Effective: May, 2023
PLEASE READ THESE TERMS OF SALE CAREFULLY BEFORE ACCESSING, USING, OR MAKING A PURCHASE WITH OUR SHOPPING CART OR THROUGH OUR SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS OF SALE, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SHOPPING CART AND ARE INSTRUCTED TO EXIT THE SHOPPING CART IMMEDIATELY.
These Terms of Sale (“TOS” or “Agreement”) are between you and Quality Solutions, Inc. d/b/a Firebrand Technologies (“Firebrand”, “we”, “us” or “our”). Upon entering the shopping cart of the site or services that link to this Agreement or purchasing any products or services from our shopping cart or such services, you hereby agree to abide by the terms of this Agreement. This Agreement governs your access to and use of this shopping cart and any purchase of any products or services made available through the shopping cart or used in connection therewith (collectively referred to as the “Shopping Cart”).
References to “you”, “your”, “user” or “authorized user” in this Agreement refer to you or, as applicable, your company, business, institution or other organization and all its affiliates, agents or employees who use this Shopping Cart.
1. Purchase Terms.
All products will be shipped to the shipping address you provide, within the service time-frame specified below after being accepted by us. We cannot make any changes to your order or cancel your order after you have submitted it.
We accept payments by credit card (AMEX, Mastercard, Visa, Discover). All list prices are exclusive of sales tax, which is applied to orders at checkout. You hereby give permission to Firebrand (or our third party payment processor, if applicable) to charge the credit card provided. The total order price, including shipping and handling fees as well as taxes as applicable to your order will be charged to the credit card you provide us at the time of order shipment. You are responsible for any import fees, duties, taxes, or other charges for orders placed or shipped outside of the United States.
Shipping and Returns Policy:
Standard shipping is calculated based on the shipping method you select at checkout unless otherwise specified in the Shopping Cart. Please check the site that uses the Shopping Cart and links to this Agreement for that site’s shipping and returns policies. Any questions about those shipping and returns policies should be directed to the operator of that site.
We are not responsible for any late delivery of the products or any consequential loss or damage caused as a result. You agree the shipping terms for all products are FOB shipping point and ownership transfers to the customer upon shipment. This means that the risk of loss and title for such items pass to you once such items are provided to the carrier.
2. User Obligations.
You represent that you are at least the legal age of majority and will, at all times, provide true, accurate and complete information when submitting any information to the Shopping Cart, including when you provide information during registration or on other forms. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Shopping Cart or not use the Shopping Cart if any applicable laws forbid its use. In addition, you also acknowledge and agree that use of the internet and access to or transmissions or communications with the Shopping Cart is solely at your own risk. While we have endeavored to provide a secure and reliable Shopping Cart, you understand that the confidentiality of any communication or material transmitted to or from the Shopping Cart over the Internet or other form of global communication network cannot be guaranteed. Firebrand is not responsible for the security of any information transmitted to or from the Shopping Cart. You agree to assume all responsibility concerning activities related to your use of the Shopping Cart.
3. License Grant.
The Shopping Cart is provided by Firebrand, and this Agreement provides to you a revocable, limited, non-exclusive, non-transferable license to use the Shopping Cart conditioned on your continued compliance with the terms and conditions of this Agreement and this Agreement permits you to use and access the Shopping Cart for your personal use only.
The Shopping Cart is for limited use only. You may not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit any data provided by Firebrand through the Shopping Cart in any manner unless expressly permitted by this Agreement. In addition, you may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit or publish the Shopping Cart, or remove, or alter any proprietary notices or labels on the Shopping Cart. You may not: (i) reproduce or circumvent the navigational structure or presentation of the Shopping Cart to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Shopping Cart, (ii) attempt to gain unauthorized access to any portion or feature of the Shopping Cart, including, without limitation, the account of another authorized user(s), or any other systems or networks connected to the Shopping Cart or to any Firebrand server or to any of the services offered on or through the Shopping Cart, by hacking, password “mining,” or any other illegitimate or prohibited means, (iii) probe, scan, or test the vulnerability of the Shopping Cart or any network connected to the Shopping Cart, nor breach the security or authentication measures on the Shopping Cart or any network connected to the Shopping Cart, (iv) reverse lookup, trace, or seek to trace any information on any other authorized user of or visitor to the Shopping Cart, (v) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Shopping Cart or Firebrand’s systems or networks or any systems or networks connected to the Shopping Cart, (vi) use any device, software to interfere with the proper working of the Shopping Cart or any transaction conducted on the Shopping Cart, or with any other person’s use of the Shopping Cart, (vii) resell, or otherwise permit third parties to access and use the Shopping Cart (or any part thereof) without Firebrand’s prior written permission, or (viii) use the Shopping Cart in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact Firebrand.
6. Disclaimers and Limitation of Liability.
We do not produce, create, publish, manufacture or control any of the products or services purchased through the Shopping Cart. Your ability to purchase products or services through the Shopping Cart does not indicate our affiliation with or endorsement of any product, service, or site operator. Accordingly, we do not provide any warranties with respect to the products or services purchased through the Shopping Cart.
NEITHER FIREBRAND NOR ITS AFFILIATES MAKE ANY REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, PRODUCTS, AND/OR SERVICES CONTAINED ON THE SITE OR PURCHASED THROUGH THE SHOPPING CART FOR ANY PURPOSE. ALL SUCH INFORMATION, PRODUCTS, AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND BY FIREBRAND. FIREBRAND AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
IN NO EVENT SHALL FIREBRAND OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, ENHANCED, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SHOPPING CART OR THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SHOPPING CART OR SITE, OR FOR ANY INFORMATION, PRODUCTS, AND/OR SERVICES OBTAINED THROUGH THE SHOPPING CART, OR OTHERWISE ARISING OUT OF THE USE OF THE SHOPPING CART OR THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF FIREBRAND AND/OR, ITS AFFILIATES HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FIREBRAND’S SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND/OR SERVICES YOU HAVE ORDERED THROUGH THE SHOPPING CART.
The foregoing disclaimers and limitation of liability shall only apply to the extent permitted by applicable law.
You agree to defend, indemnify, and hold harmless Firebrand and its affiliates, employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this Agreement. You acknowledge that any breach, threatened or actual, of this Agreement may cause irreparable injury to Firebrand, and that such injury may not be quantifiable in monetary damages, and, in such case, Firebrand would not have an adequate remedy at law. You therefore agree that Firebrand shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
8. Force Majeure.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these TOS, for any failure or delay in our performance under these TOS when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or telecommunication breakdown or power outage.
9. Governing Law and Time Limit on Claims.
Firebrand is located in the United States. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the State of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Massachusetts. Any claim you might have against Firebrand must be brought within ONE (1) year after the cause of action arises, or such claim or cause of action is barred. You access the Shopping Cart on your own volition and are responsible for compliance with all applicable local laws with respect to your access and use of the Shopping Cart.
10. Dispute Resolution and Binding Arbitration.
YOU AND FIREBRAND ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OF THE SHOPPING CART OR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SHOPPING CART, WILL (EXCEPT FOR A CLAIM FOR AN INJUNCTION OR OTHER EQUITABLE RELIEF REFERENCED ABOVE IN SECTION 7) BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 10. (The AAA Rules are available at https://www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention to do so within 60 days of the event giving rise to your claim. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR FIREBRAND WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS, CONSUMERS OR CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement in this Section 10 is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
11. Proprietary Rights.
As stated above, this Agreement provides you with a limited license to access and use the Shopping Cart. You expressly acknowledge and agree that Firebrand transfers no ownership or intellectual property interest or title in or to the Shopping Cart to you or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, and arrangement of any content contained on or available through the Shopping Cart, unless otherwise indicated, are owned by Firebrand or its licensors and are protected by law including, but not limited to, United States copyright, trade secret, patent, and/or trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided herein, Firebrand does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Accordingly, your unauthorized use of the Shopping Cart may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. Please be aware that Firebrand does enforce its intellectual property rights to the fullest extent of the law. Any downloadable or printable programs, directories, databases, information, or materials available through the Shopping Cart and all copyrights, trade secrets, and know how related thereto, unless otherwise indicated, are owned by Firebrand or its licensors. Firebrand, the Firebrand logo, and all other names, logos, and icons identifying Firebrand and its programs, products, and services are proprietary tradenames, service marks or trademarks of Firebrand or its licensors, and any use of such names or marks without the express written permission of Firebrand is strictly prohibited. Other service, product and entity names mentioned herein, on the Shopping Cart or the site may be the trademarks and/or service marks of their respective owners.
12. Copyright Infringement Policy.
While, as set forth above, we are not responsible for the products or services purchased through the Shopping Cart, we have implemented procedures for receiving written notification of claimed copyright infringements. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Shopping Cart or any of our other services, please notify our copyright agent, as set forth below. For your notice to be effective, you, as a complaining party, must provide all of the following information in writing to our copyright agent:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that you request to be removed or access to which be disabled, and information reasonably sufficient to permit us to locate the material.
(iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please submit your notice to:
Copyright Compliance Department
Quality Solutions, Inc. dba Firebrand Technologies
44 Merrimac Street
Newburyport, MA 01950
Email: [email protected]
Please note that this procedure is exclusively for notifying Firebrand that your copyrighted material has been infringed. The preceding requirements do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under copyright and other applicable laws. Please also note that Firebrand has adopted a policy of terminating, in appropriate circumstances and at Firebrand’s sole discretion, users who are deemed to be repeat infringers.
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a counter-notice. Please submit any counter-notice in writing to our copyright agent listed above.
UNDER U.S. FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Failure by Firebrand to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver by Firebrand of that or any subsequent default or failure of performance. If any provision (or part thereof) contained in this Agreement is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between you and Firebrand as result of this Agreement or your utilization of the Shopping Cart. Headings herein are for convenience only. This Agreement shall be deemed to include all other notices, policies, disclaimers, and other terms contained in the Shopping Cart; provided, however, that in the event of a conflict between such other terms and these TOS, the terms contained herein shall control.
14. Contact Us.
To contact us with any questions or concerns in connection with this Agreement or the Shopping Cart, or to provide any notice under this Agreement to us please contact us at: [email protected].