Last Updated: November 18, 2022
IMPORTANT INFORMATION ABOUT DISPUTE RESOLUTION
These Terms provide that all disputes between you and FDS with respect to your use of the Website will be resolved by BINDING ARBITRATION, to the fullest extent permitted under applicable law. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters that may be taken to small claims court, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 18 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with FDS.
Service Overview. The Website is intended to provide you information regarding FDS’ goods and services. To the fullest extent permitted by law, you assume all risk and FDS is not responsible for any harm to you or others that may occur from your use of the Website. You may not access or use the Website for any other purpose.
Limited License. Subject to your ongoing compliance with these Terms, FDS grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website for your personal, non-commercial use for lawful purposes.
License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not at any time, directly or indirectly, and may not permit any other person to: (i) reproduce, distribute, publicly display, or publicly perform the Website or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Website or any part thereof; or (iii) interfere with or circumvent any feature of the Website or any part thereof, including any security or access control mechanism. If you are prohibited under applicable law from using the Website, you may not use it.
Reservation of Rights. FDS reserves all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to FDS’ intellectual property.
Open Source Software. The Website may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Website is provided to you subject to these Terms, nothing in these Terms will be deemed to prevent or otherwise restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
Consent to Communications. By providing us with your contact information and using the Website, you agree to receive communications, including via e-mail, from or on behalf of FDS. These messages may be for informational purposes, such as to provide you with the information you requested.
IF YOU WISH TO OPT OUT OF MARKETING COMMUNICATIONS FROM US, YOU CAN UNSUBSCRIBE BY FOLLOWING THE INSTRUCTIONS IN THE COMMUNICATION (FOR EXAMPLE, BY CHOOSING THE UNSUBSCRIBE OPTION IN A MARKETING EMAIL ITSELF). You understand and agree that you may continue to receive communications while FDS processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.
Prohibited Conduct. By using the Website, you agree not to, directly or indirectly, and may not permit any other person to:
use or access the Website (i) from a jurisdiction where such use or access is not authorized, (ii) for any illegal purpose, or (iii) in violation of any local, state, national, or international law;
conduct activities that may be harmful to others or that could damage FDS’ reputation;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or violating any third-party privacy right;
post, upload, or distribute marketing or advertising links or content, or any user content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
use scrapers, robots, or other data-gathering devices not provided by FDS on or through the Website;
interfere with security-related features of the Website;
interfere with the operation of the Website or any user’s enjoyment of the Website, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Website; (iii) attempting to collect personal information or other information about another user or third party without their consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Website, or violating any regulation, policy, or procedure of any such network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, any personal characteristic (such as, age), or claiming a false affiliation or accreditation;
modify, translate, or create derivative works, adaptations or compilations of, or based on, the Website or part thereof, or use, copy or reproduce the Website or any part thereof other than as expressly permitted in these Terms;
use the Website during any activity that may distract you from safely using the Website; for example, using the Website while driving or operating machinery;
assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
attempt to do any of the acts described in this Section 5, or assist or permit any person in engaging in any of the acts described in this Section 5.
Third-Party Services and Linked Websites. Websites and services provided by third parties are not under our control, and we are not responsible for any third party services. The Website may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for them or their content.
Termination of Use; Discontinuation and Modification of the Website. If you violate any provision of these Terms, your permission from us to use the Website will terminate automatically. In addition, FDS may in its sole discretion suspend or terminate your access to the Website at any time if you violate any provision of these Terms, if we no longer provide any part of the Website, or for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Website at any time (including by limiting or discontinuing certain features of the Website), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to the Website or any suspension or termination of your access to or use of the Website. Upon the termination of any aspect of the Website or these Terms for any reason, FDS may at its option delete any data you submitted through the Website.
Additional Terms. Your use of the Website is subject to all additional terms, policies, rules, or guidelines applicable to the Website or certain features of the Website that we may post on or link to from the Website (the “Additional Terms”) such as end-user license agreements for any downloadable software applications and rules that are applicable to a particular feature or content on the Website. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will notify you of the modified Terms by email to the address we have on file for you (if applicable) and/or by posting notice on our website. Material modifications will be effective upon your acceptance of such modified Terms or upon your continued use of the Website after we send or post our notification of the changes, whichever is earlier. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Ownership; Proprietary Rights. The Website is owned and operated by FDS. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Website (“Materials”) provided by FDS are protected by intellectual property and other laws. All Materials included in the Website are the property of FDS or our third-party licensors. Except as expressly authorized by FDS, you may not make use of the Materials. FDS reserves all rights to the Materials not granted expressly in these Terms.
Feedback. If you choose to provide input or suggestions regarding your experience with the Website (“Feedback”), then you hereby grant FDS an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Website and create other products and services.
Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Website, and you will defend and indemnify FDS and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “FDS Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Website; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) fraud, intentional misconduct, criminal acts, gross negligence, or negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties. THE WEBSITE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE WEBSITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. FDS ENTITIES DISCLAIM, AND YOU HEREBY EXPRESSLY WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE WEBSITE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE WEBSITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE WEBSITE IS TRUE, COMPLETE OR ACCURATE. THE FDS ENTITIES DO NOT WARRANT THAT THE WEBSITE OR ANY PORTION OF THE WEBSITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE WEBSITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FDS OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE WEBSITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FDS ENTITIES OR THE WEBSITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE WEBSITE AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE WEBSITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE WEBSITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE WEBSITE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE WEBSITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE WEBSITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability. IN NO EVENT WILL THE FDS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, GOODWILL, REPUTATION, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE THE WEBSITE OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FDS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE FDS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF THE WEBSITE, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Force Majeure. To the fullest extent permitted under applicable law, FDS will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to FDS’ information technology systems by third parties; or (g) other causes beyond the reasonable control of FDS.
Governing Law and Venue. These Terms and your use of the Website are governed by the laws of the State of California, USA, without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and FDS agree to submit to the exclusive jurisdiction of the state courts and federal courts located within Napa, California, for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof. We operate the Website from our offices in the United States, and we make no representation that Materials included in the Website are appropriate or available for use in other locations.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and FDS in the most expedient and cost-effective manner, you and FDS agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FDS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Exceptions. Despite the provisions of Section 18(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and FDS will be settled under the Federal Arbitration Act, and 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 will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting FDS.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). FDS’ address for Notice is: PO Box 6829, Napa CA 94581. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or FDS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or FDS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Fees. If you commence arbitration in accordance with these Terms, FDS will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Napa, CA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse FDS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND FDS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and FDS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If FDS makes any future change to this arbitration provision, other than a change to FDS’ address for Notice, you may reject the change by sending us written notice within 30 days of the change to FDS’ address for Notice, in which case your account with FDS will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new users, the Opt-Out Notice must be postmarked no later than 30 days after the date you use the Website for the first time. You must mail the Opt-Out Notice to FDS, at PO Box 6829 Napa, CA 94581. The Opt-Out Notice must state that you do not agree to the arbitration agreement and must include your name, address, phone number, and the email address(es) used to log in to the (s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the arbitration agreement. If you opt out of the arbitration agreement, FDS will likewise not be bound by these arbitration provisions. All other terms of these Terms will continue to apply. Opting out of the arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. FDS users who accepted a previous version of these Terms that included an arbitration agreement, and who did not timely opt out of that arbitration agreement, remain bound by the last arbitration agreement that they accepted. Upon receipt of a valid Opt-Out Notice, FDS will provide the opting out user with a copy of the arbitration agreement from the last version of the Terms that the user accepted, if any exists.
Enforceability. If Section 18(f) is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 (except this Section 18(i)) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
Export. You may not use the Website if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Website. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
Contact Information. The Website is offered by FDS. You may contact us by emailing us at firstname.lastname@example.org, or writing to us at Fior di Sole, PO Box 6829 Napa, CA 94581.
Consumer Protection Notice. Please note that, if you are a consumer, the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Website or to receive further information regarding use of the Website.