Website Terms of Use

Last Updated: August 31, 2020

1. Introduction

These Website Terms of Use (“TOU”) set forth the terms on which Hawthorn River, LLC (“Hawthorn River,” “we,” or “us”) makes available the Hawthorn River website. Your access to and use of the website is also subject to our Privacy Policy located at https://www.hawthornriver.com/privacy. By accessing or using the website, whether on a computer, a mobile phone, or from any other device, you consent to our Privacy Policy and acknowledge that you have read, understand, and agree to be legally bound by these TOU.

2. Acceptable Use of Website

The website is made available for informational purposes only to learn about Hawthorn River and the products and services that we offer. We grant you a personal, non-exclusive, non-transferable license to access and use the website in furtherance of the foregoing, and for no other purpose.

Certain areas of this website are private. You may not access or use any private or restricted-access areas unless expressly authorized by Hawthorn River. Your login credentials for accessing private and restricted-access areas of the website may be used by you only, and may not be shared with any other individuals. You are solely responsible for selecting, changing, and maintaining the security of your login credentials and account information, and for all activity that occurs under your account. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your login credentials.

3. Prohibited Activities

You may not, and agree that you will not, access or use the website: (i) to submit information that is intentionally or knowingly false, misleading or inaccurate; (ii) for advertising, promotional, data aggregation, or other commercial purposes; (iii) to impersonate a representative of Hawthorn River or any other person or entity; (iv) to transmit “spam” or other unsolicited mass mailings or communications; (v) via automated means, including but not limited to scripts, spiders, robots, crawlers, or data mining tools; (vi) to gain unauthorized access to any networks, equipment, software or data; (vii) to engage in any activity that is illegal, unsafe, harassing, offensive, obscene, discriminatory, invasive of another's privacy, or endangering of minors in any way; (viii) to engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the website; (ix) to infringe, misappropriate, or violate the copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, rights of privacy or publicity, or other rights of any person or entity; or (x) to violate any contractual, fiduciary or other legal duty or obligation.

We reserve the right to terminate your use of the website if you violate these TOU or use the website in a manner for which it is not intended to be used, and to report to appropriate law enforcement, governmental authorities and other third parties any activities that we, in good faith, believe to be harmful or unlawful, with or without providing notice to you.

4. Proprietary Rights

Hawthorn River and its suppliers reserve all right, title and interest in and to the website, including without limitation all domains and sub-domains, the design, layout, graphics, content, programming and “look and feel,” all databases, information and compilations of information, and all copyrights, trademarks, service marks, goodwill, and other intellectual property rights. From time to time, you may provide us with suggestions, ideas or other feedback concerning the website or our services. By providing feedback, you authorize us to use, disclose and otherwise act on (or choose not to act on) such feedback without compensation to you or proprietary, confidentiality or other restrictions of any kind.

5. DISCLAIMER

THE WEBSITE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL USE OF THE WEBSITE IS “AT YOUR OWN RISK.” HAWTHORN RIVER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HAWTHORN RIVER DOES NOT REPRESENT OR WARRANT THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT INFORMATION CONTAINED ON THE WEBSITE WILL BE ACCURATE, COMPLETE OR UP-TO-DATE.

6. Links to Third Party Sites

The website may contain links to Internet or mobile sites not owned or operated by Hawthorn River, including to sites featuring organizations, services or news that may be of interest, and to pages that we maintain on Linked In, Facebook or other social media platforms. The inclusion of these links should not be construed as an affiliation, sponsorship or endorsement. When you access a third party Internet or mobile site, you do so at your own risk. We assume no responsibility or liability for any information, products or services available on or through any third party Internet or mobile site, or for any actions taken by you or others in connection therewith.

7. Indemnification

You agree to indemnify, defend and hold Hawthorn River harmless from and against any and all claims, demands, actions, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including reasonable attorneys’ fees and legal costs) arising out of or resulting in whole or in part from your violation of these TOU, your misuse of the website, your actual or alleged violation of any applicable law or the rights of another person or entity, and/or any claim or allegation that we are jointly, severally, contributorily or vicariously liable or otherwise responsible, in whole or in part, in connection therewith.

8. LIMITATIONS ON LIABILITY

IN NO EVENT WILL HAWTHORN RIVER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THESE TOU, THE PRIVACY POLICY, THE WEBSITE, OR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE THEREON. THE TOTAL CUMULATIVE LIABILITY OF HAWTHORN RIVER ARISING OUT OF AND RELATED TO THESE TOU, THE PRIVACY POLICY, THE WEBSITE, AND ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE THEREON WILL NOT EXCEED THE GREATER OF THE FEES (IF ANY) PAID BY YOU TO HAWTHORN RIVER TO ACCESS AND USE THE WEBSITE IN THE THREE MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR TEN DOLLARS ($10). THE LIMITATIONS ON LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXISTENCE OF MORE THAN ONE CLAIM OR SUIT WILL NOT EXPAND THIS LIMITATION. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THESE TOU, AND WILL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

Some jurisdictions do not permit the disclaimer of certain warranties or limitations on certain liabilities. If you reside in such a jurisdiction, you may have additional legal rights that cannot be disclaimed by contract, and the disclaimers and limitations on liability in these TOU will apply only to the extent permitted under applicable law.

9. Hawthorn River Customers and Business Partners

If you are a customer or business partner of Hawthorn River, you and we may have a separate legal contract that governs our relationship. Nothing contained in this Privacy Policy is intended or shall be construed to alter, supplement, or amend that legal contract, or to confer any additional rights or impose any additional obligations on either party under that contract.

10. Changes to These Terms of Use

We reserve the right to amend these TOU from time to time, in our sole discretion, including without limitation as necessary to comply with applicable law. Any such amendments will be effective when posted by us on the website or otherwise made available to you.

11. Miscellaneous

Governing Law. The website is hosted and operated in the United States of America. These TOU and the relationship between you and us relating to your access to and use of the website will be governed by and interpreted for all purposes in accordance with the laws of the State of Missouri, USA, without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction.

Jurisdiction and Venue. Any dispute, action or proceeding arising out of or related to these TOU, the Privacy Policy or the website will be commenced in the state courts of St. Louis County, Missouri or, if proper and exclusive subject matter jurisdiction exists, the U.S. District Court for the Eastern District of Missouri. You hereby consent to the exclusive personal jurisdiction and venue of such courts and waive any objections thereto, including without limitation any objection based on forum non conveniens; provided, however, the foregoing will not prevent Hawthorn River from seeking temporary or permanent injunctive or other equitable relief or compelling your indemnification obligations in any court of competent jurisdiction.

Notices. All notices under these TOU will be in writing, and will be delivered either personally, by email, or by postage prepaid registered or certified mail, return receipt requested. Notices to you may be delivered to the most current address on file. Notices to us should be directed to the attention of our Legal Department at our then-current headquarters address.

Assignment. You may not assign or transfer these TOU, or any rights or duties hereunder, in whole or in part, without our prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void from the beginning and without effect. We may assign or transfer these TOU and our rights and duties hereunder, in whole or in part, with or without notice to you, including to an affiliate or to a successor in connection with our merger, acquisition, corporate reorganization, or sale or other transfer of all or any part of our business or assets.

Third Party Beneficiaries. The disclaimers, limitations on liability and indemnification protections for Hawthorn River in these TOU are intended and will be construed to extend to Hawthorn River, its directors, officers, principals, members, employees, agents and affiliates. All references to us in connection therewith will be deemed to include such persons and entities as third party beneficiaries entitled to accept all benefits afforded thereby. Subject to the foregoing, nothing in these TOU, express or implied, is intended or will be construed to give any third party any rights or remedies under or by reason of these TOU.

Interpretation. If any provision of these TOU is determined to be unenforceable under applicable law, such provision will be interpreted or amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from these TOU if such interpretation or amendment is not possible, and the remaining provisions of these TOU will continue in full force and effect. The captions and section headings in these TOU are for reference purposes only, and will not affect the meaning or interpretation of these TOU. The term “including” means “including without limitation.” The terms “herein,” “hereunder,” “hereto,” “hereof,” and similar variations refer to these TOU as a whole, rather than to any particular section.

Amendment; Waiver. Excluding our right to post updates to these TOU from time to time in our sole discretion, as set forth above, any amendment to these TOU or waiver of any obligation, right or remedy hereunder must be in writing and signed by an authorized representative of each party.

Entire Agreement. These TOU (as amended) set forth the entire agreement of the parties and supersede all prior and contemporaneous agreements and understandings, whether written or oral, concerning the subject matter hereof. Any conflicting or supplementary terms proposed by you in any email, attachment or other writing will not be binding on us, and are hereby objected to and expressly rejected.