TERMS OF SERVICE AGREEMENT Effective Date: August 9, 2017 This Terms of Service Agreement (this “Agreement”) is a contract between you (“you” or “User”) and CSSM Reed LLC (“CSSM Reed”, “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.CuppingWarehouse.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all mobile applications that link to or reference this Agreement (together with the Site, the “Service”) whether provided by us or our Affiliates. “Affiliates” of CSSM Reed LLC include but are not limited to Reed Capital Enterprises LLC, Cupping Warehouse Inc., and MSSC Operations & Management, LLC,.
Subject to the conditions set forth herein, we may, in our sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Service after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement.
YOU UNDERSTAND THAT BY USING THE SITE OR SERVICE AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 13.4 OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SERVICE AFTER THE EFFECTIVE DATE.
1. DIGITAL SIGNATURE By visiting the Site and/ or making a purchase from us, you engage in our “Service”, and you are deemed to have executed this Agreement and the other Terms of Service electronically pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration or acceptance of the Terms of Service constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
2. CONSENT TO USE ELECTRONIC RECORDS In connection with the Terms of Service, you may be entitled to receive certain records from us or our Affiliates, such as invoices, receipts, contracts, notices, and communications, in writing. To facilitate your use of the Site and the Service, you give us permission to provide these records to you electronically instead of in paper form.
2.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT By engaging in and continuing to use our Service, you consent to electronically receive and access, via email or the Site, all records, notices and communications for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, for your convenience you may be provided the opportunity to establish an account (“Account”). If you elect to establish an Account, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting us at firstname.lastname@example.org. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Service, and you will no longer be permitted to use the Site or the Service. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 UPDATING RECORDS AND NOTICES In order to ensure that we are able to provide records, notices and communications to you electronically, (a) if you have registered for an Account, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting us at email@example.com or (b) if you have not registered, each time you visit the Site you agree that you have accessed and read all records and notices at that time existing on the Site.
2.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SERVICE To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system or device that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records, notices and communications we send to you electronically or that you access on the Site. By engaging in and continuing to use our Service, you represent that (i) you have read and understand the above consent to receive records and notices electronically or through the Site; (ii) you satisfy the minimum hardware and software requirements specified above; and (iii) your consent will remain in effect until you withdraw your consent as specified above. 3. ACCOUNTS
3.1 USER ELIGIBILITY You are not required to register for an Account. However, for your convenience you may be offered the opportunity to establish an Account. To use the Site or Service or to register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account or by using the Site or Service, you agree to (a) abide by this Agreement and the other Terms of Service and (b) be financially responsible for your use of the Site. We reserve the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Service upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in our sole discretion. You represent that you are a (a) citizen or resident of or (b) an organization formed and operated within the United States of America or Canada and that you are not an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Service.
3.2 ACCOUNT REGISTRATION; PROFILE By registering for an account, you will complete a User profile (“Profile”). You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location or your organization that is or becomes false or misleading. You agree not to register for more than one Account without express written permission from us. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
3.3 IDENTITY VERIFICATION When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business, if it is a separate legal entity. You authorize us, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your email address, subject to applicable law.
3.4 USERNAMES AND PASSWORDS When you register for an Account, you will be asked to choose a username and password for the Account (you can change your password at any time). You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize us to assume that any person using the Site with your username and password either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use any username or password of another User of the Site that you are not authorized to use and not to allow others who are not authorized to do so to use your Account at any time.
4. PAYMENT PROCESSING AND TERMS
4.1 IDENTIFICATION OF USER As part of the ordering process, you will provide identifying information (such as name, address, phone number, and email). If you elect to register an Account, you will also be required to provide a username and password.
4.2 PAYMENT METHODS NO BANKING, CREDIT CARD, DIGITAL WALLET OR OTHER FINANCIAL INFORMATION OF ANY KIND IS COLLECTED BY US. All ACH, debit card and credit card payments may from time to time be made through PayPal or Stripe. If digital wallet (Apple Pay and Android Pay) credit and debit card payments are accepted, they will be made through Stripe. Stripe, PayPal and any other entity which from time to time processes payments on behalf of us are individually referred to herein as a “Payment Processor” and together as “Payment Processors”.
4.3 PAYMENT PROCESSING Prior to placing an order, you should first view your cart to verify the items and quantities you want to purchase. When you proceed to checkout, you must enter your billing and shipping addresses, then you will be directed to proceed to the web site of the Payment Processor. These procedures assure that our servers do not have access to your financial information. By clicking on the Payment Processor link from the Site, you agree to be bound by its terms of service (the PayPal User Agreement or the Stripe Services Agreement, as applicable) then in effect.
4.4 US DOLLARS AND FOREIGN CURRENCY CONVERSION The Site and the Service operate only in the United States and in U.S. Dollars. If a Payment Processor accepts payment which is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Payment Processor will charge your payment method in U.S. Dollars and your payment method provider will convert the payment at a foreign currency conversion rate selected by your payment method provider. Your authorization of a payment which requires foreign currency conversion is at your sole risk. We and our Affiliates are not responsible for currency fluctuations that occur when a Payment Processor bills a payment method denominated in a currency other than U.S. Dollars. We and our Payment Processors are not responsible for currency fluctuations that occur when receiving or sending payments to and from the payment processing systems of the Payment Processors.
5. COMMUNICATIONS FROM YOU TO US All notices to us or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: CSSM Reed LLC, 122 Seascape Blvd., Unit 1001, Miramar Beach, FL 32550; or (c) in writing via email to firstname.lastname@example.org. All such notices are deemed effective upon actual receipt by us. We do not accept service of any legal process by email or mail; all such service should occur by hand delivery on us or our registered agent for service of process.
6. LICENSES AND THIRD-PARTY CONTENT
6.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS Subject to and conditioned on compliance with the Terms of Service, we grant you a limited license to access and use the Site for the purpose of using the Service. You must not access (or attempt to access) the Site or Service by any means other than the interface provided, and you will not use information from the Site or Service for any purposes other than the purposes for which it was made available. You agree not to use the Site or Service for offering any goods or services. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Service in any way for any public or commercial purpose without our prior written consent. You must not use any content of the Site or Service on any other website or in a networked computer environment for any purpose except your own viewing without our prior written consent. You must not frame or link to the Site or Service except as permitted in writing by We. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Service unless expressly permitted by applicable law. You will not access the Service in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Service. We and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Service. The CuppingWarehouse logo and name are trademarks of Reed Capital Enterprises LLC and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Service may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of our or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
6.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of us and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account information, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services. Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or is designed to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of We or any third party or is designed
6.4 THIRD-PARTY SERVICES The Site may make utilize various services provided by third parties. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of us. We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than us or our authorized employees acting in their official capacities. 6.5 LINKS AND APPLICATIONS The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that we are not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
6.6 MOBILE AND OTHER DEVICES We may from time to time provide mobile applications. When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
6.7 SITE UPDATES We may from time to time in our sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Service or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. We reserve the right, at any time, to modify, suspend, or discontinue Service or any part thereof without notice. You agree we will not be liable to you or any third party for any modification, suspension, or discontinuance of Service or any part thereof.
7. WARRANTY DISCLAIMER YOU AGREE NOT TO RELY ON THE SITE, THE SERVICE, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SERVICE, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHER TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 8. LIMITATION OF LIABILITY We are not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Site, the Service or the Terms of Service, including, but not limited to: your use of or your inability to use the Site or Service; delays or disruptions in the Site or Service; viruses or other malicious software obtained by accessing, or linking to, the Site or Service; glitches, bugs, errors, or inaccuracies of any kind in the Site or Service; damage to your hardware device from the use of the Site or Service; the content, actions, or inactions of third parties’ use of the Site or Service; a suspension or other action taken with respect to your Account; and your need to modify practices or behavior as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL WE, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. RELEASE You hereby release us, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release will not apply to a claim that we failed to meet our obligations under the Terms of Service.
10. INDEMNIFICATION You will indemnify, defend, and hold harmless us, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Service by you or your agents, including any payment obligations incurred through use of the Service; (b) any transaction entered into through the Service by you or your agents; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
11. AGREEMENT TERM AND TERMINATION (a) The Terms of Service, as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Service. Unless both you and we expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open transactions on the Site when you terminate this Agreement, you will continue to be bound by this Agreement and the other Terms of Service until all such transactions have been completed and (b) we will continue to perform those Services necessary to complete any open transactions. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you us from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason. (b) Without limiting our other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Service to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or us or our Affiliates, or may involve illicit activity. If your access or Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without our prior written consent.
12. SURVIVAL After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, protecting intellectual property, indemnification, and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
13. CANCELLATIONS, REFUNDS, AND DISPUTES 13.1 DISPUTE PROCESS AND SCOPE If a dispute arises between you and us or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, we, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, or the Service (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any transaction, any payments or monies you claim are due to you from us or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with us or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision. You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
13.2 CHOICE OF LAW This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of law provisions.
13.3 INFORMAL DISPUTE RESOLUTION Before serving a demand for arbitration of a Claim, you agree to first notify us of the Claim at 122 Seascape Blvd., Unit 1001, Miramar Beach, FL 32550 or by email to firstname.lastname@example.org, and we agree to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent Account and/or transaction information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from us must include pertinent account and/or transaction information, a brief description of the Claim, and our contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both parties will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
13.4 MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) applies to all Users. In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, we, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
A. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION Arbitration as provided in this Arbitration Provision is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with us ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator. Except as otherwise provided herein, arbitration will be conducted in Walton County, Florida in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person. You and we will follow the applicable JAMS rules with respect to arbitration fees. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Either you or we may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter. Regardless of any other terms of this Arbitration Provision, a Claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the Claim notwithstanding the existence of this agreement to arbitrate. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration, if any.
B. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and we agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
C. CLASS ACTION AND JURY TRIAL WAIVER This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and we agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding (“Class Action Waiver”). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. We may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
D. RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to CSSM Reed LLC, 122 Seascape Blvd., Unit 1001, Miramar Beach, FL 32550 that includes (a) your account username (if applicable), (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
14. GENERAL 14.1 ENTIRE AGREEMENT This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and us relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though we drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or us because of the authorship of any provision of the Terms of Service.
14.2 COMPLIANCE User will not violate any applicable foreign, federal, state, or local laws or third party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
14.3 MODIFICATIONS No modification or amendment to the Terms of Service will be binding upon us unless in a written instrument signed by a duly authorized representative of us. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section
14.3 (Modifications) does not apply to amendments to the Terms of Service posted by us to the Site from time to time.
14.4 NO WAIVER The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
14.5 ASSIGNABILITY User may not assign the Terms of Service, or any of its rights or obligations hereunder, without our prior written consent in the form of a written instrument signed by a duly authorized representative of us (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). We may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
14.6 SEVERABILITY If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.7 FORCE MAJEURE The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate.
14.8 COMMUNICATIONS DECENCY ACT. We are not liable for any defamatory Content posted on the Site by any User or third party. Although we may choose to edit or delete any clearly defamatory Content, we are not required to do so, and we reserve all defenses for such speech made available to us by Section 230 of the Communications Decency Act, applicable statutes, the common law, and the First Amendment to the Constitution of the United States of America. If you are considering attempting to circumvent these defenses by filing suit against us in another country for Content that a third party has posted to the Site, we recommend that you review the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act as passed by the United States Congress, which makes foreign libel judgments unenforceable in U.S. courts, unless those judgments comply with the First Amendment to the Constitution of the United States of America.
14.9 PREVAILING LANGUAGE AND LOCATION The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States. We make no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
15. CONTACTING US If you have questions or need assistance, please contact us at email@example.com.