Terms and Conditions

terms and conditions

1. INTRODUCTION

A. ATTENTION!
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE CLICKING ON THE "I AGREE" BUTTON. CLICKING THE "I AGREE" BUTTON MEANS YOU ACCEPT THESE TERMS AND CONDITIONS AND UNDERSTAND THAT THEY WILL BE LEGALLY BINDING ON YOU, ANY END USER, AND THE COMPANY. IF YOU DO NOT AGREE WITH THEM, OR DO NOT WANT THEM TO BE BINDING ON YOU, PLEASE EXIT THIS SITE.

B.    These Terms of Use apply to heyduckee.com, as well as any other affiliated Sites, digital services, or applications on which a link to these Terms of Use appears (collectively, the Site). As used herein, the Owner refers to Phoenix Transform, Inc.

C.    These Terms of Use apply to all visitors (which shall include persons and representatives of all legal entities, whether such representatives are persons or digital engines of a kind that crawls, indexes, scrapes, copies, stores or transmits digital content).

D.    These Terms of Use may be modified at any time and from time to time; the date of the most recent revisions will appear on this page, so check back periodically. You agree that your use of the Site is subject to the Terms of Use then in effect. Continued access to the Site by you following any modification in the Terms of Use will constitute your acceptance of the Terms of Use as modified. If you do not agree to be bound by all of the terms set forth below, do not use this Site.

 

2. ELIGIBILITY TO USE THIS SITE

You may not access and/or use the Site or accept the agreement if you are not 18 years old. By using this Site, you represent that you are of legal age to form a binding contract, you are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction, and you agree to comply with the Terms of Use.

 

3 WEBSITE PROVIDED AS-IS, AS-AVAILABLE

A.    The materials comprising the Site are provided by the Owner as a service to you on an as-is, as-available basis. You acknowledge that you are using the Site at your own risk.

B.    No advice or information given by the Owner or any other party on the Site shall create any warranty or liability. Further, Owner is not responsible for any content transmitted or posted to the Site by a third party. Any such third party content does not necessarily represent the opinions, beliefs, or positions of the Owner.

C.    Owner periodically schedules system downtime for maintenance and other purposes. Unplanned outages also may occur. Owner shall have no liability for the resulting unavailability of the Site or for any loss of data or transactions caused by planned or unplanned system outages, or any outages of webhost providers.

D.    Owner makes no, and expressly disclaims any, representations or warranties, express or implied, regarding the Site, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Owner makes no, and expressly disclaims any, warranties, express or implied, regarding the correctness, accuracy, completeness, timeliness, and reliability of the text, images, graphics, links to other Sites and any other items on the Site or accessed via the Site, or that the Site will be uninterrupted, error-free or free of viruses or other harmful components. Under no circumstances shall the Owner, its affiliates, or any of their respective partners, officers, directors, employees, agents or representatives be liable for any damages whatsoever, whether direct, indirect, special or consequential damages for lost revenues, lost profits, or otherwise, arising from or in connection with this Site, the materials contained herein, or the Internet generally. These disclaimers of warranties and limitations of liability shall apply to the fullest extent permitted by applicable law.

E.    The Owner is not responsible for, and does not control, any third party content or advertisements which are posted on this Site, nor does it take any responsibility for the goods or services provided by its advertisers.

 

4. GENERAL CONDITIONS OF SALE

The following Conditions of Sale shall apply to any product sold on this website. These Conditions of Sale constitute a complete and exclusive statement of the agreement and understanding between you and Owner with respect to the subject matter hereof.

A.    All products listed on the Site ("Products"), their information, and their prices are each subject to change. Owner reserves the right, at any time, to modify, suspend, or discontinue the sale of any Product with or without notice. You agree that Owner will not be liable to you or to any third party for any modification, suspension, or discontinuance of any Product. The Products delivered under this Agreement shall be of normal industrial quality unless herein specifically stated to the contrary.

B.    The Products available on the Site for sale under these Conditions of Sale are only available for sale to individuals who can make legally binding contracts. The Products are not available to persons under the age of 18 years nor any other person legally prohibited from entering into a binding contract. By placing your order you are verifying to the Owner that you are able to make a legally binding contract.

C.    Your order is an offer by you to purchase a particular Product for the price (including the delivery and other charges and taxes) specified on the Site at the time of offer and shall be understood to be placed under these Conditions of Sale. Owner will automatically bill your credit card submitted as part of the order process for such amounts and you hereby authorize us to do so. You will be solely responsible for payment of all taxes, fees, duties, and other governmental charges, and any related penalties and interest, arising from the Product purchase not withheld by Owner.

D.    All payments are non-refundable. In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or Product information received from our suppliers, we shall have the right, prior to the acceptance of your order, to decline or cancel any such orders, whether or not the order has been confirmed and/or your credit card charged or PayPal account. If your credit card or PayPal has already been charged for the order and we cancel your order, we shall immediately issue a credit to your credit card account or PayPal account in the amount of the charge.

E.    These Conditions of Sale may change from time to time and you are required within reason to revisit these before placing your order to ensure that these Conditions of Sale have not changed.

F.    Owner reserves the right to accept or reject your offer for any reason, including, without limitation, an error in the product description or the price posted on the Site, the availability of the product, or an error in your order. Your contract with Owner only comes into existence when Owner forwards you an email containing confirmation of receipt of your order, an acceptance of your order, confirmation of receipt of your payment and details of likely delivery.

G.    You shall inspect the Product immediately upon arrival and shall within seven (7) days give notice to Owner if the Product arrives damaged or not substantially as described on the Product information page ("Damaged Product"). If you fail to give such notice, the Product shall be deemed to be in all respects in accordance with the specified requirements. No claim shall be recognized unless made in writing and received by Owner within seven (7) days after receipt of Product by you. For a Damaged Product, Owner will accept returns for a full refund only in accordance with the Return Procedures below. Provided that Owner confirms that your Product was a Damaged Product and was returned in accordance with the Return Procedures below, your sole and exclusive remedy is that (a) we will issue a refund to your credit card in the amount charged for the Damaged Product (if your credit card has already been charged for the Product) or (b) we will not charge your credit card for the Damaged Product. The refunded amount will include the applicable Delivery Fee.

H.    All sales are final. Owner will not accept returns or exchanges unless the Product is damaged or defective. For damaged or defective Product, the following sets forth the required "Return Procedures":All returns must be made within [14] days after the Product shipment date. All returned Products must be unused (e.g., not worn, washed, or altered) and returned in accordance with the instructions received from contacting customer service at support@heyduckee.com. You are solely responsible for the cost of shipping the returned Product. All Products not returned in accordance with the Return Procedures shall be sent back to you and no credit or refund will be issue.

I.    Any delivery dates provided by Owner are estimates. Owner reserves the right to make deliveries in installments. Owner will send you an email when your order has shipped and you may review your order and shipping information on your hey duckee My Account page. Owner shall not be responsible for non-delivery or delay in delivery of any goods caused by force majeure and you and Owner shall be excused from performance of their respective obligations when and to the extent such performance is delayed or prevented by force majeure. If your need for the goods is reduced or suspended as a result of force majeure, and notification is within reasonable time of acceptance of the Order and prior to transfer of ownership, you shall be entitled to terminate the agreement. For the purpose of this commitment force majeure shall include but is not limited to natural disasters, civil disasters, political event, change of legal / political environment, business disruption, accidents, earthquake, flood, hurricane or typhoon, tornado, tsunami, volcanic eruption, wildfire/bushfire, landslide or avalanche, fire, flood, storm, earthquake, terrorist acts, revolt, war, financial markets disturbances, changes of regime or tax or regulatory authority, energy failure, external telecommunications failure, and/or failure of transport systems.

J.    You assume all risks and liabilities for consequences arising from the use of the goods whether singly or in combination with other goods and indemnify Owner in respect of any such use. Owner is not liable for any infringement of patent rights arising out of the use of such goods by you or your instructions, expressed or implied, and it is your responsibility to ensure that the goods when used by you are not damaged and no liability will be accepted by Owner for the consequences of the use of damaged goods by you.

K.    Orders placed using a PayPal account as payment method will be processed upon submission, and funds may be transferred from your PayPal account immediately. This does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right to decline or cancel your order. This Section does not alter or amend any other Sections of Owner's Terms and Conditions.

 

5. INTELLECTUAL PROPERTY RIGHTS

Owner retains all right, title and interest (including copyrights, trademarks, patents, as well as any other intellectual property or other right) in all information and content (including all text, data, graphics and logos) on the Site.

A. Copyright.
All materials contained in the Site, including software, text, videos, photographs, images, sound files and other materials (collectively, "Content"), are protected by copyright laws, and may not be reproduced, republished, distributed, transmitted, sold, displayed, broadcast or otherwise exploited in any manner without the express prior written permission of either the Owner or, in the case of content licensed by the Owner from third parties, the entity that is credited as the copyright holder of such licensed content. Unauthorized use of Content may violate copyright, trademark and other laws. You have no rights in or to the Content and you may not use the Content except as permitted under these Terms of Use. You may download freely-accessible Content (one copy per page) from the Site for your personal and non-commercial use only, without altering or removing any trademark, copyright or other notice from Content. Any third party materials transmitted or posted to the Site become the copyrighted property of the Owner, and may be used, reproduced, published, distributed, transmitted, sold, displayed, broadcast or otherwise exploited by the Owner. If you violate these Terms of Use, your permission to access the Site terminates and you must immediately destroy any copies you have made of the Content.

B. Trademarks.
The trademarks, service marks and logos used and displayed on the Site are registered trademarks and service marks of Owner. You are not granted, expressly or by implication, estoppels or otherwise, any license or right to use any trademark, service mark or logo used or displayed on the Site, without the express written permission of Owner.

C. Patents.
The technology and products, including products that may from time to time be available on the Site, may be protected by one or more United States patents. International patents and patents pending may also be applicable in their respective countries.

D.Infringement.
Owner does not permit infringement of intellectual property rights on the Site. If you believe that any Content on the Site infringes your copyright or other intellectual-property rights, you may notify the Owner at:

Phoenix Transform, Inc.
Attn: Copyright/Legal
6890 South 2300 East #71275
Salt Lake City, Utah 84171-2570

support@heyduckee.com

To notify the Owner of infringement, please provide the following information as required by the Online Copyright Infringement Liability Limitation Act section of the Digital Millennium Copyright Act, 17 U.S.C. 512 (c)(3):

i.    An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

ii.    A copy of the copyrighted work that you claim has been infringed, or a description of the copyrighted work, including the URL (i.e., web page address) of the location where the copyrighted work exists;

iii.    Identification of the URL or other specific location on the heyduckee.com site where the material that you claim is infringing is located;

iv.    A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

v.    A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and

vi.     Your address, telephone number, and e-mail address.

 

6. IMPERMISSIBLE USES OF THE WEBSITE

A.    You agree not to: (a) systematically retrieve data or other Content from the Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots or otherwise; (b) use any trademarks, trade names or other intellectual property of the Owner or any other party from the Site as metatags on other Sites, to disparage any party or in any manner that may damage any goodwill in the intellectual property; and (c) collect usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications.

B.    The following activities on the Site are expressly prohibited: (i) any use of the Site, which in Owner's sole judgment, degrades the reliability, speed, or operation of the Site or any underlying hardware or software thereof, and (ii) any use of the Site which is unlawful or in violation of these Terms of Use.

C.    Hey Duckee and all other trademarks, trade names, logos and other intellectual property owned by the Owner are the property of the Owner and cannot be used without the Owner's express prior written permission.

 

7. USER CONTENT

A.    Owner may provide users an opportunity to transmit or post text, videos, photographs, images, sound files and/or other content to the Site (collectively, "User Content") and may provide for the hosting, sharing and/or publishing of such User Content. Owner does not necessarily endorse, support, sanction, encourage, or agree with User Content and expressly disclaims any and all liability in connection with any User Content.

B.    You shall not transmit or post any User Content that: (i) is unlawful, threatening, harassing, abusive, false, inaccurate, deceptive, misleading, offensive, distasteful, inappropriate, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent, invasive of another's privacy or harmful to minors in any way; (ii) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate and local, state, national, or international law; (iii) is copyrighted, protected by trade secret, patent, trademark or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit or post the material and to grant Owner all of the license rights granted herein; (iv) refer derisively to the goods or services of others; (v) includes any disruptive elements that may damage or interfere with the Site such as computer viruses, bots, worms, bombs, or trojan horses; (vi) impersonates another person; (vii) includes any person's full name or personal or identifying information without that person's authorization; or (viii) violates the law or otherwise violates these Terms of Use.

C.    In connection with any User Content you submit, affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize the Owner to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Site and these Terms of Use; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Site and these Terms of Use; and (iii) it complies with these Terms of Use.

D.   You understand that all User Content is the sole responsibility of the person who transmits or posts that User Content. This means that you, and not Owner, are entirely and solely responsible for all User Content that you transmit or post and for the consequences of Owner publishing such User Content. Owner does not and cannot review the User Content transmitted or posted by users and is not responsible for such content. However, Owner shall have the right, but not the obligation, to refuse, delete, move, remove, or edit any User Content that violates these Terms of Use or is otherwise objectionable, as determined by the Owner in Owners sole discretion and without notice. Any specific complaints regarding User Content must be directed to support@heyduckee.com, and any promise by Owner to investigate, delete, remove, or otherwise edit any User Content shall be non-binding unless expressly provided in writing by Owner.

E.    You agree to indemnify the Owner and its affiliates, and each of their respective partners, officers, directors, employees, agents and representatives, against, and to hold each of them harmless from, any and all claims and liabilities (including attorney's fees) that may arise from your use of the Site, your transmission or posting of User Content, your unauthorized use of material obtained from the Site, your breach of these Terms of Use, your violation of any law, regulation or any right of any other person or entity, and any unauthorized use of your account or password. Owner reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

F.    By transmitting or posting User Content, you grant Owner the perpetual, non-terminable, worldwide, nonexclusive, royalty-free, and transferable right and license to use, reproduce, edit, remove, modify, publish, transmit, display, distribute, have distributed, promote, perform, and prepare derivative works of, all or any potion of such User Content in any form, in any medium now existing or hereinafter invented for any purpose, including commercial uses. You waive any moral rights you may have in the User Content. You also grant each user of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Site and under these Terms of Use.

 

8. USER ACCOUNTS AND PASSWORDS

A.    To use certain features and functions of the Site (e.g., purchasing Products from the Site), you must create a user account ("HeyDuckee Account") with a password. You agree to maintain the confidentiality of your Hey Duckee Account information and password and you agree not to use your Hey Duckee Account or password for any unauthorized purpose. By creating any Hey Duckee Account, you represent, warrant and certify that you are at least eighteen (18) years of age.

B.    You are responsible for actions undertaken by those using your Hey Duckee Account and password and are fully responsible for all activities that occur under your Hey Duckee Account. You agree to immediately notify Owner of any unauthorized use, or suspected unauthorized use of your Hey Duckee Account or any other breach of security. Owner cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Owner will protect your Hey Duckee Account information in accordance with the Privacy Policy. Owner, in its sole discretion, may suspend or terminate your Hey Duckee Account for any reason without notice, including but not limited to if you or anyone using your user Hey Duckee Account or password violates or attempts to violate these Terms of Use.

C.    You agree to (i) keep your password and online ID secure and strictly confidential, providing it only to authorized users of your account, (ii) instruct each person to whom you give your online ID and password that he or she is not to disclose it to any unauthorized person, (iii) notify Owner immediately and select a new online ID and password if you believe your password may have become known to an unauthorized person, and (iv) notify Owner immediately if you are contacted by anyone requesting your online ID and password. When you give someone your online ID and online password, you are authorizing that person to access and use your account, and you are responsible for any and all transactions that person performs while using your account, even those transactions that are fraudulent or that you did not intend or want performed.

D.    EACH USER ACKNOWLEDGES AND AGREES THAT: (i) NEITHER THE SITE NOR ANY OF ITS AFFILIATES WILL HAVE ANY LIABILITY TO ANY USER FOR ANY UNAUTHORIZED TRANSACTION MADE USING ANY USER'S PASSWORD THAT OCCURS BEFORE SUCH USER HAS NOTIFIED US OF POSSIBLE UNAUTHORIZED USE OF SUCH PASSWORD AND OWNER HAVE HAD A REASONABLE OPPORTUNITY TO ACT ON THAT NOTICE; AND (ii) THE UNAUTHORIZED USE OF YOUR ONLINE ID AND PASSWORD COULD CAUSE YOU TO INCUR LIABILITY TO BOTH THE SITE AND OTHER USERS. Further, Owner may suspend or cancel your Account at any time even without receiving notice from you if Owner suspects that your password is being used in an unauthorized or fraudulent manner.

 

9. REFERRAL INCENTIVE PROGRAM

Registered users of the Site are encouraged to invite New Users to the Site. Therefore, Owner offers the following Referral Incentive Program (the Offer) to registered users of the Site. By participating in the Referral Incentive Program you agree to and are bound by the terms of the Offer. Owner reserves the right to change the terms and policies of this Offer at any time without notice. Owner further reserves the right to suspend or terminate the account of any user it believes is engaged in fraudulent, illegal, or inappropriate conduct in relation to this offer including, without limitation, creating fictitious, alias, or duplicate accounts to obtain Credits (as defined below). If your account and/or membership is terminated for any reason, any Credit balances in your account will be cancelled, except as prohibited by law. Account balances are determined by Owner and such determination is final.

A. Referral Incentive Program Definitions:

i.    Registered User - a user who has previously registered with the Site.
ii.    New User - a user who has not previously registered with the Site.
iii.    Qualifying Purchase - any purchase made by the New User that ships to the New User.
iv.    Credit - a voucher in the amount of $ 15 applicable towards a Registered User's next purchase of Products contained within the site.

B. Referral Incentive Program Details.

For every New User that a Registered User invites to the Site the Registered User will receive a Credit useable only after the New User completes a qualifying purchase. There is no limit to how many New Users that a Registered User may invite or how many Credits the Registered User can earn. For a Registered User to receive the Credit, the New Member must join the Site by following a referring URL uniquely linked to the Registered User.

C. Referral Incentive Program Restrictions.

Credit has no value unless used by the Registered User for a purchase and only for Products contained within the Site. Credits are nontransferable and cannot be exchanged for gift cards or services. Credits do not constitute property and Registered Users do not have a vested property right or interest in the Credits. Credits are not exchangeable for money. Credits expire twelve months after the date of issuance. Only one Credit is allowed per invited New Member and New Members can only accept one invite to the Site. If a New Member accepts an invite from someone else, Registered User will not be credited for that invitation. If a Qualifying Purchase is made but is thereafter cancelled or returned, the Registered User will not be awarded any Credit.

D. Changes to Referral Incentive Program.

Owner may change, suspend or discontinue any aspect of the Referral Incentive Program at any time and without prior notice.

 

10. CHANGES TO SITE

Owner may change, suspend or discontinue any aspect of the Site at any time, including the availability of any Site features, database, or content. Owner may also impose limits on certain features or services or restrict your access to parts or all of the Site without notice or liability.

 

11. RELEASE

IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE OTHER USERS OF THE SITE, YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE OWNER AND ANY MEMBER OF THE SITE, EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE SITE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "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."

 

12. INDEMNITY

YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD OWNER AND ANY MEMBER OF THE SITE (COLLECTIVELY, THE INDEMNIFIED PARTIES) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF YOUR USE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN USERS REGARDING ANY TRANSACTION), ANY CONTENT POSTED BY YOU TO THE SITE OR ANY BREACH BY YOU OF THESE TERMS OR THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY YOU HEREIN, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. OWNER RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT.

 

13. DISCLAIMERS

A.    All data, software, and documentation in this Site are provided "as is" without warranty of any kind, either expressed or implied. Owner of heyduckee.com, its affiliates, agents and licensors cannot and do not warrant the accuracy, completeness, non-infringement, merchantability or fitness of any information contained on this Site.

B.    The views and opinions of authors published on this Site do not necessarily reflect those of Owner.

C.    Reference to any specific commercial products, processes, or services by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement or recommendation by Owner. Nor shall any information or statements contained on this server be used for the purposes of advertising, or to imply an endorsement or recommendation.

D.    With respect to any documents available from this server, neither Owner nor any of its employees make any warranty, express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose. Further, neither Owner nor any of its employees assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product or process disclosed; nor do they represent that its use would not infringe privately owned rights.

E.    This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. You specifically acknowledge that Owner is not liable for your defamatory, offensive, infringing or illegal materials or conduct, or that of third parties, and Owner reserves the right to remove such materials from the Site without liability.

F.   The information published on the Site was valid at the time of publication. Owner reserves the right to make changes and improvements at any time and without notice, and assumes no liability for damages incurred directly or indirectly as a result of errors, omissions or discrepancies.

G.   The Site may contain links to and frames of sites which are not maintained by Owner. While we try to include only links to or frames of those sites which are in good taste and safe for our visitors, we are not responsible for the content of those sites and cannot guarantee that sites will not change without our knowledge, and inclusion of such links and frames in the Site does not imply Owner's endorsement of the linked or framed sites or their content.

H.    By sending us a message in the e-mail area, you agree to have it along with your name posted for public viewing both here and in other promotional and advertising materials of Owner without compensation. We will try to post as many of the messages as we can, although we cannot promise to post every submission. All messages that are posted here represent the opinions of other users and do not represent the ideas or opinions of Owner. You may copy them as much as you like for personal use, but redistribution in any way requires the permission of Owner. In consideration of this authorization, you agree that any copy of this information which you make shall retain all copyright and other proprietary notices contained here in this Site.

I.    Access to this Site of Owner is provided to you at no cost, as is. All efforts will be used to maintain the Site but you should not assume that it is error-free or is suitable for the particular purpose that you intended when gaining access to the Site. Owner is not responsible for the results of any defects that may be found to exist in the Site or any lost profits or other consequential damages that may result from such defects.

 

14. LIABILITY

To the fullest extent permitted by law, in no event shall Owner or any of its directors, employees or agents have any liability whatsoever to any person for any direct or indirect loss, liability, cost, claim, expense or damage of any kind, whether in contract or in tort, including negligence, or otherwise, arising out of or related to the use by you of all or part of this Site.

 

15. GOVERNING LAW

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Utah and by entering into contract both parties are accepting the jurisdiction of the courts of the State of Utah in relation to any dispute between them..

 

16. NOTICES

Except as explicitly stated otherwise, any notices shall be given (in the case of you contacting Owner) by email to support@heyduckee.com or by postal mail to:

Phoenix Transform, Inc.
Attn: Legal

6890 South 2300 East #71275
Salt Lake City, Utah 84171-2570


If Owner needs to send you notice, Owner may send such notice to the email address you provide to Owner during the registration process. Notice shall be deemed given upon receipt or 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Owner may give you notice by certified mail, postage prepaid and return receipt requested, to any address provided to Owner during the registration process. In such case, notice shall be deemed given three days after the date of mailing.

 

17. ENTIRE AGREEMENT

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

 

18. HYPERTEXT LINKS

Owner reserves the right to refuse hypertext links to, or addresses of, other websites from members' pages, and to remove links or addresses without notice at Owner's sole discretion. Further, Owner reserves the right to charge for hypertext links at any time.

 

19. FEEDBACK

Any feedback entry from any member must be genuine comments from users who have purchased the products or services advertised. The e-mail address(es) of the buyer(s) whose comments are given must be supplied by a member to Owner upon Owner's request.

 

20. SEVERABILITY

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

 

21. NO WAIVER

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

 

22. MANDATORY ARBITRATION

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

 

23. PRIVACY POLICY

The Owner has established a Privacy Policy (which is set forth below) as modified from time to time, which explains how information is collected on the Site and used. The Privacy Policy is part of these Terms of Use and is incorporated herein by reference.