Terms of Use

TERMS OF USE

EFFECTIVE AS OF March 1, 2021

IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THESE TERMS OF USE (TOGETHER WITH ANY DOCUMENTS REFERRED TO HEREIN) (COLLECTIVELY, THE “TERMS”).  BY ACCESSING THIS SITE, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS.  THESE TERMS ARE SUBJECT TO CHANGE; ANY CHANGES WILL BE INCORPORATED INTO THESE TERMS POSTED TO THIS SITE FROM TIME TO TIME, AND ANY ACCESS OF THIS SITE BY YOU AFTER SUCH CHANGES ARE SO POSTED SHALL BE DEEMED YOUR AGREEMENT TO SUCH CHANGES.  IF YOU DO NOT AGREE WITH THESE TERMS; PLEASE DO NOT ACCESS THIS SITE.

WHEN PLACING AN ORDER, YOU WILL BE REQUIRED TO CONFIRM YOUR AGREEMENT TO BE BOUND HEREBY.  BY CLICKING THE “I AGREE” BUTTON, YOU CONFIRM YOUR AGREEMENT TO BE BOUND BY ALL OF THESE TERMS.  IF YOU DO NOT CLICK THE “I AGREE” BUTTON WHEN PLACING AN ORDER, YOUR ORDER WILL NOT BE PROCESSED.

The Terms apply only to the use of certain websites which are owned and/or operated by or on behalf of Derive Systems, Inc., Derive Power, LLC, and Derive Efficiency, LLC and/or their affiliates (“Derive”) (each, the “Site,” and collectively, the “Sites,”), or available through our authorized third parties, or by any of the other means described herein.

Your use of the Site may be further governed by any agreement entered into between Derive and the Customer (the “Customer”) named therein (the “Customer Agreement”) governing Customer’s accounts with Derive.  In the event of any inconsistency between the terms of the Customer Agreement and the Terms, the terms of the Customer Agreement shall control.  You also represent and warrant to Derive that you are authorized to bind Customer to the Terms.

The Terms do not apply to any site owned and/or operated by or on behalf of any third party even if we provide a link to such site on one of our Sites.  Please refer to the terms of use of any such third party sites for information regarding the terms and conditions of your use of such sites.

When we refer to “Derive”, “we”, “us” or “our,” we mean Derive Systems, Inc., Derive Power, LLC, and Derive Efficiency, LLC or the specific division, subsidiary, or affiliate that operates the Site provides its content or processes information received through it, each as appropriate and applicable.

When we refer to “you” or “your,” we mean the person accessing the Site.  If the person accessing the Site acts on behalf of, or for the purposes of, another person, including a business or other organization, “you” or “your” also means that another person, including a business organization.

GENERAL TERMS OF USE

The Site and any of the products and/or services provided by Derive in connection with the Site (the “Products and Services”) are being provided to you expressly subject to the Terms, which govern your use of the site.  “Products and Services” under the Terms include financial services for businesses and business services offered to you directly by Derive.

ACCESS

Derive makes the Site available subject to the terms and conditions set forth herein and all applicable laws and regulations.  By accessing, browsing, or otherwise using (collectively, “use” or “using”) the Site, you acknowledge that you, the individual user of the Site, have read, understood, and agree to be legally bound by the Terms, and to comply with all applicable laws and regulations, without limitation or qualification.  By using the Site, you further acknowledge that you have the authority and do hereby legally bind the business entity, if any, which you serve as an agent, independent contractor or employee thereof to the same Terms, without limitation or qualification.  The Terms shall take effect immediately on your first use of the Site.  If you do not agree to the Terms, you are not authorized to access, browse or otherwise use the Site.

You warrant to Derive that you will not attempt to gain unauthorized access to any Products and Services offered by Derive or computer systems or networks connected to any Derive server through hacking, password mining, or any other means.  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Derive.  When using the Site you agree not to pretend to be someone else or spoof their identity.

UNAUTHORIZED USE

Any access or attempted access of other areas of Derive’s computer systems, third party systems, and Products and Services that Derive utilizes or other information contained therein for any purpose is strictly prohibited.  You agree not to interfere in any way with others’ use of or access to any Site.  Derive reserves the right to report any activity that it reasonably suspects violates any law or regulation and to disclose any information to law enforcement officials or regulators or other appropriate third parties.

Derive has the right to modify, suspend or discontinue, temporarily or permanently, the Site, any Products and Services provided by Derive through the Site, or your right to access or use any portion of the Site, in Derive’s sole, absolute and unfettered discretion, at any time and without prior notice, for any reason, including without limitation: (1) attempts by you (or another party) to gain unauthorized access to any Site or assist others in attempting to do so, (2) your (or another party’s) disabling of any security features on any Site, (3) your violation of the Terms, (4) suspected or actual infringement of a third party’s intellectual property rights or (5) pursuant to requests by law enforcement or other government agencies.  The obligations and liabilities you incurred prior to the termination date shall survive the termination of the Terms for all purposes.  In the event of any such termination, the restrictions on your use of the material on the Site shall survive such termination, and you agree to be bound by those terms.  YOU ACKNOWLEDGE AND AGREE THAT DERIVE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF ANY SITE OR ANY SERVICES OR INFORMATION PROVIDED ON THE SITE OR ACCESSED BY YOU THROUGH THE SITE.

USE OF THE SITE

As a user of the Site, you have a non-exclusive, non-transferable, limited, revocable license to use the Site solely for your internal business use.  You may not use the Site for any other purpose whatsoever.  Without limiting the previous sentence, you may not reproduce, modify, distribute, transmit, display, perform, reproduce, transfer, sell or publish any of the contents of the Site without the prior written consent of Derive, which may be withheld, conditioned or delayed in its sole discretion, except that you may print out a copy of the content solely for your internal business use.  In doing so, you will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name or service mark or any other proprietary notice or legend appearing on the Site or any of the content.  You are prohibited from including links from other websites to the Site without the prior written consent of Derive, which may be withheld, conditioned, or delayed in its sole and absolute discretion.

COPYRIGHTS/TRADEMARKS/RESTRICTIONS ON USE

All of the content, pages, and screens on the Site are owned and controlled by Derive, except as otherwise expressly stated, and are protected by U.S. copyright laws and international treaties.  The copyrighted materials on the Site include, but are not limited to, the text, design, software, images, graphics, source code and content on the Site.  You are authorized to view the information available on the Site for your informational purposes only.  You may download copyrighted materials for your personal or internal business purposes only.  You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.  You may not copy, display, distribute, transfer, link to, reproduce, license, frame, alter, create derivative works of or republish all or any portion of the Site for any commercial or public purpose without Derive’s prior written consent.  You may not use, copy, display, distribute, modify or reproduce any of the trademarks found on the Site except as authorized in this paragraph.  The Site may contain links to websites controlled or offered by third parties (non-affiliates of Derive).  Derive hereby disclaims liability for any other company’s website content, products, privacy policies, or security.  In the event you choose to use the services available at a linked site, you agree to read and adhere to the policies and terms of use applicable to that site.  In addition, any advice, opinions or recommendations provided by the linked site providers are those of the providers and not of Derive.  Your participation in any linked site, including payment for and the delivery of Products and Services, is based solely on the agreement, if any, between you and the linked site provider.

REGISTRATION INFORMATION

In order to access certain restricted portions of the Site, you may be required to register on the Site by completing a Registration Form or Enrollment Form (collectively, the “Registration Form”).  Derive may accept or reject any Registration Form in its sole discretion.  You represent and warrant that the information provided when registering is accurate, complete, and current as of the date submitted and that you will update such information from time to time as necessary.  The Terms shall be incorporated into, and form an integral part of, each Registration Form.  As part of the registration process, you will select a user name based on your e-mail (“User Name”), and a password (“Password”) to access the User Name.  Your User Name and Password are your credentials (“Credentials”) to access the restricted portions of the Site.  Although you are not required to register, if you do not register, you may be required to accept the Terms each time you wish to access the Site or a Service or place an Order.  You may not have a User Name that is vulgar, attempts to impersonate another person, or violates the rights of others.  Derive may also reject any User Name that Derive determines in its discretion is unacceptable for use on the Site.  You are solely responsible for all use of the Site under your User Name and Password and for maintaining the confidentiality of your User Names and Passwords and will (i) promptly notify Derive of any actual or suspected unauthorized use of the Site, and (ii) ensure that you exit from your account at the end of each session.  If you disclose or otherwise allow discovery of your User Name and/or Passwords to or by any person(s) or entity, you assume all risks and losses associated with such disclosure.  Please note that Derive will store a Password retrieval question and answer, which allows you the ability to retrieve your Password.  If you do not answer the retrieval question correctly within the stated number of attempts, your User Name will be permanently deactivated, and you will need to re-register on the Site with a new User Name and Password, and your stored preferences will need to be re-entered.

By establishing a User Name with Derive, and each time you access a Service or submit an Order through the Site, you authorize Derive to contact you at your email address.  You may stop receiving Derive’s marketing e-mails by sending an email to Derive at website@derivesystems.com or by following the opt-out procedures set forth in such e-mails or as set forth in our Privacy Policy.

ORDERS

1. By ordering Products and Services on the Site, you shall be deemed to have ordered the specified Products and Services from Derive pursuant to the Terms. The acceptance and fulfillment by Derive of any order (“Order”) placed on the Site are subject to your acceptance of and compliance with all of the Terms.  You will be required to confirm your acceptance of the Terms when placing an Order through the Site.  All other contrary terms and conditions are hereby rejected by Derive, and no attempted addition or modification to the Terms by you shall be binding unless specifically agreed to in writing by Derive.  Derive shall not be deemed to have accepted your Order unless and until Derive sends to you, through electronic means or other written communications, an acknowledgment that your Order has been received and accepted by Derive, and will be fulfilled by Derive.  Derive’s acceptance of any Order by you is made only with the express understanding that the Terms shall govern any Order placed by you.
2. To purchase any Products and Services on the Site, you must (a) be legally permitted to enter into a legally binding contract (at least eighteen (18) years old in most jurisdictions). Prior to the purchase of any Products and Services on the Site, you must provide a valid credit card number (or another payment method acceptable to Derive) and related payment information, including all of the following: (i) your name exactly as it appears on the credit card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge your credit card.  By submitting that information, you hereby authorize Derive to charge your credit card for such purchases.  The risk of loss and title for all Products and Services ordered on the Site passes to you when the Products are delivered to the shipping carrier.
3. Products and Services availability is subject to change at any time. Derive makes no representations or warranties regarding the availability of Products and Services in all areas.  Derive shall have the right to refuse or cancel any orders for Products and Services listed at an incorrect price or rebate amount, or containing any other incorrect information or typographical errors.  Derive shall have the right to refuse or cancel any such orders whether or not the order has been accepted by Derive and/or your credit card has been debited.  If your credit card has already been charged for the Order and your Order is refused or canceled, Derive shall promptly issue a credit to your credit card account in the amount of the charge.
4. Your credit card agreement with the issuer of such a card shall govern your use of such credit card, and you must look only to that agreement and not to the Terms to determine your rights and obligations relating thereto. You agree to pay all fees and charges, including taxes incurred in connection with your Orders, at the rates in effect when the charges were incurred.  Unless you notify Derive of any discrepancies in charges for Orders placed through the Site within sixty (60) days after they first appear on your credit card statement, you agree that such charges will be deemed accepted by you for all purposes hereunder.  In the event Derive does not receive payment from your credit card issuer or its agent, you shall pay all amounts due upon demand by Derive.  You shall remain responsible for any unauthorized charges to or Orders using your credit card including unauthorized use by a third party.  If Derive does not receive payments when they are due, then you agree to pay all amounts owed to Derive upon demand by Derive.  If Derive is unable to collect amounts owed on your accounts, Derive may refer those accounts to a collection agency, and you will be responsible for all costs of collection.
5. By placing an order on the Site, you indicate that you have read and agree to Derive’s Pricing, Ordering and Returns Policy [add hyperlink] (“Returns Policy”). The Returns Policy may be changed from time to time and is effective immediately after Derive posts such changes on the Site.  In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to any such services you use through the Site, that may be posted on the Site from time to time.  Any such posted policies or rules are hereby incorporated by reference into this Agreement as if fully set forth herein.

USE BY INDIVIDUALS

Derive values your interest in its Products and Services and appreciates your visit to the Site.  Certain portions of the Site are intended to be used only by individuals authorized by the Customer in compliance with its Customer Agreement with Derive.  Such individuals must use the User Name and Password assigned to them and not those of any other person.  If you are not authorized by the Customer for this purpose, or if you are using someone else’s login information, you are deemed an unauthorized user and you should not use the Site.  If nonetheless, you continue, then by using the Site you undertake and agree that: (1) you will be personally liable for any and all expenses, costs or damages incurred by Derive in investigating or addressing your unauthorized use of the Site (such obligations shall be in addition to whatever other rights and remedies may be available to Derive for unauthorized use); and (2) you will be personally bound to the terms of the Customer Agreement, if any, for the entire debts and other commitments of the Customer, waiving any actual notice or knowledge of the terms of the Customer Agreement, all without any duties or obligations to you on the part of Derive.

Derive reserves the right to modify the Terms at any time without notice, but the most current version of the Terms will always be available to you by clicking on the link at the bottom of the Site.  If you find the Terms unacceptable at any time, you may discontinue your use of the services.  By continuing to use the Services after the date of any change to the Terms, including accessing the Site, you agree to be bound by the rules contained in the most recent version of this Agreement.  You agree and understand that effective use of the Site may require your browser to use software plug-ins and modules, including without limitation JavaScript, in order to correctly display content and utilize features on the Site.  Derive reserves the right to modify or terminate the Services and the Site or to terminate your access to the Services and Site, in whole or in part, at any time in its sole and absolute discretion.  The Terms constitute a contract between you and Derive governed by the laws of the State of Florida.

The Site provides general information about Derive and its Products and Services.  The use of the Site is limited to legitimate purposes.  Derive may, from time to time, introduce new features to the Site, or modify or delete existing features, in its sole discretion.  Derive shall notify you of any of these changes to features to the extent Derive is required by law to do so.  By using any new or modified features when they become available, you agree to be bound by the Terms concerning such features.

INTELLECTUAL PROPERTY AND RESTRICTIONS ON USE OF INFORMATION AND CONTENT

All information and content provided on the Site, whether explicitly marked or not, are the property of Derive, its subsidiaries, affiliated companies or joint partners, or others, and are subject to U.S. and international copyright and unfair competition laws.  The information and content provided include, but are not limited to, the text, graphics, image, video, audio, animation and software, their related files and their arrangement on the Site.

All trademarks, service marks, logos, model and brand names, emblems and protectable trade dress elements (collectively, “Marks”), whether explicitly marked or not, used on the Site are owned by Derive, its subsidiaries, affiliated companies or joint partners, or used under license, and are subject to U.S.  (federal and state) and international trademark and unfair competition laws.

You may not copy, reproduce, download, upload, post, broadcast, transmit, distribute, publish, republish or otherwise use any information, content or Marks provided on the Site in any form or by any means, or by any information storage or retrieval system for any commercial use without the express written permission of Derive.  You may, however, copy, print or otherwise use the information, content or Marks provided on the Site, provided that the use is for your personal, educational or internal business use only and further provided that you: (1) maintain all copyright and other intellectual property notices together and intact with any information or content; (2) do not modify or otherwise alter any information or content; and (3) do not expressly or implicitly suggest an association with any services, product, brands or affiliates through the use of any information or content.  Other use of any information, content or Marks, except as specifically permitted in the Terms or in a written instrument signed by Derive, is strictly prohibited.

Nothing contained in any Site shall be construed as conferring, by implication, estoppel or otherwise, any license or right to any copyright, patent, trademark or other proprietary interest of Derive or any third party.

You are not permitted to create a hyperlink to any page or portion of any Site or frame any page or portion of any Site without the prior written permission of Derive.

Any use of the information, content or Marks provided on any Site that does not comport with the above Terms shall be an unauthorized use and subject you to civil and criminal penalties as provided by the U.S.  and international intellectual property laws and other applicable laws.

INTERNATIONAL USE

Derive makes no representation that materials on any Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited.  Those who choose to access any Site from other locations do so on their own initiative and are responsible for compliance with local laws.

USER CONTRIBUTIONS TO THE SITE

There may be opportunities for you to contribute information, data, images, content, comments or other materials to the Site, which may include, among others, uploading information, documents or other material, participating in chats, using our bulletin boards, etc., which information, data, images, content, comments or other materials we collectively call “User Content.” You grant Derive and its parents, subsidiaries and corporate affiliates (collectively, the “Derive Companies”) and the affiliated, co-branded and/or linked website partners through or for whom we provide services (collectively, the “Derive Affiliates”), an unrestricted, non-exclusive, worldwide, fully-paid up and royalty-free, perpetual, transferable, irrevocable and fully sub-licensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such User Content throughout the world in any media, now known or hereafter devised; and (b) use the name that you submit in connection with such submission.  Derive is not liable or responsible for any User Content provided by its users or other third parties to the Site, including suppliers.  The contributions of third parties do not necessarily represent the view or opinions of Derive.  Derive cannot preview User Content before it appears on the Site.  Derive does not and shall not have any obligation to review User Content, and therefore we do not guarantee the accuracy, integrity, or quality of User Content and we cannot assure you that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful, or otherwise objectionable User Content will not appear on the Sites. We do, however, reserve the right to review any or all User Content in our sole discretion.  You acknowledge that the Derive Companies may choose to provide attribution of your comments or reviews at our discretion and that such submissions may be shared with our supplier partners.  You further grant the Derive Companies the right to pursue at law any person or entity that violates your or the Derive Companies’ rights in the User Content by a breach of the Terms.  You acknowledge and agree that items comprising User Content are non-confidential and non-proprietary.  You expressly waive any and all ‘moral rights’ (including rights of attribution or integrity) that may subsist in your User Content and agree that you have no objection to the publication, use, modification, deletion or exploitation of your User Content by us, the Derive Affiliates or any of our partners or licensees.  We take no responsibility and assume no liability for any User Content posted or submitted by you.  We have no obligation to post your comments; we reserve the right in our absolute discretion to determine which comments are published on the Site.  If you do not agree to the Terms, please do not provide us with any User Content.

You are fully responsible for your User Content (specifically including, but not limited to, reviews posted to the Site).  You are prohibited from posting or transmitting to or from the Site: (i) any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity and/or privacy or that would violate any law; (ii) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or Services); and (iii) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other proprietary rights of any third party.  You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Site.  You acknowledge that Derive may exercise its rights (e.g., use, publish, delete) to any content you submit without notice to you.  If you submit more than one review or comment for the same Service or topic, only your most recent submission is eligible for use.  You agree that you will indemnify Derive against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys’ fees and costs) arising out of a claim by a third party relating to any material you have posted.

Derive’s policies with respect to claims by third parties that the content of the Site, including any User Content, infringes the copyrights owned by said third party can be found in the DMCA section below.

[PHOTO SUBMISSION GUIDELINES

All photos submitted are subject to our Photo Submission Guidelines, posted on the Site from time to time.  Derive claims no ownership, affiliation with, or endorsement of any photos that are submitted by users through our Sites.

• Any photos you submit must be in accordance with the following:
• All photos must be relevant to Derive or the Products and Services
• Do not submit any photos or materials that are illegal, obscene, pornographic, profane, vulgar, offensive or insulting; or that invade the privacy or violate any personal rights of any person or entity.
• Do not submit photos or information about children or any third parties without their consent (or their parent’s consent in the case of a child).
• Children under 13 may not submit photos or other materials.
• Only submit your own photos — do not submit photos from any other source, either personal or commercial. Do not submit photos that infringe the copyright, trademark, or other property rights of any third party.
• Do not submit photos that include logos, branding, promotional material, or any other content intended for commercial purposes.
• Do not submit photos that contain viruses or other harmful code that is either intended or may result in damage to the computers and systems of Derive and/or those using it.

You can be held liable for any illegal or prohibited User Content you provide to any Site, including among other things, infringing, defamatory or offensive materials.  If you discover this kind of material on any Site, please notify us at website@derivesystems.com.  We will investigate your claim promptly and may then take the actions deemed appropriate.]

LINKS AND SEARCH RESULTS

For the avoidance of doubt, the Sites may automatically produce search results that reference or link to third party sites throughout the World Wide Web.  Derive has no control over those sites or the content within them.  Derive cannot guarantee, represent or warrant that the content contained in those sites is accurate, legal and/or inoffensive.  Derive does not endorse the content of any third party site, nor do we warrant that they will not contain viruses or otherwise impact your computer or other access devices.  By using the Sites to search for or link to another site, you agree and understand that you may not make any claim against Derive for any damages or losses whatsoever resulting from your use of the Site to obtain search results or to link to another site.  Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.  If you have a problem with a link from the Site, please notify us at website@derivesystems.com and we will investigate your claim promptly and take any actions we deem appropriate in our sole discretion.

COMMERCIAL USER

For the avoidance of doubt, the Sites may not be used by our visitors for any commercial purposes other than to inquire about the Products and Services of Derive without the express consent of Derive.  You must obtain our prior written consent to make commercial offers of any kind on the Site, whether by advertising, solicitations, links, or any other form of communication.  Without limiting the foregoing, you may not resell or link to other sites for the purpose of selling Derive Products and Services of any kind.  We will investigate and take appropriate legal action against anyone who violates this provision, including, without limitation, removing the offending communication from the Site and barring such violators from use of the Site.  We reserve the right to block access to or cancel any order for any user known or reasonably believed to be in violation of this provision.

VIOLATION OF THE TERMS

You understand and agree that in Derive’s sole discretion, and without prior notice, we may terminate your access to the Sites, cancel any transactions or exercise any other remedy available and remove any unauthorized User Content if we believe that the User Content you provided has violated or is inconsistent with the Terms or violated the rights of Derive, another user, or the law or constitutes a breach of the Customer Agreement.  You agree that monetary damages may not provide a sufficient remedy to Derive for violations of the Terms and you consent to injunctive or other equitable relief for such violations.  Derive may release user information about you if required by law or subpoena, or if the release of the information is necessary or appropriate to address an unlawful or harmful activity.  Derive is not required to provide any refund to you if you are terminated as a User because you have violated the Terms.

Derive is not responsible for the products, services, actions or failures to act of any third party referenced on any Site except as may be set forth in the Customer Agreement.  Without limiting the foregoing, you may report the misconduct of users and/or third party advertisers, service and/or product providers referenced on or included in any Site to us at website@derivesystems.com.  We may investigate the claim and take appropriate action, in our sole discretion.

ADOPTION OF ADDITIONAL TERMS

The Terms expressly include any and all additional terms and conditions that are set forth in any of the Sites, including but not limited to any such terms and conditions that are specified in posted agreements and frequently asked questions listings therein.  To the extent any of the Terms are in conflict with any terms and conditions set forth in any particular Site, the terms and conditions set forth in the Site shall control with respect to the particular Site to which the terms and conditions are posted.

INDEMNIFICATION

You agree to defend, indemnify, save and hold harmless Derive and its subsidiaries, affiliated companies, joint partners and licensees and their respective directors, members, shareholders, officers, employees and agents from and against all liabilities, claims, losses, costs, damages, and expenses, including reasonable attorneys’ fees as incurred, arising out of your use of the Site, any violation or alleged violation of the Terms, any violation of any rights of a third party, any violation of any applicable laws, rules, or regulations and any losses or claims arising out of your use of any Products and Services you may have obtained on any of the Sites.  We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.

DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY

YOU USE THE SITES AND THE PRODUCTS AND SERVICES OFFERED ON THE SITES AT YOUR OWN RISK.  ALL INFORMATION AND CONTENT AND ALL PRODUCTS AND SERVICES OFFERED OR ACCESSED THROUGH THE SITES, INCLUDING CONTENT PROVIDED BY THIRD PARTY PROVIDERS, ADVERTISERS AND SPONSORS ON ANY SITE, IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURCHASE, FREEDOM FROM VIRUSES OR HARMFUL CODE, TITLE OR NON-INFRINGEMENT.  ALL INFORMATION, CONTENT, PRODUCTS AND SERVICES OFFERED OR ACCESSED THROUGH ANY HYPERLINKED SITE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, AND IS USED AT YOUR OWN RISK.  CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES.  IF THESE LAWS APPLY TO YOU, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

IN NO EVENT WILL DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE OR ANY OF THE PRODUCTS AND SERVICES OFFERED OR ACCESSED THROUGH THE SITE, OR ANY OTHER HYPERLINKED SITE, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, LOST PROFITS, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR SYSTEM OR OTHERWISE ARISING OUT OF THE USE OR MISUSE OF OR INABILITY TO USE ANY SITE OR THE INFORMATION, CONTENT, DOCUMENTS OR SOFTWARE THEREOF, EVEN IF DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES OR SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY A THIRD PARTY.  YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DERIVE, ITS SUBSIDIARIES, AFFILIATED COMPANIES, AND SUPPLIERS IS TO DISCONTINUE USE OF THE SITE AND ANY HYPERLINKED SITES AND TO DISCONTINUE THE USE OF PRODUCTS AND SERVICES OFFERED OR ACCESSED ON THE SITE AND ANY HYPERLINKED SITES.  CERTAIN STATE LAWS DO NOT ALLOW EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.  The above limitations of liability reflect the allocation of risk between the parties, and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.  The limitations of liability provided in these Terms inure to the benefit of Derive, Derive Affiliates and/or their respective joint partners and suppliers.

Without limiting the above disclaimers, Derive and its subsidiaries, affiliated companies, and joint partners: (1) make no warranties or representations whatsoever concerning the Site or any other Internet site, the access to, or the availability or use of, the Site or any other Internet Site, the information and content from whatever source posted on or referred to in the Site or any other Internet site or the accuracy, completeness or timeliness of such information or content; (2) do not warrant or represent that your access to, or use of, the Site or any other Internet site will be uninterrupted or free of errors or omissions, that defects will be corrected, or that the Site or any other Internet site is, or the information or content from whatever source available for use or downloading are, free of computer viruses, worms, Trojan horses or other harmful components; (3) do not represent or warrant that any Products and Services listed on, or accessed through, the Site will be available for purchase or not withdrawn at any time and makes no representation or warranty of any kind whatsoever concerning such Products and Services; and (4) do not represent or warrant the accuracy, functionality or specifications or any other aspect of items from whatever source posted or accessed through the Site.  Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you.

The Site may use hyperlinks as a convenience to you so that certain reference material, Derive- related subjects and other pertinent material is easily accessible.  Linked and referenced sites may not be operated, controlled or maintained by Derive.  Hyperlinks and references to other sites, including any Derive-affiliated entity, do not constitute sponsorship, endorsement or approval by Derive of the information, content, policies or practices of such linked or referenced sites.  Derive, its subsidiaries, affiliated companies and joint partners do not accept any responsibilities for any information or content, availability, policies, practices or any use of such sites.  You access, browse and use such sites at your own risk.

The above limitations of liability reflect the allocation of risk between the parties and will survive and apply even if any limited remedy specified in the Terms is found to have failed of its essential purpose.  The limitations of liability provided in the Terms inure to the benefit of Derive, the Derive Affiliates, and/or their respective suppliers.

If, notwithstanding the limitations of liability above, Derive or any of the Derive Affiliates are found liable for any loss or damage which arises out of or in any way connected with any Products and Services or operation of the Site, then the liability of Derive and the Derive Affiliates will in no event exceed, in the aggregate, the lesser of (a) the service fees you paid to Derive in connection with such transaction(s) on the Site, or (b) One-Hundred Dollars (US$100.00) (or the equivalent in local currency).

Derive has no obligation to update any information or content on any Site.  Accordingly, Derive, its subsidiaries, affiliated companies, and joint partners assume no responsibility regarding the accuracy of the information or content provided on the Site.  Any use of the information or content provided on the Site is done so at your own risk.

PRIVACY POLICY

The Terms include the terms and conditions of Derive’s Privacy Policy.  Accordingly, by using the Site, you affirmatively acknowledge that you have read, understood and agree to be legally bound by the terms and conditions of Derive’s Privacy Policy.

TAXES

In some states, Derive collects and remits sales tax.  For purchases where sales tax is applicable, the tax calculated will be reflected on the checkout page before you are asked to confirm the purchase.  Derive uses commercially reasonable efforts to calculate and remit the correct amount of tax required on each taxable purchase, but Derive does not guarantee the accuracy of the amount of the tax Derive represents to you as the tax owed.  Minor errors may occur owing to the inability to accurately track multiple taxing districts, state and local “tax holidays,” the timing of rate changes or the application of certain taxes to categories of items advertised on the Site.  As a result of any error, Derive may over-collect or under-collect the tax.  In consideration of Derive allowing you access to and use of the Site, and in collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect and agree to hold harmless Derive and Derive Affiliates, their officers, directors, employees, agents, and representatives, for any harm or other damages you may incur as a result of Derive’s or Derive’s Affiliates’ error in calculating the taxes on your purchases.

SOFTWARE AVAILABLE/MOBILE APPS ON THE SITE

Any software that we make available to access or download from the Site (“Software”) or through your mobile application store, including the Derive mobile application (the “Mobile App”), is the copyrighted work of the Derive Companies and/or our respective suppliers.  Your use of such Software is governed by the terms of the end-user license agreement, if any, which accompanies, or is included with, the Software (“License Agreement”).  You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.  For any Software made available for download on the Site not accompanied by a License Agreement, we hereby grant to you, the user, a limited, personal, non-exclusive, nontransferable license to download, install and use the Software and/or the Mobile App for viewing and otherwise using the Site and/or accessing the content and information available within the Mobile App in accordance with the Terms and for no other purpose.

Please note that all Software is owned by the Derive Companies, Derive Affiliates, and/or our respective suppliers, and is protected by copyright laws and international treaty provisions.  Any reproduction or redistribution of the Software is expressly prohibited and may result in severe civil and criminal penalties.  Violators will be prosecuted to the maximum extent possible.  Without limiting the foregoing, copying or reproduction of the Software to any other server or location for further reproduction or redistribution is expressly prohibited.  The Software is warranted, if at all, only according to the terms the applicable License Agreement.

Your mobile device must be connected to the Internet for the Mobile App to function correctly.  You are responsible for making all arrangements necessary for your mobile device to have Internet connectivity and are responsible for all fees your service provider may charge you arising out of the Mobile App transmitting and receiving data (including but not limited to data roaming charges).  As further described in our Privacy Policy [hyperlink], the Mobile App will automatically transfer relevant data as part of its normal operation, relating to how you use the Mobile App, which content you access, and technical errors or problems which the Mobile App may encounter while being used, including time stamps, version of Mobile App, the device’s Unique Device Identifier, computer operating system you use (e.g., Android or iOS), installation data (e.g., daily installs, upgrades and uninstalls), Mobile App activity, and error-reporting information.  By using the Mobile App, you expressly acknowledge, agree and consent to the automatic collection of this information.

BANK AND CREDIT CARD FEES

Some banks and credit card companies impose fees for international transactions.  If you are making a purchase from outside of the United States on a US credit card, your bank may convert the payment amount to your local currency and charge you a conversion fee.  This means the amount listed on your credit or bank card statement may be in your local currency and therefore a different figure than the figure shown on the order summary page for purchase on the Site.  In addition, a foreign transaction fee may be assessed if the bank that issued your credit card is located outside of the United States.  The currency exchange rate and the foreign transaction fee are determined solely by your bank on the day that they process the transaction.  If you have any questions about these fees or the exchange rate applied to your booking, please contact your bank.

COPYRIGHT AND TRADEMARK NOTICES

All contents of the Site are © 2020 Derive Power LLC.  All rights reserved.  ACTIVE TELEMATICS, ADVANTAGE X, BDX, BULLY DOG, BULLY DOG LOGO, BULLY DOG PERFORMANCE DPF, DDP, DERIVE ADVANTAGE, DERIVE EFFICIENCY, DERIVE MISSION CONTROL, DERIVE POWER, DERIVE SYSTEMS, DERIVE VQ, GTX, iTSX, LESS FUEL! MORE POWER!, LIVEWIRE, LIVEWIRE TS, MORE POWER! LESS FUEL!, POWER FLASH, SCT, SCT LOGO, SCTFLASH, SF3, X3, X3 POWER FLASH, X4, and X4 POWER FLASH names and logos are either registered trademarks or trademarks of Derive in the United States and/or other countries.  Other logos, Product and company names mentioned herein may be the trademarks of their respective owners.  Derive is not responsible for content on websites operated by parties other than Derive.

If you are aware of an infringement of our brand, please let us know by emailing us at website@derivesystems.com.  We address only messages concerning brand infringement at this e-mail address.

DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”)

Derive respects the intellectual property of others, and we ask our users and visitors to do the same.  In accordance with the DMCA and other applicable law, Derive has adopted a policy of terminating, in appropriate circumstances and at Derive’s sole discretion, subscribers or account holders who are deemed to be repeat infringers.  Derive may also at 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 an account holder or subscriber is a repeat infringer, please provide information sufficient for us to verify that the account holder or subscriber is a repeat infringer when filing your notice.

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the Site’s designated agent (see below).  ALL INQUIRIES NOT RELEVANT TO OR NOT COMPLYING WITH THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE.  Derive will process and investigate notices (each, a “Notice”) of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws.  Upon receipt of notices complying with the DMCA, Derive will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Derive the following information in your Notice (to be effective, the Notice must include ALL of the following):

1. a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
2. a description of the copyrighted work that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Site;
4. your address, telephone number, and email address and all other information reasonably sufficient to permit Derive to contact you;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Notices of claimed copyright infringement should be directed to Derive’s designated agent: By mail:

Derive Systems, Inc.
4150 Church Street, Suite 1024
Sanford, Florida 32771
Attn: Website Enquiries

THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING DERIVE THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED.  ALL OTHER INQUIRIES, SUCH AS PRODUCT OR SERVICE RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ON PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.

COMMUNICATIONS DECENCY ACT NOTICE

Pursuant to 47 U.S.C. Section 230(d) (as amended from time to time), please be notified that parental control protections (such as computer hardware, software or filtering services) are commercially available to you that may assist you in limiting access to material that is harmful to minors.  Please be advised that Derive does not endorse any provider or any of the products or services made available by any provider.

NOTICE FOR CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact us by writing to:

Derive Systems, Inc.
4150 Church Street, Suite 1024
Sanford, Florida 32771
Attn: Website Enquiries
Telephone (407) 774-2447
Fax: (407) 260-6275

California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at:

1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
(916) 445-1254 or (800) 952-5210.

NO RECOMMENDATIONS OR ADVICE PROVIDED

Although information and User Content may be available through the Sites, you should not construe such information and content as expressing the opinions of or endorsement by Derive.  You alone bear the responsibility of evaluating any information or content available on the Sites.  In exchange for using such information or content, you hereby agree to release Derive from any claim and to not hold Derive liable for any possible claim for damages arising from any decision you may make based on information or content available on the Site.

MISCELLANEOUS

You warrant to Derive that you will not attempt to gain unauthorized access to any services offered by Derive or computer systems or networks connected to any Derive server through hacking, password mining or any other means.  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Derive.  When using the Site you agree not to pretend to be someone else or spoof their identity.

Derive controls the Site (excluding linked sites) from its offices in Sanford, Florida, United States of America, and makes no representation that any content contained in the Site is appropriate or available for use in other locations.  By accessing the Site you agree that the statutes and laws of the State of Florida, notwithstanding any principles of conflicts of law, will apply to all matters relating to the use of the Site and that if you use the Site from any other location you are responsible for compliance with applicable local laws.  Any claim relating to the Site shall be litigated in the state and federal courts having jurisdiction in the State of Florida and you hereby consent to the jurisdiction and venue of those courts.  If any part of the Terms is deemed unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.  Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.  The section titles herein are for convenience only and have no legal or contractual effect.

By using the Site, you agree that Derive, at its sole discretion, may require you to submit any disputes arising from the use of the Site, or the Terms concerning or, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance or termination, to final and binding arbitration under the International Rules of Arbitration of the American Arbitration Association, by one or more arbitrators appointed in accordance with the said Rules.  Notwithstanding these rules, however, such proceeding shall be governed by the laws of the state as set forth above.  Any award in an arbitration initiated under this clause shall be limited to monetary damages (as further limited herein) and shall include no injunction or direction to any party other than the direction to pay a monetary amount.  Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this section, except as may be required by statute.

You agree that you will not use the Site or any materials available herein for any unlawful activity, or use it in any way that would violate any of the Terms.  When applicable, you further agree, as a condition of using the Site, to ensure that all of your agents, employees and independent contractors adhere to the Terms.

© 2021 Derive Systems, Inc.  All rights reserved.