TERMS AND CONDITIONS
(V1.0 January 1, 2011)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF THIS
SITE AND THE PRODUCTS AND SERVICES PROVIDED HEREUNDER CAREFULLY. By i)
using this site, ii) purchasing any
products or services from Electronic
Marketing Group, LLC and Frank Kern Inc ("COMPANY") or iii) utilizing any
of the products or services from COMPANY through this site, you are deemed to
have agreed to these Terms and Conditions. We reserve the right to modify them
at any time. You should check these Terms and Conditions periodically for
changes. By using this site after we post any changes to these Terms and
Conditions, you agree to accept those changes, whether or not you have reviewed
them. With regard to products and services purchased or utilized from COMPANY,
the version of these Terms and Conditions that were posted at the time of
purchase or utilization apply. If at any time you choose not to accept these
Terms and Conditions of use, do not use this site.
The COMPANYs Privacy Policy and California Privacy Policy are incorporated into this Agreement.
I.
GENERAL TERMS & CONDITIONS
II. User
Public Forum Submission/Participation Policy and Terms
III. Special Notes with
regard to Product and Service Purchases
IV. Product and Service
Purchase Agreement / Refund Policy
I. GENERAL TERMS & CONDITIONS
a) Scope
of Terms and Conditions
These Terms and Conditions apply to
your use of all of the website at http://www.frankkern.com as well as any of its
sub-domains and related domains such as http://www.frankkern.tv, http://inappropriatemarketing.com/?page_id=140 or http://www.masscontrolsite.com (collectively
the "Site"), as well as to products and services purchased or
utilized from the Site. Unless stated otherwise, all references to the Site in
these Terms and Conditions include this Site. These Terms and Conditions do not
apply to your use of unaffiliated sites to which the Site only links.
b) Restrictions
on Use
The contents of this site are
protected by copyright and trademark laws, and are the property of their
owners. Unless we say otherwise, you may access the materials located within
the Site only for your personal use. This means you may download one copy of
posted materials on a single computer for personal, noncommercial home use
only, so long as you neither change nor delete any author attribution,
trademark, legend or copyright notice. When you download copyrighted material
you do not obtain any ownership rights in that material.
You may not modify, copy, publish, display, transmit, adapt or in any way
exploit the content of the Site. Only if you obtain prior written consent from
us and from all other entities with an interest in the relevant intellectual
property may you publish, display or commercially exploit any material from the
Site.
You must abide by all additional
copyright notices or other restrictions contained in any of the Site.
You agree not to do any of the
following while using the Site:
1. harass, stalk or otherwise abuse
another user;
2. transmit or otherwise make available
any content that is false, harmful, threatening, abusive, tortious, defamatory,
libelous, disparaging (including disparaging of the Site), vulgar, obscene,
pornographic or that promotes violence, racial hatred, terrorism or illegal
acts, or is otherwise objectionable (as determined by us in our sole
discretion);
3. transmit or otherwise make available
any content that is unlawful or infringes, violates or misappropriates any
patent, trademark, trade identity right, trade secret, publicity right, privacy
right, copyright or any other intellectual property or any other rights of any
third party;
4. upload or transmit viruses, Trojan
horses or other harmful, disruptive or destructive files or post material that
interferes with any third party's uninterrupted use and enjoyment of the Site.
5. impersonate any person or entity, or
otherwise disguise the origin of any content transmitted through the Site or to
us, including forging any TCP/IP packet header or any part of the header
information in any transmission to the Site for any reason;
6. transmit or otherwise make available
through the Site any personal advertising, junk mail, spam, chain letters, pyramid
schemes or offer for sale of any products or services, except in areas
specifically designated for such purposes; or
7. violate any applicable local, state,
federal or international law, rule or regulation.
c) Links
These Terms and Conditions apply
only to this Site, and not to the sites of any other companies or
organizations, including those to which this Site may link. We are not
responsible for the availability of any other site to which this Site links. We
do not endorse or take responsibility for the contents, advertising, products
or other materials made available through any other site. Under no
circumstances will we be held responsible or liable, directly or indirectly,
for any loss or damage that is caused or alleged to have been caused to you in
connection with your use of, or reliance on, any content, goods or services
available on any other site. You should direct any concerns to that site
administrator or webmaster.
Other
sites may link to this Site only through a plain-text link or provided graphics
link. Permission must be granted by us for any other type of link to the Site.
To seek our permission, you may send E - mail to support@frankkernhelpdesk.com We reserve the right, however, to rescind any permission granted by us to
link through a plain-text link or any other type of link, and to require
termination of any such link this Site, at our discretion at any time.
THE SERVICES, PRODUCTS AND MATERIALS
ON OR FROM THIS SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES TO THE MAXIMUM
EXTENT OF THE LAW, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NEITHER WE NOR ANY OF OUR RESPECTIVE
LICENSORS OR SUPPLIERS WARRANT THAT ANY FUNCTIONS CONTAINED IN THE SITE WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE
OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS.
NEITHER WE NOR ANY OF OUR RESPECTIVE
LICENSORS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR
THE RESULTS OF THE USE OF THE SERVICES, PRODUCTS OR MATERIALS IN THIS SITE IN
TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT
WE OR ANY OF OUR RESPECTIVE LICENSORS OR SUPPLIERS) ASSUME THE ENTIRE COST OF
ALL NECESSARY SERVICING, REPAIR OR CORRECTION TO YOUR SYSTEM.
APPLICABLE LAW MAY NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
TO THE EXTENT ANY WARRANTY CANNOT BE DISCLAIMED, A LIMITED EXPLICT WARRANTY IS
GIVEN BY US TO THE EXCLUSION OF ANY OTHER REMEDY TO, IN OUR DISCRETION, EITHER
A) REPLACE THE SERVICES, PRODUCTS AND MATERIALS WITH SUCH SERVICES, PRODUCTS
AND MATERIALS THAT DO NOT BREACH A WARRANTY IF SUCH BREACH IS IDENTIFIED TO US
WITHIN 30 DAYS OF PURCHASE OR B) REFUND OF THE MONIES PAID FOR THE PARTICULAR
SERVICES, PRODUCTS AND MATERIALS.
BY ACCESSING THIS SITE, YOU
UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT
THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE
BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW
OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
We do not endorse, warrant or guarantee any products or services offered on the any third party site. We are not a party to, and do not monitor, any transaction between users
and third party providers of products or services.
d) Limitation
of Liability
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WILL WE OR
ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL
DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS ON
THE SITE, OR ANY PRODUCTS OR SERVICES PROVIDED PURSUANT TO THE SITE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT
SHALL THE TOTAL LIABILITY TO YOU BY US OR ANY OF OUR LICENSORS OR SUPPLIERS FOR
ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR
OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING THE SITE.
e) No
Personal Advice
The information contained in or made
available through this Site (including but not limited to information contained
on message boards, in text files, in products, from services, or in chats)
cannot replace or substitute for the services of trained professionals in any
field, including, but not limited to, psychological, financial, medical, or
legal matters. In particular, you should regularly consult a doctor in all
matters relating to physical or mental health, particularly concerning any
symptoms that may require diagnosis or medical attention. Further, you should
regularly consult a lawyer in all matters relating to interacting with other
people to assure yourself you are behaving in compliance with law, including
but not limited to laws related to harassment, assault or other similar laws.
We and our licensors or suppliers make no representations or warranties
concerning any treatment, action, or application of medication or preparation
by any person following the information offered or provided within or through
the Site (including but not limited to any product or service purchased,
utilized or otherwise obtained from this Site). Neither we nor our partners, or
any of their affiliates, will be liable for any direct, indirect,
consequential, special, exemplary or other damages that may result, including
but not limited to economic loss, injury, illness or death.
f) Parental
Permission; Minimum Age Requirement
This Site is not directed to persons under the age of 13. The sale of any of
the Sites products or services is not directed to persons under the age of 18.
We will not knowingly collect personally identifiable information from persons
under 13. WE STRONGLY RECOMMEND THAT PARENTS PARTICIPATE IN THEIR CHILDREN
EXPLORATION OF THE INTERNET AND ANY ONLINE SERVICES AND USE THEIR BROWSERS
PARENTAL CONTROLS TO LIMIT THE AREAS OF THE INTERNET TO WHICH THEIR CHILDREN
HAVE ACCESS.
We hereby require all users of the
Site to be over 13 and all purchasers of COMPANY's products and services to be
over 18. You agree to abide by any such restrictions, and not to help anyone
avoid these restrictions. If you are under 13, you agree to immediately stop
accessing the Site. If you are accessing the Site, you represent that you are
at least 13 years of age. If you are purchasing any of the products or services
of COMPANY, you represent that you are at least 18 years of age.
g) MEMBERSHIP
FEES
We reserve the right to charge fees,
surcharges and/or membership fees for all or any of its services currently
provided for free at any time upon thirty (30) days' prior written notice to
you.
h) COPYRIGHT
All content included on this Site,
such as text, graphics, logos, button icons, images, audio clips, digital
downloads, data compilations, and software, is the property of COMPANY or its
content suppliers and protected by United States and international copyright
laws. The compilation of all content on this site is the exclusive property of
the COMPANY and protected by U.S. and international copyright laws.
i) TRADEMARKS
The COMPANYs name and other COMPANY
logos, page headers, button icons, scripts, and service names are trademarks,
registered trademarks or trade dress of COMPANY or its affiliates in the U.S.
and/or other countries. COMPANYs trademarks and trade dress may not be used in
connection with any product or service that is not COMPANYs, in any manner
that is likely to cause confusion among customers, or in any manner that
disparages or discredits the COMPANY. All other trademarks not owned by the
COMPANY or its affiliates that appear on this site are the property of their
respective owners, who may or may not be affiliated with, connected to, or
sponsored by the COMPANY or its affiliates.
j) CONTACTING US
The address and phone number for
the COMPANY is:
Frank Kern Inc.
7660 Fay Ave, H307
La Jolla, CA 92037
866-335-5222
You can reach our customer support by calling us at 866-335-5222, contacting us
via http://www.frankkernhelpdesk.com,
or by emailing us at Support@FrankKernHelpDesk.com.
For cancellation of a subscription, call 866-335-5222 or submit a cancellation request at http://www.frankkernhelpdesk.com
For refund requests, call 866-335-5222 or submit a refund request at http://www.frankkernhelpdesk.com
Privacy matters can addressed to us by emailing us at Support@FrankKernHelpDesk.com
II. User Public Forum Submission/Participation Policy and Terms
a) General:
As a service to our users, this Site
may feature message boards, chat rooms/areas, discussion forums, ratings,
comments, bulletin board services, news groups (including, without limitation,
Usenet and other third party news groups), communities and/or other message or
communication facilities and other public/semi-public/private forums (collectively,
"Forums") where users with similar interests or similar experiences
can share information and support one another or where users can post questions
for others to answer. We may also offer online discussions moderated by various
experts or other persons.
Much of the content of the Forums,
including without limitation the descriptions for many Forums and the content
within a specific message, comment or posting, is provided by and is the
responsibility of the third party creator of the Forum or the person posting in
that Forum. COMPANY has no responsibility for such content and is merely
providing access to such content as a service to you.
BY THEIR VERY NATURE, FORUMS MAY
CARRY OFFENSIVE, HARMFUL, INACCURATE OR OTHERWISE INAPPROPRIATE MATERIAL, OR IN
SOME CASES, POSTINGS THAT HAVE BEEN MISLABELED OR ARE OTHERWISE DECEPTIVE. WE
EXPECT THAT YOU WILL USE CAUTION AND COMMON SENSE AND EXERCISE PROPER JUDGMENT
WHEN USING DISCUSSION FORUMS.
b) Your
Participation/Contribution Requires Consideration:
Any information (including
personally identifiable information or other personal information) that you
reveal in a Forum, may, by design, be open to the public and in such case may
not a private, secure service. You should think carefully before disclosing any
information in any Forum. What you have written may be seen, disclosed to or
collected by third parties and may potentially be used by others in ways we are
unable to control or predict, including to contact you for unauthorized
purposes. By submitting communications or content to Forums, you agree that
such submission is non-confidential for all purposes, unless the Company
specifically notes otherwise (for example, in the rules for a particular
forum).
c) Confidential
Obligations:
You agree that you will not upload
or transmit any communications or content of any type to a Forum that infringe
or violate any rights of any party. Further, you may have entered into an
agreement with COMPANY that requires you to maintain the confidentiality of
certain material or information of COMPANY. It is your obligation to confirm
that any post to a Forum you make does not breach any confidentiality
obligation you have. Unless a Forum specifically notes that all members of the
Forum who are able to view posts are bound by confidentiality obligations, and
further notes what types of information may be discussed, you may not post
information which COMPANY has required you to preserve as confidential.
d) Grant
of Rights:
To the extent you are the original
copyright holder of any post or submission by you to a Forum and such post or
submission does not contain any of the information or material of COMPANY or
other information you are required to preserve as confidential by COMPANY,
then; i) you remain owner of such post or submission to the extent you were the
owner; ii) you automatically grant on behalf of yourself or otherwise warrant
that the owner of such content or intellectual property has expressly granted
COMPANY, a royalty-free, perpetual, irrevocable, world-wide nonexclusive
license to use, reproduce, create derivative works from, modify, publish, edit,
translate, distribute, perform, display, and/or otherwise exploit, the post,
submission, communication or content in any media or medium, or any form,
format, or forum now known or hereafter developed; and iii) you agree and
warrant that COMPANY may sublicense or assign its rights through multiple tiers
of sublicenses or assigns.
e) No
Obligation to Monitor:
COMPANY does not control the
information delivered to the Forums, and has no obligation to monitor the
Forums. However, COMPANY reserves the right at all times to disclose any
information as necessary to satisfy any applicable law, regulation, legal
process or legal governmental request, or to edit, refuse to post or to remove
any information or materials, in whole or in part, for any reason whatsoever,
in COMPANYs sole discretion.
f) No
Obligation to Remove:
COMPANY is not obligated to remove
any content from the site which does not violate any civil or criminal laws and
any contributions intended for display on this web site via any means, whether
submitted via HTTP (web), SMTP (mail), NNTP (newsreader), or otherwise, are
presumed to be contributed by the author/contributor with the intent that
COMPANY shall have an ongoing non-exclusive right to publish the contributed
content for an indefinite amount of time, unless the content submitted was made
under an agreement with COMPANY with differing terms or COMPANY has clearly
only been provided limited non-exclusive publishing rights (for example, in the
case of some exclusively copyrighted newsletter content). If you do not
wish to have something which you submit to be published, do not submit it in
the first place.
g) No
Endorsement:
COMPANY does not endorse, support, represent or guaranty the
truthfulness, accuracy, or reliability of any communications posted in the
Forums or endorse any opinions expressed in the Forums. You acknowledge that
any reliance on material posted in the Forums will be at your own risk.
h) Company's
Right to Act:
If COMPANY discovers
communications which allegedly do not conform to any terms and conditions of
this Site, COMPANY may investigate the allegation and determine in good faith
and in its sole discretion whether to remove or request the removal of the
communication. COMPANY will have no liability or responsibility for performance
or non-performance of such activities. COMPANY reserves the right to terminate
or restrict your access to any or all of the Forums at any time without notice
for any reason whatsoever. You acknowledge that some Forums available through
the Site are available only through the Site and others are available both
through the Site and other sources, such as Usenet, over which COMPANY has
absolutely no control.
III. Special Notes with regard to
Product and Service Purchases
a) Shipping
Methods
Products shipped by COMPANY, Inc.
("COMPANY") may be shipped by UPS Standard or by any other method in
the discretion of COMPANY. A shipping charge will be imposed.
· Orders shipped to PR will have a
6.6% duty tax.
· All orders require at least 24-48
hours processing time before shipping.
· COMPANY does not process orders
during weekends.
· No deliveries will be made on
Saturday or Sunday.
· COMPANY does not guarantee same day
shipping.
· All orders shipped within CA will be
charged sales tax.
· Exact delivery times to any location
cannot be guaranteed.
b) Sales
Tax
Sales tax is only required for
orders shipping within our resident states of business. Therefore all orders
shipping within California will be charged applicable sales tax according to
your area's tax rate.
c) Duty
Tax
Orders shipped to PR will have a
6.6% duty tax applied. Exact delivery times to PR cannot be guaranteed.
d) Product
listings
COMPANY strives for accuracy in all
item descriptions, photographs, compatibility references, detailed
specifications, pricing, links and any other product-related information
contained herein or referenced on our website. Due to human error and other
determinates we cannot guarantee that all item descriptions, photographs,
compatibility references, detailed specifications, pricing, links and any other
product-related information listed is entirely accurate, complete or current,
nor can we assume responsibility for these errors. In the event a product
listed on our website is labeled with an incorrect price due to some
typographical, informational, technical or other error, COMPANY shall at its
sole discretion have the right to refuse and/or cancel any order for said
product and immediately amend, correct and/or remove the inaccurate
information. Additionally, all hyperlinks to other websites from COMPANY are
provided as resources to customers looking for additional information and/or
professional opinion. COMPANY does not assume responsibility for the claims
and/or representations made on these or any other websites.
e) Product
Revisions
COMPANY is not responsible for
changes or variations in product specifications and/or physical appearance,
since in some cases COMPANY acts as a distributor for others. In the interest
of our customers, COMPANY puts forth its best efforts to ensure that all
product information is up-to-date and factual. Unfortunately there are varying
determinates which, although infrequent, could cause the information on our
website to become outdated without our immediate knowledge. This includes but
is not limited to new versions or revisions, color deviations, retail package
alterations and other variations that may be considered inconsequential by the
manufacturer. In some cases, COMPANY relies on the manufacturer of a product to
communicate these differences. Presently we have no way of alerting customers
prior to purchase in the event the manufacturer fails to do so. Consequently,
COMPANY will not be held responsible for product revision changes.
IV. Product and Service Purchase Agreement
By accepting delivery of any product or service delivered from COMPANY, viewing
such products, or otherwise using such products or services, you
("Customer") agree to be bound by the terms and conditions listed
below. You and COMPANY agree that the following terms and conditions are the
exclusive terms governing the sales transaction between you and the COMPANY.
Any attempt to alter, supplement, modify or amend these terms and conditions by
the Customer will be considered a material alteration of this agreement and,
therefore, are null and void. In addition, these terms and conditions are
subject to change at any time, without prior written notice. Therefore, please
check these terms and conditions carefully each time you place an order with or
accept delivery of any goods or services from COMPANY.
a) Product
Issues
If you have problems or concerns regarding the Company or your purchases, you may contact us through http://www.frankkernhelpdesk.com or by emailing us at support@frankkernhelpdesk.com.
b) Refund/Return Policy
We offer a 30 day refund/return policy, no questions asked. You may request a refund within 30 days of purchase. You must contact us by submitting a request through http://www.frankkernhelpdesk.com or by emailing us at support@frankkernhelpdesk.com within 30 days of your purchase. If you purchased a physical product that we shipped to you, you may be required to return the entire product back to us before we process your refund.
c) WARRANTIES;
ALL PRODUCTS AND SERVICES ARE SOLD "AS-IS" OR "WITH ALL FAULTS".
COMPANY MAKES NO
REPRESENTATION OR EXPRESS WARRANTY WITH RESPECT TO THE PRODUCT OR SERVICE
EXCEPT THOSE STATED IN THIS DOCUMENT. COMPANY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY SUCH PRODUCT OR SERVICE, INCLUDING AND WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, TRADE USAGE, COURSE OF
DEALING, OR COURSE OF PERFORMANCE.
ALL PRODUCTS OR SERVICES SOLD
THROUGH OR BY COMPANY ARE SOLD "AS-IS" OR "WITH ALL
FAULTS." THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THESE
PRODUCTS OR SERVICES IS WITH THE BUYER. SHOULD ANY OF THESE PRODUCTS OR
SERVICES PROVE DEFECTIVE, DO NOT FUNCTION, OR FUNCTION IMPROPERLY IN ANY WAY
FOLLOWING THEIR PURCHASE, THE BUYER, AND NOT COMPANY, ASSUMES THE ENTIRE COST
OF ALL NECESSARY SERVICING OR REPAIR.
d) LIMITATION OF LIABILITY
IN ALL CIRCUMSTANCES COMPANY'S
MAXIMUM LIABILITY IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES
SOLD. COMPANY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE UPON A CLAIM OR
ACTION IN CONTRACT, TORT, INDEMNITY OR CONTRIBUTION, OR OTHER CLAIMS RELATING
TO THE PRODUCTS OR SERVICES IT SELLS WHICH EXCEEDS THIS LIABILITY LIMIT.
COMPANY SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR DAMAGES AGAINST THE
CUSTOMER, OR FOR MALFUNCTION, DELAYS, INTERRUPTION OF SERVICE, LOSS OF
BUSINESS, LOSS OR DAMAGE TO EXEMPLARY DAMAGES, WHETHER OR NOT COMPANY HAS BEEN
MADE AWARE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES.
e) CUSTOMER AGREED TO RESTRICTIONS, OBLIGATIONS AND LIMITATIONS; CONFIDENTIALITY
AND LIMITED USE:
Customer acknowledges that the
products and services sold by COMPANY are the confidential and proprietary
information and property of COMPANY. Customer hereby agrees to protect such
products and services as confidential. As a further condition to the purchase
and/or receipt of such products and/or services of the COMPANY by Customer,
Customer agrees it will not, nor allow others, to directly or indirectly copy,
distribute, resell, lend, lease, display, teach to others or show these
products and/or services to others. A "Customer" includes anyone who
receives the products or services of COMPANY, even if for free.
Customer agrees that no one may use these products and/or services in any
manner without the written approval of COMPANY, except for the Customer who has
agreed that his/her use is limited to his/her own personal use. In the event
Customer disagrees with these terms, Customer must immediately discontinue
using the products purchased from COMPANY. Anyone viewing or otherwise
utilizing the products of COMPANY by such conduct is agreeing to be bound by
the terms of set forth herein, and as such must immediately comply with the
terms of this agreement. In the event that COMPANY discloses any portion of its
information to the public, it should be understood that anything not publicly
disclosed by COMPANY remains information that you have an obligation to protect
and maintain as confidential.
Customer represents and warrants that he or she is at least 18 years old. In
the event that Customer is under 18 years old, Customer will immediately
discontinue using the products purchased from COMPANY.
e) TERMS AND CONDITIONS
SPECIFIC TO MONTHLY SUBSCRIPTIONS.
By providing your credit card and
other information, agreeing to this Terms and Conditions, or selecting the
Purchase button (or similar such button for monthly
subscription) displayed on as http://www.frankkern.com, http://www.frankkern.tv or http://www.masscontrolsite.com,
you are purchasing a monthly subscription and are agreeing to allow us to charge
your credit card for amounts payable to us pursuant to this subscription.
You
acknowledge and understand that you can cancel anytime by contacting customer
support at 866-335-5222 or by submitting a cancellation request at http://www.frankkernhelpdesk.com.
f) GENERAL
TERMS AND CONDITIONS
1. Payment
Terms; Orders:
An order is not binding upon COMPANY
until it is accepted; COMPANY must receive payment before it will accept an
order. Payment for product(s) ordered is due prior to shipment or provision of
services. Customer can make payment by credit card, or some other method
prearranged with COMPANY. You agree to pay the amount(s) due as specified on
the invoice, and you agree to pay interest on all past-due sums at a rate of
1.5% per month or the highest rate allowed by law, whichever is greater.
2. Shipping
Charges:
Your total cost for purchase of any product will include shipping and handling
charges shown on the COMPANY invoice.
3. Title;
Risk of Loss:
COMPANY will arrange for shipment of ordered product(s) to you, the Customer,
Free On Board (F.O.B.) shipping point, meaning title to the product(s) --
excepting software-- and risk of loss passes to you upon delivery to the
carrier. COMPANY reserves a purchase money security interest in the product(s)
until its receipt of the full amount due. You agree to allow COMPANY to sign
appropriate documents on your behalf to permit COMPANY to protect its purchase
money security interest. Title to software will remain with the licensor(s).
All software is provided subject to the license agreement of the software
maker. You agree to be bound by any software license agreement once the seal on
the package is broken. COMPANY will advise you of estimated shipping dates, but
COMPANY will, under no circumstances, be responsible for delays in delivery,
and associated damages, due to events beyond its reasonable control, including
without limitation, acts of God or public enemy, acts of federal, state or
local government, fire, floods, civil disobedience, strikes, lockouts, and
freight embargoes.
4. Governing
Law and Jurisdiction:
Any dispute arising out of or related to these Terms and Conditions or the
sales transaction between COMPANY and yourself shall be governed by the laws of
the State of California, without regard to its conflicts of law rules.
Specifically, the validity, interpretation, and performance of this agreement
shall not be governed by the United Nations Convention on the International
Sale of Goods. COMPANY and you consent to the exclusive jurisdiction and the
exclusive venue of the State Courts of the State of California, San Diego
County, to resolve any dispute between them related hereto, and the parities
waive all rights to contest this exclusive jurisdiction and venue of such
Courts. Finally, you also agree not to bring any legal action, based upon any
legal theory including contract, tort, equity or otherwise, against COMPANY
that is more than one year after the date of the applicable invoice.
5. Severability:
If any provision contained in this agreement is or becomes invalid, illegal, or
unenforceable in whole or in part, such invalidity, illegality, or
unenforceability shall not affect the remaining provisions and portions of this
agreement, and the invalid, illegal, or unenforceable provision shall be deemed
modified so as to have the most similar result that is valid and enforceable
under applicable California law.
6. Waiver:
The failure of either party to require performance by the other party of any
provision of this agreement shall not affect in any way the first party's right
to require such performance at any time thereafter. Any waiver by either party
of a breach of any provision in this agreement shall not be taken or held by
the other party to be a continuing waiver of that provision unless such waiver
is made in writing.
7. Entire
Agreement:
These Terms and Conditions (along with the incorporated California Privacy
Policy and Privacy Policy) are the complete and exclusive agreement between the
COMPANY and you, and they supersede all prior or contemporaneous proposals,
oral or written, understandings, representations, conditions, warranties, and
all other communications between the COMPANY and you relating to the subject
products. This agreement may not be explained or supplemented by any prior
course of dealings or trade by custom or usage.