We have to finish this section.
These Terms are separated into two parts. Part One applies to all users, but Part Two only applies to those who make a purchase with us.
Moondance reserves the right to change or modify these Terms at any time and in its sole discretion. If Moondance makes changes to these Terms, we will provide you with notice of such changes, such as by sending an email, posting a notice on our Site or updating the date at the top of these Terms. Your continued use of the Site will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended Terms, you must stop using the Site. Any use of the Site in violation of these Terms may result in, among other things, termination of your account.
If you have any questions regarding the use of the Site, please contact us here.
Table of Contents
Part One – Terms for All Site Users
Eligibility, Registration and Account
Ownership of Site Content
Repeat Infringer Policy; Copyright Complaints
User Content and Interactive Features or Areas
Rights in User Content and Feedback
No Third-Party Beneficiaries
Limitation of Liability
Modifications to the Site
Applicable Law and Venue
Part Two – Terms for Users Making Purchases
PART TWO APPLIES IN ADDITION TO PART ONE IF YOU PURCHASE A PRODUCT OR SERVICE THROUGH THE SITE.
Pricing and Availability
Out-of-Stock Items; Backorders
Agreement to Conduct Transactions Electronically; Recording; Copies
Shipping & Handling; No Export by You
Payment; Credit for Refunds
Returns and Exchanges
Exclusivity of Remedy; Limitation of Liability
Part One – Terms for All Site Users
2. Eligibility, Registration and Account
The Site is not targeted towards, nor intended for use by, anyone under the age of 13. By using the Site, you represent and warrant that you are 13 years of age or older. If you are not at least 13 years of age, do not access, use or register for an account on the Site. In addition, you may not make a purchase from our Site unless you are at least 18 years of age. You also represent and warrant that you (a) have not previously been suspended or removed from the Site; (b) do not have more than one Site account; and (c) that you have full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party.
In order to create a profile on the Site, you will need to register for an account. When registering for an account, you cannot create a screen name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim screen names on behalf of businesses or individuals that hold legal claim, including trademark rights, in those screen names.
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information; (b) maintain and promptly update your account information; (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to Moondance; and (d) promptly notify Moondance if you discover or otherwise suspect any security breaches related to the Site.
3. Ownership of Site Content
Unless otherwise indicated on our Site, the Site and all content and materials therein, including but not limited to the Moondance logos and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Site Content”) are the proprietary property of Moondance and are protected by U.S. and international copyright laws.
You are granted a limited, nonexclusive, non-sublicensable license to access and use the Site and electronically copy (except where prohibited without a license) and print hard copy portions of the Site Content for your informational, noncommercial and personal use. Such license is subject to these Terms and excludes: (a) any resale of the Site or Site Content; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Content; (d) modifying or otherwise making any derivative uses of the Site and the Site Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than page caching) of any portion of the Site, the Site Content or any information contained therein, except as expressly permitted on the Site or pursuant to separate terms; or (g) any use of the Site or the Site Content other than for its intended purpose. Any other use of the Site or the Site Content, without the prior written permission of Moondance, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including but not limited to copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
4. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Moondance has adopted a policy of terminating, in appropriate circumstances and in Moondance’s sole discretion, account holders who are deemed to be repeat infringers. Moondance may also, in its sole discretion, limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our designated agent as set forth below.
Name of Designated Agent: Timothy P. Nolan
Address: 810 Sycamore Street, 6th Floor, Cincinnati, OH 45202
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for all damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records or by written communication sent by first-class mail to a user’s address in our records.
Moondance Heavenly Desserts logos and other Moondance product or service names, logos or slogans that may appear on the Site are trademarks or registered trademarks of Moondance and its subsidiaries and may not be copied, imitated or used, in whole or in part, without the prior written permission of Moondance or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Moondance” or any other name, trademark or product or service name of Moondance without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Moondance and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners..
If you believe that anything on the Site infringes upon any trademarks which you own or control, you may file a notification of such infringement with our designated agent as set forth in Section 4. A proper notification should contain the same elements required for copyright complaints (please see 17 U.S.C. §512(c)(3)).
You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Moondance or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Moondance logo or other proprietary graphic of Moondance to link to the Site without the express written permission of Moondance. Further, you may not use, frame or utilize framing techniques to enclose any Moondance trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Moondance’s express written consent.
Moondance makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party webSite accessible by hyperlink from the Site, or webSite linking to the Site. Such Site are not under the control of Moondance, and Moondance is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes or updates to such Site. Moondance provides these links to you only as a convenience and the inclusion of any link does not imply affiliation, endorsement or adoption by Moondance of any site or any information contained therein. When you leave our Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
7. User Content and Interactive Features or Areas
The Site may include discussion forums, blogs, profiles, product reviews or other interactive features or areas (collectively, “Interactive Areas”), in which you or other users create, post, transmit or store any content, such as text, music, sound, photos, video, graphics or code on the Site (“User Content”). User Content is publicly-viewable and includes your profile information and any content you post pursuant to your profile, but it does not include your Moondance.com account information (also known as “Your Moondance Online Account” or “Your Account”) or information you submit in order to make a purchase. You agree that you are solely responsible for your User Content and for your use of such Interactive Areas, and that you use the Interactive Areas at your own risk.
By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish or send through the Site any of the following:
User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or that would otherwise create liability or violate any local, state, national or international law;
User Content that displays, describes or encourages usage of any product we sell in a manner that could be offensive, inappropriate or harmful to Moondance or to any user or consumer or that is contrary to any manufacturer instructions or warnings relating to the product (safety concerns can be reported here);
User Content that may impinge upon or violate the publicity, privacy or data protection rights of others, including pictures or information about another individual where you have not obtained such individual’s consent;
User Content that makes false or misleading statements, claims or depictions about a person, company, product or service;
User Content that does not clearly and prominently disclose any material connections you may have to Moondance or third party brands or sellers (for example, if you receive free products or Stores or are a paid blogger or employee);
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
Viruses, malware of any kind, corrupted data or other harmful, disruptive or destructive files or code; and
User Content that, in the sole discretion and judgment of Moondance, restricts or inhibits any other person from using or enjoying the Site or which may expose Moondance or its users to any harm or liability of any type.
Moondance takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party or for any loss or damage thereto, nor is Moondance liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. At the same time, Moondance encourages its users to report User Content that violates these Terms (either by using a flagging or reporting mechanism provided within the Site or, for content that infringes copyright or trademark rights, by following the instructions in Sections 4 and 5 of these Terms). Enforcement of the Terms, however, is solely in our discretion and the absence of enforcement of these Terms in some instances does not constitute a waiver of our right to enforce the Terms in other instances. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Site will not contain any content that is prohibited by such Terms. Although Moondance has no obligation to screen, edit or monitor any of the User Content posted on the Site, Moondance reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies and replacing any User Content you post or store on the Site at your sole cost and expense.
8. Rights in User Content and Feedback
Except as otherwise provided herein, on the Site or in a separate agreement (such as the rules of a Moondance contest), Moondance claims no ownership or control over any User Content. However, by submitting or posting User Content on the Site, you grant Moondance and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content on the Site and on third-party Site. We will contact you directly to obtain permission before we use your User Content for our own commercial purposes, unless you expressly grant these rights to Moondance at the time you upload your content. If you choose to remove your User Content, the license granted above will automatically expire; however, you acknowledge that there may be exceptions (for example, you cannot delete a vote you submitted that has already been counted or your purchase history). In addition, we may retain archived copies of your User Content and cached copies of your User Content may still be available for some period of time.
By posting User Content to the Site, you represent and warrant that (a) such User Content is non-confidential; (b) you own and control all of the rights, title and interest in and to the User Content or you otherwise have all necessary rights to post and use such User Content to the Site and to grant the rights to Moondance that you grant in these Terms; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting thereof in connection with the Site, do not and will not violate these Terms, our Site Rules, any other applicable Moondance terms, guidelines or policies or any applicable law, rule or regulation.
Notwithstanding the foregoing, you acknowledge and agree that any questions, comments, suggestions, reviews, ideas, plans, notes, drawings, original or creative materials or other information or materials regarding the Site, Moondance or Moondance’s products or services that are provided by you, whether by email, posting to the Site or otherwise (“Feedback”), are non-confidential and shall become the sole property of Moondance. Moondance shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. To avoid any potential disputes, do not send us Feedback if you expect to be compensated or want to retain ownership or claim rights to such Feedback.; While your idea might have value, Moondance may have already considered the same or a similar idea.
9. Product Reviews
10. User Conduct
You agree that you will not violate any law, contract or intellectual property or other third party right or commit a tort. You also agree not to:
Use the Site in any unlawful manner or in any manner that could damage, disable, overburden or impair the Site;
Send unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters and pyramid schemes, or harvest or collect email addresses or other contact information of other users from the Site for the purposes of sending spam;
Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;
Reverse engineer any aspect of the Site or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site (except as otherwise expressly permitted by law);
Solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
Use or attempt to use another’s account without authorization from Moondance;
Attempt to circumvent any content filtering techniques we employ or access any service or area of the Site that you are not authorized to access;
Engage in any harassing, intimidating, predatory or stalking conduct;
Develop any third-party applications that interact with User Content and our Site; or
“Frame” our Site or otherwise make it look like you have a relationship to us or that we have endorsed you for any purpose.
Moondance is not responsible or liable for the conduct of, or your interactions with, users of the Site (whether online or offline), nor is Moondance responsible or liable for any associated loss, damage, injury or harm. Although Moondance has no obligation to monitor any user conduct on the Site, Moondance reserves the right and has absolute discretion to monitor any user conduct on the Site at any time and for any reason without notice. Moondance does not approve or endorse any user-posted meetings or events referenced on the Site and Moondance recommends exercising caution before contacting or meeting anyone (online or offline) that is unfamiliar to you.
11. No Third-Party Beneficiaries
These Terms are for the benefit of, and will be enforceable by, the parties only. These Terms are not intended to confer any right or benefit on any third party or to create any obligations or liability of a party to any such third party.
You agree to defend, indemnify and hold harmless Moondance, its subsidiaries, affiliates, officers, agents, partners, members, employees, independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) your use of the Site; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Site; (c) any Feedback you provide; (d) any Product Review you provide; (e) your violation of these Terms; (f) your violation of any rights of another; or (g) your conduct in connection with the Site. Some jurisdictions limit consumer indemnities, so some or all of the indemnity provision above may not apply to you.
Except as expressly provided, the Site, Site Content, User Content and services provided on or in connection with the Site (collectively, “Complete Site”) are provided on an “AS IS” and “WITH ALL FAULTS” basis without representations, warranties or conditions of any kind, either express or implied. MOONDANCE DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, DUTIES OR CONDITIONS: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, TITLE, NON-INFRINGEMENT, PRIVACY OR SECURITY; AND (B) CREATED BY TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. Moondance does not represent or warrant that the Complete Site is accurate, complete, reliable, current or error-free. Moondance does not represent or warrant that the Site or its servers are free of viruses or other harmful components.
IN ADDITION, MOONDANCE DISCLAIMS ALL LIABILITY ARISING OUT OF OR RELATED TO SITE CONTENT, INCLUDING MOONDANCE VIDEOS AND “EXPERT ADVICE” ARTICLES. The Site Content is intended to be general in nature. The information provided in the Site Content or through linkages to other Site is not designed to and does not constitute or serve as a substitute for professional medical advice or treatment for specific medical conditions. You should not use this information to diagnose or treat a health problem without consulting with a qualified healthcare provider. Medical information changes frequently. Therefore the Site Content or information on linked Site should not be considered current, exhaustive or complete, nor should you rely on such information to recommend a course of treatment for you or any other individual. Reliance on any Site Content or on linked Site is solely at your own risk. Moondance does not recommend or endorse any specific products, procedures, opinions or other information that may be provided on linked Site. The linked Site may contain images or information that you find offensive. Moondance has no control over and accepts no responsibility for such materials.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
14. Limitation of Liability
IN NO EVENT SHALL MOONDANCE, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED TO THE USE OF, OR INABILITY TO USE, THE COMPLETE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY THE USER ON ANY INFORMATION OBTAINED FROM MOONDANCE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MOONDANCE’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOONDANCE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO MOONDANCE FOR ACCESS TO OR USE OF THE COMPLETE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
15. Modifications to Site
Moondance reserves the right to modify or discontinue, temporarily or permanently, the Site or any features or portions thereof without prior notice. You agree that Moondance will not be liable for any modification, suspension or discontinuance of the Site or any part thereof.
16. Applicable Law and Venue
These Terms and your use of the Site will be governed by and construed in accordance with the laws of the State of Iowa, applicable to agreements made and to be entirely performed within the State of Iowa, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in Benton County, Iowa, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms and waive any objection which you may have to the venue of any suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. CUSTOMER WAIVES THE RIGHT TO A JURY TRIAL.
Either we or you may end this agreement with or without cause or prior notice. Notwithstanding any of these Terms, Moondance reserves the right, without notice and in its sole discretion, to terminate your right to use the Site, or any portion of the Site, and to block or prevent your future access to and use of the Site or any portion of the Site, which include the following webSite and corresponding mobile applications (“Apps”), and any other webSite, Apps or other Stores that we may launch from time to time (the “Stores”).
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Part Two – Terms for Users Making Purchases
PART TWO APPLIES IN ADDITION TO PART ONE IF YOU PURCHASE A PRODUCT OR SERVICE THROUGH THE SITE.
All orders are subject to the Terms set forth herein. Submission of an order shall constitute, but is not the sole form of, your acceptance of such Terms.
1. Pricing and Availability
All prices are shown in U.S. dollars; taxes, shipping and handling charges are additional. All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order. All prices are subject to change without notice and you agree that taxes may be adjusted from the amount shown on the billing screens. Several factors may cause this, such as variances between processor programs and changes in tax rates.
We attempt to be as accurate as possible and eliminate errors on the Site; however, we do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on the Site, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. Your sole remedy in the event of such error is to cancel your order and obtain a refund.
3. Out-of-Stock Items
If the item that you want is not listed in the drop-down box on the Product Information page, it is not then available for ordering. Please check back later or indicate that you would like us to notify you if the product becomes available. Note that some items may be unavailable even if the Site indicate that they are in-stock, and adding an item to your cart does not guarantee the availability of that item. We will not charge your payment card until the item ships to the designated delivery address. If the item is no longer available, we will cancel the item from your order and notify you, usually via e-mail.
4. Agreement to Conduct Transactions Electronically; Recording; Copies
You agree that all of your transactions with or through the Site may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms unless you enter into different terms provided by us. You are responsible to print or make an electronic a copy of these Terms and any other contract or disclosure that we are required to provide to you.
5. Shipping & Handling; No Export by You
When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Site when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges before placing an order or signing up for a service. Generally, shipping is by cheapest available method, with many upgrade options. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Site are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of product for export.
6. Payment; Credit for Refunds
Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our sole discretion, other method. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Site) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. Regarding “Your Account,” you agree to keep all payment cards or other payment method information current and that we may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem we encounter with your method of payment in order to proceed with your order.
7. Returns and Exchanges
Moondance has a 100% Satisfaction Guarantee. You may return or exchange any product by returning it to us within thirty (30) days of receiving it. If you believe a product sold by Moondance has a condition or defect that might make it unsafe, please report this safety concern immediately by calling 1-513-659-0588
8. Limited Warranty
MOONDANCE WARRANTS THAT MOONDANCE BRANDED PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AT THE TIME OF SALE. THIS WARRANTY DOES NOT APPLY TO DAMAGE OR MALFUNCTIONS CAUSED BY NORMAL WEAR AND TEAR, ACCIDENT, ABUSE, NEGLECT, IMPROPER STORAGE, HANDLING OR USE, MISUSE, VANDALISM, ACTS OF GOD, OR OTHER CAUSES EXTERNAL TO THE PRODUCTS.
MOONDANCE MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND THIS LIMITED WARRANTY SUPERCEDES ANY PRIOR REPRESENTATIONS AND UNDERSTANDINGS REGARDING THE PRODUCTS, INCLUDING ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
MOONDANCE SELLS ITS GOODS AS-IS, WHERE-IS. MOONDANCE MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR CONDITION AND HEREBY DISCLAIMS ANY AND ALL SUCH IMPLIED WARRANTIES THAT MAY ARISE BY OPERATION OF LAW OR OTHERWISE.
9. Exclusivity of Remedy; Limitation of Liability
YOUR SOLEAND EXCLUSIVE REMEDY, AND MOONDANCE’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF WARRANTY SHALL BE YOUR RIGHT TO RETURN THE PRODUCT OR RECEIVE A REFUND FOR THE SERVICE UNDER THE MOONDANCE RETURNS AND EXCHANGES POLICY. IN NO EVENT SHALL MOONDANCE BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OF BUSINESS OR ANY LOSS OCCASIONED BY DELAY IN DELIVERY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL THE AGGREGATE LIABILITY OF MOONDANCE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE. The foregoing is intended as a complete allocation of the risks between Moondance and you, and you hereby agree that this limitation upon remedies will not have failed of its essential purpose. Your remedies set out herein are exclusive. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.