted.
If you wish to purchase any product or service made available through the Site (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to FSI the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on the Site are subject to change at any time without notice. Certain weights, measures and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Site does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws, including minimum age requirements, in regard to the receipt, possession, use and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. FSI reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred including, without limitation, all shipping, freight, taxes, duties, and handling charges.
FSI or our agents may call or text by telephone regarding your account or your Transactions. You agree that we may place such calls or texts using an automatic dialing or announcing device. You agree that we may make such calls or texts to a mobile telephone or other similar device. You agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us.
Some products offered on the Site are available for pickup at physical stores operated by FSI. Not all items are available for this service nor is the service available in all stores. If applicable, you will be notified when your order is ready for pickup. If someone else will be picking up your order, you must designate him or her as an alternate pickup person when ordering. When picking up your order, you or your alternate pickup person must show a valid government-issued ID. FSI will hold your items for three (3) days starting from the time that FSI sends you the notice that your items are ready for pickup. After three (3) days. You will not be charged for your order until your order is picked up. FSI reserves the right to limit the quantity of items ordered for Order Pickup as well as the days of the year that this service is offered.
FSI strives to display as accurately as possible the colors of the products shown on the Site. FSI cannot and does not, however, guarantee that your monitor’s display of any color will be accurate.
Limitations on Quantity
FSI does not offer additional discounts on large orders of a single item or on large orders of many individual items. In addition, we reserve the right to limit quantities on orders placed by the same account, on orders placed by the same credit card, on orders that use the same billing or shipping address, and on the amount of any product that will be made available for sale on the Site. We will notify you if such limits are applied. FSI reserves the right to prohibit purchases of any merchandise to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.
Availability, Errors And Inaccuracies
If an item is out of stock, FSI may, in its sole discretion and at no extra cost to you, substitute another item for the out-of-stock item if FSI, in its sole discretion, determines that the identical brand and product is available in a form that is of equal or greater value. FSI’s acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. FSI makes a conscientious effort to describe and display its products and services accurately on the Site. Despite these efforts, a small number of items on the Site may be mispriced, described inaccurately or unavailable, and we may experience delays in updating information on the Site and in our advertising on other sites. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services. FSI reserves the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. We apologize for any inconvenience. As part of our shipping procedures, we verify the availability and the price before an item is shipped. If an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item. If an item’s correct price is higher than our stated price, if the item is no longer available or if we determine that there were inaccuracies in our product information, we will cancel your order and notify you of such cancellation via email.
Risk of Loss
Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Site passes to the purchaser upon delivery to the carrier.
Gift Cards and Certificates
All gift cards, e-gift cards and other gift certificates are deemed purchased in and issued from the State of Texas. The risk of loss and title to such items passes to the purchaser upon our electronic transmission to the recipient or delivery to the carrier, whichever is applicable.
Warranty and Returns
If you are not fully satisfied with your purchase, you may contact FSI’s Customer Service Department and request to return it in. The Customer Service Department may be contacted as follows:
Customer Service Department
Farouk Systems, Inc.
880 E. Richey Road
Houston, TX 77073
Certain products sold on the Site are accompanied by a written Limited Warranty, which may be found printed on or delivered with the product. Such Limited Warranty is incorporated in its entirety into these Terms. For products accompanied by a Limited Warranty, your return rights are set forth in that warranty language. For all other products, FSI may in it sole discretion accept or deny your request to return such product.
Third-Party Financial Information
FSI may provide links or access to third-party websites or services that contain information that is provided as a service to those interested in the information. FSI neither regularly monitors nor assumes responsibility for the content of third parties’ statements or websites. Accordingly, FSI does not endorse or adopt these websites or any information contained therein. FSI makes no representations or warranties whatsoever regarding their accuracy or completeness.
DMCA NOTICE—Notice and Procedure For Making Claims of Copyright Infringement
FSI’s policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found on the Site can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide FSI’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying FSI that your copyrighted material has been infringed. FSI does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, FSI will respond by either taking down the allegedly infringing content or blocking access to it. FSI may contact the notice provider to request additional information. Under the DMCA, FSI is required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send FSI a counter-notification. Notices and counter-notices are legal notices distinct from regular Site activities or communications. We may publish or share them with third parties in our sole discretion and produce them pursuant to a subpoena or other legal discovery request. Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by regular mail or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.
A DMCA notice must:
- Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”);
- identify the Content that a copyright owner claims is infringing upon copyrighted work;
- provide information reasonably sufficient to enable FSI to locate the item on the Site;
- provide clear screenshots of the allegedly infringing materials for identification purposes only;
- provide information sufficient to permit FSI to contact the copyright owner directly: name, street address, telephone number and email (if available);
- if available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
- include the following statement: “I 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”;
- include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”;
- Be signed; and
- Be sent to our DMCA designated agent at the following address:
DMCA Designated Agent
Farouk Systems, Inc. Brand Protection
250 Pennbright Drive
Houston, TX 77090
Links to Third Party Websites
The Site may contain links and interactive functionality interacting with the websites of third parties, including social sites and product manufacturers’ sites. FSI is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms or content of any such website. Before enabling any sharing functions of the Site to communicate with any such website or otherwise visiting any such website, FSI strongly recommends that you review and understand the terms and conditions, privacy policies, settings and information-sharing functions of each such third-party website. The links and interactive functionality for third-party sites on the Site do not constitute an endorsement by FSI of such third-party sites. Other sites may link to the Site with or without our authorization, and we may block any links to or from the Site. YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK.
Disclaimers of Warranties
FSI cannot and does not represent or warrant that the Site or its server will be error-free, uninterrupted, free from unauthorized access (including third-party hackers or denial of service attacks), or otherwise meet your requirements.
THE SITE AND ALL INFORMATION, CONTENT, MATERIALS , PRODUCTS, SERVICES AND USER CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE (COLLECTIVELY, THE “SITE CONTENTS”) ARE PROVIDED BY FSI ON AN “AS-IS,” “AS-AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. FSI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE ACCURACY OR COMPLETENESS OF THE SITE CONTENTS, OR THAT EMAILS SENT FROM FSI ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMITTED BY LAW, FSI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SITE AND THE SITE CONTENTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, GOOD AND WORKMANLIKE PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
CERTAIN PROVIDERS OF PRODUCTS MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS OR WARRANTIES REGARDING THEIR PRODUCTS. THIS DISCLAIMER DOES NOT APPLY TO SUCH PRODUCT WARRANTIES.
FSI DOES NOT REPRESENT OR WARRANT THAT THE INGREDIENT, ALLERGEN OR OTHER PRODUCT INFORMATION ON OUR SITE IS ACCURATE OR COMPLETE SINCE THIS INFORMATION MAY BE MODIFIED FROM TIME TO TIME. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON THE SITE AND THAT YOU CONSULT THE PRODUCT’S LABEL IF YOU HAVE A SPECIFIC CONCERN OR QUESTION ABOUT A PRODUCT.
On the Site, we may display names, marks, products, advertisements or services of third parties, pop-up texts or links to third-party sites. If you decide to link to any such third-party sites, you do so entirely at your own risk.
The Site is controlled and operated by FSI from the United States, and is not intended to subject FSI to the laws or jurisdiction of any state, country or territory other than that of the United States. FSI does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
Limitation Of Liability
UNDER NO CIRCUMSTANCES SHALL FSI OR ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND, WHETHER GENERAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS, WHETHER IN CONTRACT OR TORT, EVEN IF FSI HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SITE, ANY CONTENT ON THE SITE OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN. THE FOREGOING PARAGRAPH SHALL NOT APPLY TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, FSI OR ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITE, OR ANY MATERIALS THEREIN UNLESS SUCH DAMAGES OR INJURIES ARE THE RESULT OF FSI’S NEGLIGENT, FRAUDULENT OR RECKLESS ACTS OR INTENTIONAL MISCONDUCT.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN YOU AND FSI. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FSI. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S).
Indemnification and Defense
As a condition of the use of the Site, you agree to defend, indemnify and hold harmless FSI and its respective subsidiaries, affiliates, employees, directors, officers, agents, vendors and suppliers from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, expert fees, and expenses (each, a “Claim”) arising out of or otherwise relating to Claims alleging facts that if true would constitute a breach by you of these Terms, or any User Content submitted by you.
Notices and Electronic Communications
Except as explicitly stated otherwise, any notices you send to FSI shall be sent by mail to Farouk Systems, Inc., Customer Service Department, 880 E. Richey Road, Houston, TX 77073. In the case of notices FSI sends to you, you consent to receive notices and other communications by FSI posting notices on the Site, sending you an email at the email address listed in your profile in your account or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures and other communications that FSI provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on the Site or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, 3 days after the date of mailing. You agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Rules For Contests or Promotions
Notice For California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact Farouk Systems, Inc.’s Customer Service Department at the email, telephone number, or address listed above.
Applicable Law; Disputes
YOU AGREE THAT ALL MATTERS RELATING TO YOUR ACCESS TO OR USE OF THE SITE AND ALL MATTERS ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING ALL DISPUTES, WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT REGARD TO (A) CONFLICTS OF LAWS RULES, AND (B) THE UNITED NATIONS’ CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. YOU FURTHERMORE AGREE THAT THE EXCLUSIVE FORUM AND VENUE FOR ANY LEGAL ACTION ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, AND YOU SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT. IF SUBJECT MATTER JURISDICTION (INCLUDING DIVERSITY JURISDICTION) DOES NOT EXIST IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, THEN THE EXCLUSIVE FORUM AND VENUE FOR ANY SUCH ACTION SHALL BE THE COURTS OF THE STATE OF TEXAS LOCATED IN HARRIS COUNTY, AND YOU SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT. THE MAKING OF CLAIMS OR RESOLUTION OF DISPUTES PURSUANT TO THIS AGREEMENT SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE SITE AND/OR THESE TERMS WILL BE RESOLVED INDIVIDUALLY IN THE FORUM DESIGNATED IN THIS SECTION, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; AND, EXCEPT FOR NEW JERSEY RESIDENTS AND WHERE OTHERWISE PROHIBITED BY LAW, (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE.
These Terms, including policies and information linked from or incorporated herein, constitute the entire agreement between you and FSI with respect to the Site and your use of it and supersede all prior or contemporaneous communications, agreements and proposals with respect to the Site or your use of it. No provision of these Terms shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of or delay in exercising any right or remedy under these Terms shall operate as a waiver or estoppel of any right, remedy or condition. If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer or sublicense any of your rights or obligations under these Terms without FSI’s express prior written consent. FSI will not be responsible for failure to fulfill any obligation due to causes beyond its control.