Last updated: September 28, 2021
These Website Terms and Conditions (these “Terms and Conditions”) govern your use of the website of Endeavor 3D, LLC (“Endeavor 3D”), the URL for which is https://www.endeavor3d.com/. By visiting the Website, you are agreeing to be bound by these Terms and Conditions. You further agree that all references to “you” in these Terms and Conditions apply to both you individually and to any entity you represent in connection with your use of the Website or any other interaction with Endeavor 3D.
These Terms and Conditions are not intended to apply, and shall not be deemed to apply, to the provision by Endeavor 3D to you or any entity you represent of any products and/or services that are offered by Endeavor 3D from time to time (collectively, the “Products and Services”), any use of any Products and/or Services by you or any third party or any other aspect of the Products and Services, including any interaction with Endeavor 3D with respect to any proposed transaction relating to any Products and/or Services. All matters relating to the Products and Services are governed by the Endeavor 3D, LLC Customer Terms and Conditions, the URL for which is https://www.endeavor3d.com/company/customer-terms-conditions.
THESE TERMS AND CONDITIONS INCLUDE IMPORTANT LEGAL PROVISIONS THAT DEFINE YOUR RIGHTS AND OBLIGATIONS REGARDING USE OF THE WEBSITE. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN. YOUR USE OF THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Right to Amend. You acknowledge and agree that Endeavor 3D may amend these Terms and Conditions, including any policy incorporated herein, at any time and from time to time, without notice to you. Following any such amendment, these Terms and Conditions, as so amended, shall govern any subsequent use by you of the Website.
2. Privacy Policy; Information Collection.
(a) Your use of the Website is subject to the terms of Endeavor 3D’s privacy policy (the “Privacy Policy”), which is hereby incorporated into and made a part of these Terms and Conditions. In the event of a conflict between any provision of these Terms and Conditions and the Privacy Policy, the provisions of the Privacy Policy shall control.
(b) You acknowledge and agree that Endeavor 3D may collect information about your use of the Website for various purposes, including to improve the Website and/or to protect the security of the Website and other users thereof. All such information collected by Endeavor 3D shall be governed by the Privacy Policy.
3. Your Representations and Warranties. By visiting the Website, you hereby represent and warrant to Endeavor 3D, on a continuing basis, that: (a) you are at least 18 years old; (b) you have the legal capacity and authority to enter into and comply with these Terms and Conditions; and (c) all information that you may provide to Endeavor 3D, including in connection with the submission of any User Feedback (as defined below), is and shall remain accurate in all respects.
4. General Rules Regarding Use of Website. As a condition to using the Website, you hereby agree to comply with all applicable local, state, national, provincial and international laws, treaties and regulations. You further agree not to do any of the following: (a) gain or attempt to gain unauthorized access to the Website (including any restricted sections thereof), any user account or any related system or network, including by impersonating any other individual or entity or by creating a false identity or account; (b) without Endeavor 3D’s prior written consent, establish a link to the Website in such a way as to suggest to any third party any form of association, approval or endorsement on the part of Endeavor 3D; (c) falsely imply any sponsorship or other relationship with Endeavor 3D; (d) use the Website in any unlawful manner, including, without limitation, (i) in violation of any third party’s privacy rights, (ii) to abuse, harass or defame any individual or entity, (iii) to transmit or send unsolicited communications, or (iv) to post, transmit, send, upload, link to or store any content that infringes upon any third party’s intellectual property rights; (e) use the Website to post, transmit, send, upload, link to or store any content that is unlawful, abusive, obscene, hateful, racist or discriminatory; (f) use the Website to post, transmit, send, upload, link to or store any viruses, cancel bots, malware, Trojan horses, time bombs or any other similar harmful software or any tracking cookies; (g) use the Website in any manner that interferes with or disrupts the integrity or performance of the Website or any related system or network or attempt to damage or interfere with any of the foregoing by any method, including, without limitation, flood pings, denial of service attacks, packet or IP spoofing, forged routing or other information or similar methods or technology; (h) attempt to decipher, decompile, reverse-engineer, disassemble, reproduce or copy or otherwise access or discover the source code or underlying program of any software used in or in connection with the Website; (i) copy, display, distribute, create derivative works from or misappropriate or misuse in any manner the Website or any of the contents thereof; (j) use or try to use the Website in violation of these Terms and Conditions; or (k) assist any third party in any of the foregoing.
5. Endeavor 3D’s Rights in Website and Related Intellectual Property. Endeavor 3D or its licensors, as applicable, retain the exclusive right, title and interest in and to all intellectual property, including, without limitation, all patents, inventions, copyrights, trademarks, trade names, service marks, trade dress, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights, in or related to the Website and the contents and components of the foregoing. All such intellectual property and intellectual property and/or proprietary rights are protected by applicable law, including, without limitation, applicable copyright laws and treaties throughout the world. You hereby acknowledge and agree that you are not permitted to reproduce in any manner the Website or any contents or components thereof, prepare derivative works from the Website or any contents or components thereof or use the Website or any contents or components thereof for any purpose other than as expressly permitted by these Terms and Conditions.
6. Trademarks, Logos, etc. The Endeavor 3D trademarks, service marks, graphics, logos and slogans used on or in connection with the Website, the Products and/or the Services are trademarks of Endeavor 3D and may not be copied, imitated or used, in whole or in part, without the prior written permission of Endeavor 3D. You may not use any metatags or any other "hidden text" utilizing the name “Endeavor 3D" or any other name, trademark or product or service name of Endeavor 3D without the prior written permission of Endeavor 3D. The look and feel of the Website, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark and/or trade dress of Endeavor 3D and may not be copied, imitated or used, in whole or in part, without the prior written permission of Endeavor 3D. Other trademarks, trade names, product and service names and company names and logos used on or in connection with the Website are the property of their respective owners.
7. User Feedback. In connection with your use of the Website, you may be requested or permitted to provide recommendations, reviews or other similar feedback on the Website or to provide information to enable Endeavor 3D to respond to your questions or to any request that Endeavor 3D contact you (collectively, “User Feedback”). You represent and warrant to Endeavor 3D that any User Feedback that you submit to Endeavor 3D will be accurate, will comply with all applicable laws and regulations and will not violate the intellectual property or other rights of any third parties. By providing any User Feedback to Endeavor 3D, you thereby grant to Endeavor 3D an irrevocable, perpetual, worldwide, royalty-free, transferable and sub-licensable license to incorporate such User Feedback into the Website and/or to reproduce, display, publicize and otherwise use such User Feedback for any purpose deemed reasonable by Endeavor 3D. In the event any User Feedback is in the form of a review or endorsement of Endeavor 3D, any Products and/or Services and/or the Website, such license shall include the right to publish such User Feedback on the Website and/or in any promotional materials of Endeavor 3D and to use your name in connection therewith. You hereby agree that, by submitting any User Feedback, you irrevocably and fully waive any and all moral rights, privacy rights, rights of publicity and any other similar rights you may have in and to such User Feedback.
8. DISCLAIMERS BY ENDEAVOR 3D.
(A) ENDEAVOR 3D PROVIDES THE WEBSITE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ENDEAVOR 3D DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE USE THEREOF OR ANY INFORMATION THEREIN (I) WILL BE UNINTERRUPTED OR SECURE; (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS; (III) WILL MEET YOUR REQUIREMENTS; OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE USED BY YOU.
(B) ENDEAVOR 3D MAKES NO WARRANTIES WITH RESPECT TO THE WEBSITE AND, ON BEHALF OF ITSELF AND ITS AFFILIATES AND THEIR RESPECTIVE EQUITY HOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “ENDEAVOR 3D GROUP’), HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
(C) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NEITHER ENDEAVOR 3D NOR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP SHALL BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM ANY USE, MISUSE, RELIANCE ON, INABILITY TO USE, INTERRUPTION TO OR UNAVAILABILITY OF THE WEBSITE, INCLUDING ANY INTERRUPTION DUE TO ANY SYSTEM OR SOFTWARE FAILURE, NETWORK ATTACK OR SCHEDULED OR UNSCHEDULED MAINTENANCE.
(D) ENDEAVOR 3D, ON BEHALF OF ITSELF AND THE OTHER MEMBERS OF THE ENDEAVOR 3D GROUP, HEREBY DISCLAIMS ALL RESPONSIBILITY FOR ALL USER FEEDBACK THAT MAY BE INCLUDED ON THE WEBSITE OR IN ANY PROMOTIONAL MATERIALS AND FOR ALL OTHER THIRD-PARTY CONTENT AND THIRD-PARTY LINKS THAT MAY BE INCLUDED IN OR ON THE WEBSITE OR ANY PROMOTIONAL MATERIALS.
9. NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT, AND UNDER NO LEGAL THEORY (WHETHER CONTRACT, TORT OR OTHERWISE), SHALL ENDEAVOR 3D OR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUES, GOODWILL, REPUTATION, BUSINESS OR OPPORTUNITIES AND/OR DELAY DAMAGES, EVEN IF ENDEAVOR 3D OR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP WAS ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
10. Cap on Damages. Notwithstanding anything to the contrary set forth in these Terms and Conditions, except where prohibited by applicable law, the aggregate liability of the members of the Endeavor 3D Group to you with respect to all claims you may have at any time against Endeavor 3D and the other members of the Endeavor 3D Group arising out of your use of the Website and/or under these Terms and Conditions shall not exceed an amount equal to the aggregate purchase price paid by you to Endeavor 3D for Products and Services during the most-recent six-month period. The foregoing limitation of liability reflects an informed, voluntary allocation between Endeavor 3D and you of the risks (known and unknown) that may exist in connection with the Website and these Terms and Conditions.
11. Indemnification. You hereby agree to indemnify, defend and hold Endeavor 3D and the other members of the Endeavor 3D Group harmless from and against, and promptly reimburse Endeavor 3D and the other members of the Endeavor 3D Group for, any and all claims, liabilities, actions, demands, losses, damages, penalties, fines and other costs and expenses (including, without limitation, reasonable attorneys’ fees, experts’ fees, investigation costs, remediation costs and settlement costs) incurred by any of them arising out of or relating to (a) your use of the Website; (b) breach of any representation and warranty made by you to Endeavor 3D; (c) any violation of these Terms and Conditions by you; (d) your violation of any applicable law or regulation; (e) your violation of any intellectual property or other rights of any third party; (f) any inaccuracy or incompleteness of any information provided by or on behalf of you to Endeavor 3D; and/or (g) any User Feedback that you submit or otherwise provide to the Website and/or Endeavor 3D.
12. No Waiver. No delay or failure on the part of Endeavor 3D in exercising any legal right or remedy it may have against you shall be deemed to constitute a waiver of such right or remedy. In addition, no partial exercise by Endeavor 3D of any legal right or remedy it may have against you shall preclude the further exercise by Endeavor 3D of such right or remedy or its exercise of any other right or remedy it may have against you.
13. Force Majeure. You expressly acknowledge and agree that Endeavor 3D will not be liable to you under any legal theory for any failure to perform or delay in performing any obligation to you, whether under these Terms and Conditions or otherwise, which failure is caused directly or indirectly by a force majeure event, including, without limitation, any act of God, accident, fire, strike or other labor dispute, riot, insurrection, war, epidemic or pandemic, governmental action or refusal to act, telecommunications or power failure, shortages or delays in delivery of raw materials and/or parts, delays in outbound shipments, failure of any software or equipment, any exchange or market ruling or any other cause beyond the reasonable control of Endeavor 3D.
14. Governing Law. Any controversy or claim arising out of or relating in any way to (a) the Website; (b) these Terms and Conditions, including the interpretation or enforcement hereof; (c) any alleged breach, default or misrepresentation in connection with any provision of these Terms and Conditions; or (d) any communications or other interaction between you and Endeavor 3D shall be governed by Georgia law, without regard to its conflicts of law provisions. Notwithstanding the foregoing, those provisions of Section 15 relating to arbitration of Disputes (as defined below) shall be governed by and interpreted in accordance with the Federal Arbitration Act.
15. Resolution of Disputes; Agreement to Arbitrate; Class Action Waiver; Waiver of Right to Jury Trial. These Terms and Conditions contain a binding, individual arbitration agreement and class action waiver. This means that any claim must be arbitrated on an individual basis pursuant to the terms set forth below, that claims of different persons cannot be combined or aggregated, and that you are waiving your right to file a lawsuit in court and to have a jury decide any Dispute. Please read all the provision of this Section 15 carefully and consult a legal advisor if you have any questions.
(a) Any controversy or claim arising out of or relating to the Website and/or or these Terms and Conditions, including their enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of the foregoing, or arising out of or relating in any way to any communication or other interaction between you and Endeavor 3D or any other member of the Endeavor 3D Group (each, a “Dispute”), shall be submitted to final and binding individual arbitration in accordance with the following provisions in order to establish and gain the benefits of a speedy, impartial and cost-effective dispute resolution procedure.
(b) Except as otherwise prohibited by applicable law and as provided in Section 15(i), any Dispute shall be settled by arbitration administered by JAMS pursuant to its applicable rules (the “JAMS Rules”) before a single neutral arbitrator (the “Arbitrator”) in Douglas County, Georgia. Notwithstanding the foregoing, if required by the JAMS Rules, or if the Arbitrator concludes that it would be a financial or other hardship for you to participate in an arbitration in Douglas County, Georgia, the Arbitrator shall have the authority to permit you to attend via telephone, videoconference, Skype, Zoom, Facetime or similar virtual participation.
(c) To the fullest extent permitted by applicable law, and notwithstanding anything else in these Terms and Conditions, you agree that any Dispute shall be decided by the Arbitrator on an individual basis and not on a class, collective or representative basis. You further acknowledge and agree that the Arbitrator shall not have the authority or jurisdiction to hear the arbitration as a class, collective or representative action or to join or consolidate causes of action of different parties into one proceeding.
(d) The Arbitrator may award any form of remedy or relief (including injunctive relief and specific performance) that otherwise would be available in court. Any award pursuant to the arbitration shall be accompanied by a written opinion of the Arbitrator setting forth the reason(s) for the award. The award rendered by the Arbitrator shall be conclusive and binding upon you and Endeavor 3D (and/or the other member(s) of the Endeavor 3D Group), and judgment upon the award may be entered, and enforcement may be sought in, any court of competent jurisdiction.
(e) Subject to the JAMS Rules and the provisions of Section 16 (Prevailing Party), the arbitration fees, together with other expenses of the arbitration incurred or approved by the Arbitrator, shall be divided equally between you and Endeavor 3D.
(f) YOU UNDERSTAND THAT, ABSENT THESE TERMS AND CONDITIONS, EACH OF YOU AND THE MEMBERS OF THE ENDEAVOR 3D GROUP WOULD HAVE THE RIGHT TO SUE THE OTHER IN COURT AND TO HAVE ANY DISPUTE DECIDED PURSUANT TO A JURY TRIAL, BUT, BY THESE TERMS AND CONDITIONS, YOU ARE GIVING UP THAT RIGHT AND AGREEING TO RESOLVE BY ARBITRATION ANY AND ALL DISPUTES.
(g) You and Endeavor 3D agree to treat as strictly confidential all information concerning any arbitration proceeding, including the pleadings, the hearing and any arbitration award, except as (i) may be necessary to prepare for or conduct the arbitration hearing on the merits; (ii) may be necessary in connection with a court application for a preliminary remedy, confirmation and enforcement proceedings or a judicial challenge to an award or its enforcement; or (iii) otherwise required by applicable law or judicial decision. You and Endeavor 3D agree that breach of this confidentiality provision would irreparably harm the non-breaching party, and further agree that any such breach shall entitle the non-breaching party to seek injunctive relief and/or compensatory damages for the breach (without the necessity of posting a bond or other security).
(h) You may elect to opt out and exclude yourself from the final, binding arbitration procedure and class action waiver specified in this Section 15 by sending to Endeavor 3D, LLC, Attn: Arbitration Opt-Out Notices, One Endeavor Way, Douglasville, GA 30134, for postmarking within 15 days after your first visit to the Website, a letter stating (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding arbitration procedure and class action waiver. You are not required to send the letter by registered or certified mail, return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the 15-day deadline. In the event of an effective exclusion request by you, all other provisions of these Terms and Conditions shall continue to apply.
(i) Notwithstanding the other provisions of this Section 15, you agree that Endeavor 3D and the other members of the Endeavor 3D Group shall have the right to seek injunctive or other equitable relief in the Georgia state courts sitting in Douglas County, Georgia, or the U.S. District Court for the Northern District of Georgia, to enforce these Terms and Conditions or prevent infringement of any intellectual property rights, without being required to post a bond or other security or prove actual damages. In the event Endeavor 3D or any other member of the Endeavor 3D Group seeks such equitable relief in any such court, you hereby irrevocably submit to the personal jurisdiction of such court and waive all objections to such jurisdiction.
16. Prevailing Party. In the event of any Dispute, and whether such Dispute is resolved via arbitration, litigation or otherwise, the prevailing party (as that term is commonly defined by the prevailing common and/or statutory law in the applicable jurisdiction) shall be entitled to recover its costs of suit, which costs shall include, without limitation, all reasonable attorneys’ fees and expenses incurred by the prevailing party in connection with such Dispute. In the event a party to any Dispute fails to proceed with arbitration, unsuccessfully challenges the Arbitrator’s award or fails to comply with an arbitration award, the other party shall be entitled to recover its costs of enforcement, including, without limitation, reasonable attorneys’ fees and expenses incurred in having to compel arbitration or to defend or enforce the arbitration award.
17. Time Limit to File Claims. You expressly agree that, except where applicable law prescribes a shorter applicable statute of limitation or prohibits shortening the otherwise-applicable longer statute of limitations, you must file any claim or legal action of any kind arising in connection with or relating in any way to (a) the Website or any communications or other interaction between you and Endeavor 3D relating thereto; (b) these Terms and Conditions; and/or (c) any act (or failure to act) on the part of any member of the Endeavor 3D Group or you in connection with any of the foregoing within, in each such case, one year after the event, circumstances or other facts giving rise to such claim or legal action. Notwithstanding the foregoing, if the law in the applicable jurisdiction has a “discovery rule,” whereby accrual of a claim is deferred, which is applicable to one or more claims, then the one-year (or shorter, if applicable) limitation period specified in this Section 17 shall begin running from the date of accrual of such claim or claims as determined by the law of the applicable jurisdiction. If this Section 17 is determined to be unenforceable as to any particular claim or claims under the law of the applicable jurisdiction, it nevertheless shall remain fully enforceable as to all other claims.
18. Severability.
(a) With the exception of the class action waiver in Section 15(c), which is essential to the agreement to arbitrate, if any provision of these Terms and Conditions is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality or unenforceability, or, if that is not possible, such provision shall, to the extent of such invalidity, illegality or unenforceability, be severed from these Terms and Conditions, and the remaining provisions of these Terms and Conditions shall remain in effect.
(b) If the class action waiver in Section 15(c) is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable, and such court or arbitrator determines that a valid class exists, then the entirety of the dispute resolution procedures specified in Section 15 shall be void and of no force and effect.
19. Survival. All provisions of these Terms and Conditions shall survive any removal or other discontinuation of the Website until the expiration of the last-applicable statute of limitations.
20. Assignment. You are not permitted to assign these Terms and Conditions or assign any of your rights or delegate any of your obligations under these Terms and Conditions, and any such assignment or delegation by you shall be void and of no force or effect. Endeavor 3D has the unlimited right to assign these Terms and Conditions and/or any or all of its rights and obligations hereunder. These Terms and Conditions shall be binding upon and inure to the benefit of you and your successors and shall be binding upon and inure to the benefit of Endeavor 3D and its successors and assigns.
21. No Relationship with Endeavor 3D. Your use of the Website does not establish any relationship between Endeavor 3D and you, including, without limitation, that of agent and principal, employer and employee, franchisor and franchisee, joint venturers or partners.
22. Further Assurances. You agree to execute and deliver such other documents and take such other actions as Endeavor 3D may reasonably request to enable you to fully perform your obligations under these Terms and Conditions and/or to enable Endeavor 3D to fully exercise its rights hereunder.
23. Third-Party Beneficiaries. The members of the Endeavor 3D Group are intended third-party beneficiaries of the disclaimer, indemnification, limitation of liability, dispute resolution and claim time limit provisions of these Terms and Conditions.
24. Construction. The rule of construction that ambiguities in a contract are to be construed against the drafter shall not be invoked or applied in any dispute regarding the meaning or interpretation of any provision of these Terms and Conditions.
25. Headings. The headings of the sections of these Terms and Conditions are inserted solely for convenience of reference. They are not intended to and shall not define, limit, extend or aid in the construction of the scope, extent or intent of these Terms and Conditions in any way.
26. Reservation of Rights. Any rights not expressly granted by the foregoing provisions of these Terms and Conditions are reserved to Endeavor 3D.
27. Entire Agreement. These Terms and Conditions constitute the entire agreement between Endeavor 3D and you with respect to the subject matter hereof and supersede any and all prior or contemporaneous agreements and understandings, whether written or oral, between Endeavor 3D and you with respect to such subject matter.
