Terms and Conditions
Acceptance of Terms
The use of this website, https://store.mistaway.com (“Site”), provided by MistAway Systems, Inc. (“MistAway”) is subject to the following Terms & Conditions (the “Agreement”). This Agreement shall govern the use of all pages on the Site and any services and products provided by or on the Site, including, but not limited to, the sale and distribution of products manufactured by third-parties and distributed by MistAway.
Any person accessing, browsing, or otherwise using the Site, either manually or via an automated device or program, shall be deemed a “User” under this Agreement. Collectively, the parties to this agreement, MistAway and you, are referred to as “Parties.”
By accessing, browsing, framing, using or linking to the Site, you become a User and agree to be bound by the terms of this Agreement
A User must be at least 18 (eighteen) years of age to use this Site. By using this Site, you represent and warrant that you are at least 18 years of age and may legally enter this Agreement. MistAway assumes no responsibility or liability for any misrepresentation of your age.
If you have any questions about this Agreement, please contact us.
In consideration of your use of the Site you agree to: (i) provide accurate and current information about yourself as prompted by the Site (“Account Information”); and (ii) maintain and update the Account Information to keep it accurate and current. If you provide any Account Information that is untrue, inaccurate, not current or incomplete, or MistAway has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MistAway may, in its sole discretion, suspend or terminate your account and decline to permit your continued use of the Site and future access to the Site.
You are responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur under your account. You agree that your Account Information may be used to attribute an electronic record and electronic signature to you. Therefore, you shall not disclose your Account Information to third parties. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. MistAway shall not, in any manner, be responsible or liable for fraudulent purchases that are made using your compromised Account Information.
Acceptable Use of the Site
You agree not to use the Site for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Site in any way that could damage the Site or general business of MistAway. In connection with your use of the Site, you further agree
- You will not provide false, inaccurate or misleading information.
- You will not provide obscene or indecent information.
- You will not upload viruses, Trojan horses, worms or any other malicious computer code intended to damage, interfere with, intercept or expropriate any system, data or personal information.
- You will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
- You will not provide defamatory, libelous, unlawfully threatening or harassing information.
- You will not take any action that creates liability for MistAway or cause us to lose the services of our internet service providers or other suppliers.
- You will not take any action that imposes an unreasonable burden upon the infrastructure used to support the efficient operation of the Site.
- You will not use the Site for spamming activities, including gathering email addresses and personal information from others or sending mass emails.
The contents of the Site, such as text, graphics, logos, audio clips, video, photographs, software, and other information (the “Content”) is the property of MistAway and/or its affiliates or partners and is protected by federal and international copyright and trademark laws, or other proprietary rights. These rights are protected in all forms, media and technologies existing now or hereinafter developed. You may print and download portions of the Content from the different areas of the Site solely for your personal non-commercial use. No portion of the Content may be reprinted, republished, modified, or distributed in any form without the express written permission of MistAway.
You may not reproduce, reverse engineer, decompile, disassemble, modify, transmit, sell, distribute, license or create derivative works with respect to the Site. Certain Content may be licensed from third parties and all such third party Content and all intellectual property rights related to the third party Content belong to the respective third parties. You may not remove, alter or modify any copyright, trademark or other intellectual property or proprietary notice or legend contained on the Site or the Content. Any rights not expressly granted by this Agreement or any applicable end-user license agreements are reserved by MistAway. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent or trademark MistAway or any third party. Except as expressly provided above, nothing contained herein shall be construed as conferring any license or rights under any MistAway copyright.
You agree to indemnify, defend and hold MistAway and its affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including actual attorneys’ fees) resulting from (i) your use, misuse or abuse of the Site, (ii) your use or misuse of products or services provided through the Site, or (iii) your breach of any provision of this Agreement. You will cooperate as fully as reasonably required in MistAway’s defense of any claim. MistAway reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of MistAway.
Assumption of Risk and Responsibility
You agree that your use of products purchased on the site is at your sole and exclusive risk. MistAway disclaims any responsibility that the products purchased on the Site will meet your expectations with respect to controlling insect population in the treatment area.
MistAway disclaims any responsibility and liability in connection with any bites, stings, diseases, injuries, and destruction of property that might occur with your use of products purchased on the site. Our recommendations for the application and use of pesticides and other products by one of MistAway’s employees or through the Site is for general informational purposes only.
Pesticides are regulated and registered by the Environmental Protection Agency (EPA) and local state departments of agriculture. Pesticide containers always contain a pesticide label with the EPA Registration Number along with safety precautions and the exact directions to be followed to use the product. In the United States, the pesticide label is the law and a legal document, and you agree to always read and comply with the label while using any pesticide product. You understand and agree that recommendations and advice given on the Site or by MistAway’s employees do not supersede the label.
MistAway disclaims any and all liability related to the sale and use of the products in contravention of any law, ordinance or regulation of any country, state, province, county, city or municipality. It is your responsibility to verify that any products purchased are licensed for distribution and use in your country, state, province, county, city or municipality. If you knowingly order product where its use is not locally approved, you are liable for any penalties incurred.
Use of the Site
MistAway cannot and does not guarantee that the Site will be free of infection from viruses that could damage, interfere with, intercept or expropriate any system, data or personal information. You assume total responsibility and risk for your use of the site and the internet. You acknowledge any uploads or transmissions you make may be intercepted and used by an unauthorized third party. Accordingly, you are solely responsible for the all the risk associated with your use of the Site.
MistAway periodically schedules system downtime for maintenance and other purposes. In addition, unplanned system outages also may occur. MistAway shall have no liability whatsoever for the resulting unavailability of the Site or for any loss of data or transactions caused by planned or unplanned system outages or the resultant delay, misdelivery, or nondelivery of information caused by such system outages. Also, MistAway shall not have any responsibility for any third party acts or any other outages of web host providers or the Internet infrastructure and network external to the Site.
No Endorsement of Linked Web Sites
Links, if any, to other sites are provided as merely a convenience to the Users of this Site. MistAway has not reviewed all of these other sites, has no responsibility for the content of such other sites and shall not be liable for any damages or injury arising from any such content. MistAway does not endorse or make any representations about these sites, or any information or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of these other sites linked to this Site, you do so entirely at your own risk.
MistAway makes no claims that the Site Content is appropriate or may be downloaded outside of the United States. Access to the Site Content may not be legal in certain countries or for certain persons. If you access the Site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
Ordering, Shipping and Returns
You have read, understand and agree to the terms of MistAway’s Shipping and Returns Policy.
Limitation of Liability
MistAway’s only warranty with respect to Products purchased on the site is the limited warranty THAT is PUBLISHED ONLINE AND MAY BE DOWNLOADED here.
EXCEPT FOR THE LIMITED WARRANTY REFERENCED ABOVE, MISTAWAY HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY, QUALITY, CONDITION, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR THEIR OPERATION OR PERFORMANCE. MistAway shall have no LIABILITY FOR INCIDENTAL, SPECIAL, consequential or PUNITIVE damages of any description in connection with the PRODUCTS including, without limitation, lost opportunities or lost profits.
UNDER NO CIRCUMSTANCES SHALL MISTAWAY OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING THE SITE OR PROVIDING PRODUCTS OR SERVICES THROUGH THE SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MISTAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT RESULT FROM (I) THE USE OF OR INABILITY TO USE THE SITE (II) THE COST OF PROCUREMENT OF SUBSTITUTE MERCHANDISE AND SERVICES RESULTING FROM ANY MERCHANDISE, DATA, CONTENT OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS, WARRANTIES, GUARANTEES OR CONDUCT OF MISTAWAY OR ANY THIRD PARTY ON THE SITE, INCLUDING BUT NOT LIMITED TO STATEMENTS ABOUT THE USE OR FUNCTIONALITY OF ANY MERCHANDISE PURCHASED THROUGH THE SITE; OR (V) ANY OTHER MATTER RELATING TO THE SITE.
Severabilty: In the event that one or more portions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such validity, illegality or unenforceability shall not affect any other provision contained in this Agreement.
No Waiver: In the event that MistAway fails to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
Assignment: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted here under, by assigned, sold, leased or otherwise transferred by MistAway, the rights and liabilities of MistAway will bind and inure to any assignees’ administrators, successors, and executors.
Termination: MistAway may terminate this Agreement with you at any time for any reason, with or without cause. MistAway specifically reserves the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of MistAway or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
Jurisdiction, Venue, & Choice of Law: Through your use of the Site, you agree that the laws of the State of Texas shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the MistAway, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, you agree to submit to the personal jurisdiction of the state and federal courts of Harris County, Texas. You agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
Arbitration: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in Harris County, Texas. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of the state of Texas. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by MistAway will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
No Agency, Partnership, or Joint Venture: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
Force Majeure: MistAway is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
Electronic Communications Permitted: Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax.
Entire Agreement: This Agreement constitutes the entire understanding between the Parties with respect to any and all use of this Website. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the use of this Website.
Updates and Modifications
In its sole discretion, MistAway may unilaterally amend or modify this Agreement or any other documents referenced herein at any time by posting the amended Agreement on the Site. Any amended or modified terms will be effective upon posting. Continued use of the Site constitutes acceptance of any modified terms and conditions. MistAway reserves the right to delete, modify or supplement the Content of this Site at any time for any reason without notification to anyone.