Terms and Conditions
(Effective date February 17, 2017)
This is an agreement (hereinafter referred to as the “Terms”) between Dulhan USA, Inc., registered in 514 Brier Crossings Loop, Durham, NC 27703, 82-3357970 (also referred to in these Terms as “Dulhan”, “we”, “us” or “our”), who you agree may invoice you for their part of the Services, and you (also referred to in these Terms as “User”, “you”, “your”), the person or entity using our services and accepting these Terms.
- APPLICATION AND ACCEPTANCE OF THE TERMS
1.2 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Dulhan, or (b) you are not permitted to receive any Services under the laws of United States of America or other countries / regions including the country / region in which you are resident or from which you use the Services.
1.3 You acknowledge and agree that Dulhan may amend any Terms at any time by posting the relevant amended and restated Terms on the Site. By continuing to use the Services or the Site, you agree that the amended Terms will apply to you.
1.4 If we posted or provided a translation of the English language version of the Terms, you agree that the translation is provided for convenience only and that the English language version will govern your uses of the Services or the Site.
1.5 You may be required to enter into a separate agreement, whether online or offline, with Dulhan or our affiliate for any Service (“Additional Agreements”). If there is any conflict or inconsistency between the Terms and an Additional Agreement, the Additional Agreement shall take precedence over the Terms only in relation to that Service concerned.
- PROVISION OF SERVICES
2.1 You must register as a member on the Site in order to access and use some Services. Further, Dulhan reserves the right, without prior notice, to restrict access to or use of certain Services (or any features within the Services) subject to any condition that Dulhan may impose in our discretion.
2.2 Services (or any features within the Services) may vary for different regions and countries. No warranty or representation is given that a particular Service or feature or function thereof or the same type and extent of the Service or features and functions thereof will be available for Users. We may in our sole discretion limit, deny or create different level of access to and use of any Services (or any features within the Services) with respect to different Users.
2.3 Dulhan may launch, change, upgrade, impose conditions to, suspend, or stop any Services (or any features within the Services) without prior notice except that in case of a fee-based Service, such changes will not substantially adversely affect the paying Users in enjoying that Service.
- USERS GENERALLY
3.1 As a condition of your access to and use of the Site or Services, you agree that you will comply with all applicable laws and regulations when using the Site or Services.
3.2 You agree to use the Site or Services solely for your own private and internal purposes. You agree that (a) you will not copy, reproduce, download, re-publish, sell, distribute or resell any Services or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etcetera available on or through the Site (the “Site Content”), and (b) you will not copy, reproduce, download, compile or otherwise use any Site Content for the purposes of operating a business that competes with Dulhan, or otherwise commercially exploiting the Site Content. Systematic retrieval of Site Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from Dulhan is prohibited. Use of any content or materials on the Site for any purpose not expressly permitted in the Terms is prohibited.
3.4 Dulhan may allow Users to access to content, products or services offered by third parties through hyperlinks (in the form of word link, banners, channels or otherwise), or otherwise to such third parties’ web sites. You are cautioned to read such web sites’ terms and conditions and/or privacy policies before using the Site. You acknowledge that Dulhan has no control over such third parties’ web sites, does not monitor such web sites, and shall not be responsible or liable to anyone for such web sites, or any content, products or services made available on such web sites.
3.5 You agree not to undertake any action to undermine the integrity of the computer systems or networks of Dulhan and/or any other User nor to gain unauthorized access to such computer systems or networks.
3.6 By posting or displaying any information, content or material (“User Content”) on the Site or providing any User Content to Dulhan or our representative(s), you grant an irrevocable, perpetual, worldwide, royalty-free, and sub-licensable (through multiple tiers) license to Dulhan to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create derivative works, and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner and for any purpose which may be beneficial to the operation of the Site or the provision of any Services. You confirm and warrant to Dulhan that you have all the rights, power and authority necessary to grant the above license.
- MEMBER ACCOUNTS
4.1 User must be registered on the Site to access or use some Services (a registered User is also referred to as a “Member” below). Except with Dulhan’s approval, one User may only register one member account on the Site. Dulhan may reject User’s application for registration for any reason.
4.2 Upon registration on the Site, Dulhan shall assign an account and issue a member ID and password (the latter shall be chosen by a registered User during registration) to each registered User.
4.3 A set of Member ID and password is unique to a single account. Each Member shall be solely responsible for maintaining the confidentiality and security of ther Member ID and password and for all activities that occur under the account. No Member may share, assign, or permit the use of the Member account, ID or password. Member agrees to notify Dulhan immediately if you become aware of any unauthorized use of your password or your account or any other breach of security of your account.
4.4 Member agrees that all activities that occur under your account (including without limitation, posting any information, clicking to accept any Additional Agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by the Member.
4.5 Member acknowledges that sharing of your account with other persons, or allowing multiple users to use your account (collectively, “multiple use”), may cause irreparable harm to Dulhan or other Users of the Site. Member shall indemnify Dulhan, our affiliates, directors, employees, agents and representatives against any loss or damages (including but not limited to loss of profits) suffered as a result of the multiple use of your account. Member also agrees that in case of the multiple use of your account or Member’s failure to maintain the security of your account, Dulhan shall not be liable for any loss or damages arising from such a breach and shall have the right to suspend or terminate Member’s account without liability to Member.
- MEMBER AND USER’S RESPONSIBILITIES
5.1 Each Member/User represents, warrants and agrees that you have full power and authority to accept the Terms, to grant the license and authorization and to perform the obligations hereunder;
5.2 Member/User will be required to provide information as part of the registration process on the Site or your use of any Service or the member account. Each Member represents, warrants and agrees that (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of the use of the Site or Service is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
5.4 Each Member/User represents, warrants and agrees that (a) you shall be solely responsible for obtaining all necessary third party licenses and permissions regarding any User Content that you submit or post; (b) any User Content that you submit or post does not infringe or violate any of the copyright, patent, trademark, trade name, trade secrets or any other personal or proprietary rights of any third party (“Third Party Rights”);
5.5 Each Membe/User further represents, warrants and agrees that the User Content that you submit or post shall:
a) be true, accurate, complete and lawful;
b) not be false, misleading or deceptive;
c) not contain information that is defamatory, libelous, threatening or harassing, obscene, objectionable, offensive, sexually explicit or harmful to minors;
d) not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
e) not violate other Terms or any applicable Additional Agreements;
f) not violate any applicable laws and regulations or promote any activities which may violate any applicable laws and regulations;
g) not contain any link directly or indirectly to any other web sites which includes any content that may violate the Terms.
5.6 Each Member further represents, warrants and agrees that you shall/are:
a) carry on your activities on the Site in compliance with any applicable laws and regulations;
b) carry on your activities in accordance with the Terms and any applicable Additional Agreements;
c) not use the Services or Site to defraud any person or entity (including without limitation use of stolen credit/debit cards);
d) not impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
e) not engage in spamming or phishing;
f) not engage in any other unlawful activities (including without limitation those which would constitute a criminal offence, give rise to civil liability, etcetera) or encourage or abet any unlawful activities;
g) not involve attempts to copy, reproduce, exploit or expropriate Dulhan’s various proprietary directories, databases and listings;
h) not involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
i) not involve any scheme to undermine the integrity of the data, systems or networks used by Dulhan and/or any user of the Site or gain unauthorized access to such data, systems or networks;
j) not engage in any activities that would otherwise create any liability for Dulhan or our affiliates.
5.7 Member/User may not use the Services and member account to engage in activities which are identical or similar to Dulhan’s e-commerce marketplace business.
5.8 Member acknowledges and agrees that Dulhan shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or material or information created, obtained or accessible through the Services or Site. Dulhan does not endorse, verify or otherwise certify the contents of any comments or information made by any Member. Each Member is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other information
5.9 Member acknowledges and agrees that each Member is solely responsible for observing applicable laws and regulations in its respective jurisdictions to ensure that all use of the Site and Services are in compliance with the same.
- BREACHES BY MEMBERS
6.1 Dulhan reserves the right in our sole discretion to remove, modify or reject any User Content that you submit to or post on the Site which we reasonably believe is unlawful, violates the Terms, could subject Dulhan or our affiliates to liability, or is otherwise found inappropriate in Dulhan’s opinion.
6.2 If any Member breaches any Terms, or if Dulhan has reasonable grounds to believe that a Member is in breach of any Terms, Dulhan shall have the right to take such disciplinary actions as it deems appropriate, including without limitation: (i) suspending or terminating the Member’s account and any and all accounts determined to be related to such account by Dulhan in its discretion; (ii) restricting, downgrading, suspending or terminating the subscription of, access to, or current or future use of any Service; (iii) imposing other restrictions on the Member’s use of any features or functions of any Service as Dulhan may consider appropriate in its sole discretion; and (iv) any other corrective actions, discipline or penalties as Dulhan may deem necessary or appropriate in its sole discretion.
6.3 Without limiting the generality of the provisions of the Terms, a Member would be considered as being in breach of the Terms in any of the following circumstances:
a) Dulhan has reasonable grounds to suspect that such Member has used a stolen credit card or other false or misleading information in any transaction with a counter party,
c) Dulhan has reasonable grounds to suspect that any information provided by the Member is not current or complete or is untrue, inaccurate, or misleading, or
d) Dulhan believes that the Member’s actions may cause financial loss or legal liability to Dulhan or our affiliates or any other Users.
6.4 Dulhan reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, Dulhan may disclose the Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action. Dulhan shall not be liable for damages or results arising from such disclosure, and Member agrees not to bring any action or claim against Dulhan for such disclosure.
6.5 Dulhan may, at any time and in our reasonable discretion, impose limitations on, suspend or terminate the Member’s use of any Service or the Site without being liable to the Member if Dulhan has received notice that the Member is in breach of any agreement or undertaking with any affiliate of Dulhan and such breach involves or is reasonably suspected of involving dishonest or fraudulent activities.
6.6 Each Member agrees to indemnify Dulhan, our affiliates, directors, employees, agents and representatives and to hold them harmless, from any and all damages, losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from your submission or posting of any User Content, from your use of the Site or Services, or from your breach of the Terms.
6.7 Each Member further agrees that Dulhan is not responsible, and shall have no liability to you or anyone else for any User Content or other material transmitted over the Site, including fraudulent, untrue, misleading, inaccurate, defamatory, offensive or illicit material and that the risk of damage from such material rests entirely with each Member. Dulhan reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Member, in which event the Member shall cooperate with Dulhan in asserting any available defenses.
- LIMITATION OF LIABILITY
7.1 to the maximum extent permitted by law, the services provided by Dulhan on or through the site are provided “as is”, “as available” and “with all faults”, and Dulhan hereby expressly disclaims any and all warranties, express or implied, including but not limited to, any warranties of condition, quality, durability, performance, accuracy or reliability. all such warranties, representations, conditions, and undertakings are hereby excluded.
7.2 to the maximum extent permitted by law, Dulhan makes no representations or warranties about the validity, accuracy, correctness, reliability, quality, stability, completeness or currentness of any information provided on or through the Site; Dulhan does not represent or warrant that use of products or services offered on the site does not violate any third party rights; and Dulhan makes no representations or warranties of any kind concerning any product or service offered or displayed on the Site.
7.3 Any material downloaded or otherwise obtained through the Site is done at each User’s sole discretion and risk and each User is solely responsible for any damage to User’s computer system or Dulhan’s computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from Dulhan or through or from the Site shall create any warranty not expressly stated herein.
7.4 The Site may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall Dulhan and our affiliates be held liable for any such services or products.
7.5 Each User hereby agrees to indemnify and save Dulhan, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including legal costs on a full indemnity basis) which may arise from such User’s use of the Site or Services or from your breach of any of the terms and conditions of the Terms. Each User hereby further agrees to indemnify and save Dulhan, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from User’s breach of any representations and warranties made by User to Dulhan.
7.6 Each User hereby further agrees to indemnify and save Dulhan, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a result of any claims asserted by Third Party Rights. Each User hereby further agrees that Dulhan is not responsible and shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. Dulhan reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Dulhan in asserting any available defenses.
7.7 Dulhan shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following.
a) the use or the inability to use the Site or Services;
b) any defect in data, information or services obtained from a User or any other third party through the Site;
c) violation of Third Party Rights or claims or demands that User’s use of products or services offered or displayed on the Site may violate or may be asserted to violate Third Party Rights; or claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants;
d) unauthorized access by third parties to data or private information of any User;
e) statements or conduct of any User of the Site; or;
f) any matters relating to Services however arising, including negligence.
7.8 Notwithstanding any of the foregoing provisions, the aggregate liability of Dulhan, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each User for all claims arising from the use of the Site or Services during any calendar year shall be limited to the greater of (a) the amount of fees the User has paid to Dulhan or our affiliates during the calendar year and (b) the maximum amount permitted in the applicable law. The preceding sentence shall not preclude the requirement by the User to prove actual damages. All claims arising from the use of the Site or Services must be filed within one (1) year from the date the cause of action arose or such longer period as prescribed under any applicable law governing this Term of Use.
7.9 The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Dulhan has been advised of or should have been aware of the possibility of any such losses arising.
8.1 Escalation. In the event of dispute, either party may call for escalation by written notice to the other. Within 5 business days of such notice, Dulhan shall designate an executive with authority to make commitments that would resolve the dispute (a “Senior Manager). The parties (Dulhan Senior Manager and the User) shall meet in person or by telephone (“Dispute Conference’) within 5 business days of their designation and shall negotiate in good faith to resolve the dispute. Except to the extend necessary to prevent irreparable harm or to preserve rights or remedies, neither party shall initiate arbitration until 10 business days after the Dispute Conference.
8.2 If the parties do not reach an agreement by the escalation established in the previous clause 8.1, the arbitration shall proceed.
8.3 Arbitration; Waiver of Trial by Jury. You agree that all disputes between you and us or any of our officers, directors or employees acting in their capacity as such (whether or not such dispute involves a third party) with regard to your relationship with us, including without limitation disputes related to these terms of service, your use of the services, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the jams, inc. (“jams”) rules for arbitration of consumer-related disputes, and you and we hereby expressly waive trial by jury; provided, however, that we or you may seek injunctive or other equitable relief in any state or federal court having jurisdiction to grant it in the event of an actual or threatened infringement or misappropriation of intellectual property rights. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration.
8.4 Small Claims Court; Class Action Waiver. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. You are giving up your right to participate as a class representative or class member on any class claim you may have against us including without limitation any right to class arbitration or any consolidation of individual arbitrations. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.
8.5 Procedures. These dispute resolution provisions will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event that JAMS is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
8.6 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Disputes section, you must notify us in writing within thirty (30) days of the date that you first accept these Terms and Conditions of service (unless a longer period is required by applicable law), and then you must litigate any disputes against us in accordance with the Governing Law and Jurisdiction section below. Your written notification must be mailed to us at 10233 S Parker Rd, #300, Parker, 80134, Colorado, US. If you do not notify us in accordance with this paragraph, you agree to be bound by the terms of this Disputes section, including without limitation the escalation, arbitration and class-action waiver provisions, and further including such provisions in any revisions we make to these Terms of Service after the date of your first acceptance. Such notification must include: (i) your name; (ii) your email and mailing address, and (iii) a statement that you do not wish to resolve disputes with us through arbitration or waive your ability to participate in a class action. If we make any changes to this Disputes section (other than a change to the address at which we will receive notices or rejections of future changes to this Disputes section), you may reject any such change by sending us written notice, within thirty (30) days of the change, to the address set out at the end of these Terms and Conditions. It is not necessary to send us a rejection of a future change to this Disputes section if you had properly opted out within the first thirty (30) days after you first accepted the provisions in this Disputes section. If you have not properly opted out, then by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Disputes section, as modified by any changes you did not reject. A notification sent pursuant to this paragraph solely affects these Terms and Conditions; if you previously entered into other arbitration or dispute resolution agreements with us or enter into other such agreements in the future, your notification that you are opting out of the provisions in this Disputes section shall not affect the other arbitration agreements between you and us.
8.7 Severability. If any of the prohibitions against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Disputes section will be null and void. This Disputes section, including without limitation the arbitration agreement and class action waivers contained herein, will survive the termination of your relationship with us.
8.8 Notwithstanding any provision in these Terms to the contrary, we agree that if Dulhan makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. The provisions of this arbitration agreement shall only be in effect to the extent they are permitted under applicable laws. If the JAMS Rules cannot be applied to an arbitration under applicable law, then the rules of the local governing arbitration body shall apply instead.
- FORCE MAJEURE
9.1 Under no circumstances shall Dulhan be held liable for any delay or failure or disruption of the content or services delivered through the Site resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
- INTELLECTUAL PROPERTY RIGHTS
10.1 Dulhan is the sole owner or lawful licensee of all the rights and interests in the Site and the Site Content. The Site and Site Content embody trade secrets and other intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Site and Site Content shall remain with Dulhan, our affiliates or licensors of the Site Content, as the case may be. All rights not otherwise claimed under the Terms or by Dulhan are hereby reserved.
10.2 ” Dulhan” and related icons and logos are registered trademarks or trademarks or service marks of Dulhan and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
10.3 Dulhan may have independent third parties involved in the provision of the Services (e.g., the authentication and verification service providers). You may not use any trademark, service mark or logo of such independent third parties without prior written approval from such parties.
11.1 All legal notices or demands to or upon Dulhan shall be made in writing and sent to Dulhan personally to the following entity and address: 514 Brier Crossings Loop, Durham, NC 27703.
The notices shall be effective when they are received by Dulhan in any of the above-mentioned manner.
11.2 All legal notices or demands to or upon a User shall be effective if either delivered personally, sent by courier, certified mail or email to the last-known correspondence, fax or email address provided by the User to Dulhan. Notice to a User shall be deemed to be received by such User if and when, Dulhan is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User.
11.3 You agree that all agreements, notices, demands, disclosures and other communications that Dulhan sends to you electronically satisfy the legal requirement that such communication should be in writing.
- GENERAL PROVISIONS
12.1 Subject to any Additional Agreements, the Terms constitute the entire agreement between you and Dulhan with respect to and govern your use of the Site and Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
12.2 Dulhan and you are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
12.3 If any provision of the Terms is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
12.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
12.5 Dulhan failure to enforce any right or failure to act with respect to any breach by you under the Terms will not constitute a waiver of that right nor a waiver of Dulhan’s right to act with respect to subsequent or similar breaches.
12.6 Dulhan shall have the right to assign the Terms (including all of our rights, titles, benefits, interests, and obligations and duties in the Terms to any person or entity (including any affiliates of Dulhan). You may not assign, in whole or part, the Terms to any person or entity.
12.7 These Terms shall be governed by and construed in accordance with the laws of United States of America, excluding its conflict of law rules.