WEBSITE TERMS & CONDITIONS OF USE
Effective Date: April 2020
PLEASE READ THESE TERMS CAREFULLY. THEY SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE.
Welcome to the Night Spa® website (the “Site”). The Site is provided by Sinomax USA, Inc. (collectively, “Sinomax”, “we”, or “us” or “our”). By “Site”, we mean any Internet domain address where these Terms are posted and all features, functionality, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to these Terms.
These Terms affect your legal rights, responsibilities and obligations and govern your use of the Site and are legally binding. If you do not wish to be bound by these Terms and any Additional Terms, do not use the Site and uninstall Site downloads and applications.
Updates to These Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Site as more fully explained here.
Table of Contents
It is important that you read and understand these entire Terms before using the Site. This table of contents further highlights some key issues and points and you can click on the headings to be taken to the full explanation.
2. OWNERSHIP; CONTENT; RIGHTS TO USE THE SITE AND CONTENT
4. CONTENT YOU SUBMIT AND COMMUNITY USAGE RULES
5. SITE & CONTENT USE RESTRICTIONS
7. NOTICES; QUESTIONS; CUSTOMER SERVICE
8. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT
9. PRODUCT SPECIFICATIONS; PRICING; ERRORS
11. DISPUTE TERMS; CLASS ACTION WAIVER; JURY WAIVER
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES; LIMITATIONS OF LIABILITY
1.OVERVIEW OF TERMS
It is important that you read these entire Terms, but below are some of the more significant terms that we want to bring to your attention (click on section references for details). The complete provisions, and not the headings or summaries, govern.
Applicability of Terms
Each time you use the Site, these Terms and any Additional Terms apply. Any updates to them will apply to you; so you should check back each time you return for any updates.
Grants and Limitations of Rights
We only grant you a limited revocable license to use the Site subject to rules and limitations.
You grant us a broad license to the content you submit and to your profile. You retain ownership of and responsibility for your content. We have the right to manage our Site to keep its content appropriate.
Your use of our Site is subject to various restrictions designed to protect the Site and users.
Limitations on Your Remedies
We disclaim most warranties and provide the Site and Content “As Is”.
Our liability is greatly limited.
Your equitable or injunctive relief rights are limited.
You agree to waive jury trial and class actions.
Availability of Site
We may change or discontinue our Site, or your right to access it, in whole or in part. Our Site is intended for access from and use in the U.S.A.
2. OWNERSHIP; CONTENT; RIGHTS TO USE THE SITE AND CONTENT.
A. Content. The Site contains a variety of: (i) materials and other items relating to Sinomax and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Site, and the compilation, assembly, and arrangement of the materials of the Site and any and all copyrightable material (including source and object code); and (ii) copyrights, patents, trademarks, service marks, trade names and other intellectual property rights (collectively, “Intellectual Property”). All of the foregoing may be collectively referred to as “Content”.
B. Ownership. The Site and the Content are owned or controlled by Sinomax, our licensors, and certain other third-parties. All right, title, and interest in and to the Content available via the Site is the property of Sinomax, our licensors or certain other third-parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. Sinomax owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.
C. Your Rights to Use the Site and Content.
Subject to your strict compliance with these Terms and the Additional Terms, Sinomax grants you a limited, non-exclusive, revocable, non-assignable, personal and non-transferable license to the Sinomax Licensed Elements (as defined below). You may only, for your personal, non-commercial, lawful use the following (collectively, the “Sinomax Licensed Elements”):
(i) Display, download, view, use, and play the Content on a computer or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
(ii) Stream the Content using any of the widgets and/or other digital streaming internet video players, if any, provided on the Site;
(iii) Subject to any applicable Additional Terms, if the Site includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes content, or to post our content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on us, and only send to recipients you have permission to contact;
(iv) If the Site includes a “Download” link next to a piece of content (including an image, an icon, a wallpaper, a music track, a video, an RSS feed), you may only download a single copy of such content to a single Device;
(v) If made available to you, obtain a registered personal account (and/or related username and password) on the Site and interact with the Site in connection therewith;
(vi) Link to the Site from a website or other online service, so long as: (1) the links only incorporate text, and do not use any Sinomax names, logos, or images, (2) the links and the content on your website do not suggest any affiliation with Sinomax or cause any other confusion, and (3) the links and the content on your website do not portray Sinomax or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to Sinomax. Sinomax reserves the right to suspend or prohibit linking to the Site for any reason, in its discretion, without advance notice or any liability of any kind to you or any third-party; and
(vii) Use any other functionality expressly provided by Sinomax on or through the Site for use by users, subject to these Terms (including functionality to create and/or post User-Generated Content (as defined below)) and any applicable Additional Terms.
This limited license does not give you any ownership of, or any other intellectual property interest in, any Content, and may be immediately suspended or terminated for any reason, in Sinomax’s discretion, and without advance notice or liability.
C. Rights of Others. In using the Site, you must respect the Intellectual Property and rights of Sinomax and others. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed via the Site, see Section 8 below.
A. Accounts. In order to access or use some of the features on the Site, you may need to register with us or create an account. If you register with us or create an account: (i) you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account; (ii) the account may only be set up by an authorized representative of the individual that is the subject of the account; (iii) usernames and passwords must be personal and unique, must not violate the rights of any person or entity and must not be offensive. We may reject the use of any password, username, or email address for any reason in our discretion; (iv) you are solely responsible for your registration information and for updating and maintaining it; (v) you will immediately notify us here of any unauthorized use of your account, password, or username, or any other breach of security (but you will remain responsible for any unauthorized use thereafter); and (vi) you will not sell, transfer, or assign your account or any account rights.
B. Profiles. We may, either directly or through a third-party partner, periodically permit you to set up private, semi-private and/or public profile pages (“Profile Page(s)”) that allow you to provide and/or display information about you. Your Profile Page may not include any form of prohibited UGC, as outlined in Section 2 above and in our Rules. Without limiting the foregoing, Profile Pages may not include content regarding goods or services that you are attempting to sell through the Site and cannot be used to conduct commercial activities, including transactions, advertising, fundraising, contests or other promotions. We may offer you the ability to set preferences relating to your profile or Site activities, but settings may not become effective immediately or be error free and options may periodically change. We assume no responsibility or liability for users’ profile material. Your profile information, including your photo, may be used by us for identity management and fraud prevention on and off the Site.
D. No Liability. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the obligations in this Section 3. We do not review accounts or Profile Pages for authenticity and are not responsible for any unauthorized accounts or Profile Pages that may appear on the Site. For any dispute as to account or Profile Page creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice. Such resolution may include deleting or disabling access to accounts and/or Profile Pages, or any portion thereof, at any time, without notice.
4. CONTENT YOU SUBMIT AND COMMUNITY USAGE RULES.
A. User-Generated Content.
(i) General. Sinomax may now or in the future offer users of the Site the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site, or on or in response to our pages or posts on any third-party platforms or in connection with any of our promotions by any media or manner, or otherwise submit to us (e.g., on our social media pages, in response to our tweets, through a sweepstakes or contest, or by otherwise sending it to us) (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Sinomax Licensed Elements included therein, “User-Generated Content” or “UGC”). Sinomax may allow you to submit UGC through your profile, forums, blogs, message boards, social networking environments, content creation and posting tools, social communities, contact us tools, email, and other communications functionality. Except to the extent of the limited rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest that you have in your UGC.
In your communications with Sinomax, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed UGC and licensed to us as set forth below. In addition, Sinomax retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Sinomax’s receipt of your Unsolicited Ideas and Materials is not an admission by Sinomax of their novelty, priority, or originality, and it does not impair Sinomax’s right to contest existing or future Intellectual Property rights relating to your Unsolicited Ideas and Materials.
(iii) License to Sinomax of Your UGC. Except as otherwise described in any applicable Additional Terms (such as a promotion’s official rules, which specifically govern the submission of your UGC), you hereby grant Sinomax the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. These granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such UGC and combine same with other materials; and (b) use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Sinomax to your UGC, you also hereby grant to Sinomax, and agree to grant to Sinomax, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any UGC, without any obligation or compensation to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any UGC, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2.A(iii).
(v) Representations and Warranties Related to Your UGC. Each time you submit any UGC, you represent and warrant that: (a) you are at least 18 and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any UGC you submit; (b) you are the sole author and owner of the Intellectual Property and other rights to the UGC, or you have a lawful right to submit the UGC and grant Sinomax the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any Sinomax obligation to obtain consent of any third-party and without creating any obligation or liability of Sinomax; (c) the UGC is accurate; (d) the UGC does not and, as to Sinomax’s permitted uses and exploitation set forth in these Terms, will not infringe any Intellectual Property or other right of any third-party; and (e) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. Sinomax has no obligation to monitor or enforce your Intellectual Property rights to your UGC, but you grant us the right to protect and enforce our rights to your UGC, including initiating actions in your name and on your behalf (at Sinomax’s cost and expense, to which you hereby consent and irrevocably appoint Sinomax as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Site, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Site’s online communities (“Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including the following Rules:
• Your UGC. All of your UGC either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any applicable Additional Terms. Your UGC should not contain any visible logos, phrases, or trademarks that belong to third parties. You must not use any UGC that belongs to other people and pass it off as your own (including any content that you might have found elsewhere on the Internet). If anyone contributes to your UGC or has any rights to your UGC, or if anyone appears or is referred to in the UGC, then you must also have their permission to submit such UGC to Sinomax (for example, if someone has taken a photograph or video of your friend and, and you submit it as your UGC, then you must obtain your friend’s and the photographer’s/videographer’s permission to do so). If you choose to submit photos to the Site, link to embedded videos, or include other images of real people, then make sure they are of you of you with someone you know – and only if you have their express permission to submit it.
• Act Appropriately. All of your Site activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your UGC might offend someone or be embarrassing to someone, then chances are it most likely will and it does not belong on the Site. Offensive language, harassment, stalking, insulting comments, gossip, personal attacks, and similar actions are prohibited. Your UGC must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, religion, or handicap. Your UGC must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit. Your UGC must not exploit children.
• Do Not Use for Commercial or Political Purposes. Your UGC must not advertise or promote, or criticize or disparage, a product or service or other commercial activity, or a politician, public servant, or law.
• Do Not Use to Solicit or Send Unwanted Communications. Do not harvest or collect email addresses or other contact information of others from the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Do not solicit personal information from anyone or solicit passwords or personally identifying information for commercial or unlawful purposes. This also includes not uploading, posting, transmitting, sharing or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
• Do Not Use for Inappropriate Purposes. Your UGC must not promote any infringing, illegal, or other similarly inappropriate activity.
• Do Not Misrepresent Yourself or Your UGC. Do not impersonate any other person, user, or company, and do not submit UGC that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company. In the event you receive anything in consideration from us with respect to your UGC (e.g., coupons, sweepstakes entries, etc.) you represent you will include disclosure of the receipt of this consideration clearly and conspicuously as part of the UGC and include any other disclosures we may require.
• UGC Viewable by Others. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions with other members. However, please remember that the Communities are public or semi-public and UGC that you submit on the Site within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when otherwise disclosing this type of information to others.
• Don’t Share Other People’s Personal Information. Your UGC should not disclose another person’s address, phone number, email address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Sinomax (e.g., an email address to send an email invite to a friend).
• Don’t Damage the Site or Anyone’s Computers or Other Devices. Your UGC must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Site or any computer or other Device.
If you submit UGC that Sinomax reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate. However, we are not obligated to take any action not required by applicable law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the UGC in question being removed from the Site.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
C. Appropriate Content and Alerting Us of Violations. We expect UGC to be appropriate for a general audience, but do not undertake to monitor it, and you consent to potentially encountering content you find offensive or inappropriate. If you discover any content that violates these Terms or any applicable Additional Terms, then you may report it here. For alleged infringements of Intellectual Property rights, see Section 8.
5. SITE AND CONTENT USE RESTRICTIONS.
A. Site Use Restrictions. You agree that you will not: (i) use the Site for any political or commercial purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to Sinomax; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Site by any means whatsoever or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (v) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Sinomax, or other users of the Site; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Content, or the UGC; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Site, other computer systems or networks connected to the Site, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Site, you will: (i) not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) not frame or utilize framing techniques to enclose any the Content (including any images, text, or page layout); (iii) keep intact all trademark, copyright, and other Intellectual Property and other notices contained in the Content; (iv) not use the Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) not make any modifications to the Content (other than to the extent of your specifically permitted use of the Sinomax Licensed Elements, if applicable); (vi) not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit the Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Sinomax or, in the case of content from a licensor, the owner of the content; or (vii) not insert any code or product to manipulate the Content in any way that adversely affects any user experience or the Site.
C. Availability of Site and Content. Sinomax, in its discretion without advance notice or liability, may immediately suspend or terminate the availability of the Site and/or Content (and any elements and features of them), in whole or in part, for any reason.
D. Reservation of all Rights Not Granted as to Content and Site. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Site and Content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY SINOMAX AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Site for any purpose is prohibited.
6. WIRELESS; MESSAGING.
A. Wireless Features. The Site may offer certain features and services via your wireless Device. Features and services may include the ability to access the Site’s features, upload content to the Site, receive messages from the Site, and download applications to your wireless Device (collectively, “Wireless Features”). You agree to receive communications we may send through Wireless Features for which you are registered. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Site for Wireless Features, then you agree to notify Sinomax of any changes to your wireless contact information (including phone number) and update your accounts on the Site to reflect the changes. These notifications, including badge, alert or pop-up messages, may be delivered to your Device even when the Site is running in the background. You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your Device through your Device and/or app settings.
B. Email Messages. You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. Subsequent or different subscriptions will be unaffected by an opt-out. Also, if your opt-out is limited to certain types of emails, the opt-out will be so limited. We reserve the right to send you a message confirming any opt-out as well as non-marketing administrative, transactional or account related messages.
C. Text Messages. You may be given opportunities to subscribe to various text marketing or other text messaging programs and, by doing so, you consent to receive ongoing text alerts from us related to our various businesses and affiliates, which may include co-promotions with or about other parties, except that if the scope of your consent for a particular subscription is limited, that subscription will be so limited. Such consent is not required to purchase any product or service aside from the text subscription itself. For each subscription, text “HELP” for help and text “STOP” to terminate (i.e., opt-out of) that subscription. Subsequent or different subscriptions will be unaffected by an opt-out. We reserve the right to send you a text confirming any opt-out as well as non-marketing administrative, transactional or account related text messages. For subscriptions to recurring text messages, you may receive up to the number of text messages per month specified in your consent or to which you later consent (to the extent specified). Alerts auto-renew unless otherwise specified when you consented. Your consent to receive text messages is not a condition of any purchase, and no purchase is necessary. You understand that we may send mobile text messages using automated technology. If you subscribe to text messages, you represent that you are 18 years of age or older or have obtained parental consent. We are the sponsor of our text messages.
D. Charges. In connection with the Wireless Features, email messages and text messages, standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. Not all phones and/or carriers are supported. Contact your carrier for details or with questions regarding these issues.
7. NOTICES, QUESTIONS AND CUSTOMER SERVICE.
You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. You agree to promptly notify us if you change your email or mailing address (if you have previously provided it to us).
Regular Mail: Sinomax USA, Inc., Attention: Website Administrator, 3151 Briarpark Dr, Suite 1220, Houston, TX 77042,
Phone: [_____________] 8am-9pm CST
Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.
8. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT.
A. DMCA Notice. Sinomax asks our users to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth more fully below. In Sinomax’s discretion, Sinomax may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer.
If we remove or disable access in response to a DMCA Copyright Infringement Notice, we will make a good faith attempt to contact the owner or administrator of the affected content so that they may make a counter-notification. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Site on which the material appears);
(iv) your full name, address, telephone number, and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
Sinomax will only respond to DMCA Notices that it receives by mail or email at the following addresses (and such addresses shall also be the notice address for other types of intellectual property infringement claim notices):
Regular Mail: Sinomax USA, Inc., Attention: Website Administrator, 3151 Briarpark Dr, Suite 1220, Houston, TX 77042,
It is often difficult to determine if your copyright has been infringed. Sinomax may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Sinomax may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Sinomax’s other rights, Sinomax may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website owned or operated by Sinomax.
B. Counter-Notification. If access on the Site to a work that you submitted to Sinomax is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Site from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, email address, and the username of your Account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than 10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
9. PRODUCT SPECIFICATIONS; PRICING; ERRORS.
We strive to accurately describe our products or services offered on the Site; however, we do not warrant that such specifications, pricing, or other content on the Site is complete, accurate, reliable, current, or error-free. Sinomax shall have the right to refuse or cancel any orders in its discretion. Your orders are offers to purchase subject to our acceptance, which we may reject or cancel subject to refund. If we charged your credit or other account prior to rejection or cancellation, we will reissue credit to your account. Additional Terms may apply. If a product you purchased or accepted from Sinomax is not as described, as permitted by applicable law, your sole remedy is to return it, to cancel the purchase and receive a credit for the purchase price.
10. THIRD PARTIES
A. Linked Sites. The Site may contain links, as part of third-party ads on the Site or otherwise, to or from third-party websites, contents or resources (collectively, “Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Sinomax. Sinomax: (i) may have no control over the content, operations, policies, terms, or other elements of Linked Sites; (ii) does not assume any obligation to review any Linked Sites; (iii) does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items; (iv) is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites; and (v) will under no circumstances be liable for any loss or other damage caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the Linked Sites are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Sinomax disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Sinomax disclaims all liability in connection therewith.
11. DISPUTE TERMS; CLASS ACTION WAIVER; JURY WAIVER.
A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Site, the Content, your UGC, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Houston, Texas. Each party submits to personal jurisdiction and venue in Houston, Texas for any and all purposes.
B. Governing Law. These Terms and any applicable Additional Terms, Disputes, and any other claim related to the Site, Content, Sinomax Licensed Elements, UGC or other Sinomax products or services, will be governed by, construed, and resolved in accordance with, the laws of the State of Texas, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.
C. Waiver of Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY SINOMAX PARTY (DEFINED BELOW) (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY SINOMAX PARTY.
D. Class Action Waiver. AS PERMITTED BY APPLICABLE LAW, BOTH SINOMAX AND YOU WAIVE THE RIGHT TO BRING ANY DISPUTE AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION, OR TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION REGARDING ANY DISPUTE BROUGHT BY ANYONE ELSE.
E. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES; LIMITATIONS OF OUR LIABILITY.
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK AND THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Except for any specific warranties provided herein or in any Additional Terms, Sinomax and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Sinomax Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, the Site, Content, Sinomax Licensed Elements, UGC, whether the Site or the servers that make the Site available are free from any harmful components, whether the information on the Site is accurate, complete, correct, adequate, useful, timely or reliable, or other Sinomax products or services.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ANY APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SINOMAX PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
B. LIMITATIONS OF OUR LIABILITY.
UNDER NO CIRCUMSTANCES WILL ANY SINOMAX PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including loss of profits, in connection with, or otherwise directly or indirectly related to (i) the Site, (ii) Content, (iii) the Sinomax Licensed Elements, (iv) UGC, (v) your use of or inability to use the Site or the performance of the Site, (vi) any errors or omissions in the Site’s technical operation, (vii) any damage to any user’s computer, hardware, software or other equipment or technology, or (viii) other Sinomax products or services, except, to the extent not waivable under applicable law, for direct damages for personal injury caused by a physical product manufactured, sold or provided by Sinomax.
The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Sinomax Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Site).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SINOMAX PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SINOMAX IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).
C. NOTWITHSTANDING THE FOREGOING, THIS SECTION 12 DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY SINOMAX PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY SINOMAX PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) SINOMAX PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY SINOMAX PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST SINOMAX PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
14. GENERAL PROVISIONS.
A. Sinomax’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Sinomax a right of consent or approval or permits Sinomax to exercise a right in its “discretion,” Sinomax may exercise that right in its sole and absolute discretion. No Sinomax consent or approval may be deemed to have been granted by Sinomax without being in writing and signed by an officer of Sinomax.
C. Operation of Site; Availability of Products and Sites; International Issues. The Site is operated from within the United States. We make no representation or warranty that the Site, or any content or other materials available on the Site, are appropriate or available for access or use in other locations. Those who access the Site from outside the United States do so on their own initiative and are responsible for compliance with local laws and regulations, if and to the extent such local laws and regulations are applicable. We reserve the right to limit the availability of the Site and/or the provision of any Content, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our discretion, and to limit the quantities of any Content, product, service, or other feature that we provide.
D. Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software related to the Site to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
G. Assignment. Sinomax may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Sinomax.
H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Site and supersede any prior agreements, representations, warranties, assurances or discussion related to the Site. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Sinomax in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Sinomax is committed to the Site and Content accessible and user friendly to everyone. If you are having difficulty viewing or navigating the Content, or notice any Content, feature, or functionality that you believe is not fully accessible to people with disabilities, please contact us here (with “Disabled Access” in the subject line of any e-mail) and provide a description of the specific feature you feel is not fully accessible or a suggestion for improvement. We take your feedback seriously and will consider it as we evaluate ways to accommodate all of our customers and our overall accessibility policies. While we do not control our third party vendors of digital content, we encourage such vendors to provide content that is accessible and user friendly.
© Sinomax USA, Inc. 2021. All Rights Reserved.