Effective Date: These Terms of Service became effective on March 11, 2020
These Terms of Service (“Terms”) apply to shopdivacup.com, divacup.com, and any other websites, mobile applications, or other online services owned and operated by Diva International Inc. (“Diva”, “we”, “us” and “our”) that post a link to or include these Terms (collectively, the “Site”). Diva offers this website, including all information, tools and services available from the Site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here. Important! Please carefully read these terms before using the Site, as they may affect your legal rights and obligations. You affirm that you have the capacity and authority to agree to these Terms.
By accessing our Site, using any part of the Site, and/ or purchasing something from us, you agree to be bound by all of these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink.
These Terms apply to all users of the Site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
If you do not agree to all the Terms, then you may not access or use the Site or any services. If these Terms are considered an offer, acceptance is expressly limited to these Terms. Any new features or tools which are added to the Site shall also be subject to these Terms, unless we provide otherwise in Additional Terms we provide with such feature or tool. You can review the most current version of these Terms at any time on this page.
As set out in section 29, we reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.
When using particular services or features of the Site, in addition to these Terms, a separate guidelines document, payment terms, shipping terms, or end user license agreement may apply to your use of that feature or service (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. The store portion of our Site is hosted by Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
TABLE OF CONTENTS
- SECTION 1 – GENERAL
- SECTION 2 – OWNERSHIP OF SITE CONTENT
- SECTION 3 – YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
- SECTION 4 – MEMBERSHIP, REGISTRATION, AND ACCESS CONTROLS
- SECTION 5 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
- SECTION 6 – PRICES
- SECTION 7 – PRODUCTS OR SERVICES
- SECTION 8 – ACCURACY OF BILLING AND ACCOUNT INFORMATION
- SECTION 9 – THIRD-PARTY LINKS, CONTENT, and APPLICATIONS
- SECTION 10 – USER COMMENTS, FEEDBACK AND OTHER CONTENT SUBMISSIONS
- SECTION 11 – SOCIAL DISTRIBUTION
- SECTION 12 – LINKING POLICY
- SECTION 13 – PERSONAL INFORMATION
- SECTION 14 – MOBILE FEATURES
- SECTION 15 – PROMOTIONS
- SECTION 16 – ERRORS, INACCURACIES AND OMISSIONS
- SECTION 17 – PROHIBITED USES
- SECTION 18 – DISCLAIMER OF WARRANTIES; WAIVER
- SECTION 19 – LIMITATION OF LIABILITIES; WAIVER
- SECTION 20 – INDEMNIFICATION
- SECTION 21 – E-COMMERCE
- SECTION 22 – SEVERABILITY
- SECTION 23 – TERMINATION
- SECTION 24 – MISCELLANEOUS
- SECTION 25 – LOCATION OF THE SITE AND TERRITORIAL RESTRICTIONS
- SECTION 26 – GOVERNING LAW (Users Outside of the United States only)
- SECTION 27 – ARBITRATION AGREEMENT/GOVERNING LAW/CLASS ACTION WAIVER/DISPUTE RESOLUTION (U.S. Residents only)
- SECTION 28 – SPECIAL TERMS FOR APPLE iOS USERS
- SECTION 29 – CHANGES TO TERMS OF SERVICE
- SECTION 30 – CONTACT INFORMATION
SECTION 1 – GENERAL
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Site, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms may result in an immediate termination of your access to the Site.
We reserve the right to refuse service to anyone for any reason at any time.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Site, without express prior written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 2 – OWNERSHIP OF SITE CONTENT
Unless otherwise explicitly specified, all materials that are included in or are otherwise a part of the Site, including past, present and future versions, domain names, source and object code and the “look and feel” of the Site (“Site Content“) are owned, controlled or licensed by Diva,, and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, and other laws, rules, regulations and treaties.
The Site Content may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, except with the express permission of Diva.
SECTION 3 – YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
You may visit our Site without further permission from Diva and Diva grants you a limited, personal, non-exclusive, non-commercial, revocable and non-transferable license to view and play the Site Content, except as may be specifically restricted by purchase or similar requirements. This license is subject to your full compliance with these Terms. When you view or use the Site Content, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Site Content; and (c) not copy or adapt any object code associated with the Site or reverse engineer, modify or attempt to discover any source code associated with the Site, nor allow or assist any third party to do so (whether or not for your benefit). You also agree that you will not, including by use of any robot, scraper, or other data mining technology or process, frame, mask, extract data or other materials from, copy or distribute the Site Content (except as may be a result of standard search engine or Internet browser usage).
SECTION 4 – MEMBERSHIP, REGISTRATION, AND ACCESS CONTROLS
SECTION 5 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on the Site is not accurate, complete or current. The material on the Site is provided for general informational purposes only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. The Site Content is not intended to be a substitute for medical advice, diagnosis, or treatment and you should always seek the advice of your physician or other qualified health care provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on this Site. To the fullest extent permitted by applicable law, any reliance on the material on the Site is at your own risk.
We reserve the right to modify the contents of the Site at any time, but we have no obligation to update any information on the Site. You agree that it is your responsibility to monitor changes to the Site. We shall not be liable to you or to any third-party for any such modification.
SECTION 6 – PRICES
Prices for our products are subject to change without notice. Please see our Sales Policy for additional details. We shall not be liable to you or to any third-party for any price changes. Unless otherwise stated, for users viewing the Sites from the United States prices on the Site are in United States dollars, and for users viewing the Sites from Canada prices on the Site are in Canadian dollars
SECTION 7 – PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are not subject to return or exchange in accordance with our Sales Policy.
We have made reasonable efforts to display accurate images of our products. However, we cannot guarantee that your computer monitor’s display of any images will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer.
All descriptions of products are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on the Site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Site will be corrected. Please read Section 18 below on DISCLAIMER OF WARRANTIES; WAIVER.
SECTION 8 – ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e?mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. Further, we reserve the right to verify the validity of all orders and cancel any order if we find evidence of fraud, tampering and/or any other violation of these Terms. We reserve the right, in our sole and absolute discretion, to require proof of identity (in a form acceptable to us): (i) for the purposes of verifying the legitimacy of any order and/or other information; and/or (ii) for any other reason we deem necessary, in our sole and absolute discretion, for the purposes of fulfilling an order in accordance with our interpretation of the terms and conditions of these Terms.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. For more detail, please review our Sales Policy.
SECTION 9 – THIRD-PARTY LINKS, CONTENT, and APPLICATIONS
Certain content, products and services available via our Site, or communications you receive from the Site, may include materials from third-parties that we do not control, maintain, or endorse and we are not responsible for examining or evaluating the content or accuracy of any third party content.
Third-party links on the Site may direct you to third-party websites or online services or features that are not affiliated with us, including third party stores selling Diva products. When you purchase Diva products through a third party store, your billing relationship will be with the third party and additional terms imposed by the third party may apply to your purchase.
Functionality on the Site may also permit interactions between the Site and a third party web site or online feature, including applications that connect the Site or your profile on the Site with a third party site (including, but not limited to, Shopify, PayPal, other payment processors, Facebook, Instagram, YouTube, Twitter, and LinkedIn). For example, the Site may allow you to make a purchase through a third party account. The Site may also include a button enabling you to indicate, on your social networking page, that you “like” a specific product on a Site, or a feature that lets you post to your social networking page a link to Site Content or the ability to share content from the Site or your User Content posted on the Site with a third party, which may be publicly posted on that third party’s web site. Using this functionality typically requires you to login to your account on the third party site. We do not control any of these third party sites or any of their content. Accordingly, you expressly acknowledge that we make no representation or warranties about the completeness, accuracy, or existence of any advertising, products, resources, content or other materials on or available from third party sites or online features and any reliance placed by you on such materials is at your own risk. If you choose to use applications that connect a Site or your profile on a Site with a third party site, you acknowledge and agree that you are consenting to the information about your account being shared; and that your use of these third party applications may cause information about you to be publicly disclosed.
Neither Diva nor its service providers are responsible for the practices of any third party. Your correspondence and business dealings with third parties found through the Site including, without limitation, the payment and delivery of products and services, and any terms, conditions, warranties and representations associated with any such dealings, are solely between you and the third party. You acknowledge and agree that Diva is not liable for any loss or damage which may be incurred by you as a result of your interaction with any third party.
SECTION 10 – USER COMMENTS, FEEDBACK AND OTHER CONTENT SUBMISSIONS
The Site may provide you the ability to submit content to us or post content publicly on the Site (including, without limitation, photographs, videos, reviews, testimonials, promotion entries, writings, pictures, data, questions, comments, and suggestions) (collectively, ”User Content”).
You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant Diva the license below. Upon Diva’s request, you will furnish Diva any documentation, substantiation or releases necessary to verify your compliance with these Terms.
You agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any User Content. We are and shall be under no obligation (1) to pay compensation for any User Content; or (2) to respond to any User Content.
Diva is not responsible for the substance of any User Content and such User Content does not necessarily reflect the views of Diva. We may, but are under no obligation to, monitor, edit or remove User Content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms. We may remove or refuse to post any User Content for any reason in our sole discretion.
You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting any information to Diva.
You remain the owner of your User Content, but you acknowledge that Diva must have a license from you in order to accept your User Content. Accordingly, you grant to Diva an unrestricted, worldwide, irrevocable, perpetual, transferable, non-exclusive, and royalty-free license (but not obligation) to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your User Content for any purpose whatsoever in all formats, on or through any media, technology or device now known or hereafter developed.
You agree that Diva is free to use any ideas or concepts contained in any User Content for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and services, and creating informational articles, without any payment of any kind to you. You authorize Diva to publish your User Content in a searchable format that may be accessed by users of the Site and the Internet. This may include User Content that you submit through our accounts on social media websites (e.g., Facebook, Instagram, YouTube, Twitter, and LinkedIn). To the fullest extent permitted, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
You acknowledge that Diva may be working on or developing material similar or the same in nature to your User Content and that Diva may have received similar or the same intellectual property rights from another party. Diva owes you no obligation connected to your submissions unless you and Diva enter a written agreement to that effect. Any discussion or negotiations between you and Diva regarding your submissions does not constitute recognition of the novelty or originality of your User Content.
You agree that Diva has no obligation to monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees’ rights to your User Content. Diva will not have any obligation to you with regard to User Content and Diva may or may not monitor, display, or accept your User Content and may delete it at any time. You are solely responsible for any User Content you submit and its accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third-party.
User Interactions and Disputes
You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
Acceptable Use Policy: Community Rules
When you contribute, upload or otherwise provide User Content to the Site, you agree to comply with the following Community Rules (“Rules”):
- User Content must be yours. All User Content must be original with you, not copied from someone else’s work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the Site and elsewhere.
- No pictures or images of anyone without permission. If you choose to upload photos to the Site, link to embedded videos, or include other images of real people, make sure you have their express permission to post it.
- Don’t upload third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
- No music. Your User Content may not contain any music unless the work and performance is original to you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
- Keep it relevant. Your User Content should relate to the content on the Site and should be intended to add to the discussion and community on the Site.
- Please follow codes of social decency. Express yourself with non-offensive individual self-expression. Be respectful of others’ opinions and comments so we can continue to build a community for everyone to enjoy. If you think your User Content might offend someone, chances are it probably will and it doesn’t belong on the Site. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual orientation or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
- Do not post User Content to the Site for commercial purposes. Your User Content may not advertise or promote a product or service except those provided on the Site. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
- Do not upload User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don’t upload or post it. If you do upload or post User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
- No violence. Your User Content may not promote violence or describe how to perform a violent act.
- Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company. You may not use a false e?mail address or otherwise mislead us or third-parties as to the origin of any User Content.
- Public forum. We hope that you will use the Community Forums to exchange information and content and have discussions with other members. However, please remember that the Community is a public forum and User Content that you post on the Community will be accessible and viewable by other users. Do not post personal information (e.g., full name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
- Don’t share other people’s personal information. Your User Content may not reveal another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
- Don’t damage the Site or anyone’s computers. User Content may not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.
Reporting Copyright and Other Intellectual Property Violations
You may not use a Site for any purpose or in any manner that infringes the rights of any third party. Diva encourages you to report any content on a Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on a Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Diva has a designated agent for receiving notices of copyright infringement and Diva follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Diva’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) 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; and (f) 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.
If you believe that any content on a Site violates your rights other than copyrights, please provide Diva with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Please send your notice of claims of copyright infringement on or regarding a Site or other complaint regarding alleged violation of rights to Diva’s copyright agent, who can be reached as follows:
Name: Roxanne Law
Mailing Address: 222 McIntyre Drive, Kitchener, Ontario, Canada N2R 1E8
Phone: 1-866-444-3482 ex. 204 [Diva to provide]
E-mail Address: firstname.lastname@example.org
NOTE: This contact information is for inquiries regarding potential copyright and other infringement only.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers. It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Diva will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
SECTION 11 – SOCIAL DISTRIBUTION
Diva may allow you – but only through express written permission – to engage in certain personal uses of Site Content that include the ability to share Site Content with others (“Social Distribution“). For example, a Site may allow you to send Site Content to friends, display Site Content on your personal web site or post Site Content on a third party web site. You understand that only Diva can make claims, promises or statements on behalf of Diva about its products and services and agree not to do so. You also agree that you will not imply that you and Diva are affiliated in any way or that Diva approves of your comments. We reserve the right to revoke our permission for Social Distribution at any time and for any reason and you agree to immediately cease Social Distribution upon notice of revocation and to comply with any terms we post in connection the Social Distribution of Site Content.
NOTICE TO THIRD PARTY SITES: Any Site Content made available in connection with your web page, social networking site, or otherwise, is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Site Content upon notice.
SECTION 12 – LINKING POLICY
Diva grants you the revocable permission to link to the Site; provided, however, that any link to the Site: (a) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (b) must not imply that Diva or the Site is endorsing or sponsoring any third party or its products or services, unless Diva has given the third party prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in Diva’s sole opinion, harm Diva or its products or services; (d) must not use any Diva trademarks without the prior written permission from Diva; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Diva’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Diva reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion.
SECTION 13 – PERSONAL INFORMATION
SECTION 14 – MOBILE FEATURES
The Site may offer features that are available to you via your mobile phone or other mobile device. These features may include the ability to verify that the product you received is authentic, track your cycle, communicate with us and other users, interact and post content, or otherwise access Site features (collectively, “Mobile Features”). We may serve you some or all of our Mobile Features through an application that is owned and operated by a third party developer. Message and data rates and other carrier fees may apply. Fees and charges will appear on your mobile device bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Please contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. For example, the instructions may require you to text a keyword (e.g. “STOP”) to the applicable short code for the Mobile Feature.
You agree that the Mobile Features for which you are registered may send communications to your mobile device regarding Diva or other parties. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify Diva of any changes to your mobile number and update your account(s) on the Site to reflect this change.
SECTION 15 – PROMOTIONS
The Site may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes or promotion.
SECTION 16 – ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on the Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to cancel orders if any information in the Site or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update or amend information on the Site or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Site or on any related website, should be taken to indicate that all information on the Site or on any related website has been updated or amended.
SECTION 17 – PROHIBITED USES
In addition to other prohibitions as set forth in the Terms, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial/territorial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Site or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Site or any related website for violating any of the prohibited uses.
SECTION 18 – DISCLAIMER OF WARRANTIES; WAIVER
To the maximum extent permitted by applicable law, and except where prohibited for individuals resident in the province of Quebec, the Site, including, without limitation, the Site Content and all products and services sold by Diva through the Site, are (except as expressly stated by us) provided ‘as is’, ‘as available’, and “with all faults” basis. To the fullest extent permissible by applicable law, Diva, affiliated entities, directors, officers, employees, affiliates, agents, contractors, interns, suppliers, vendors service providers or licensors or other representatives of each of them (collectively, the “Diva Parties”) make no representations, warranties, endorsements, or conditions of any kind whatsoever, either express or implied, as to: (A) the Site and the Site Content; (B) products sold by Diva through the Site; (C) User Content; and/or (D) security associated with the transmission of information to Diva or via the Site. In addition, to the fullest extent permissible by applicable law, the Diva Parties hereby disclaim all warranties, express or implied, including but not limited to, the warranties of merchantability, merchantable quality, fitness for a particular purpose, durability, title, custom, trade, quiet enjoyment, non-infringement, system integration and freedom from computer virus.
The Diva Parties do not guarantee, represent or warrant that the Site will be uninterrupted, timely, secure or error-free; that defects will be corrected; or that the Site or the server that makes the Site available is free from harmful components, including, without limitation, viruses. You agree that from time to time we may disable the Site for indefinite periods of time or shut down the Site at any time, without notice to you.
Any products and/or services described on the Site are offered in jurisdictions where they may be legally offered. The information on the Site is not an offer or solicitation by anyone in anyone in any jurisdiction in which an offer or solicitation cannot legally be made, or to any person to whom it is unlawful to make a solicitation.
The Diva Parties do not guarantee, represent or warrant that the information (including any instructions) on the Site are accurate, complete, or useful or that results that may be obtained from the use of the product will be accurate or reliable. You acknowledge and expressly agree that your use of, or inability to use, the Site is at your sole risk. The Diva Parties do not warrant that your use of the Site is lawful in any particular jurisdiction, and the Diva Parties specifically disclaim such warranties.
By accessing or using a Site you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Site.
The Diva Parties do not endorse User Content and are not responsible for User Content.
SECTION 19 – LIMITATION OF LIABILITIES; WAIVER
To the maximum extent permitted by applicable law, and except where prohibited for individuals resident in the province of Quebec, you agree that under no circumstances shall the Diva Parties be liable to you or anyone else for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from: (A) the Site or the Site Content; (B) User Content; (C) your use, or inability to use, or the performance of the Site or any products purchased through the Site; (D) action taken in connection with an investigation by the Diva Parties or law enforcement authorities regarding your use of the Site; (E) action taken in connection with copyright or other intellectual property owners; (F) any errors or omissions in the Site’s technical operation; (G) any damage that results from events beyond our reasonable control, such as damages to any user’s computer, mobile device, or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of good will, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if foreseeable or even if the Diva Parties have been advised of or should have known of the possibility of such damages. However, in no event will the Diva Parties total liability to you for all damages, losses or causes or actions exceed the amount paid by you, if any, to Diva for a product ordered through the Site or, in the event there has been no amounts paid, the amount of ten United States dollars ($10.00). The prior limitation on damages is not intended to limit the Diva Parties’ obligation to pay prevailing party costs or fees if recoverable pursuant to applicable law. The limitations set forth in this section will not limit or exclude the Diva Parties’ liability for personal injury or property damage caused by the Diva Parties, or for the Diva Parties’ gross negligence, fraud or intentional, willful, malicious or reckless misconduct.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
By accessing the Site, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and expressly waive, the benefits of section 1542 of the Civil Code of California, and any similar law of any state or territory which provides as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
SECTION 20 – INDEMNIFICATION
SECTION 21 – E-COMMERCE
Sales transactions on the Site are subject to these Terms and our Sales Policy. You agree to pay all applicable fees and taxes. Applicable tax will also be applied to the shipping and handling, return shipping and other charges. Taxes may depend on delivery location. You will be billed for your Order at the time your Order is placed. We use one or more third parties to to process your payment information when you make a purchase on The Site. The payment processor may depend on the payment method you select. Additional terms and conditions imposed by the third party processor may apply.
In the event a product is listed at an incorrect price or with incorrect information, Diva may, to the fullest extent permitted under applicable law, refuse or cancel any associated orders, whether or not the order has been confirmed or your payment method charged. If your payment method has already been charged for a purchase and your order is canceled by Diva, your payment method will be credited in the amount of the charge.
Your receipt of an electronic or other form of order confirmation does not signify Diva’s acceptance of your order, nor does it constitute confirmation of Diva’s offer to sell. Diva reserves the right at any time after receipt of your order to accept or decline your order for any reason. Diva reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Diva may require additional verifications or information before accepting any order.
SECTION 22 – SEVERABILITY
In the event that any provision of these Terms is determined to be unlawful, void or for any reason unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 23 – TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Site (or any part thereof). We also reserve the right to investigate suspected violations of these Terms, including, without limitation, any violation arising out of any emails you send to the Site or us. Any violation of these Terms may be referred to law enforcement authorities.
SECTION 24 – MISCELLANEOUS
The failure of us to exercise or enforce any right with respect to a breach of these Terms shall not constitute a waiver of such right or provision and will not limit Diva’s rights with respect to such breach or any subsequent breaches. No waiver by Diva of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Diva. Neither the course of conduct between the parties nor trade practice will act to modify these Terms.
Diva may assign its rights and duties under these Terms to any party at any time without any notice to you. Terms may not be assigned by you without Diva’s prior written consent.
These Terms and any policies or operating rules posted by us on the Site or in respect to the Site constitutes the entire agreement and understanding between you and us and govern your use of the Site, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
If a court or other decision-maker should determine that any provisions of these Terms is overbroad, unfair or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad, unfair, or unreasonable. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect.
No amendment to or modification of these Terms by you, or action, or delay, will be binding unless in writing and signed by Diva. Provisions of these Terms that would logically survive termination shall survive the termination of these Terms for any reason (including without limitation, Disclaimer of Warranties; Waiver, Limitation of Liability; Waiver and Arbitration).
SECTION 25 – LOCATION OF THE SITE AND TERRITORIAL RESTRICTIONS
Diva controls and operates the Site from offices located in Canada. The information provided on the Site are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Diva to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Site or any portion of the Site, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Site may be subject to Canadian and United States export controls. Thus, no software from the Site may be downloaded, exported or re-exported: (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods or that has been designated by the U.S. government as “terrorist supporting”; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (c) to any country or individual in a manner prohibited under the export control laws of Canada. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
SECTION 26 – GOVERNING LAW (Users Outside of the United States only)
These Terms and any separate agreements whereby we provide you the Site shall be governed by and construed in accordance with the laws of Canada.
SECTION 27 – ARBITRATION AGREEMENT/GOVERNING LAW/CLASS ACTION WAIVER/DISPUTE RESOLUTION (U.S. Residents only)
Any claim or controversy arising out of or relating to your use of the Site (including without limitation the arbitrability of any claim or controversy) shall be resolved by binding arbitration in accordance with the Federal Arbitration Act. The parties waive their rights to file suit in court to assert any allegation, claim, or cause of action against the other, or to have a jury trial on any allegation, claim, or cause of action, and any right to do so (including without limitation the right to a jury trial) is hereby waived. Notwithstanding the foregoing, you and Diva retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, and Diva retains the right to apply to a court of competent jurisdiction for provisional or conservatory relief, including without limitation pre-arbitral attachments or injunctions, and to adjudicate disputes relating to the infringement or misappropriation of intellectual property.
Any claim or controversy arising out of or relating to your use of the Site or this Arbitration Agreement shall be governed by the procedural and substantive laws of the State of New York, without reference to choice-of-law rules. The arbitration will be administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures then in effect. The arbitration shall be presided over by a single arbitrator in New York, New York. In the event this venue will cause undue hardship to you, then, the discretion of the arbitrator, the arbitration will be conducted solely on the basis of documents submitted, with the parties participating through telephonic or video conference hearings, or at a location reasonably convenient to the parties in the state in which you reside at the time the arbitration is commenced, provided that it is within the Continental U.S. To the extent that any of the foregoing provisions are inconsistent with JAMS applicable standards then in effect, such JAMS rules shall apply.
Claims subject to this Arbitration Agreement may not be arbitrated on a class or representative basis and you will not be able to participate in an arbitration as a representative or member of any class of claimants pertaining to that claim.
All aspects of the arbitration and award shall be confidential, except to the extent disclosure is necessary in connection with an application to a court for a preliminary or permanent injunction, a petition to confirm or vacate an award, to obtain legal or other professional advice necessary for the protection of a party’s rights, or as required by law or judicial decision.
Subject to you demonstrating that the costs of arbitration will be prohibitive as compared to the costs of litigation, Diva will pay as much of the fees charged to you by JAMS as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive to you.
The arbitrator will not have authority to award punitive or exemplary damages, and the parties waive any right to recover such damages. As part of the award, the prevailing party shall be awarded its costs, including without limitation arbitration fees, expert witness fees, if any, and reasonable attorney’s fees.
If any portion of this Arbitration Agreement is found to be invalid, illegal or unenforceable, for any reason, that specific portion shall be severed from the rest, but such severance shall not affect the enforceability of the remainder of this agreement. No waiver of any provision of this Arbitration Agreement will be effective or enforceable unless recorded in a writing signed by the party waiving the provision, and any such waiver shall not waive or affect any other provision of this agreement.
The foregoing provisions limit certain rights, including without limitation, the right to maintain a court action, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in the JAMS rules and these dispute resolution terms, and the right to certain remedies and forms of relief; provided that nothing herein will restrain a California resident’s right, if any, to seek public injunctive relief as permitted by law. Other rights that you would have in court also may not be available in arbitration.
SECTION 28 – SPECIAL TERMS FOR APPLE iOS USERS
Notwithstanding any other provision within these Terms, the following additional terms are applicable to those using any Diva application on an Apple iOS device: You understand that these Terms are between you and Diva only and not Apple, Inc. (“Apple”) and that Diva (or the third party developer that may own and operate the Mobile Features) are responsible for the Mobile Features and the content thereof, but that Apple and its subsidiaries are third-party beneficiaries of these Terms and have the right to enforce them against you. You understand that, should the Mobile Features fail to conform to any applicable warranty not disclaimed above, you may notify Apple and Apple will refund the purchase price (if any), but that Apple has no maintenance, support, or (to the maximum extent permitted by applicable law) other warranty obligations to you with regard to the Mobile Features. Apple is not responsible for any product liability claims or claims that the Mobile Features or your use thereof fails to conform to any applicable legal or regulatory requirement or infringes a third party’s intellectual property rights. If you have any questions or concerns regarding the Mobile Features, please contact Diva as described below.
SECTION 29 – CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms any time at this page.
To the maximum extent allowed by applicable law, we reserve the right, at our sole discretion, to update, change or replace any part of these Terms of by posting updates and changes to our website without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the homepage or otherwise. It is your responsibility to check our website periodically for changes.
Where required by applicable law or at our sole discretion: We will provide written notice of a proposed amendment to these Terms at least 30 days before the amendment comes into effect. If you do not agree with a proposed amendment, you may terminate these Terms at any time in the 30 day period prior to the amendment coming into effect, or, if the amendment increases your obligations or decreases our obligations under these Terms, you may terminate these Terms at any time in the 30 day period prior to the amendment coming into effect or the 30 day period after the amendment comes into effect. These Terms may be terminated in accordance with this section, at no cost or penalty, by sending us a notice to that effect.
Your continued use of or access to our Site following the posting of any changes to these Terms (or engages in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using a Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of a Site from that point forward.
SECTION 30 – CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at support@DivaCup.com.
You may also contact us at: 222 McIntyre Drive, Kitchener, Ontario, Canada N2R 1E8 or 1 (866) 444-3482