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Terms & Conditions

 

The Terms & Conditions for Smith & Fong Company (the “Agreement” or “Terms”) is made and entered by each customer (“Purchaser”) who places an Order with Smith & Fong Company, a California Corporation (“Seller”). By placing an Order with Seller, the Purchaser agrees to be bound by this Agreement.

Additionally, your access and use of this Website, among other things, are governed by these Terms. By using the Website, you agree to follow these rules and to be bound by them. If you do not agree with any of these Terms, do not use the Website. Any reference to “you” or “your” is the user of this website and shall not be construed to be limited to Purchasers.

1. Description of Ordering Smith & Fong Company Products.

Pursuant to these Terms & Conditions, Seller will sell to Purchaser specially ordered products (a “Product Order”) or custom designed materials to be manufactured in accordance with Purchaser’s specifications (a “Custom Order”) (collectively, Product Orders and Custom Orders shall be referred to as “Orders”). For purposes of this Agreement, all Product Orders and Custom Orders shall refer to the delivery of “Product(s).” Seller will provide a quote (“Quote”) and if Purchaser desires to purchase from Seller, Purchaser shall sign the Quote subject to the terms of this Agreement. Seller will provide the invoice to Purchaser with the Purchase Price detailing items such as but not limited to the quantity and cost of goods, packaging, pallets, freight and delivery charges, taxes, and any other fees for the Order (“Invoice”). Unless expressly stated otherwise, the prices are quoted in U.S. dollars. The full Invoice amount is due when the Order is placed. A Quote is only valid for thirty (30) days unless specified for a longer period in writing on the Quote, and is only valid if the Quote is accepted in its entirety. Pricing and availability will not necessarily be honored if Purchaser only agrees to purchase some, but not all, of the Order or agrees to purchase some or all of the Order on a date different than the date of the Quote or a date outside of the dates which the Quote expressly states the Quote may be accepted.

2. Effective Date; Seller’s Acceptance Required.

The Terms & Conditions herein shall come into full force and effect on the date Seller receives the signed Quote (the “Effective Date”). Quotes shall expire thirty (30) days from Seller’s provision of the Quote to Purchaser (the “Quotation Date”), unless earlier revoked by Seller (the “Expiration Date’). Acceptance by the Seller of an untimely signed Quote by Purchaser is in the Seller’s sole discretion.

3. Purchaser to Take Possession at Purchaser’s Place of Business Unless Specified Otherwise.

The Products will be delivered to Purchaser at the location identified in the Invoice (the “Delivery Site”). Title to the Products sold hereunder will be deemed to pass to the Purchaser upon delivery of the Products.

4. No Installation of Products by Seller.

Seller will not install the Products. Purchaser is solely responsible for the installation in compliance with applicable laws and regulations. Purchaser shall consult Seller’s Installation Guide for the installation of all Products.

5. Purchase Price and Payment Terms.

The purchase price of the Product is that sum which appears in the Quote subject to Section 1 above, inclusive of all fees associated with the Invoice (the “Purchase Price”). Purchaser will pay the entire Purchase Price when Purchaser places an Order. Seller shall have the right to cancel the Order if the full Purchase Price is not paid. In the event that any portion of the Purchase Price is unpaid, without waiving any other rights including the right for Seller to terminate the Order, all outstanding balances due to Seller shall be paid prior to shipment of the Products to the Delivery Site.

6. Purchaser Does Not Have the Right to Specify Delivery Date.

All Orders are made specifically for Purchaser. Seller does not know when the Products will be ready for Purchaser. Seller will communicate delivery updates when known.

7. Delivery; Receipt of Products; Inspection of Products.

Purchaser agrees to have supervisory or knowledgeable personnel at the Arrival Delivery Site to accept the Order. In the event the Order is delivered and left unattended, Purchaser assumes all risk of loss or shortage that may occur after delivery. It is the Purchaser’s receiving-agent responsibility to inspect and verify all delivered materials upon offload from the delivery truck.

Acceptance of Order. Purchaser may not reject or revoke its acceptance of any Products, subject to applicable warranty requirements. No nonconformity or defect, including a substantial one, shall constitute grounds for claiming breach of the Agreement. Parties agree to AWI industry standards.

Seller reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from Purchaser. Purchaser shall provide Seller written notice of any claimed defect in such Products within five (5) days upon delivery (other than latent defects not discovered by Purchaser). Purchaser agrees that such notice period is reasonable. Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of such Products. Purchaser must inspect the Products upon receipt and if any errors or irregularities exist, Purchaser must report them to Seller in writing before using the Products and within 5 days of receipt. Otherwise, no claims or adjustments of any kind will be recognized subject to Warranty requirements. Seller assumes no responsibility for the use of the Products.

For avoidance of doubt, in the event a warranty applies pursuant to the Warranty Links listed herein or otherwise, Seller will comply with its respective Warranty obligations.

Shipping Damages: Purchaser shall provide notice to Seller of all shipping related damages on the day Purchaser receives the Products. Purchaser shall identify any damage caused from shipping on the freight bill of lading (BOL). Purchaser shall accept the Product that was damaged by shipping and must identify all shipping damages on the BOL.

8. Imperfect Conformity to Sample or Model if Applicable.

(a) Prior to placement of Order, if Purchaser evaluates any custom sample, Seller does not warrant that the Products shall conform in all respects to the sample exhibited to Purchaser.

(b) Color and shade variations are inherent characteristics of natural products including but not limited to wood-type materials and are to be expected. Like wood, the visual of Plyboo Products vary in grain figuring, color, and shade. Variations in the appearance of the finish color are also typical.

(c) The variations described above do not give cause to return or replace any Products. The variations are inherent and therefore not a defect.

For avoidance of doubt, bamboo is a natural product and variations in color, grain, texture, and minor dimensional tolerances are inherent and not defects. Parties agree to AWI industry standards for purposes of dimensional and surface tolerances for allowable variation in thickness, groove spacing, flatness, and other relevant specifications of the Products.

9. No Right to Revoke Acceptance Where Purchaser Accepts Products.

If Purchaser has accepted the Products tendered under this Agreement in any manner provided in the California Uniform Commercial Code (CA UCC), Purchaser shall have no right to subsequently reject the Products for any reason and to revoke acceptance of nonconforming Products. Parties agree to comply with the CA UCC.

10. Cancellation of Agreement.

(a) Each Order is a custom build-to-suit Product which cannot reasonably be sold by Seller to another customer. Accordingly, Orders are not subject to cancellation by Purchaser for any reason. Seller is not responsible for verifying the accuracy of any measurement or other specifications furnished by Purchaser. For avoidance of doubt, Seller does not provide any shop drawings or field measurement services and shall not be subject to any related obligations.

(b) While Seller will use commercially reasonable efforts to fulfill all orders, Seller cannot guarantee the availability of any particular product. Seller reserves the right to discontinue the sale of any product listed at any time without notice. Seller reserves the right to limit quantities for any reason. Seller does not guarantee that any content is accurate or complete, including price information and product specifications. If Seller discovers price errors, Seller will correct the prices in its systems, and the corrected price will apply to Purchaser’s order. Seller reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an Invoice has been submitted).

(c) Seller may cancel this Agreement at any time if Seller reasonably determines that its performance hereunder is commercially impracticable. Seller will refund payments for orders canceled by Seller.

11. Return Policy.

All Custom Orders are NON-RETURNABLE and NON-REFUNDABLE to the maximum extent permissible pursuant to the then-governing legal requirements. Custom Orders are those orders made just in time. Without limiting the list of Custom Order Products, the following products are deemed Custom Orders:

Seller will satisfy its legal obligations for all Orders subject to the CA UCC, including for the following Products:

 

12. Warranties and Disclaimers.

The following Products include the following warranties:

In the event of a conflict between this Agreement and the Warranties, the Warranties shall control.

No Other Warranty or Representation. Purchaser hereby acknowledges that Purchaser has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein including to the Warranties to linked herein.

13. Limitation of Liability.

(a) Seller shall in no event have obligations or liabilities to Purchaser or any other person for loss of profits, loss of use or incidental, special or consequential damages, whether based on contract, tort (including negligence), strict liability or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of the Products, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller shall not be liable for personal injury or property damage.

(b) Seller’s sole liability for any claims, whether based in contract or tort, at law or in equity, for any loss or damages arising, resulting from, or connected with the Products, shall be limited to the remedies set forth hereinbelow.

14. Seller’s Right to Incidental Damages.

Seller shall be entitled to all incidental damages including but not limited to all commercially reasonable charges incurred:

(a) In stopping delivery under the Uniform Commercial Code;

(b) In storing the Products after a breach by Purchaser; and

(c) In connection with the return or resale of Products as well as for any other damages resulting from Purchaser’s breach.

15. Security Interest.

Seller retains a security interest in the Products (and replacements) until the full Purchase Price (including taxes and additional charges) has been paid. Purchaser’s failure to pay any amount when due shall give Seller the right to repossess and remove the Products should Seller deliver the Products prior to payment in full. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity. Purchaser agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as Seller may reasonably request in order to perfect and protect Seller’s security interest in the Product, including, without limitation, a financing statement appropriate for filing.

Notwithstanding the foregoing, Seller reserves the right to exercise any mechanics’ lien, stop payment notice, or payment bond remedies as cumulative remedies. Purchaser acknowledges that none of the remedies set forth in this Section or elsewhere in this Agreement are exclusive. Seller may pursue any remedies to protect its interests as allowed by law within Seller’s sole discretion

16. Force Majeure.

If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; a pandemic or epidemic; a government ordered evacuation or shelter-in-place instruction; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed. Purchaser waives the right to assert any defense based on impossibility, frustration of purpose, or impracticability.

17. Default.

Failure to make any payment when due in accordance with the terms hereof shall constitute a default. Finance charges will begin to accrue on a daily basis for the day after which payment was due but not paid at 18% per annum unless a lesser sum is required by law, in which case the maximum legal rate will be charged. Seller is entitled, but not obligated, to terminate this Agreement in the event of a default by Purchaser. Such decision is within Seller’s sole discretion.

18. Termination for Insolvency.

Either party may terminate this Agreement if the other party is insolvent or has made any assignment by operation of law or otherwise of this Agreement or any of its rights hereunder for the benefit of creditors.

19. Purchaser’s Assignment.

The rights of Purchaser under this Agreement may not be assigned or transferred in whole or in part, by operation of law or otherwise, without the express written consent of Seller.

20. Seller’s Right of Assignment.

Seller may assign all or part of this Agreement without such assignment being considered a change to the Agreement and without providing notice to Purchaser. Purchaser agrees that Seller will be released from all liability upon assignment. The assignee shall have the same rights and obligations as the assignor. Seller may assign any of its right to receive any payment or payments from Purchaser hereunder. Seller may subcontract the performance of any of its obligations under this Agreement.

21. No Waiver.

The failure by either party to enforce at any time any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either party thereafter to enforce each and every such provision. The waiver of any breach or default by any party to this Agreement of any of the provisions of this Agreement shall not be considered to be a waiver of any subsequent breach or default.

22. Survival.

The parties’ representations and warranties and any other provision that, in order to give proper effect to its intent, should survive expiration or termination, will survive the expiration and/or termination of this Agreement.

23. Notices.

All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing to Purchaser and Seller at their respective addresses as last known. Either party may change its address by written notice to the other.

24. Entire Agreement.

This Agreement together with Seller’s linked warranties and disclaimers constitutes the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes all prior agreements, negotiations and understandings of the parties with respect thereto No representation, promise, modification or amendment shall be binding upon either party as a warranty or otherwise unless in writing and signed on behalf of each party by a duly authorized representative. Although Purchaser may use its standard purchase order form to give any order or notice provided for hereunder, said order or notice will be governed by the terms and conditions of this Agreement. Unless an Order specifies that the terms of the Order shall govern in the event of a conflict with these Terms and Conditions in which case the Order terms shall control, any term or condition set forth in any such standard form which is inconsistent with the terms and conditions of this Agreement shall have no force or effect. Although Seller may use its standard invoice, this Agreement will control, and any conflict between those forms and this Agreement will be governed by the terms and conditions of this Agreement unless the Seller agrees in writing that the terms of the other forms control.

25. Applicable Law.

This Agreement shall be interpreted and construed in accordance with the laws of the State of California. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by the laws of the State of California, including its statutes of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the laws of a different jurisdiction.

26. Venue.

Purchaser and Seller agree that appropriate venue for any dispute between Purchaser and Seller shall be in the California Superior Court in Marin County.

27. Attorney’s Fees.

If any legal action is brought to collect the Purchase Price hereunder or any other fees due to Seller, Seller shall be entitled to receive its reasonable attorneys’ fees and court costs in addition to any other relief to which it may be entitled.

28. Severability; Modification of Unconscionable Clause.

The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition. If any clause of this Agreement is held to be unconscionable by any court of competent jurisdiction, the clause in question shall be modified to eliminate the unconscionable element, and, as so modified, the clause shall be binding on the parties. The remaining provisions of this Agreement shall not be affected by the modification of any unconscionable clause. “Unconscionable” shall be deemed to mean that the enforcement of the entire Agreement or a specific clause of the Agreement will work oppression or cause unfair surprise to one of the parties. Unconscionability shall be determined as of the time when the Agreement is made, but shall not be deemed established either by the fact that the Agreement subsequently proved disadvantageous to one of the parties or by the fact that one of the parties has bargaining power superior to that of the other.

29. Mutual Agreement.

This Agreement and all representations or covenants contained herein shall constitute binding and continuing obligations between and among the parties hereto. Each of the parties to this Agreement has agreed to the particular language and provisions of this Agreement.

30. Modifications; Price Escalation.

This Agreement may be modified by Seller at Seller’s discretion. In the event parties mutually agree to modify a specific provision for a specific Order, then such modification shall be signed by all parties hereto.

BINDING PRICE TERMS; PRICE ESCALATION: When Purchaser pays Seller for an Order, the pricing for said Order is binding and is not subject to increase. However, if after the quote but before a payment is made, there is an increase in the cost of supplying the components needed to satisfy the Order caused by any law, regulation, tax, tariff, third party operated facility charge or otherwise, imposed or increased after the date of the Quote or respecting the ownership, storage, processing, production, transportation, distribution, use or sale of the components needed to complete the Order will be added to the price to the Quote. Examples of increases in costs unknown at the time of the Quote include but are not limited to tariffs or taxes imposed on imported goods after the date of the Quote. For avoidance of doubt, a payment for the specified Invoice locks in the Purchaser’s price for said Order.

31. Consent to do Business Electronically.

PURCHASER ACKNOWLEDGES THAT PURCHASER CONSENTS TO DOING BUSINESS WITH SELLER USING ELECTRONIC METHODS. Either Seller or Purchaser can refuse to conduct business electronically at any time.

32. Proposition 65 Warning.

WARNING: Drilling, sawing, sanding or machining wood products can expose you to wood dust, a substance known to the State of California to cause cancer. Avoid inhaling wood dust or use a dust mask or other safeguards for personal protection. For more information go to www.P65Warnings.ca.gov/wood.

33. Lead Times.

Seller will not accept any responsibility as to the date of delivery for any Products. Delivery dates are an estimate and actual delivery can vary widely due in whole or in part to scheduling, manufacturing, and delivery on account of business protocols, strikes, lockouts, labor troubles, fires, wind storms, floods, acts of God, inability to secure cars and/or trucks, volume of business, and/or any number of other causes, some of which are not in Seller’s control. Delay in delivery will not constitute a default by nor result in any liability to Seller.

34. Storage Fee.

If Purchaser fails to make the Delivery Site available or otherwise fails to accept delivery for Order, then Customer shall pay a storage fee at the then-current daily price per square foot at Seller’s chosen location. The daily storage price shall be determined in Seller’s good faith determination based on reasonable business factors. Seller will provide Purchaser with notice of the storage fee and Purchaser shall be required to pay all accrued storage fees before the Order is released for delivery.

35. Product Specific Instructions.

See Seller’s list of Products on our website to determine the Product specific guide or instructions applicable to your Order.

36. Trademarks.

The trademarks, service marks and logos (collectively the “Trademarks”) used and displayed by Seller are registered and unregistered Trademarks of Seller. Nothing should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed by Seller, without the prior written permission of the Trademark owner. Seller aggressively enforces its intellectual property rights to the fullest extent of the law. Seller’s trademarks or the other Seller formatives may not be used in any way, including in advertising or publicity pertaining to distribution of materials, without prior, written permission from Seller. Seller prohibits use of Seller’s trademarks and logos as part of a link to or from any site unless establishment of such a link is approved in advance by Seller in writing by Seller. Seller’s trademarks include but are not limited to the following:

  • SMITH&FONG®
  • SMITH & FONG PLYBOO®
  • PLYBOO®
  • DURAPALM®
  • PLYBOOSOUND®
  • BASSO®
  • FRACTAL®
  • FUTURA®
  • LINEAR®
  • LINEAR SOUND®
  • LOUVER®
  • MOD PUZZLE®
  • NEOPOLITAN®
  • PALMSHADES®
  • PALMSHELL®
  • PLEAT&WEAVE®
  • PLYBOO SPORT®
  • PLYBOO STRAND®
  • PLYBOODOOR®
  • REALCORE®
  • REVEAL®
  • STILETTO®
  • FRACTOOL®

 

37. Independent Allocations of Risk.

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranty, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by Seller to Purchaser and is an essential element of the basis of the bargain between the parties.

38. Third Party Processor Fee.

We apply a 3.0% surcharge on all credit card payments. Rate is subject to increase.

Website Terms of Use

39. Your Use of the Website (“Site”)

Your use of Seller’s website and/or purchasing Products from Seller over the telephone, through the internet, by facsimile, or in person constitutes your acceptance of this Agreement. By accepting the Agreement, you certify that you are 18 years of age or older. If you are under the age of 13, you are not permitted to use the Site. If you are a parent or legal guardian who has agreed to be bound by these Terms on behalf of a child between the ages of 13 and 18, you agree to be fully responsible for such child’s use of the Site, including all financial charges and legal liability that such child may incur.

  • If Seller determines that a child under the age of 13 has provided personal information to the Site, Seller will delete that information as soon as practical. If you become aware that such information has been provided by a child under the age of 13, please contact us at legal@plyboo.com so that we can delete that information.
  • You agree that you will not do any of the following (collectively, the “Code of Conduct”):
    • Use the Site or content on or from the Site for any unlawful purpose
    • Engage in spamming, flooding, phishing or other activity intended to gather information unlawfully;
    • Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
    • Remove any copyright, trademark or other notices of proprietary rights contained on the Site;
    • Express or imply that any statement you make is endorsed by Seller;
    • Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site;
    • Submit data or information to or otherwise transmit material through the Site that is (i) copyrighted, protected by trade secret or otherwise subject to third-party proprietary or intellectual property rights, including privacy and publicity rights, unless you are the lawful owner of such rights or have permission from the rightful owner to submit or transmit such data or information; (ii) is unlawful, obscene, defamatory, libelous, threatening, fraudulent, abusive, pornographic, harassing or encourages conduct that would be considered a criminal offense, or does or would give rise to civil liability or violate any law, rule or regulation, or is otherwise objectionable, or infringes Seller’s or any third party’s intellectual property rights or other rights; (iii) is intended to victimize, harass, degrade or intimidate an individual or group of individuals on the basis of age, disability, ethnicity, gender, race, religion or sexual orientation; or (iv) is non-public information about a company or individual without the express written authorization to do so;
    • Transmit any software or other materials that contain any harmful or malicious code, including without limitation viruses, worms, time bombs, date bombs, trojan horses and defects;
    • “Frame” or “mirror” any part of the Site without Seller’s prior written authorization;
    • Use any robot, spider, site search / retrieval application or other manual or automatic device or process to retrieve, index, data mine or in any way reproduce or circumvent the navigational structure, or presentation of the Site or its contents;
    • Harvest or collect information about Site visitors; or
    • Take any action that imposes an unreasonable or disproportionately large load on Seller’s infrastructure.

40. Information Posted on the Website.

The information and materials on the Site (the “Materials”) are provided for your review in accordance with the Agreement. Seller cannot and does not guarantee the accuracy or completeness of the Materials displayed on the Site, including, without limitation, prices, product images, specifications, dimensions, availability and services. The Materials may contain technical inaccuracies and typographical errors.

41. Links to Other Sites.

The Site may contain links to other websites. These links are provided to you only as a convenience and their presence on the Site does not imply endorsement by Seller of such website or of any association with such websites’ operators.

You agree Seller is in no way responsible or liable for the availability or content of the websites to which the Site is linked. Seller makes no representations whatsoever about any other website you may access through the Site. Any concerns regarding products or services offered by a website to which the Site is linked or the link itself should be directed to the operator of that specific website and not the Site.

Seller strongly encourages you to become familiar with the terms of service and / or terms of use and practices of any linked website. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other sites) is free of items, such as viruses, worms, trojan horses, defects, time bombs, date bombs and other items of a harmful nature.

42. User-Generated Content.

As part of your use of the Site, you may be able to provide comments, feedback, reviews, text and ideas, submit other forms of content including but not limited to tools on our website, including: Fractal® Design Tool, Cosmopolitan® Design Tool, and Futura® Sound Design Tool (collectively, “Content”) to the Site. You agree that Content may be viewed by the general public and you do not and shall not consider such Content to be private, proprietary or confidential. Seller owns all designs created by any of the tools on the website. You grant Seller and its licensees and sublicensees, without any compensation of any kind to you or others, a worldwide, perpetual, irrevocable license to copy, adapt, create derivative works of, reproduce, incorporate, distribute, modify, publicly display and otherwise use in any way such Content in any format or media (“Content License”). You may not revoke Content for any reason at any time. You agree that any Content you submit may appear on sites other than the Site including on other Seller’s Sites. You waive, release and agree not to assert any and all moral rights that you may have in any Content submitted by you to the Site. You agree that Seller may use submitted Content in any manner that Seller deems appropriate or necessary in its sole discretion. Seller reserves the right to edit, modify, abridge or otherwise change any Content you or others submit in their sole discretion.

You agree that you will not use a false or misleading email address, impersonate another person or entity, or otherwise mislead with respect to the origin of any Content you submit, including, without limitation, comments and feedback you submit to the Site. You agree that Seller is not responsible for any Content that you submit to the Site.

By submitting any Content to the Site, you warrant and represent that you have the right to use such Content and have the right to permit Seller and its licensees and sublicensees to use such Content in accordance with the terms of the Content License. You agree not to submit any Content that is owned by someone other than you. You agree not to submit any Content that contains the name, image, likeness or voice of anyone other than yourself without first obtaining permission to submit such Content and to grant the Content License to Seller.

If you identify yourself by name in Content you submit or submit Content that contains an image or audio or video recording of yourself, you authorize Seller and its licensees and sublicensees, without compensation of any kind to you or anyone else, to reproduce, print, publish, translate, modify, edit and disseminate, in any format or media now or hereafter created, your name and such images and recordings in any way Seller deems appropriate, in its sole discretion, throughout the world. Such authorization is and shall be perpetual and cannot be revoked by you for any reason.

Seller does not guarantee that Content you or others submit will be posted to the Site or become publicly available, and Seller does not guarantee that Content posted to the Site will not be offensive, defamatory or otherwise objectionable. Seller reserves the right to remove any Content from the Site without notice and in Seller’s sole discretion; however, you acknowledge and agree that Seller is under no obligation to you to police, monitor or remove Content and Seller makes no guarantee with respect to the completeness, accuracy, integrity or quality of Content submitted to the Site.

43. Revision of the Agreement

YOU AGREE THAT SELLER MAY CHANGE THE TERMS AND CONDITIONS OF THIS AT ANY TIME AND WITHOUT NOTICE TO YOU.

44. Indemnification.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, ATTORNEYS, ASSIGNS, SUCCESSORS-IN-INTEREST, CONTRACTORS, VENDORS, SUPPLIERS, LICENSORS, LICENSEES AND SUBLICENSEES, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION, COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) AND OTHER EXPENSES THAT ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM: (1) YOUR ACTUAL OR ALLEGED BREACH OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, THE CODE OF CONDUCT; (2) ANY ALLEGATION THAT ANY CONTENT OR OTHER MATERIAL YOU HAVE SUBMITTED OR TRANSMITTED TO THE SITE INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE THE COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PARTY; AND / OR (3) YOUR ACTIVITIES OR OMISSIONS IN CONNECTION WITH THE SITE.

45. Legal Process.

You agree that information related to your use of the Site may be subject to legal process. Information and data that you submit to Seller through the Site may be subject to legal process (e.g., a subpoena) by Seller or a third party or government entity, even if that information has been deleted and only exists in backup form. You acknowledge and understand that Seller will comply with all applicable legal obligations in making such information available pursuant to valid legal process. You acknowledge and agree that Seller may have no obligation to give you notice of any legal process that may result in any information related to your use of the Site being produced, discovered or otherwise disclosed.

46. Performance.

Seller’s performance of this Agreement and any other policy contained on the Site is subject to existing and future laws and legal process. Nothing in this Agreement is in derogation of Seller’s right to comply with law enforcement requests or requirements relating to your use of the Site or information given to or gathered by Seller with respect to such use.

47. Scope of Relationship.

You agree that no joint venture, partnership, employment or agency relationship exists between you and Seller as a result of this Agreement or your use of the Site.