By visiting this website, you (the “Customer”) agree to be bound by the following terms and conditions of service (“Terms and Conditions”), including the following:
1. Agreement. Customer understands, agrees and acknowledges that these Terms and Conditions constitute a legally binding agreement and that Customer’s use of this website or purchase of any merchandise hereunder, indicate Customer’s conclusive acceptance of the Terms and Conditions.
2. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated below:
“Company” means DesiRx, LLC, and includes the After Nine Tonight brand.
“Content” means any material in any form published on the Company’s Website by Company or any third party with Company’s consent.
“Customer” means any natural person who, in connection with this Agreement, is acquiring Products.
“Website” or “Site” means the Company’s website and the entire computing hardware and software installation that is or supports the Company’s website.
“Product” means any of the goods we offer for sale, rental, or Membership subscription access on our Site.
“Membership” means any of the fee incurring subscription options offered by the Company permitting viewing access to Products including films or videos on or through the Site.
3. Orders. The Company intends to offer fee-based access to certain Products, including video and films, on the Site via the sale of Membership subscriptions. The Company intends to offer both finite one-time Memberships that expire after a pre-determined time period and recurring Memberships that automatically renew at set time intervals. Payment for all Memberships will be required in advance of access to the Products or video content. Membership payments by a Customer are NOT refundable. Memberships that are set for automatic renewal can be cancelled at any time; however no refunds or credits will be given for any unused portion of a paid Membership period.
Company may advertise Products on the site for advance pre-orders (“Pre-Order”). By placing a Pre-Order for a Product that is not yet available for sale, Customer acknowledges that Customer is making an offer to Company to purchase the Product subject to these Terms and Conditions. When Customer places a Pre-Order Company will advise the Customer at the time of order, of the anticipated delivery date, of the Pre-Order. Customer acknowledges and agrees that the Products are under production and purchase hereunder is merely a reservation to purchase. NOTWITHSTANDING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY PRE-ORDER WILL REQUIRE THE DEPOSIT WITH COMPANY OF THE FULL PURCHASE PRICE IN ADVANCE.
All products offered for sale or rental on this Site, are offered subject to their availability at the time of order. Company reserves, in its discretion, the right to reject any order, to correct pricing, and other typographical and photographic errors and to limit the quantities of sales to customers, including the right to prohibit sales to re-sellers.
4. Delivery and taxes. Customer will be required to pay all delivery charges and any necessary re-delivery costs if delivery is not possible, as well as all applicable taxes. Customer hereby authorizes re-delivery fees by the same method under the original order. Customer must ensure that someone is present to accept delivery. Anyone at the delivery address who receives the Product shall be presumed to be authorized by Customer to receive the Product. Company may deliver in instalments if Products are not all available at the same time for delivery.
5. No Medical Advice. Nothing on this Site, or any materials sold or marketed hereunder constitute, nor shall same be deemed or be interpreted to constitute, medical advice of any kind. Customer agrees to and is encouraged to seek treatment and counsel from a qualified medical professional.
6. Account Information. Customer hereby represents and warrants that all information Customer provides to Company will be true, accurate, current, and complete. Customer will maintain any login information to its account with Company in strict confidence; and Customer may not share Customer account information with, or allow access to Customer’s account information by any third party. Customer shall notify Company immediately of the unauthorized access or disclosure of any account information of Customer to any third party. Customer is solely responsible for Customer’s any loss or damages incurred by Customer, Company, or any third party, due to any unauthorized use of Customer’s account information. Customer agrees to indemnify, defend and hold Company and its affiliates, officers, directors, suppliers, and customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Customer’s violation of the Terms and Conditions hereunder.
7. Third Party Content. Company’s Site may contain or display various materials and content from third parties (“Third Party Materials”). The display of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of any third party or any affiliation between any such third party and Company. Customer agrees that Company is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Company’s display of Third Party Materials shall not be deemed or interpreted as a recommendation by Company of the information or products referenced in any Third Party Materials. Customer acknowledge and agrees that Company is not responsible for any aspect of the information or content contained in any Third Party Materials or on any third party sites identified herein or from time to time.
8. Use Restrictions. Products are provided to Customer pursuant to a revocable license. Company reserves the right, in its sole discretion, to restrict or terminate Customer’s right of access or use of this Site or any Products, or any other goods or services Company may offer from time to time, if Customer’s use violates these Terms and Conditions. Customer shall not reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Site, the Products, or the information, materials for any purpose other than for Customer’s authorized use of the features under the revocable license granted hereunder and that Customer has fully paid for, in accordance with these Terms and Conditions. Customer shall not use the Site, its content or any part of the Site or the information, materials or Products, for any purpose in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
9. Intellectual Property. All content, images, branding, designs, logos, and other intellectual property appearing on this Site is the property of Company and are protected by copyright, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (“Company Materials”). Permission may be needed for other content not marked with Company’s or any copyright notice. All brand, product, service, and process names appearing on this Site are trademarks of their respective holders. Reference to or use of a product, service, or process does not imply recommendation, approval, affiliation, or sponsorship of that product, service, or process by Company. Nothing contained herein shall be construed as conferring by implication, estoppel, or otherwise any license or right under any patent, copyright, trademark, or other intellectual property right of Company or any third party, except as expressly granted herein. Customer may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Products or the content of this Site. Company reserves all rights not expressly granted in these Terms and Conditions. Customer shall not acquire any right, title or interest to the Product or any content of this Site, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms and Conditions.
10. Disclaimer of liability. The Company makes no warranty with respect to documents or other information available from this Site; assumes no legal liability or responsibility whatsoever for the accuracy, completeness, or usefulness of any such information; and does not represent that its use would not infringe any privately owned rights. THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NON-INFRINGEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS OR EMPLOYEES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, BUSINESS REPUTATION OR GOODWILL, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS, OR DAMAGES OR CLAIMS ALLEGED OR INCURRED BY ANY THIRD PARTY. IN NO EVENT WILL COMPANY’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER, WHETHER IN CONTRACT OR TORT, EXCEED THE VALUE OF THE PURCHASE PRICE, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AVAILABLE SHALL BE EXPRESSLY LIMITED TO RETURN OF THE PURCHASE PRICE PAID BY CUSTOMER HEREUNDER.
11. Force Majeure. Customer acknowledges and understand whenever a period of time provided for herein on the part of Company to do or perform any act or thing, Company shall not be liable or responsible for any delays due to or caused by an act or event beyond Company’s reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
12. Arbitration. Customer and Company agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. This agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms and Conditions, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms and Conditions. Customer understands and agrees that, by entering into these Terms and Conditions, Customer and Company are EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party agrees that nothing herein shall be deemed to waive, preclude, or otherwise Company’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, to protect it’s intellectual property, or (iii) to file suit in a court of law to address intellectual property infringement claims. Any arbitration between Customer and Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms and Conditions, and will be administered by the AAA, subject to the Illinois Code of Civil Procedure. Each party shall bear the cost of their own legal fees and expenses in connection with any such arbitration, and shall bear ½ the cost of the arbitration. The arbitrator shall be selected by Company. Venue and jurisdiction for any arbitration shall be Cook County, Illinois.
13. Modifications. Company reserves the right, in its sole discretion, to add, remove, or modify the terms hereof for any reason without liability to Customer. Company may change, modify, add, or remove portions of these Terms and Conditions (including the additional terms) at any time by making such modified terms available to Customer on the Site or other communication.
14. Miscellaneous. These Terms and Conditions, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of Illinois, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, Customer and Company agree to submit to the personal and exclusive jurisdiction of the state courts, located in Cook County, Illinois or the federal courts located within the Northern District of Illinois for the purpose of litigating all such claims or disputes. Company may assign its rights and obligations hereunder; Customer may not assign any rights hereunder. Subject to the foregoing, these Terms and Conditions shall be binding on the parties and their respective successors and permitted assigns. The failure by Company to exercise, or delay in exercising, a right, power or remedy provided in these Terms and Conditions or by law shall not constitute a waiver by Company of that right, power or remedy. No waiver, modification, amendment, discharge or changes of this Agreement, shall be valid and binding upon Company unless the same is in writing and signed by an authorized representative of Company. This Agreement expressly excludes any right or benefit to any person or entity not expressly made a party to this Agreement, and no person shall have the right or entitled to claim rights as a third party beneficiary hereunder, or assignee without the express written consent of Company.