TERMS AND CONDITIONS OF SALE; TERMS AND CONDITIONS OF USE;
OWNERSHIP OF SITE; AGREEMENT TO TERMS AND CONDITIONS OF USE
Optimum Nutrition, Inc. (“ON,” “Company” or “we”) provides you access to and use of the Service (as defined below) subject to these Terms and Conditions (the “Terms”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEB SITE LOCATED AT WWW.OPTIMUMNUTRITION.COM AND ALL ASSOCIATED WEB SITES LINKED TO WWW.OPTIMUMNUTRITION.COM (COLLECTIVELY, THE "SITE"), MOBILE SOFTWARE AND/OR SERVICES (COLLECTIVELY, THE “SERVICE”) TO PURCHASE ANY PRODUCT(S). YOUR USE OF THE SERVICE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICE.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
TABLE OF CONTENTS
Product Descriptions And Pricing
Payment Terms; Interest; Orders
Shipping; Risk Of Loss; Title; Taxes
Permitted Use Of The Site And Content
Viruses, Hacking and Other Offenses
Accounts, Passwords And Security
1. Consent To Email Communications
2. Assignment; Waiver
3. Governing Law
4. Injunctive Relief
6. U.S. Export Laws
7. Government Users
9. Legal Equivalency
By accessing or using the Service, you agree to abide by these Terms, as they may be amended by Company from time to time in its sole discretion, and that such agreement constitutes a binding contract between you and Company. In addition, when visiting or using certain Company owned or operated web sites, you shall be subject to any posted agreements, guidelines, rules or terms of service. All such agreements, guidelines, rules or terms of service, as they may be amended by Company from time to time in its sole discretion, are hereby incorporated by reference into these Terms. It is your responsibility to review these Terms periodically, and if you do not have authority to agree or accept these Terms, or if at any time you find these Terms unacceptable, you may not use the Service and you must immediately leave and cease all use of the Service.
PRODUCT DESCRIPTIONS AND PRICING
Company strives for the Service to be as accurate as possible. However, Company does not represent or warrant that product descriptions or other content on the Service are accurate, complete, reliable, current, or error-free. For example, products included on the Service may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Service. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order. Despite our best efforts, a small number of the items on our Service may be mispriced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner.
PAYMENT TERMS; INTEREST; ORDERS
All orders placed through the Service are subject to Company’s acceptance. Terms of payment are within the Company’s sole discretion, and unless otherwise agreed to by the Company, payment must be received by the Company prior to the Company’s acceptance of an order. Payment for product orders will be accepted via certain payment methods accepted by our third party payment processing service. Your order is subject to cancellation by Company at Company’s sole discretion. All amounts due are payable in U.S. dollars. Any amount not paid when due will be subject to a finance charge of one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, for the unpaid balance due. You shall be responsible for any expenses and/or fees (including but not limited to attorneys’ fees), incurred by the Company in collecting past due amounts from you.
SHIPPING; RISK OF LOSS; TITLE; TAXES
Shipping and handling charges are additional unless otherwise expressly indicated at the time of sale. Shipping dates are estimates only. Risk of loss and title for all items purchased from Company pass to you upon our delivery to the carrier. You are responsible for sales and other taxes associated with all orders. Title to all intellectual property rights will remain with the applicable licensor(s).
CONTENT AND TRADEMARKS
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code, including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such content, contained on the Site (collectively, "Content") is owned, controlled or licensed by or to the Company and is protected by trade dress, copyright, patent and trademark laws and various other intellectual property rights and unfair competition laws.
Certain trademarks, trade names, service marks and logos used or displayed on the Site are registered and unregistered trademarks, trade names and service marks of the Company and its affiliates, and other trademarks, trade names and service marks used or displayed on the Site are the registered and unregistered trademarks, trade names and service marks of their respective owners (collectively, "Trademarks"). Nothing in these Terms or otherwise provided on the Site grants or should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the Trademarks without express prior written consent of the Company or such other owner. Neither the Company's name nor any of the Trademarks may be used in any way, including but not limited to any advertising or publicity regarding distribution of materials on the Site, without the Company's prior written consent. Without limiting the generality of the foregoing, the Company prohibits the use of its name or any Trademarks as a link to any website unless such link is approved in advance by the Company in writing.
PERMITTED USE OF THE SITE AND CONTENT
Except as expressly provided in these Terms, no part of the Site and no Content may be used, copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way, including mirroring, to any other computer, server, web site or other medium for publication or distribution or for any commercial enterprise without the Company's express prior written consent. You may use information on the Company's products and services that is purposely made available by the Company for downloading from the Site, provided that you (i) do not remove any proprietary notice language in all copies of such documents; (ii) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (iii) make no modifications to any such information, and (iv) do not make any additional representations or warranties relating to such information.
VIRUSES, HACKING AND OTHER OFFENSES
You must not misuse the Site by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or harmful. You must not attempt to gain unauthorized access to the Site, the server on which the Site is stored, or any server, computer or database connected to the Site. You must not attack the Site via a denial-of-service attack or a distributed denial-of-service attack. By breaching this provision, you may commit a criminal offense. The Company will report any such breach to the relevant law enforcement authorities and will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Site will cease immediately.
The Company will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or your downloading any material posted on the Site or any third-party website linked to the Site.
From time to time, the Company may provide interactive services on the Site, including but not limited to chat rooms, bulletin boards, blogs and forums. The Company disclaims any obligation to oversee, monitor or moderate any interactive services provided on the Site, and in no event shall the Company be liable for any loss or damage arising from the use of any interactive service by a user in contravention with the Company's content standards. If you post any content to the Site, you hereby grant the Company and its affiliates and licensees a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such content and incorporate it in other works, in whole or in part, in any manner and any media now known or hereafter developed. You grant the Company and its affiliates and licensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant the foregoing license without infringing or violating the rights of any third party; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify the Company for all claims resulting from the content you supply. The Company has the right but not the obligation to monitor and edit or remove any activity or content. The Company takes no responsibility and assumes no liability for any content posted by you or any third party.
The following standards apply to any and all material which you contribute to the Site ("Contributions") and to any associated interactive services:
- Be accurate (when they state facts);
- Be genuinely held (when they state opinions); and
- Comply with applicable laws in the United States of America and in any country from which they are posted.
Contributions must not:
- Contain any material that is defamatory, obscene, offensive, hateful or inflammatory;
- Promote violence or any illegal activity;
- Infringe any copyright, trademark, or other intellectual property right of any other person;
- Be made in breach of any legal duty owed to any other person, such as a contractual or other duty of confidence;
- Abuse or invade another person's privacy or cause annoyance, inconvenience or needless anxiety;
- Be used to impersonate any person or misrepresent your identity or affiliation with any person; or
- Give the impression that they emanate from the Company, if that is not the case.
The Company will determine, in its sole discretion, whether there has been a breach of these content standards through your use of the Site. When the Company determines that a breach has occurred, the Company may take such action as it deems appropriate, including but not limited to one or more of the following:
- Immediate, temporary or permanent withdrawal of your right to use the Site;
- Immediate, temporary or permanent removal of any Contribution by you;
- Legal proceedings against you for reimbursement of all costs (including but not limited to administrative and legal costs) incurred by the Company resulting from the breach; and
- Disclosure of such information to law enforcement authorities as the Company deems reasonably necessary.
In no event shall the Company be liable for any actions taken in response to any breach of these content standards.
OTHER TERMS AND CONDITIONS
Additional terms and conditions may apply specific portions or features of the Site, including contests, promotions or other similar features, all of which are made a part of these Terms by this reference. You shall abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service. The Company's obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements. The Company may make changes to any products or services offered on the Site at any time without notice. The materials on the Site with respect to products and services may be out of date, and the Company makes no commitment to update the materials on the Site with respect to such products and services except as required by applicable law.
HEALTH RELATED INFORMATION
Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product labels and packaging prior to use. Information available on or through the Site is not meant to substitute the advice provided by your doctor or other health care professional. You should not use the information available on or through the Site, including but not limited to information that may be provided by healthcare or nutrition professionals, for diagnosing or treating a health condition or disease.
ACCOUNTS, PASSWORDS AND SECURITY
Certain features or services offered on or through the Site may require you to open an account. You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account. You shall notify the Company immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by the Company or any other user of or visitor to the Site due to someone else using your account as a result of your failing to keep your account information secure and confidential. You may not use anyone else's account at any time without the express permission and consent of the holder of that account. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
By using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information that you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.
LINKS TO THE SITE
Optimum Nutrition prohibits the creation or maintenance of any link from another website to the Site or any portion thereof without Optimum Nutrition prior written consent. Similarly, Optimum Nutrition prohibits the running or displaying of this Site or any Content in frames or through similar means on another website without Optimum Nutrition prior written permission. Any permitted links to the Site must comply with all applicable laws, rules and regulations.
LINKS TO OTHER SITES
The Company prohibits the creation or maintenance of any link from another website to the Site or any portion thereof without the Company's prior written consent. Similarly, the Company prohibits the running or displaying of this Site or any Content in frames or through similar means on another website without the Company's prior written permission. Any permitted links to the Site must comply with all applicable laws, rules and regulations.
Company may, in its sole discretion and without prior notice, (i) revise these Terms; (ii) modify the Service; and (iii) discontinue any of the Service, or any of its constituent parts, including, without limitation, any products and/or services featured on the Service, at any time. Company shall post any revision to these Terms, and the revised Terms shall be effective immediately on such posting. You agree to review these Terms and other online policies posted on the Service periodically to be aware of any revisions. Your continued use of any of the Service shall constitute your acceptance of the revised Terms. If you do not agree to any of such changes, you may terminate the Terms and immediately cease all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms.
You acknowledge and agree that Company may at any time in its sole discretion terminate your access to and use of the Service, or any part thereof, with or without notice and without any liability to you or any third party. You agree that upon termination Company may delete all files and information related to your account and may bar your access to your account and the Service, and that you will immediately return or destroy any Company Software in your possession or control.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN ARE AT YOUR SOLE RISK. THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE SERVICE MAY INCLUDE INACCURACIES, ERRORS AND OMISSIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS: (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) MAKE NO WARRANTY THAT (I) THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) ANY PRODUCT , SERVICE OR INFORMATION OBTAINED FROM THE SERVICE WILL BE ACCURATE, APPROPRIATE, COMPLETE, CORRECT, RELIABLE, SUFFICIENT OR TIMELY, (IV) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICE WILL BE FIXED; AND (C) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. 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 DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF CONTENT, THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE OR OTHER WEB SITE(S) YOU MAY ACCESS THROUGH THE SERVICE (IF ANY), CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, LOSS OF GOODWILL, LOSS OF USE, LOSS OF CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) ANY INFORMATION, PRODUCTS AND SERVICES OBTAINED THROUGH THE SERVICE, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SERVICE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ERROR OR INADEQUACY OF ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (VI) PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY REGULATIONS OR CODES, OR MISAPPROPRIATION; (VII) INJURY TO PERSON OR PROPERTY ARISING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE SERVICE; (VII) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (VIII) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IX) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; AND/OR (X) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICE AND/OR THE PRODUCTS; WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU ALSO AGREE THAT COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, WILL NOT BE LIABLE FOR ANY (A) INTERRUPTION OF BUSINESS, (B) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE OR OTHER SERVICE(S) YOU ACCESS THROUGH THE SERVICE; (C) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; OR (D) EVENTS BEYOND COMPANY’S REASONABLE CONTROL. DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT SHALL THE LIABILITY OF COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AND/OR LICENSORS, IF ANY, TO YOU OR TO ANY THIRD PARTY EXCEED FIFTY DOLLARS ($50.00). YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF EXPIRATION OR TERMINATION OF THE TERMS OR TERMINATION OF YOUR ACCESS TO THE SERVICE, ALL OF WHICH YOU EXPRESSLY WAIVE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION HAS MATERIALLY INDUCED COMPANY TO ENTER INTO THE TERMS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
1. Assignment; Waiver
You may not assign these Terms or any rights granted herein. Any attempt by you to transfer any of the rights, duties or obligations hereunder is void. Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Company and its successors and assigns. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
THE VALIDITY, CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF ILLINOIS, EXCEPT AS TO ITS PRINCIPLES OF CONFLICTS OF LAWS, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
3. Injunctive Relief
You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Company shall be entitled, without waiving any additional rights or remedies otherwise available to Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
Except in the case of legal action brought by Company to obtain injunctive or other equitable relief of whatsoever kind, all of which may be brought in any court or other tribunal of competent jurisdiction, ANY CONTROVERSY, CLAIM, DISPUTE OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR SUBJECT MATTER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL BE SUBMITTED TO THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN, OR CLOSEST TO, DUPAGE COUNTY, ILLINOIS, AND WILL BE SETTLED BY ARBITRATION TO OCCUR IN DUPAGE COUNTY, ILLINOIS, SAID ARBITRATION TO BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, IN EFFECT AT THE TIME OF THE ARBITRATION, THE LAWS OF THE STATE OF ILLINOIS GOVERNING SUCH ARBITRATIONS, AND IN ACCORDANCE WITH THESE TERMS. SUCH ARBITRATION MUST BE FILED WITHIN TWELVE (12) MONTHS OF THE FIRST ACCRUAL OF THE CAUSE OF ACTION, AND THE PARTIES AGREE THAT THE STATUTE OF LIMITATIONS FOR ANY CAUSE OF ACTION BROUGHT PURSUANT TO, IN CONNECTION WITH, OR RELATING TO A DISPUTE WILL BE TWELVE (12) MONTHS FROM THE FIRST ACCRUAL OF THE CAUSE OF ACTION, NOTWITHSTANDING ANY STATUTE TO THE CONTRARY. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be heard and decided no later than seven (7) months after the notice of arbitration is filed with the American Arbitration Association by one arbitrator. The arbitrator will hear and determine any preliminary issue of law asserted by a party to be dispositive of any claim, in whole or in part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrator deems appropriate. No witness or party may be required to waive any privilege recognized under Illinois law. The hearing will not last longer than four (4) days unless all parties agree otherwise, with time to be divided equally between you and Company. The arbitrator will be an attorney, licensed to practice law in the State of Illinois for no less than ten (10) years, with no less than five (5) years’ experience as an arbitrator. The parties and the arbitrator will treat all aspects of the arbitration proceedings, including, without limitation, discovery, testimony and other evidence, briefs, and the award, as strictly confidential and not subject to disclosure to any third party or entity, other than to the parties, the arbitrator, and the American Arbitration Association. The arbitrator must give full effect to the applicable law and to all of these Terms, and is specifically divested of any power to add to, subtract from, modify or alter any of the terms or conditions of these Terms, or to render decisions in derogation thereof. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual direct damages, except as may be required by statute. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHTS TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator will issue written findings of fact and conclusions of law, the decisions of the arbitrator will be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrator may be entered in any federal or state courts with jurisdiction. You are solely responsible for your interactions with other users of the Service. Company reserves the right, but has no obligation, to monitor disputes between you and other users of the Service.
5. U.S. Export Laws
This Service and/or products offered on the Service may be subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not export or re-export, or allow the export or re-export of, the Service and/or products offered on the Service in violation of any U.S. Export Laws. None of the Service or products offered on the Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or any other denied parties lists under U.S. Export Laws. By using the Service, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If you access the Service from other countries or jurisdictions, you do so on your own initiative and you are solely responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access the Service. The obligations under this section shall survive any termination or expiration of these Terms or your use of the Service.
6. Government Users
All software, if any, licensed pursuant to these Terms and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to these Terms.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
8. Legal Equivalency
These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
FEEDBACK AND INFORMATION
Any feedback you provide at the Site shall be deemed to be non-confidential. The Company shall be free to use such information on an unrestricted basis. The information contained in the Site is subject to change without notice.
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