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TERMS OF USE

Last Updated: December 07, 2016

PLEASE READ THESE TERMS OF USE (ALONG WITH OUR PRIVACY POLICY AND COOKIE POLICY, THE “TERMS”) FULLY AND CAREFULLY BEFORE USING GUARDIAN TECHNOLOGIES™, LLC WEBSITE www.guardiantechnologies.com (THE “SITE”) AS IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS OF YOUR RIGHTS AND EXCLUSIONS THAT MAY APPLY TO YOU. THESE TERMS SET FORTH LEGALLY BINDING TERMS AND CONDITIONS FOR USE OF THE SITE.

ACCEPTANCE OF TERMS

By browsing and using the Site, you agree to these Terms and all other operating rules, policies, and procedures that may be published from time to time on the Site, each of which is incorporated by reference and may be updated from time to time without notice to you to the extent permitted by applicable law.

IF YOU LIVE IN THE UNITED STATES, BY USING THIS SITE YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THE SITE AND PURCHASE OF OUR PRODUCTS, AS STATED FULLY IN THE “DISPUTE RESOLUTION” SECTION BELOW.

KEY TERMS

Guardian Technologies™, LLC refers to Guardian Technologies™, LLC and includes Tailgate Alert and TClip Golf, and is referred to herein as “Guardian Technologies,“ “us,” “we,” or “our.”

Content” means logos, design, text, graphics, images, software, audio, video, works of authorship of any kind, and information and other materials that are posted, generated, provided, or otherwise available through or on the Site. We and our licensors exclusively own all right, title, and interest in and to the Content, including all associated intellectual property rights. You acknowledge that Content is protected by copyright, trademark, and other laws of the United States and foreign countries and that you will not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying Content on the Site.

Site” means the website www.guardiantechnologies.com and other websites through which we advertise and sell our products, as well as applications for mobile, tablet, and other smart devices and application programs.

Terms” refers to the terms and conditions of these Terms of Use, along with our Privacy Policy and Cookie Policy.

User Content” refers to any photographs, comments, video clips, or other Content that Users, including you, may upload to the Site. Content includes, without limitation, User Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights a User may have to use and exploit their own User Content.

User” means any visitor to the Site, regardless of whether the visitor registers for the Site or purchases any products from the Site, and is referred to herein as “User” or “you.”

ELIGIBILITY TO USE THE SITE

You may use the Site only if you are eighteen (18) years or older and capable of forming a binding contract with us and are not barred from using the Site under any applicable law. As long as you comply with these Terms, you may view and use our Site for your personal, non-commercial purposes. No other use of the Site is authorized.

NOTICE REQUIRED BY CALIFORNIA LAW

Pursuant to California Civil Code Section 1879.3, California residents are entitled to the following specific consumer rights notice:

The name, address, and telephone number of the provider of this service is Guardian Technologies, 26251 Bluestone Blvd. Euclid, Ohio 44132, 1.866.603.5900. Complaints regarding products, or requests to receive further information regarding use of this Site may be sent to the above address or to support@guardiantechnologies.com.

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.

IMPORTANT INFORMATION FOR NEW JERSEY RESIDENTS

If you live in New Jersey, please carefully read these Terms and understand that by using the Site, placing an order on the Site, or signing up for a Membership Subscription Service, in addition to the other terms and conditions herein you agree:

  1. Any dispute between us will be governed by the laws of the State of Ohio and subject to the dispute resolution provisions set forth in the “Disputes Resolution” section below;

  2. Under the laws of the State of New Jersey, limitations on implied warranties or the exclusive limitation of certain damages as set forth below in the “DMCA/Copyright Policy,” “Disclaimers of Warranties,” “Limitations on Liability,” and “Anti-Diversion” sections below may not apply to you; and

  3. As set forth in the “Indemnification” section below, you are responsible for any harm you cause us, whether it is because of your (i) User Content; (ii) violation of any applicable law that protects us or our legal rights or those of any third party that your actions have damaged; (iii) material uncured breaches of these Terms; (iv) infringement by you of any intellectual property rights that belong to us or any third party; (v) any and all activities that occur under your account, username, and password.

INTERNATIONAL USERS

Our Site is controlled, operated, and administered from our offices in Ohio, United States of America. We make no representation that Content on the Site is appropriate or available for use at other locations outside the United States, and access to Content is prohibited from territories where the Content or products available through the Site are illegal. You may not use the Site or export its Content or products in violation of United States export laws and regulations. If you access the Site from a location outside of the United States, you are responsible for compliance with all local laws if, and to the extent, local laws are applicable. We may ship to certain locations outside the United States, and reserve the right to apply additional shipping and handling charges to any orders shipped outside the United States.

GOVERNING LAW

These Terms and any action or proceeding relating thereto will be governed by the laws of the State of Ohio. If any provision or part-provision of these Terms is declared invalid, unlawful, void, or for any reason unenforceable, it will be deemed severable and will not affect the validity and enforceability of the remaining provisions of these Terms, which will be enforced to the maximum extent permissible.

CHANGES TO TERMS OF USE

We reserve the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site, you should review the current Terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" legend at the top of these Terms of Use. Your continued use of the Site will constitute your acceptance of the current Terms; however, any material change to these Terms after your last usage of the Site will not be applied retroactively. Except for such material changes, the Terms that were in effect at the time any claim or dispute arose between you and us will be applied.

YOUR ACCOUNT

You may be required to register with Guardian Technologies in order to access certain services or areas of the Site. With respect to any such registration, we may refuse to grant you the user name you request. Your user name and password are for your personal use only. If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to us, including those set forth in these Terms, we reserve the right, in our sole discretion to terminate your account or your use of the Site, block or prevent future access to and use of the Site, refuse service to you, or cancel your product orders (i) if you violate any of these Terms & Conditions; (ii) for any other reason; or (iii) for no reason. Upon any such termination, your right to use the Site will immediately cease.

PRIVACY POLICY AND COOKIE POLICY

Users of the Site should refer to our Privacy Policy and Cookie Policy for information about how we use and collect information, which may be accessed by clicking on the following link:

 http://guardiantechnologies.com/terms/privacy_policy

(as may be updated from time to time). You agree that we may collect, use, retain, and disclose your personally identifiable information to the extent permissible by law and as described in the Privacy Policy and Cookie Policy and that those policies will govern our collection and use of your personally identifiable information to the extent permissible by law.

RULES OF CONDUCT AND GENERAL PROHIBITIONS

You must only use this Site for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site. You may not, without our written consent (i) copy, reproduce, use, or otherwise deal with any content on the Site; (ii) modify, distribute, or re-post any content on the Site for any purpose; or (iii) use the content of the Site for any commercial exploitation whatsoever.

INDEMNIFICATION

You will defend, indemnify, and hold harmless Guardian Technologies, our affiliates, and each of our and their respective officers, directors, employees, contractors, suppliers, representatives, and agents from any and all claims, demands, liabilities, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, that arise from or relate to (i) your access or use of the Site or Content; (ii) your User Content; (iii) violation of any applicable law that protects us or our legal rights or those of any third party that your actions have damaged; (iv) your violation of these Terms or any applicable law, including, but not limited to, infringement by you of any intellectual property rights owned by us or any third party; (v) any and all activities that occur under or in connection with your account, username, and/or password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. YOU AGREE TO BE RESPONSIBLE FOR ALL SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.

MOBILE APPLICATION USERS

The following provisions apply to users of Guardian Technologies mobile applications (each, an “Application”):

Users of the Apple Application

If you download and/or use our Application(s) for iPhone or iPad, these Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula). For purposes of these Terms, the Application is considered the “Licensed Application” as defined in the LAEULA and we are considered the “Application Provider” as defined in the LAEULA. If any of these Terms conflict with the terms of the LAEULA, these Terms shall control.

Users of the Google Play Application

If you download and/or use our Application(s) on an Android device through Google Play, these Terms incorporate by reference the Google Play Terms of Service (the “GPTOS”) published by Google Inc. (located online at https://play.google.com/about/play-terms.html). For purposes of these Terms, we are considered the “Provider” as defined in the GPTOS. If any of these Terms conflict with the terms of the GPTOS, these Terms shall control.

Mobile Service, Internet and Service Fees

The use of the Application requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including, without limitation, all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Application, including, without limitation, administrative messages, service announcements, diagnostic data reports, and Application updates from us, your mobile carrier, or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Application. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Application, including, but not limited to, payment of all third party fees associated therewith, including fees for information sent to or through the Application.

The Application may not work with all devices or all mobile carriers. We make no representations that the Application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Application or other third party service providers charge a fee for the products or services they provide, you agree to pay such fees to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.

You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Application you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

COPYRIGHTS AND TRADEMARKS

The Site, including all of the Content, is protected by copyright, trademark, and other laws of the United States and foreign countries. Unless expressly stated otherwise, we retain other proprietary rights in all Contents on and products available through the Site. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written consent and permission of the respective copyright owner. You may not, without our express written permission of or the respective copyright owner (i) copy, upload, publish, post, submit, or transmit any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (i) sell, resell, or make commercial use of the Site, its Content, services, or products obtained through the Site; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site or its Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any of our patent, trademark, copyright, or other proprietary rights or any third party.

Together with other logos and product names appearing on the Site, the following includes a partial list of our trademarks and/or registered trademarks of in the United States and other countries: Guardian Technologies™ GermGuardian™, PureGuardian™, or HepaFresh™. These and all of our other trademarks may not be copied, imitated, or used, in whole or in part, without our prior written permission or the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Any other names and brands on the Site may be claimed as the property of others.

DMCA/COPYRIGHT POLICY

It is our policy to respect the copyright and intellectual property rights of others. We may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, we may terminate access by Users who appear to infringe the copyright or other intellectual property rights of others.

We comply with the Digital Millennium Copyright Act (“DMCA”). If you believe we or any User of the Site has infringed your copyright in any material way, please notify us, and provide the following:

  • an identification of the intellectual property right claimed to have been infringed;

  • an identification of the material you claim is infringing so that we may locate it on the Site;

  • your address, telephone number, and email address;

  • a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing, or the law;

  • a statement by you that the above information in your notice is accurate and made under penalty of perjury; and

  • that you are authorized to act on behalf of the owner of the intellectual property interest involved.

Please direct inquiries regarding intellectual property infringement issues by email to John Cipolla, jcipolla@calfee.com or by writing to 26251 Bluestone Blvd. Euclid, Ohio 44132.

LINKS TO THIRD PARTY WEBSITES

The Site may contain links to third party websites or services and advertisements for third parties (collectively, the “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under our control and we are not responsible for any Thirty Party Sites & Ads. We provide these Third Party Sites & Ads only as a convenience and are not responsible for the content, products, or services on or available from those Third Party Sites & Ads. You acknowledge sole responsibility for and assume all risk arising from your use of Third Party Sites & Ads.

The inclusion of a hyperlink to Third Party Sites & Ads does not imply affiliation, endorsement, or adoption by us of the Third Party Site & Ads or any information contained therein.

PRODUCT GUARANTEE AND WARRANTY

We are confident you will enjoy the products you purchase on the Site. Our goal is 100% customer satisfaction and if, for any reason, you are not completely satisfied with your order or any of our products, please contact us at support@guardiantechnologies.com or 1-866-603-5900.

Please refer to your product Instruction Manual for information about your product warranty.

PRODUCT DESCRIPTIONS

We have taken reasonable precautions to ensure that all product descriptions, prices, and other Content on the Site are correct and fairly described. By placing an order on this Site, you are making an offer to us. Our acknowledgment of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. We reserve the right to not accept the offer if there has been a material error in the description of the product, or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise.

ONLINE PURCHASES

If you wish to purchase any product or service made available through the Site (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Site are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Site does not imply or warrant that these products or services will be available.

It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the receipt, possession, use, and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) bar any User from making or completing any or all Transaction(s); and (iii) refuse to provide any User with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred, including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.

ORDER AND PAYMENT INFORMATION

If you use the Site or other means to purchase a product or services payment must be received by us prior to our acceptance of an order, unless otherwise agreed to by us in advance. All of our products are subject to sales tax, which will be applied to your order total. We may need to verify information you provide before we accept an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, we will refund you any payment made for the product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase. We expressly condition acceptance of your order on your agreement to these Terms.

We will add applicable shipping and handling fees to your charges, as stated in your order. We reserve the right to reject orders where the stated delivery address is outside the United States.

INTERNATIONAL ORDERS

We may, in our sole discretion, choose to accept orders for the purchase of products from Users residing outside the United States. The acceptance of such orders and the sale of such products will only be based on the following conditions precedent:

  • You agree that the purchase of any of our products by you, as a non-resident of the United States, will be (i) ex works our facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States; and (ii) for your own personal use only and not for further resale or distribution in any manner.

  • You hereby expressly authorize and direct us to load and ship the products purchased by you to your designated ship-to destination, and to contract on your behalf with a common carrier or courier company for that purpose.

  • You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties, and import requirements from our facilities in the United States to your foreign ship-to destination.

  • The United Nations Convention on the International Sale of Goods will not apply to any purchase or sale, and we expressly opt out of such application.

ANTI-DIVERSION

We are not responsible for any injury or damage that may result from the purchase of products through distributors or retailers who are not authorized distributors or retailers of our products. We are not responsible for any injury or damage that may result from products purchased past their expiration date or those that have been altered or discontinued.

DISCLAIMER OF WARRANTIES

WE WARRANT OUR PRODUCTS TO BE FREE OF DEFECTS IN MATERIALS OR WORKMANSHIP FOR A PERIOD OF ONE (1) YEAR COMMENCING ON THE DATE OF ORIGINAL PURCHASE. WARRANTIES WILL ONLY BE HONORED WITH A RECEIPT EVIDENCING THE DATE OF PURCHASE. IF A PRODUCT SHOULD BECOME DEFECTIVE WITHIN THE WARRANTY PERIOD, WE WILL REPAIR OR REPLACE ANY DEFECTIVE PARTS FREE OF CHARGE. ALL WARRANTY REPAIRS MUST BE COMPLETED BY US. THIS WARRANTY DOES NOT COVER UNAUTHORIZED REPAIRS. THE WARRANTY DOES NOT INCLUDE OR COVER UNUSUAL WEAR, DAMAGE RESULTING FROM ACCIDENT, OR UNREASONABLE USE OF THE PRODUCT. THIS WARRANTY ONLY COVERS PRODUCTS THAT WERE PURCHASED FROM US OR OUR AUTHORIZED DISTRIBUTORS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS BASED ON OTHER LAWS, INCLUDING STATE LAWS WHICH VARY FROM STATE TO STATE.

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES RELATING TO OUR PRODUCTS, SERVICES, OR CONTENT, THESE TERMS AND YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY PRODUCTS VIA THE SITE OR AN AUTHORIZED DISTRIBUTOR, OR FROM THE USE OF OR INABILITY TO USE THE SITE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR PRODUCTS PURCHASED VIA THE SITE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM OF LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

LIMITATIONS OF LIABILITY

NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.

TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER GUARDIAN TECHNOLOGIES, OUR AFFILIATES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING PRODUCTS, SERVICES, OR CONTENT ON THE SITE WILL BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY – EVEN OUR OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH (I) THE SITE; (II) THE USE OR INABILITY TO USE THE SITE; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE; (IV) THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES THROUGH THE SITE OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OF DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF WE OR OUR REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO US FOR ANY PRODUCTS OR SERVICES SUPPLIED BY US THROUGH YOUR USE OF THE SITE OR OTHERWISE.

WE WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.

The terms of this section survive any termination of these Terms.

TERMINATION

NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.

Notwithstanding any of these Terms, we reserve the right, without notice and in our sole discretion, for any reason or no reason, to terminate your ability to use the Site and to block and prevent future access to and use of the Site. You agree that we will not be liable for any termination of your use of or access to the Site.

NO THIRD PARTY BENEFICIARIES

We and you are the only parties entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and Guardian Technologies. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You also agree that if we assign, transfer, or sub-contract any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.

DISPUTE RESOLUTION

AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

WE EACH AGREE THAT ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO OUR PRODUCTS, SERVICES, THESE TERMS, INCLUDING OUR PRIVACY POLICY AND COOKIE POLICY, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY THEREOF OR THE USE OF THE SERVICES OR CONTENT AVAILABLE ON OR THROUGH THE SITE (COLLECTIVELY, “DISPUTES”) WILL BE SETTLED BY CONFIDENTIAL BINDING ARBITRATION, EXCEPT THAT each party retains the right to (i) bring an individual action in small claims court; and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademark, trade secrets, patents, or other intellectual property rights (the action described in the foregoing clause (ii) an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of Ohio and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

You acknowledge and agree that both of us are waiving the right to a trial by jury or to participate as a plaintiff or class representative or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms.

The parties agree that (i) these Terms memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. §§ 1, et seq.) governs the interpretation and enforcement of this section; and (iii) this section will survive termination of these Terms.

ARBITRATION RULES

The arbitration will be administered and governed by the Comprehensive or Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS), whichever is appropriate and in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at a[href="http://www.jamsadr.com"]{http://www.jamsadr.com} or by calling 1-800-352-5267.

The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only.

DISPUTE NOTICE AND ARBITRATION PROCESS

Prior to initiating an arbitration proceeding, you may first send us a written statement setting forth your name, address, and telephone number, the facts giving rise to the dispute, and the relief requested (“Dispute Statement”). The Dispute Statement to us must be emailed to chelsea.mikula@tuckerllis.com or support@guardiantechnologies.com. If we are unable to resolve your claim within thirty (30) days, then either party that desires to initiate an arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Procedures.

The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is an IP Protection Action.

ARBITRATION LOCATION AND PROCEDURE

Unless the parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed ,000, then (i) the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary; and (ii) if there is a hearing, you may choose whether to participate in person or by telephone. If your claim exceeds ,000, your right to a hearing will be determined by the JAMS Procedures. Subject to the JAMS Procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

ARBITRATOR’S DECISION

The arbitrator’s decision will include the essential findings and conclusions of law upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having competent jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer of Warranties,” and “Limitations of Liability” sections above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory and injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Guardian Technologies will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

FEES

We will pay, or (if applicable), reimburse, you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or us pursuant to the terms of this section.

TIME LIMIT FOR RESOLVING DISPUTES

The parties agree that any cause of action either may have with respect to the Site or our products, services, and Content must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.

NOTICE TO NEW JERSEY USERS: If you live in New Jersey, your agreement to this provision shortens the time within which you may bring a Dispute.

The terms of this Dispute Resolution section survive any termination of these Terms.

RIGHT TO OPT-OUT OR REJECT FUTURE CHANGES TO DISPUTE RESOLUTION SECTION

You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter to Guardian Technologies, at 26251 Bluestone Blvd. Euclid, Ohio 44132, within thirty (30) days of your first visit to and use of the Site or Application that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions of these Terms will continue to apply. If you do not so opt-out, then the terms of this section will apply.

p{Notwithstanding the provisions of “Changes to Terms of Use” section above, if Guardian Technologies changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted subsequent changes to the Terms), you may reject any such change by sending us written notice (including by email to support@guardiantechnologies.com within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).}

GENERAL TERMS

These Terms constitute the entire and exclusive understanding and agreement between Guardian Technologies and you regarding the Site, Content, products, and services that may be provided on the Site, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us regarding the Content, products, or services provided on the Site. If, for any reason, a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) by us via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Guardian Technologies. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between us, and you do not have any authority to create any obligation on our behalf.

CONTACT INFORMATION

If you have any questions about these Terms, please contact us at: Guardian Technologies, 1.866.603.5900 or support@guardiantechnologies.com.