Use of the Site. Use of the Site is restricted to individuals who are either over the age of majority in their state, province, or territory of residence, or those between the ages of 13 and the age of majority in their state, province, or territory of residence who are acting with the permission of a parent or guardian. By using the Site or any of the services offered through the Site, you represent to ACN that you are in one of these age categories.
These Terms govern your use of the website features, products, and services available when you visit the Site. The Site is intended for users located in the United States and Canada. It is not intended for users located in other countries, including the European Union and the European Economic Area. By using this Site, you represent to ACN that you are not located in the European Union or the European Economic Area or otherwise subject to the protections of the General Data Protection Regulation (“GDPR”).
You hereby agree to abide by any and all laws, statutes, ordinances, rules and regulations concerning your use of the Site. As a condition of access to and use of the Site, you warrant to ACN that you will not access or use the Site for any purpose that is unlawful or prohibited by these Terms. ACN reserves the right to terminate accounts, terminate your rights to use ACN services, or remove or edit content, in ACN’s sole discretion.
To use some of the services available on the Site, you may need to create an account. In order to register, we will require that you provide certain information, which may include your name (not an assumed name), valid address, valid email address, and valid phone number. You are responsible for providing ACN with updated contact information. ACN will rely on the most recent information provided by you in order to contact you. Minors between the ages of 13 and 18 may not create an account and may only use an account owned by a parent or legal guardian with their permission and under their direct supervision.
You should take all reasonable steps to maintain the security of your account and password. You agree that you are solely responsible for any and all actions taken under your account or password. You agree to be financially responsible for all of your activity on the Site.
Mobile Site and Applications. Your access to and use of the Site may include access from your mobile phone or other device via mobile websites or the ACN app (the “Mobile Services”). ACN does not charge for this access, but your mobile carrier’s normal data, Internet, text messaging (SMS), and other service fees and charges apply to your use of, and access to, the Mobile Services. You are responsible for all charges and fees from your mobile carrier. Do not use the Mobile Services while driving. The Mobile Services may not be compatible with all mobile devices and carriers. If you have installed the Gemstone Discovery app on your mobile device, you may receive “push” messages from ACN even when the app is not active, unless you “opt out” of receiving such messages. You agree that ACN may communicate with you by SMS, MMS, or other electronic means and that certain information about your usage of the Mobile Services may be communicated to ACN. ACN does not guarantee that the Mobile Services will be available at all times or in all areas. Unfortunately, no data transmission via a mobile device can be guaranteed to be 100% secure; accordingly, you acknowledge that your use of the Mobile Services, including the transmission of personal information, is at your own risk.
Electronic Communications. When you utilize any services provided on the Site, you consent to receive communications from ACN electronically, such as e-mails, mobile push notices, or notices and messages on this Site and agree that all such communications we provide to you electronically satisfy any legal requirement that the communications be in writing.
Access and Interference. You agree that you will not take any action that imposes or may impose (in ACN’s sole discretion) a threat to ACN’s infrastructure; use any robot, spider, scraper or other automated means to access the Site for any purpose without ACN’s express written permission; or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site.
When you post content on or thorugh the Site, you grant ACN a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You further grant ACN the right to use the name that you submit in connection with such content. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify ACN for all claims resulting from content you supply. ACN does not have the obligation to monitor, edit, or remove any activity or content, but it reserves the right to do so at its election. ACN takes no responsibility and assumes no liability for any content posted by you or any third party.
Content on the Site. The text, images, logos, graphics, photographs, descriptions, illustrations, data and other material on the Site is the property of ACN or its content suppliers. Such content is protected under the copyrights, trademarks, service marks, and other proprietary rights that are owned by ACN or by third parties that have licensed their use to ACN. Your use of content made available on the Site is limited to your own personal, non-commercial use and for no other purpose. Any use, by you or anyone else authorized by you, other than that specifically authorized in these Terms or in writing by ACN is strictly prohibited without the prior written consent of ACN. Any unauthorized use may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. Nothing contained on the Site should be construed as granting, by implication or otherwise, any license or right to use any displayed trademark or service mark without the written permission of ACN or any third party that may own such trademarks or service marks.
Termination. ACN may, in its sole discretion, terminate operation of the Site or any portion thereof, or any services offered through the Site, or terminate any individual's right to access or use the Site at any time without notice to you, without any liability to you whatsoever. ACN may terminate or suspend access to your account or otherwise restrict your access to the services provided on ACN if we have reason to believe you have violated these Terms.
These Terms will survive termination of your use of the Site or the services offered on the Site if survival after termination is reasonably necessary to their intent. Surviving provisions include without limitation, the restrictions imposed on you with respect to intellectual property and provisions addressing disclaimers, indemnities, limitations of liabilities, governing law, venue, arbitration, class action and jury waivers, time limits on making claims, and dispute resolution.
Indemnity and Release. You agree to defend, indemnify and hold harmless ACN, its affiliates, employees, officers, directors, and agents from and against any claims, losses, damages, liabilities, costs, or demands, including reasonable legal fees (including attorney fees) and disbursements, arising out of or relating to your breach of these Terms or your access to or use (or misuse) of the Site or the services provided thereon.
Although ACN may take action to remove any content on the Site that violates these Terms, it is possible that you may encounter content that you find offensive or inappropriate during your use of the Site. ACN is not responsible for content posted by other users of the Site, and you release ACN from any and all liability relating to that content.
Disclaimer and Limitation of Liability. ACN MAKES NO WARRANTIES, REPRESENTATIONS, OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SITE, THE CONTENT, OR ANY LINKED WEBSITE, INCLUDING THE AVAILABILITY OF THE SITE OR THE CONTENT, INFORMATION, AND MATERIALS ON IT OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THAT CONTENT, INFORMATION, AND MATERIALS. ACN ALSO DOES NOT MAKE ANY WARRANTY, REPRESENTATION, OR ENDORSEMENT THAT YOUR ACCESS TO OR USE OF THE SITE OR ANY LINKED WEBSITE WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR ANY LINKED WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. WITHOUT LIMITING THE FOREGOING, THE SITE AND ALL CONTENT PROVIDED THEREON IS PROVIDED TO USERS "AS IS," WITHOUTANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTIBLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY, AS WELL AS WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE "AS IS" CONDITION OF CONTENT IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF 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. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL ACN, NOR OUR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, , LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, ARISING IN ANY WAY OUT OF ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE OR ANY LINKED WEBSITE OR ITS CONTENTS OR ARISING IN ANY WAY FROM ANY PRODUCT OR SERVICE SOLD OR PROVIDED ON THE SITE, EVEN IF ACN IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ACN’S LIABILITY EXCEED TEN DOLLARS AND NO CENTS (USD $10.00).
Applicable Law. These Terms shall be governed and construed according to the Federal Arbitration Act, federal law, and laws of the State of Tennessee, as applicable, without regard to conflicts or choice of law provisions; provided however, that state and federal class action rules shall not apply to any Claim between you and ACN. (“Claim” is defined below in the provision addressing arbitration.)
DISPUTE RESOLUTION AND ARBITRATION. UNDER THESE TERMS, EXCEPT WHERE PROHIBITED BY LAW, BOTH YOU AND ACN HAVE GIVEN UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM, EXCEPT AS SET OUT BELOW. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY ALSO BE UNAVAILABLE OR LIMITED IN ARBITRATION.
ARBITRATION. EXCEPT WHERE PROHIBITED BY LAW, ANY CONTROVERSY OR CLAIM EITHER PARTY MAY HAVE AGAINST THE OTHER, WHETHER PRE-EXISTING, PRESENT OR FUTURE, IN CONTRACT OR TORT OR OTHERWISE, ARISING OUT OF, ARISING UNDER OR RELATING IN ANY MANNER TO THESE TERMS, YOUR USE OF THE SITE, OR ANY SERVICES PROVIDED THEREON (EACH A “CLAIM”) SHALL BE SETTLED EXCLUSIVELY AND FINALLY BY INDIVIDUAL BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) USING THE AAA'S RULES AND PROCEDURES APPLICABLE TO CONSUMER DISPUTES. THE AAA’S RULES ARE AVAILABLE AT WWW.ADR.ORG OR BY CALLING 1-800-778-7879. ANY DECISION OR AWARD AS A RESULT OF ANY SUCH ARBITRATION PROCEEDING SHALL BE IN WRITING AND FINAL AND SHALL PROVIDE AN EXPLANATION FOR ALL CONCLUSIONS OF LAW AND FACT. THE ARBITRATOR SHALL BE EMPOWERED TO GRANT WHATEVER RELIEF WOULD BE AVAILABLE IN COURT UNDER LAW OR IN EQUITY AND SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTE RELATING TO ARBITRABILITY AND/OR ENFORCEABILITY OF THIS ARBITRATION PROVISON, INCLUIDNG ANY UNCONSCIONABILITY CHALLENGE OR ANY OTHER CHALLENGE THAT THE ARBITRATION PROVISION OF THESE TERMS IS VOID, VOIDABLE OR OTHERWISE INVALID. AN AWARD OF ARBITRATION MAY BE CONFIRMED IN A COURT OF COMPETENT JURISDICTION IN THE VENUE IN WHICH THE ARBITRATION IS CONDUCTED. SUCH ARBITRATION SHALL BE SPECIFIC TO YOU. PAYMENT OF ALL FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA'S RULES. ACN WILL REIMBURSE THOSE FEES FOR CLAIMS TOTALING LESS THAN $5,000.00 UNLESS THE ARBITRATOR DETERMINES YOUR CLAIMS ARE FRIVOLOUS.
CLASS ACTION WAIVER. EXCEPT WHERE PROHIBITED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO PARTICIPATE IN OR BRING ANY CLASS ACTION AGAINST ACN, EITHER IN ARBITRATION OR IN ANY COURT, AS A LEAD PLAINTIFF, CLASS REPRESENTATIVE, CLASS MEMBER, OR PRIVATE ATTORNEY GENERAL OR AS PART OF A CONSOLIDATED ACTION.
CERTAIN SMALL CLAIMS. FOR CLAIMS THAT DO NOT EXCEED $5,000 AND DO NOT INVOLVE A REQUEST FOR AN INJUNCTION OR OTHER EQUITABLE RELIEF, BOTH PARTIES RETAIN THE RIGHT TO SEEK ADJUDICATION IN A COURT IN THE COUNTY OR OTHER APPLICABLE LOCAL JURISDICTION OF YOUR RESIDENCE. EXCEPT WHERE PROHIBITED BY LAW, YOU WAIVE ANY RIGHT TO CONSOLIDATE OR OTHERWISE COMBINE YOUR CLAIM WITH ANY CLAIM(S) FILED BY OTHER PERSONS.
INTELLECTUAL PROPERTY DISPUTES. NOTWITHSTANDING LANGUAGE IN THESE TERMS TO THE CONTRARY, EITHER YOU OR ACN MAY FILE SUIT IN COURT TO ASSERT INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY.
EXCLUSIVE VENUE AND JURY TRIAL WAIVER. IN THE EVENT THE FOREGOING AGREEMENT TO ARBITRATE IS HELD TO BE UNENFORCEABLE BY ANY COURT OR ARBITRATOR, YOU AND ACN AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN KNOX COUNTY, TENNESSEE TO RESOLVE ANY CLAIM. YOU ALSO AGREE TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR INTELLECTUAL PROPERTY DISPUTES. IN EITHER SITUATION, WE BOTH AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL.
TIME LIMIT ON CLAIMS. EXCEPT FOR CLAIMS CONCERNING INTELLECTUAL PROPERTY AND INDEMNITY, YOU AGREE THAT ALL CLAIMS YOU HAVE AGAINST ACN MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES OR SUCH CLAIM OR CAUSE OF ACTION SHALL BE BARRED. (“CLAIM” IS DEFINED IN THE ABOVE SECTION ADDRESSING ARBITRATION.)
Intellectual Property Infringement. In accordance with the Digital Millennium Copyright Act (DMCA), ACN has designated an agent to receive notification of alleged copyright infringement occurring on the Site.
DMCA Notification Agent
Attn: ACN Legal Department
9600 Parkside Drive
Knoxville, Tennessee 37922
Contents of Notice
The DMCA requires that all notices of alleged copyright infringement be in writing. For ACN to act on your notice, you must be authorized to enforce the copyrights that you allege have been infringed. When informing ACN of an alleged copyright infringement, you should include the following information:
- Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a representative list of such works on that website.
- Describe the material that is claimed to be infringing and provide sufficient information to permit ACN to locate that material, including the name of the seller or store, if applicable.
- Provide your contact information, including an address, telephone number, facsimile number and, if available, an e-mail address.
- Certify or include a statement that you have a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law.
- Certify that the information that you have provided to ACN is accurate.
- Attest under penalty of perjury that you are authorized to enforce the copyrights that you allege have been infringed.
- Include your physical or electronic signature.
- ACN may not be able to act on your complaint promptly or at all if you do not provide this information.
REVISED: August 22, 2021