Last updated on November 2, 2021
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
We may alter the Materials and Services We offer or make available to You and/or choose to modify, suspend or discontinue this Website at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any modifications to these Terms by posting them on this Website and, if You have registered with Us, by describing the modifications to these Terms in an email that We will send to the address that You provided during registration. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration.
If You object to any such modifications, Your sole recourse shall be to cease using this Website. Continued use of this Website following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website (including the Seller Terms and Buyer Terms). These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
In addition, from time to time there may be information on the Website that contains typographical errors, inaccuracies, or omissions that may relate to Equipment descriptions, pricing, and other content provided on behalf of the Company, users, or Our partners. We reserve the right to correct any errors, omissions, or inaccuracies and to change or update information that is erroneous or inaccurate at any time without prior notice and without liability to the Company. However, the relevant Seller is solely and exclusively responsible for the accuracy and completeness of any Equipment description, pricing, photographs, video, and other content and User Submissions posted or provided by the Seller, and any errors, omissions, or inaccuracies related to such Equipment description, pricing, photographs, video, and other content and User Submissions.
By using this Website, You promise that You are at least 18 years of age
We invite You to use this Website for listing, viewing, selling, purchasing and conducting such other transactions as permitted through the Website with respect to, the Equipment for individual purposes ("Permitted Purposes") – enjoy!
In these Terms we are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials. Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Website or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If You make copies of any of this Website while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Website.
Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
USING THIS WEBSITE AND THE WEBSITE’S SERVICES.
We appreciate You visiting this Website and allow You to do just that – stop by and leisurely check it out without even registering with Us!
However, in order to list and offer Equipment for sale on the Website as a Seller, to purchase Equipment listed and offered for sale on the Website as a Buyer, and to use certain Services and Materials offered on and through this Website, You must successfully register an account with Us.
If You want an account with Us, You must submit the following information through the account registration page on this Website:
- A working email address;
- First and last name;
- Zip code
- Preferred password
- For sellers: physical address for Equipment pick up.
You may also provide additional, optional information so that We can provide You a more customized experience when using this Website –but, We will leave that decision with You. Once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. If approved, You will be sent an e-mail detailing how to complete Your registration. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password – no worries as We will happily send a password update to Your provided email address.
You are responsible for complying with these Terms when You access this Website, whether directly or through any account that You may setup through or on this Website. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s). Should You believe Your password or security for this Website has been breached in any way, You must immediately notify Us.
EQUIPMENT SALES AND PURCHASES
As part of the Services offered in connection with the Website, You may be permitted to use the Website to sell Equipment as a “Seller” or to purchase Equipment as a “Buyer”. You must be 18 years of age to sell Equipment to a Buyer or to purchase Equipment from a Seller. You understand and agree that we merely provide the Website and are not a party to any transaction regarding the purchasing or selling of Equipment and We cannot and will not be responsible for making sure that the Equipment is actually provided or is up to a certain standard of quality. We do not control the actions of any Sellers or Buyers, and Sellers are not our employees or contractors. You hereby acknowledge that We do not supervise, direct, control or monitor the Sellers in their handling or selling of Equipment. If You are a Buyer, You agree to indemnify Us for any losses related to Your purchase or use of Equipment. If You are a Seller, You agree to indemnify Us for any losses related to (i) Your handling, listing, advertising and sale of Equipment, or (ii) the Materials You provide to Us for inclusion on Our Website. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO THE EQUIPMENT TRANSACTIONS AND YOU RELEASE US FROM ANY LIABILITY RELATED THERETO OR RELATED TO EQUIPMENT PURCHASED OR SOLD ON OR THROUGH THE WEBSITE, AND WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR WARRANTY RELATING TO THE EQUIPMENT, SELLERS’ ACTS OR OMISSIONS OR BUYERS’ ACTS OR OMISSIONS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
If there is a dispute between participants on the Website or Services, or between users and any third party, You agree that We are under no obligation to become involved. In the event that You have a dispute with one or more other users, You release Us, Our directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Website or Our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to pay all applicable fees related to Your use of this Website and Our Services, including without limitation Your listing, or the inspection, sale, purchase, and transportation of Equipment as a Seller or Buyer, as applicable. Such fees are described more fully on Our PAYMENT PAGE and in the SELLER TERMS and BUYER TERMS. We may suspend or terminate Your account and your ability to sell or purchase Equipment listed on the Website and/or Your access to Our Services and this Website if Your payment is late and/or Your offered payment or payment method cannot be processed. By providing a payment method, You expressly authorize Us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular utilized services.
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and We sometimes provide links on this Website to third-party websites, including, but not limited to, links to escrow.com for escrow payment services and links to trusteddispatch.com for optional transportation services. If You use these links, You will leave this Website. We are not obligated to review any third-party websites that You link to from this Website, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations or warranties about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from transacting with or using them. If You decide to access any of the third-party websites linked to from this Website, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of this Website may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure Your privacy settings in that third-party website account to permit Your activities on this Website to be shared with Your contacts in your third-party site account. We disclaim all liability with regard to Your access and use of such third-party websites, information, software, products, services, materials, or transactions with such third-party websites or other parties.
Certain areas of this Website (e.g., blogs, message or chat boards, listings or ratings and review areas) may permit You to submit questions, responses, feedback, information, listings, descriptions, content, data, text, photographs, videos, software, messages, or other materials (each, a "User Submission"). You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary, and You represent and warrant that you have all rights necessary to contribute, in any manner, the User Submission to the Website. We do not guarantee that You will be able to edit or delete any User Submission You have submitted. Further, We are not liable for any errors or omissions in any User Submissions submitted or posted to the Website or for any damages or loss You might suffer in connection with such User Submissions or any actions You may take as a result of having been exposed to User Submissions.
By submitting any User Submission, You are promising Us that:
• You own all rights in Your User Submissions (including, without limitation, all rights to the reproduction, performance and display of Your User Submissions) or, alternatively, You have acquired all necessary rights in Your User Submissions to enable You to grant to Us the rights in Your User Submissions as described in these Terms;
• You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submissions;
• Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
• You voluntarily agree to waive all "moral rights" that You may have in Your User Submission;
• Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading;
• Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
• Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
• You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;
• Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);
• Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
• Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and
• Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
• Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
• Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
• Display advertisements in connection with Your User Submissions and to use Your User Submissions for advertising and promotional purposes.
We cannot and do not review all User Submissions submitted or listed by You or others and We are not responsible for any User Submissions submitted by You or others on or through the Website. We may, but are not obligated to, review or pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your User Submission to any third party absent any obligation of confidence on the part of the recipient.
Further, We are not a party to, make no representations or warranties as to, and have no responsibility or liability in connection with or with respect to any communications, transactions, interactions, disputes or relations whatsoever between You and any other user or entity, including without limitation between Buyers and Sellers. You are solely responsible for your interactions with other users of the Website and the Services and any other parties with whom You interact through the Website and the Services, and for conducting or arranging for any necessary, prudent, appropriate or desirable investigation, inquiry, inspection, research and due diligence in connection with and with respect to Your communications, transactions, interactions, disputes and relations.
To be clear, We authorize Your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between You and Us, all rights in this Website remain Our property.
Unauthorized use of this Website may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
• For any public or commercial purpose which includes use of this Website on another site or through a networked computer environment;
• In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
• In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
• To stalk, harass, or harm another individual;
• To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
• To interfere with or disrupt this Website or servers or networks connected to this Website;
• To use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or
• Attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation or Your use of the Website. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.
"AgSilo" is a trademark that belongs to Us. Other trademarks, names and logos on this Website are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are Our sole property, Copyright © 2021 Bucko Brands dba AgSilo. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We may remove User Submissions that violate intellectual property rights of others, suspend access to this Website (or any portion thereof) to any user who uses this Website in violation of someone’s intellectual property rights, and/or terminate in appropriate circumstances the account of any user who uses the this Website in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, 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 Your copyright or other intellectual property right is being infringed by a user of this Website, please provide written notice to Our Agent for notice of claims of infringement:
Attn: United States Corporation Agents, Inc.
221 N Broad St., Suite 3A, Middletown, DE 19709
To be sure the matter is handled immediately, Your written notice must:
• Contain Your physical or electronic signature;
• Identify the copyrighted work or other intellectual property alleged to have been infringed;
• Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
• Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
• Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
• Contain a statement that the information in the written notice is accurate; and
• Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in Our sole discretion, to terminate the account or access of any user of this Website or Service who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THIS WEBSITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, THE SERVICES, AND EQUIPMENT, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR OTHER WARRANTIES OR CONDITIONS ARISING FROM COURSE OF DEALING, USAGE, TRADE OR CUSTOM.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE, THE SERVICES, OR THE EQUIPMENT ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that this Website, the Services or the Equipment will meet Your requirements or that this Website or the Services will be uninterrupted, timely, secure, or error free or that defects in this Website or the Services will be corrected. We make no warranty as to the results that may be obtained from the use of this Website, the Services or the Equipment or as to the accuracy or reliability of any information obtained through this Website. No advice or information, whether oral or written, obtained by You through this Website or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
LIMITATION OF LIABILITY.
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE, YOUR USE OF THE WEBSITE, ANY EQUIPMENT MADE AVAILABLE OR OFFERED FOR SALE OR SOLD ON OR THROUGH THE WEBSITE, YOUR PURCHASE OR SALE OF ANY EQUIPMENT OR SERVICES, OR YOUR USE OF ANY THIRD-PARTY WEBSITES OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’S MAXIMUM AGGREGATE LIABILITY EXCEED THE GREATER OF $100 AND THE FEES YOU PAY THE COMPANY FOR SERVICES OR IN CONNECTION WITH THE WEBSITE. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL APPLY WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
LOCAL LAWS; EXPORT CONTROL.
We control and operate this Website from Our headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If You use this Website outside the United States of America, You are solely responsible for following applicable local laws.
NO AGENCY OR PARTNERSHIP.
No agency, partnership, joint venture, or employment is created as a result of these Terms or Your use of any part of the Website or Services. You do not have any authority whatsoever to bind Us in any respect. The parties agree that Company is a technology company whose primary business is connecting potential Buyers with Sellers. Neither We nor any users of the Website or the Services may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, mail, Fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision, which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at firstname.lastname@example.org the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at email@example.com the following information: (1) Your name; (2) Your address; and (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either Los Angeles, California or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge or Jury in Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms You and We are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Website. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.
We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to this Website without prior notice to You. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in Kern County, California. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Website. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CALIFORNIA CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website and Services are provided by the Company. If You have purchased anything through the Website, a description of what You have ordered and relevant pricing information are posted as part of the ordering process on this Website (please consult Your individual order confirmation e-mail for the charges You incurred). If You have a question or complaint regarding the Website or Services, please contact Customer Service at firstname.lastname@example.org.. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at email@example.com.