Updated Date: December 1, 2021
THESE SITE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Welcome to www.sharkjockey.com (the “Site”), which is provided by Shark Jockey, (“we”, or “us”) in order to enable our valued customers (“you” for the purpose of these Terms & Conditions (our “Terms”)) to learn about and purchase certain products, services, and merchandise, including digital downloads and access to online courses (our “Products”).
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES.
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS. IF YOU ARE ACTING ON BEHALF OF A COMPANY OR ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY.
1. The Service; Purchases.
B. All purchases of products and/or services via the Service are governed by the Terms and Conditions of Sale available at https://sharkjockey.com/terms-and-conditions, which are hereby incorporated by reference into this Agreement.
2. Acceptable Use Policy.
A. You agree that (i) you will use the Service solely for your own, non-commercial, personal use in accordance with this Agreement and in accordance with any specific rules or usage provisions specified by us on the Service, (ii) all information supplied by you to us will be true, accurate, current and complete, (iii) you may receive electronic communications (e.g., e-mail notices) from us from time to time, and (iv) you will review the latest version of this Agreement posted on the Service from time to time to check for amendments that may apply to you. We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without liability.
B. You acknowledge and agree that your use of the Service, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to back-up such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Service for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of this Agreement and/or any rule or policy of ours and/or any local, state, or federal law or regulation.
C. You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including any loss or damage which we may suffer) of any such breach.
D. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings.
E. If you provide a mobile phone number at the time you create an Account, you warrant and represent to us that you are either the account owner of any mobile or residential phone numbers you provide to the Company, or you have the express permission of the account holder to provide such numbers (“Provided Numbers”). You expressly consent that we may call any Provided Number or text any Provided Number with account, marketing and advertising messages made using an automatic telephone dialing system or an artificial or prerecorded voice. You also understand that consent to receive calls and text messages is not a requirement for your use of the Site. You may revoke your consent at any time.
F. You will not use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties;
G. You will not use the Service for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, libelous, lewd, libelous, obscene, pornographic, threatening, or tortuous material, or any false or misleading material, or any other material (including links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful;
H. You will not permit or otherwise enable unauthorized users to access and/or use the Service.
Furthermore: The client agrees to bear all risk of loss after purchase and for any loss of content they have used on their website or platforms, including any loss due to a computer or hard drive crash, virus, malware, bug, or faulty backup. All clients are encouraged to backup their own websites, products, blogs, data, purchases, customer information, and other important resources on their OWN networks. Clients accept responsibility for the information that is critical to them at all times and understand that even if backups are in place by Shark Jockey, this does not necessarily mean that all information can be saved in the event of an emergency or unforeseen virus.
Lastly, the client accepts responsibility for all users added by the client AND users added by those representatives knowingly or unknowingly. Any changes to the website, content, payment systems, functionality, or other infrastructure made by the client and its representatives (or additional users) are NOT covered by the protections of Shark Jockey. The client understands and agrees that Shark Jockey Digitial and its representatives and partners cannot be held responsible for actions taken by the client and/or the client’s representatives. This holds true regardless of if these actions are known or unknown, or occurred before, during, or after the program the client is paying for. The client understands that Shark Jockey will attempt to help if issues occur on the website, but understands additional invoices and payment might be required to fix, change, adapt, upgrade, or edit items that occur due changes made by the client, its representatives, or changes to the software, plugins, widgets, themes, or other components of the hardware and software installed on the website or other platforms being utilized.
I. You will not use the Service to export software or data in violation of applicable U.S. laws or regulations;
J. You will not sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose (except as expressly permitted by us in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service;
K. You will not remove any copyright, trademark, patent or other proprietary notices from the Service;
L. You will not distribute, publish, exhibit, or otherwise use the Service, in any manner and for any purpose not expressly permitted under this Agreement;
M. You will not frame or utilize framing techniques to enclose the Service, or any portion thereof;
N. You will not exploit the Service or collect any data incorporated in the Service in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
O. You will not register as a user of the Service by providing false, inaccurate, or misleading information;
P. You will not post hyperlinks to commercial services or Sites;
Q. You will not impersonate any person or entity, including, but not limited to, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity;
R. You will not collect personal data about other users of the Service for commercial or any other purposes;
S. You will not post irrelevant Content (as defined in Section 6 below), repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
T. You will not attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service);
U. You will not make available Content (as defined in Section 6 below) that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement, except to the extent such Content is provided to you by us or one of our affiliates for a purpose specifically authorized by us in writing; and
V. You will not create or attempt to create multiple user accounts.
3. Products. We take pride in our Products and try to be accurate in our descriptions. However, we do not warrant that our Product descriptions are 100% accurate, complete, reliable, current, or error-free. If a Product is not as described, your sole remedy is to return it in unused condition for a full refund. Except where noted otherwise, the price displayed for Products is the full retail price. It does not include any applicable sales or other taxes that we may be required to collect.
4. Access to the Service; Reservation of Rights.
A. We hereby give you a personal, worldwide, non-assignable and non-exclusive right to access and use the Service in the manner and for the purposes expressly permitted by the Agreement. We also hereby grant you a limited, revocable, and non-exclusive right to create a hyperlink to the Site or subdomains thereof so long as the link does not portray us, our affiliates, or products or services provided by us or our affiliates in a false, misleading, derogatory, or otherwise offensive manner in our sole judgment. You may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service and any such attempt shall be null and void at the time of such attempt.
B. We reserve all right, title and interest in and to the Service not expressly granted to you under this Agreement. There are no implied licenses under this Agreement.
5. User Content.
A. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Service are the sole responsibility of the person from which such User Content originated. All such information is referred to as “User Content”.
B. You acknowledge that User Content presented to you as part of the Service may be protected by intellectual property rights which are owned by the persons and/or entities that provide that User Content to us (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this User Content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that User Content, in writing.
C. We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all User Content.
D. You understand that by using the Service you may be exposed to User Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
E. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any User Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which we may suffer) by doing so.
6. Intellectual Property.
A. You understand and agree that we own, or (where required, appropriate, or applicable) have licensed, all right, title and interest in and to the Site, including the features, materials, opportunities and services made available on or through the Site, and all information, text, data, graphics, Product images, sound recordings, audio and visual clips, logos, software and all other materials contained therein, and the compilation, collection, design, selection and arrangement thereof (collectively, the “Content”). You acknowledge that the Content constitutes valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws and treaties of the United States and other countries, and that you acquire no ownership interest by accessing and using the Site and the Content. Such intellectual property and proprietary rights may include, but are not limited to, various patents, copyrights, trademarks and service marks, registered trademarks and service marks, trade dress protection and trade secrets, and all such rights are and shall remain the property of us or our licensors and content-providers. You may not reproduce, modify, copy, frame, publish, display, post, transmit, download, sell, create derivative works from, or distribute any Content, or any portion thereof, without the express prior written permission of us, except as indicated within these terms.
B. All Shark Jockey brands are trademarks of Shark Jockey and may not be copied, imitated, or used, in whole or in part, without our prior written permission. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks, or trade dress of Shark Jockey or its affiliates or licensors and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Other trademarks, product names and company names and logos displayed on the Site are the property of their respective owners.
C. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)), we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe a copyright is being infringed by a user of the Site, please provide written notice to our designated agent for notice of claims of copyright infringement at 13101 Magisterial Dr, Louisville, KY 40223, Suite 210 or by emailing email@example.com
D. Your written notice must:
contain your physical or electronic signature;
identify the allegedly infringing material in a sufficiently precise manner to allow us to locate the material;
contain adequate information by which we can contact you;
contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner’s agent, or the law; and
contain a statement that the information in the written notice is accurate.
7. Rights you grant to us.
A. You retain copyright and any other rights you already hold in User Content which you submit, post or display on or through, the Service.
B. By submitting, posting or displaying User Content, you give us a worldwide, perpetual, fully-sublicensable, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any User Content which you submit or post on or through the Service in any manner or media whatsoever, now known or hereafter developed.
C. By participating in any public forums made available in connection with the Service, you give us a right to: (i) record your voice by all means of recording technology (the results of which shall be deemed the “Recordings”); (ii) edit any such Recordings (in our sole discretion); and (iii) use such Recordings along with your name, photographs, and likenesses, in connection with the Service and our general business purposes, and all ancillary and subsidiary uses thereof, and all advertising and publicity therefor, and to exploit the Recordings and the public forum features and the Service in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity.
D. You agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully-paid up, royalty-free license to use the feedback you provide to us in any way.
F. You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you to us in connection with this Agreement and that we have no obligation to do so on your behalf.
G. Without limitation of the foregoing, in connection with User Content you submit, post or display via the Service, you affirm, represent, and warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use such User Content in the manner contemplated by the Service and this Agreement. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant us all of the license rights granted herein.
H. You understand that we may (i) transmit or distribute your User Content over various public networks and in various media; and (ii) make such changes to your User Content as are necessary to conform and adapt that User Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit us to take these actions.
I. You represent and warrant to us that you have all the rights, capacity, power and authority necessary to grant all of the above licenses.
J. You, the client, its representatives, partners, affiliates, influencers, and all other relevant members know, understand, and agree that Shark Jockey is a marketing agency with many other clients AND these clients might be within the same industry, geography, and market segment. It is understood that this insight helps clients create and adhere to best practices whenever possible.
9. Changes to Agreement. We reserve the right to change, amend and/or modify this Agreement, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Service or as otherwise provided by us. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of this Agreement. If you use the Service after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
10. NO WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, OR ANY OF THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
12. Release and Indemnification. You agree to release, indemnify and hold harmless us, our affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys’ fees, with respect to (i) your use or misuse of, or reliance upon, the Service, (ii) your violation of this Agreement or rights of another, (iii) the Recordings, and/or (iv) any User Content you make available through the Service. For the avoidance of doubt, this section shall survive the termination of this Agreement.
13. California Waiver. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
14. New Jersey Waiver. IF YOU ARE ACCESSING THE SITE FROM NEW JERSEY, YOU (I) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE; (II) IRREVOCABLY WAIVE ALL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SERVICE; AND (III) EXPRESSLY AGREE TO RELEASE AND DISCHARGE US , AND OUR AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITE, SITE CONTENT, ANY SERVICE OR ANY PRODUCTS; AND (IV) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST US FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON OUR PART AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
15. Term and Termination. This Agreement is effective until terminated by us or you. We shall have the right to terminate this Agreement including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. You may terminate this Agreement at any time by deleting your user account on the Service and discontinuing use of any and all parts of the Service. Upon termination of this Agreement for any reason, you shall immediately cease using the Service.
16. Governing Law and Venue for Disputes.
DISPUTE RESOLUTION; ARBITRATION; CHOICE OF LAW
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE SITE, CONTENT, ANY SERVICE OR ANY PRODUCTS, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SERVICE, OR YOUR AND OUR DEALINGS WITH ONE ANOTHER SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED BY JUDICIAL ARBITER GROUP, INC. (“JAG”) USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAG ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF JAG. IF JAG IS UNABLE OR UNWILLING TO ARBITRATE A DISPUTE, THEN THE DISPUTE MAY BE REFERRED TO ANY OTHER ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND WE AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE ARBITRATOR, YOU AND WE MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN LAS VEGAS, NEVADA. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. NEITHER YOU NOR WE WILL BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK OR THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS ON LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICE AND YOUR RELATIONSHIP WITH US. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG OR BY CALLING 800-778-7879.
IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE SERVICE OR SUBMIT THROUGH THE SERVICE A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS:
13101 Magisterial Dr, Louisville, KY 40223, Suite 210
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state or Federal courts in the Commonwealth of Kentucky, located in the city of Louisville, and you hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action. These Terms will be governed by the laws of the Commonwealth of Kentucky, without giving effect to any principles of conflicts of laws.
17. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
18. No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate this Agreement.
19. Communications by us. You agree that we may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on the Service, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
20. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter. All provisions that should by their nature survive the termination of this Agreement shall survive the expiration of this Agreement. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY US TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.