TERMS OF USE
Last updated: January 1, 2023
1. OVERVIEW
These Terms of Use (also referred to as the “Agreement”) are the terms and conditions of a legal contract agreement between You and Devil Mountain Wholesale Nursery, LLC, a California limited liability company ("Devil Mountain", “We,” “Us,” and “Our”) that applies to the use of this website, and all of Our linked websites (collectively, “Site”). Devil Mountain’s Privacy Policy also applies to use of this Site, and its terms are made a part of this Agreement by this reference. To view Devil Mountain’s Privacy Policy, click here. By Accessing, browsing and/or using this Site, You acknowledge that You have read, understood, and agree to be bound, by this Agreement, and that You will comply with all applicable United States, foreign and international laws and regulations, including, but not limited to, United States export and re-export control laws and regulations and U.S. and international copyright laws. If You do not agree to the terms and conditions of this Agreement, You are prohibited from using the Site and must immediately cease Accessing and using the Site.
Devil Mountain may modify this Agreement at any time, and such modifications shall be effective immediately upon either posting of the modified Agreement or notifying You. You agree to review the Agreement periodically to be aware of such modifications and Your continued Access or Use of the services shall be deemed Your conclusive acceptance of the modified Agreement and all terms and conditions therein.
This Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Site, You represent and warrant that You are 18 years of age or older. If You are not at least 18 years of age, do not Access, use or register for an account on the Site. In addition, You may not make a purchase from the Site unless You are at least 18 years of age. You also represent and warrant that You (a) have not previously been suspended or removed from the Site; and (b) that You have full power and authority to agree to all terms and conditions of this Agreement, and in doing so will not violate any other agreement to which You are a party.
This Site is controlled and operated by Devil Mountain from its offices within the United States. Devil Mountain makes no representation that materials in the Site are appropriate or available for use in other locations, and Access to them from territories where their contents are illegal is prohibited. Those who choose to Access this Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws.
2. DEFINITIONS
“Access” or “Accessing” means accessing, using, viewing the content or otherwise obtaining information on, the Site.
“Agreement” refers to these Terms of Use and any subsequent modifications.
“Site” refers to the website located at www.devilmountainnursery.com and all associated websites linked to www.devilmountainnursery.com by Devil Mountain.
“User” refers to any person or entity that Accesses the Site. If You are Accessing the Site as an employee or agent of another, “User” refers to You and Your employer or principal.
“You” or “Your” refers to the User. If You are Accessing the Site as an employee or agent of another, “You” or “Your” refers to the User and the User’s employer or principal.
3. MODIFICATIONS OF TERMS
Devil Mountain reserves the right, at any time and without prior notice, to modify, alter or update the terms and conditions of this Agreement. Modifications shall become effective immediately upon being posted at the Site. Except as provided for in this Section, this Agreement may not be modified or amended.
4. USE LICENSE
4.1 Devil Mountain grants to the User a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to Access the Site subject to the terms and conditions of this Agreement. This is the grant of a license, not a transfer of title or ownership. Devil Mountain retains all rights to the Site and any associated documentation. Devil Mountain, or its third party licensor, owns the software and related documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to You any title to or any proprietary or intellectual property rights in or to any software, updates or derivative works thereto, or the documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement.
4.2 Access and Use of this Site is subject to all applicable international, federal, state and local laws and regulations. Copyright laws protect all information and content in this Site. Unless expressly permitted, Users of the Site are prohibited from modifying, copying, displaying, distributing or transmitting, selling, licensing, or creating derivative works from any content in this Site.
4.3 User expressly agrees to refrain from doing, either personally or through an agent, any of the “Prohibited Conduct” listed below. Devil Mountain reserves the right to monitor use of the Site and reserves the right to revoke or deny Access to the Site to any person or entity whose use of the Site indicates Prohibited Conduct. Access of the materials available at the Site beyond that of normal patterns of use that suggests systematic copying of the materials constitutes abuse of the Site and may result in revocation or denial of Access to the Site. The terms “normal patterns” and “abuse” shall be solely determined by Devil Mountain. The following are nonlimiting examples of Prohibited Conduct:
- Transmit, install, upload or otherwise transfer any virus, advertisement, communication, or other item or process to the Site that in any way affects the use, enjoyment or service of the Site or adversely affects Devil Mountain’s computers, servers or databases.
- Capture, download, save, upload, print or otherwise retain information and content available on the Site other than what is expressly allowed by this Agreement.
- Copy, modify, reverse engineer, disassemble, decompile, redistribute, republish, alter, create derivative works from, assign, license, transfer or adapt any of the software, information, text, graphics, source code or HTML code, or other content available on the Site.
- Remove or modify any copyright, trademark, legal notices, or other proprietary notations from the content available on the Site.
- Transfer the Site content to another person, “frame,” “mirror,” “in-line link,” or employ similar navigational technology to the Site content, or “deep link” to the Site content.
- Violate or attempt to violate Devil Mountain’s security mechanisms, Access any data or server You are not authorized to Access, or otherwise breach the security of the Site or corrupt the Site in any way.
- Engage in any other conduct which violates the Copyright Act or other laws of the United States or other countries, including any United States, foreign or international software or technology export laws and regulations, including, without limitation, the United States Export Administration Regulations.
- Use any device (such as a “web crawler” or other automatic retrieval mechanism) or other means to harvest information about other Users, the Site or Devil Mountain.
- Use the Site to violate a third party’s intellectual property, personality, publicity or confidentiality rights; upload, download, display, publish, perform, create derivative works from, transmit, or otherwise distribute information or content in violation of a third party’s intellectual property rights.
- Misrepresent Your identity or personal information when Accessing the Site, or forge any TCP/IP packet header or any part of the header information in any e-mail so that the e-mail appears to be generated by Devil Mountain or any other entity or person.
4.4 The license granted pursuant to this Agreement:
(a) Shall immediately and automatically terminate without notice if You violate or attempt to violate this Agreement; and
(b) May be terminated by Devil Mountain at any time and without notice for any reason or no reason.
5. WARRANTIES AND LIMITATIONS OF LIABILITY
5.1 All information and materials on the Site are provided "as is", and Devil Mountain makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Devil Mountain does not warrant or make any representations concerning the accuracy, completeness, likely results, or reliability of the use of the materials on its Site or otherwise relating to such materials or on any websites linked to this Site. Devil Mountain may make changes to the materials contained on the Site at any time without notice. Devil Mountain does not, however, make any commitment to update the materials.
5.2 In no event shall Devil Mountain or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on the Site, even if Devil Mountain or its authorized representative has been notified in advance of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You.
6. PRODUCT WARRANTIES AND LIMITATIONS OF LIABILITY
Except as expressly set forth in this Site regarding specific products, Devil Mountain makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights regarding any products displayed, offered or sold on this Site. In no event shall Devil Mountain or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption) arising out of the purchase, use, or inability of any products displayed, offered or sold on this Site, even if Devil Mountain or its authorized representative has been notified in advance of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You.
7. DIRECT OR INDIRECT LINKS TO OTHER WEBSITES
The inclusion of any link does not imply endorsement by Devil Mountain of any linked website. Use of any such linked websites is at the User's own risk. Because third-party websites are owned and operated independently, Devil Mountain is not responsible or liable for the practices, actions or policies of these third-party websites even if the Site contains a link to the third-party website(s). Any time You elect to leave our Site to visit a third-party website, Devil Mountain is not responsible or otherwise liable for any issues or damage that You may incur, and You are solely responsible for complying with the terms and conditions of the third-party website(s).
8. SOCIAL MEDIA; IDEA SUBMISSIONS.
Devil Mountain maintains and interacts with various Social Media websites, including, but not limited, to Instagram, Facebook and Twitter. These social media websites include but are not limited to various blogs, bulletin boards, networks, multi-media and news media websites or other user generated content websites (“Devil Mountain Social Media Sites”). By Accessing, viewing and/or posting any content to any Devil Mountain Social Media Site, You accept, without limitation or qualification, the complete terms of use for those websites. Devil Mountain does not and cannot review all communications and materials posted or uploaded to the Site and/or the Devil Mountain Social Media Sites, and Devil Mountain is not responsible for the comments and postings therein and reserves the right to monitor, prohibit, restrict, block, suspend, terminate, delete, or discontinue Your Access to any Devil Mountain Social Media Site, at any time, without notice and for any reason and in its sole discretion.
You agree to grant to Devil Mountain a non-exclusive, worldwide, royalty-free, perpetual license, with the right to sublicense, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products or services) You submit to or via Devil Mountain Social Media Sites or to or via public areas of the Site (such as bulletin boards, forums and chat rooms) by all means and in any media now known or hereafter developed. You agree that You shall have no recourse against Devil Mountain for any alleged or actual infringement or misappropriation of any proprietary right in Your communication to Us.
9. NOTICE OF COPYRIGHT INFRINGEMENT
If You are a copyright owner or an agent thereof and believe that any content on this Site infringes upon Your copyright, You may notify Devil Mountain by providing the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive copyright right that is allegedly infringed;
- Identification of the location where the original or an authorized copy of the copyrighted work exists;
- Identification of the material that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit Devil Mountain to locate the same;
- Information reasonably sufficient to permit Devil Mountain to contact You, such as an address, telephone number, and, if available, an email address;
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.
Our agent for notice of claims of copyright infringement can be reached as follows:
Eugene Pak
Fennemore Wendel
1111 Broadway, 24th Floor, Oakland, CA 94607
TEL: 510.622.7684
Email: epak@fennemorelaw.com
10. INDEMNIFICATION
You agree to indemnify, defend and hold harmless Devil Mountain, its officers, directors, managers, members, employees, agents, licensors, suppliers, subsidiaries, successors, assigns and affiliates (collectively the "Indemnified Parties") harmless from and against any claim or demand and all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement or any activity related to Your use of the Site (including, but not limited to, negligent or wrongful conduct or violation of any intellectual property right of any person or entity).
11. DISPUTE RESOLUTION
You agree that all matters relating to Your Access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflict of law provisions. Venue shall be proper only in Contra Costa County, California.
You agree to submit all disputes, claims or demands of any kind relating to or arising out of this Agreement (“Controversy”) to a three-step dispute resolution process. The three-step process shall (i) begin with informal negotiation conducted in good faith; (ii) be followed, if necessary, by mediation, initiated by written demand of one party served on the other, and if the mediator determines that the Controversy cannot be resolved by mediation or if either party, after good faith participation in the mediation, shall make written demand therefore, then; (iii) the Controversy shall be submitted to binding arbitration, conducted by a single, neutral arbitrator in accordance with the rules and regulations of the American Arbitration Association (the “AAA Rules”); provided, however, in the event that the AAA Rules are not in compliance with applicable law, the parties hereby agree that the arbitrator shall modify the AAA Rules to the extent necessary to comply with applicable law and that the arbitration shall be conducted in accordance with such modified rules; provided, further, in the event that there is a conflict between the AAA Rules and this Section, this Section, and not the AAA Rules, shall be followed by the arbitrator.
You and Devil Mountain will mutually select the arbitrator. If the parties cannot agree on an arbitrator, then the arbitrator shall be appointed by the American Arbitration Association. The arbitrator shall be experienced with respect to the type of dispute hereunder. Upon selection, the arbitrator shall set an appropriate time, date and place for the arbitration, after conferring with the parties to the dispute. The provisions of Section 1283.05 of the California Code of Civil Procedure shall be adopted and used with respect to the conduct of discovery prior to the arbitration.
The arbitrator may award any form of equitable or legal relief that the party could recover in a court action, including, but not limited to, interim awards, provisional remedies, temporary injunctive relief, orders for specific performance, declaratory relief or damages. The arbitrator may condition any interim awards or provisional remedies or relief on the provision of appropriate security by the party seeking such relief. Notwithstanding the foregoing, a party who is in need of, but unable to obtain, an interim or provisional remedy or relief from the arbitrator may seek from a court any interim or provisional remedy or relief that is necessary to protect the rights or property of that party. The court shall grant or deny the requested interim or provisional remedy and shall thereafter stay the prosecution of such party’s underlying claims on which any interim or provisional remedy or relief is based pending completion of mediation or arbitration of the underlying claims. A request for an interim award or provisional remedy or relief addressed by a party to the court shall not be deemed incompatible with this Agreement to arbitrate, nor constitute a waiver of the right to arbitrate.
The arbitrator shall issue a written opinion and award setting forth the legal principles and conclusions of law and fact that support each part of the opinion. Any party may apply to any court of general jurisdiction for entry and enforcement of judgment based on the arbitration award.
The prevailing party in any action brought pursuant to this Section shall be entitled to recover its attorneys’ fees and costs, including, without limitation, discovery costs, witness fees, expert fees and any other expenses related to the preparation and presentation of proof.
You acknowledge that by execution of this Agreement, You are waiving Your rights to proceed with a court action (except as expressly provided herein with respect to interim or provisional remedies) or a jury trial.
12. CLASS ACTION WAIVER
With respect to any dispute with Devil Mountain or its suppliers or licensors arising out of or relating to Your use of the Site, You hereby give up Your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving such dispute.
13. MISCELLANEOUS PROVISIONS
13.1 Waiver. The failure of Devil Mountain to partially or fully exercise any rights or remedies that may be available to it, or the waiver of the Devil Mountain of any breach of this Agreement by You shall not prevent a subsequent exercise of such rights by Devil Mountain and shall not be deemed a waiver by Devil Mountain of any subsequent breach by You of the same or any other provision of this Agreement. Devil Mountain rights and remedies under this Agreement and any other applicable agreement between You and Devil Mountain shall be cumulative, and the exercise of any such right or remedy shall not limit Devil Mountain’s ability to exercise a different or additional right or remedy.
13.2 Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to this subject matter and Your use of the Site. There are no verbal or written collateral representations, agreements or understandings relevant to this subject matter except as specifically set forth in this Agreement.
13.3 Survival. If any provision of this Agreement in its current form or as may be amended is found to be invalid or unenforceable for any reason, only the invalid portion of the provision shall be severed and the remaining terms, conditions and provisions of the Agreement shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.
13.4 Survivability. The provisions of Sections 4.3 (Prohibited Conduct), 5 (Warranties, Limitation of Liability), 6 (Product Warranties and Limitation of Liability), 7 (Links to other Sites), 8 (Social Media; Idea Submission), 9 (Copyright Infringement Notice), 10 (Indemnification), 11 (Dispute Resolution), 12 (Class Action Waiver) and 13 (Misc.) shall survive termination or expiration, if any, of this Agreement.