Last Modified: April 17, 2017
Effective Date: April 17, 2017
4.1. “Affiliate” (collectively, “Affiliates”) means, with respect to a person, any other person directly or indirectly controlling, controlled by or under common control with the subject person.
4.2. “Har-Tru Parties” (each, a “Har-Tru Party”) means Har-Tru, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of any of the foregoing.
4.3. “Laws” (or “laws”) means all constitutions, treaties, ordinances, statutes, codes, rules, regulations, orders, injunctions, writs, or decrees of any government or political subdivision or agency thereof, or any court or similar entity established by any thereof, and the common law arising from final, non-appealable decisions of any government authority.
4.4. “Order” (collectively, “Orders”) means an order placed via the Har-Tru Website by you or through your Har-Tru Account for products or services sold, shipped, provided, or performed by Har-Tru.
4.5. “Order Confirmation” (collectively, “Order Confirmations”) means the order confirmation or receipt displayed or sent to you for an Order.
4.6. “Ordered Products” (each, an “Ordered Product”) means the products included in an Order.
4.7. “Order Total” means, with respect to an Order, the amount you are required to pay for such Order, as displayed through the Har-Tru Website during the Order checkout process.
4.8. “Person” (or “person”) means any individual, corporation, limited liability company, partnership, limited liability partnership, association, joint-stock company, trust, unincorporated organization, joint venture, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
4.9. “Your Content” means your Account Information, and all content (including without limitation, comments, reviews, text, photos, graphics, audio, video, and other materials) you upload, post, send, submit, transmit, or otherwise transfer (a) to us or (b) to or through the Har-Tru Website.
6. Your Har-Tru Account and Your Content.
6.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the Login Credentials used to access your Har-Tru Account. You acknowledge and agree that you are responsible for any activities that occur through your Har-Tru Account (including all Orders placed through your Har-Tru Account), whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your Har-Tru Account and of any unauthorized use of your Har-Tru Account. We will not be liable for your losses caused by any unauthorized use of your Har-Tru Account, and you acknowledge and agree that you may be liable for the losses of the Har-Tru Parties or others due to such unauthorized use.
7.1. Product Descriptions. We attempt to be provide product descriptions that are as accurate as possible. However, we do not warrant that product descriptions or other content on the Har-Tru Website is accurate, complete, reliable, current, or error-free. If a product offered by Har-Tru itself is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return) pursuant to the terms of our return policy set forth in Section 7.7 below.
7.2. Pricing. Prices and availability are subject to change without notice. We cannot confirm the price of a product until you place your Order. In the event of a pricing error, we may refuse or cancel any Orders placed for that Ordered Product. If the correct price of an Ordered Product sold by Har-Tru is higher than our stated price shown on this Site or in an Order Confirmation, we will, at our discretion, either contact you for instructions before shipping or refuse or cancel your Order and notify you of such cancellation.
7.3.2. Charge Backs. In no event are we responsible for any failure to process payment for any Orders. In the event of a charge back by a credit card company, or any similar action by a payment provider or payment processor (a “Charge Back”), you agree that we may suspend or cancel any affected Orders, redirect any shipments associated with such Orders, and/or suspend, close, or terminate your Har-Tru Account. You agree that you will promptly reimburse us for any expenses or fees incurred by us as a result of such Charge Back.
7.4. Taxes. The product prices listed on the Har-Tru Website do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Orders. If Har-Tru has the legal obligation to pay or collect Taxes for which you are responsible under this Section 7.4, we may include such taxes in the Order Total or invoice you separately for that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority, and you will pay such Taxes within thirty (30) days of receipt of the invoice therefor. For clarity, Har-Tru is solely responsible for taxes assessable against it based on its income, property, and employees.
7.5. Shipping, Title and Risk of Loss. The Ordered Products will be shipped within a reasonable period of time, subject to product availability. We may, in our sole discretion, without liability or penalty, make partial shipments to you of the Ordered Products. Orders will be shipped to the address specified by you through the Har-Tru Website when you place your Order. All Ordered Products purchased from Har-Tru are made pursuant to a shipment contract, and the title and risk of loss for such Ordered Products pass to you upon our delivery to the carrier. We will not be liable for any delays, loss, or damage in transit, except to the extent caused by our gross negligence or willful misconduct. You will be responsible for any and all unloading costs and provide any equipment and labor reasonably necessary and suited for receipt of the Ordered Products. If for any reason you fail to accept delivery of any of any Ordered Products, or if we or the carrier are unable to deliver such Ordered Products because you have not provided appropriate instructions, documents, licenses or authorizations: (i) such products shall be deemed to have been delivered; and (ii) we may, at our option, store the Ordered Products until you pick them up, in which case you will be liable for all related costs and expenses (including storage and insurance).
7.6. Missing Products or Wrong Quantity. The quantity of any installment of Ordered Products as recorded by us upon dispatch from our facility is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. We will not be liable for any non-delivery of Ordered Products unless you give us written notice of the non-delivery within five (5) days of the date when the Ordered Products would have been received in the ordinary course of events. Any liability of Har-Tru for non-delivery of any Ordered Products will be limited to delivering the missing Ordered Products within a reasonable time or refunding that portion of the Order Total that corresponds to the missing Ordered Products. If we delivers to you a quantity of Ordered Products of up to ten percent (10%) more than the quantity set forth in the Order, then you will, at our option, return the surplus pursuant to Section 7.7.2 below or retain and pay for such surplus the price set forth on the Order, adjusted pro rata.
7.7. Returns and Refunds.
7.7.1. You will inspect the Ordered Products within ten (10) days after receipt (the “Inspection Period”). You will be deemed to have accepted the Ordered Products unless you give us written notice of any Nonconforming Products during the Inspection Period and provide such written evidence or other documentation as we may reasonably request. “Nonconforming Products” means only the following: (i) the products shipped are different than identified in your Order; or (ii) the label or packaging for a shipment of Ordered Products incorrectly identifies its contents; or (iii) products shipped materially differ from the description on this Site for such Ordered Products. If you timely notify us of any Nonconforming Products, we will, in our sole discretion, (i) replace such Nonconforming Products with conforming products, or (ii) credit or refund the portion of your Order Total that applies to such Nonconforming Products, together with any reasonable shipping and handling expenses paid by you in connection with the shipment of such Nonconforming Products. If no other return address is provided by us, you will ship, at your expense and risk of loss, the Nonconforming Products to our facility identified in the Order Confirmation. If we exercise our option to replace Nonconforming Products, we will, after receiving your shipment of Nonconforming Products, ship the replaced products to you at the address to which the Nonconforming Products were previously shipped to you, which will be at your expense and risk of loss. You acknowledge and agree that the remedies set forth in this Section 7.7.1 are your exclusive remedies for the delivery of Nonconforming Products.
7.7.2. Except as provided under Section 7.7.1 above, all sales of Ordered Products are made on a one-way basis and you have no right to return Ordered Products without our express, prior written authorization. Any such discretionary returns that may be authorized by us are subject to a ten percent (10%) restocking fee and, for Orders paid by credit card, we will deduct a 2.4% credit card processing fee from any total approved refund amount. If you return Ordered Products (i) that you are not entitled to return, (ii) that are not in their original condition, (iii) that are without proper or missing packaging, (iv) with items missing from the return delivery, or (v) without following our return instructions, or if you have otherwise failed to exercise reasonable care when taking care of and returning Ordered Products, we reserve the right either to reject the return and decline to refund or to deduct from those payments to be refunded to you reasonable repair or other similar direct costs that we have incurred.
8. Limited Product Warranties.
8.1. Except as otherwise set forth on Har-Tru’s product warranties page located at https://hartru.com/pages/terms-and-conditions (the “Limited Warranty Statements”), Har-Tru warrants that, for a period of twelve (12) months from the date an Order is shipped, the products included in such shipment will materially conform to the specifications set forth in Har-Tru’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. Such twelve-month period, or the applicable limited warranty period set forth in the Limited Warranty Statements, if any, shall hereinafter be referred to as the “Warranty Period.”
8.2. Products manufactured by a third party (each, a “Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products included in your Order. Third Party Products are not covered by the warranties in Section 8.1 above. For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING BUT NOT LIMITED TO ANY (1) WARRANTY OF MERCHANTABILITY; (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (3) WARRANTY OF TITLE; OR (4) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
8.3. We will not be liable for a breach of the warranties set forth in Section 8.1 above unless: (i) you give us written notice of the defect, described in reasonable detail, within ten (10) days of the time when you discover or reasonably should have discovered the defect; (ii) we are given a reasonable opportunity after receiving such notice to examine such products and, if requested by us, you return such products to us at our cost; and (iii) we reasonably verify your claim that the products are defective.
8.4. We will not be liable for a breach of the warranties set forth in Section 8.1 above if: (i) you (or anyone else) makes any further use of such products after giving such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the products; or (iii) you alter or repair such products without our prior written consent.
8.5. Subject to Sections 8.3 and 8.4 above, with respect to any such products during the Warranty Period, we will, in our sole discretion, either: (i) repair or replace such products (or the defective part) or (ii) credit or refund the price of such products at the pro rata purchase price, provided that, if we so request, you will, at our expense, return such products to us.
8.6. THE REMEDIES SET FORTH IN SECTION 8.5 ARE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN Section 8.1 above.
9. Intellectual Property Rights.
9.2. Our Trademarks. The names Har-Tru, HarTru, Har Tru, Har Tru Sports, and the graphics, icons, logos, service names, designs, and layouts associated with this Site are the trademarks, service marks, or trade dress of Har-Tru in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
10. Claims of Intellectual Property Infringement.
10.2. Reporting Claims of Copyright Infringement.
10.2.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. Har-Tru will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Har-Tru Solutions infringe your copyright, you may request removal of those materials (or access thereto) from the Har-Tru Solutions by submitting written notification to the Har-Tru Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature;
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
- Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address);
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
- A statement that the information in the written notice is accurate; and
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Har-Tru’s designated Intellectual Property Agent to receive DMCA Notices is:
223 Crossroads Center
Troy, VA 22974
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Har-Tru Solutions is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
10.2.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with Har-Tru (a “DMCA Counter-Notice”) by submitting written notification to the Har-Tru Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include substantially the following:
- Your physical or electronic signature;
- Identification 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 disabled;
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number (and if you wish to facilitate Har-Tru’s ability to contact you, your e-mail address); and
- 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 your address is outside of the United States, for any judicial district in which Har-Tru may be found), and that you will accept service of process from the person who provided us with the DMCA Notice at issue.
The DMCA allows Har-Tru to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Har-Tru Solutions was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
10.3. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the Har-Tru Solutions infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content (or access thereto) from the Har-Tru Solutions by submitting written notification to the Har-Tru Intellectual Property Agent (designated above). The written notice (an “Infringement Notice”) must include all of the following:
- Your physical or electronic signature.
- Identification and description of the Intellectual Property Rights you believe to have been infringed. If you are reporting a claim of trademark infringement, your written notice must identify the exact trademark, service mark, or other mark (and if the mark is anything other than standard characters, you must include a copy of the mark), a description of the goods or services for which you believe you have trademark rights, the registration number and office of registration (if applicable), and a description of the reason why you believe the User Content (“Alleged Infringing Content”) causes a likelihood of confusion with or dilution of your mark.
- Identification of the Alleged Infringing Content you believe to be infringing in a sufficiently precise manner to allow us to locate it. Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address).
- A statement that you have a good faith belief that use of the Alleged Infringing Content is not authorized by the owner of the Intellectual Property Rights, the owner’s agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are the authorized owner of the Intellectual Property Rights or that you are authorized to act on behalf of the owner of the Intellectual Property Rights.
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including without limitation, temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user who is responsible for the applicable Alleged Infringing Content (the “Responsible Party”) and request that such Responsible Party provide a written response to the party alleging infringement (the “Asserting Party”) or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party’s contact information (name, address and e-mail address). If the Responsible Party’s response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party shall communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we shall Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 10.1 above.
HAR-TRU HAS NO RESPONSIBILITY OR LIABILITY TO ANY PERSON FOR REMOVING ANY USER CONTENT OR OTHER CONTENT OR MATERIALS. YOU AND EACH USER EXPRESSLY AND FOREVER WAIVE ALL CLAIMS AGAINST THE HAR-TRU PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY USER CONTENT OR OTHER CONTENT OR MATERIALS.
You agree that if you knowingly materially misrepresent that User Content or activity on the Har-Tru Solutions is infringing Intellectual Property Rights, you will be held liable for (and will reimburse and pay the Har-Tru Parties for) costs and fees (including attorneys’ fees) and other damages incurred by Har-Tru in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
11. Advertising. This Site may include advertising, which may be targeted to you based on information that you provide to us, your use of this Site, and other information. In exchange for us granting you permission to access and use this Site, you consent to Har-Tru (and our third party providers, partners, and affiliates) placing such advertising on this Site.
13. Disclaimers and Limitation of Liability - PLEASE READ CAREFULLY: This Section 13 limits the liability of the Har-Tru Parties. The provisions of this Section apply to the maximum extent permitted under applicable law. In addition, some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
13.1. You understand that we cannot and do not guarantee or warrant that content or materials available for downloading from the Internet or transmitted through the Har-Tru Website will be free of viruses, malware, or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus and anti-malware protection and for maintaining a means for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, MALWARE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT, DAMAGE, OR DELETE YOUR DEVICES OR DATA DUE TO YOUR USE OF THE HAR-TRU WEBSITE OR YOUR ACCESSING OR DOWNLOADING ANY HAR-TRU MATERIALS OR OTHER MATERIALS AVAILABLE ON OR THROUGH THE HAR-TRU WEBSITE OR LINKED TO FROM THE HAR-TRU WEBSITE.
13.2. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY OF ANY KIND TO YOU OR OTHERS AS A RESULT OF ANY LOSS, THEFT, DELETION, DESTRUCTION, ALTERATION, OR CORRUPTION OF, DAMAGE, UNAUTHORIZED ACCESS TO, OR FAILURE TO TRANSMIT, STORE, BACKUP, OR ENCRYPT ANY ACCOUNT INFORMATION OR ANY DATA OR FILES STORED ON ANY DEVICE USED TO ACCESS THE HAR-TRU WEBSITE OR STORED IN ANY THIRD PARTY SERVICE OR ACCOUNT CONNECTED TO YOUR HAR-TRU ACCOUNT.
13.3. TO THE FULLEST EXTENT PERMITTED BY LAW, THE HAR-TRU MATERIALS AND YOUR USE OF THE HAR-TRU WEBSITE AND ALL CONTENT AND INFORMATION THAT IS PROVIDED OR CAN BE ACCESSED USING THE HAR-TRU WEBSITE IS AT YOUR OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
13.4. EXCEPT FOR THE EXPRESS LIMITED PRODUCT WARRANTIES PROVIDED PURSUANT TO SECTION 8.1 above:
13.4.1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE HAR-TRU PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR HAR-TRU ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY HAR-TRU PURSUANT TO SUCH ORDERS), (B) THE HAR-TRU WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, (C) THE HAR-TRU SOLUTIONS OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, OR (D) THE HAR-TRU MATERIALS OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF THE HAR-TRU PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF (A) ANY ORDERS PLACED BY YOU OR THROUGH YOUR HAR-TRU ACCOUNT (AND ANY PRODUCTS PROVIDED OR SHIPPED BY HAR-TRU PURSUANT TO SUCH ORDERS), (B) THE HAR-TRU WEBSITE OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, (C) THE HAR-TRU SOLUTIONS OR THE USE THEREOF BY YOU OR ANY OTHER PERSON, OR (D) THE HAR-TRU MATERIALS OR THE USE THEREOF BY YOU OR ANY OTHER PERSON. WITHOUT LIMITING THE FOREGOING, NONE OF THE HAR-TRU PARTIES REPRESENTS OR WARRANTS THAT THE HAR-TRU WEBSITE, THE HAR-TRU MATERIALS, OR THE OTHER HAR-TRU SOLUTIONS, OR ANY OTHER CONTENT OR INFORMATION PROVIDED IN CONNECTION THEREWITH WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT HAR-TRU WEBSITE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE HAR-TRU WEBSITE, THE HAR-TRU MATERIALS, THE OTHER HAR-TRU SOLUTIONS, OR ANY CONTENT OR INFORMATION THAT IS PROVIDED IN CONNECTION THEREWITH WILL OTHERWISE MEET ANY OF YOUR NEEDS OR EXPECTATIONS.