PRO WRESTLING CRATE
Last Updated: May 30, 2023
We may change or update these Terms from time to time. If you have an active customer account to the Services (“Registered User”), then we will alert you of any material changes via a pop-up message prior to or while you are accessing the Services, or by email at the email address you provide us at the time of registration or when you sign up for our Services (as updated), at our discretion. In all cases, your continued use of any Services after we make changes is deemed to be acceptance of all changes.
PLEASE BE ADVISED THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS AND DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE TERMS ALSO ALLOW YOU TO PURSUE CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS, AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. AS A RESULT, YOU MAY SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
WE MAY IMMEDIATELY TERMINATE YOUR ACCESS TO THE SERVICES (IN WHOLE OR IN PART) IF YOU FAIL TO COMPLY WITH ANY PROVISION OF THESE TERMS, IF WE BELIEVE YOUR USE OF ALL OR ANY PORTION OF THE SERVICES WILL REFLECT POORLY ON US, THE SERVICES OR OUR GOODWILL, OR IF WE OTHERWISE DEEM YOUR USE OF THE SERVICES TO BE ILLEGAL OR OTHERWISE INAPPROPRIATE, IN EACH CASE, IN OUR SOLE AND ABSOLUTE DISCRETION.
Table of Contents:
- Eligibility to Use the Services
- Use of the Services
- Acknowledgement Regarding Availability of the Services
- Your Content
- Fees and Payment
- Third-Party Materials
- Consent to Electronic Communication
- International Users
- Linking to the Services and Social Media Features
- Text Messaging (“SMS”)
- Limitations on Liability
- Equitable Remedies
- Disputes: Arbitration Agreement, and Class Action Waiver
- Contact Information
- ELIGIBILITY TO USE THE SERVICES.
- You have the Right to Enter into these Terms. As an individual interacting with the Services in your individual capacity or on behalf of an entity, you represent and warrant that you have all right, power, and authority to enter into these Terms on your own or such entity’s behalf and bind yourself or such entity, as applicable, to these Terms. If you are entering these Terms on behalf of an entity, all references in these Terms to “you” and “your” will mean such entity.
- Consideration. You acknowledge that these Terms are supported by reasonable and valuable consideration, which you have received, and which is adequate. Such consideration includes your ability to access, use or interact with the Services. You represent and warrant that you have the capacity to be bound by these Terms.
- USE OF THE SERVICES.
- Permitted Use. You will access and use the Services solely in accordance with the conditions and limitations set forth in these Terms and any Services documentation (“Permitted Use”). You will not, and will not permit others to, directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services and/or any underlying or related software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Services or any Technology, in whole or in part; (iii) access and/or use the Services for timesharing or reselling purposes or otherwise for the benefit of a third-party; (iv) upload to or otherwise use the Services to store, post or transmit infringing, libelous, fraudulent or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses; (vi) interfere with or disrupt the integrity or performance of the Services or any Technology (in whole or in part); (vii) attempt to gain unauthorized access to the Services, the Technology or any of their related systems or networks; (viii) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Services (including any Technology); (x) access the Services and/or the Technology (in whole or in part) in order to build a competitive product or service or for benchmarking or competitive analysis; (xi) remove any proprietary notices or labels of or from the Services or any Technology; (xii) access or use the Services in any way that violates these Terms, any third-party rights, or any appliable rules, regulations or orders having the force of law (“Laws”), including, without limitation, anti-spam, export control, privacy, or anti-terrorism laws and regulations; (xiii) use the Services (in whole or in part), or any information contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise harassing, abusive, objectionable or offensive; (xiv) provide false or inaccurate information when registering for an account with us, using the Services or communicating with other Registered Users; (xv) attempt to re-register with us if we have terminated your account for any or no reason or terminate your registration and re-register in order to prevent a review from being associated with your account; (xvi) disrupt the normal flow of communication or otherwise act in a manner that negatively affects other users’ ability to engage in real-time exchanges; or (xvii) misuse or abuse the Services or Third-Party Materials in violation of these Terms or eligibility requirements as determined by us.
- Access Credentials. You may be issued a username, identification number, password, link, or security key, security token, PIN or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use our Services (“Access Credentials”). We encourage you to use strong Access Credentials (i.e., in the case of a password, one that is long, uses a mix of letters (upper and lower case), numbers and symbols, has no ties to your personal information, and no dictionary words) even if the Services permit simple Access Credentials. You have and will retain sole responsibility for the security and use of all Access Credentials, including for any losses that you or any third party may suffer as a result of the authorized or unauthorized use of any Access Credentials by any third party. We reserve the right to disable any Access Credentials at any time in our sole discretion for any or no reason, including (without limitation) if, in our opinion, you have violated any provision of these Terms.
- ACKNOWLEDGEMENT REGARDING AVAILABILITY OF THE SERVICES. We reserve the right to withdraw or amend all or any portion of the Services, and any service or material provided on the Services, in our sole discretion with or without notice to you. Furthermore, your access and use of the Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment or devices, periodic updating, maintenance or repair of the Services or other actions that we may, in our sole discretion, elect to take. We may also suspend or discontinue the availability of the Services or any portion or feature of the Services at any time in our sole discretion and without prior notice to you. From time to time, we may restrict access to some parts of the Services, or all the Services, to users. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period or at all.
- YOUR CONTENT.
In the course of using our Services, you may submit or transmit certain content on, to, through or in connection with the Services, including your information, reviews, ratings and information that may be publicly displayed on or through our Website (collectively, “Your Content”).
You acknowledge that Your Content may expose you to liability. For example, but not by way of limitation, you may be exposed to liability if Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
We may, in our sole discretion but without any obligation to search for such, remove any of Your Content in violation of these Terms. We will, in our sole discretion, terminate the accounts of, and refuse Services to any user for any reason, including to any user who repeatedly or knowingly violates these Terms.
- TERMINATION. We reserve the right, in our sole discretion, to immediately terminate your access to all or part of the Services, to remove your profile and/or any of Your Content from the Services, and/or to terminate your account, with or without notice for any reason or no reason in our sole discretion, including, without limitation, if we determine that you are not eligible to use the Services, have violated these Terms, are not suitable for participation as a user, have mis-used or mis-appropriated the Services, including, but not limited to, use on a "mirrored," competitive, or third-party site, or have otherwise violated any provision of these Terms. If we terminate your use of the Services, we have no obligation to notify you of the reason, if any, for your termination.
- FEES AND PAYMENT.
- Fees and Pricing. In order to utilize certain portions of the Services, you may be required to pay a one-time fee, or other fees. You will be responsible for any state or local sales taxes associated with purchases made by you on or through the Services. Any rights purchased by you on or through the Services are personal to you and may not be transferred under any circumstances.
- Billing and Payment. You agree to pay us all charges and fees associated with your purchase and as described on the Services at the time you submit your payment information. You also authorize us, or a third-party payment processor that works on our behalf, to charge your chosen payment method. We reserve the right to correct any errors or mistakes even if we have already requested or received payment. By making any purchase on or through the Services, you represent and warrant that you are authorized to use the payment card provided and are capable of entering into a contract under applicable Law.
- No Refunds. Except as we may otherwise agree in writing, all payments for services or products made on or through the Services are non-refundable and there are no refunds or credits for unused or partially used services or products purchased on or through the Services.
- THIRD-PARTY MATERIALS.
- Third-Party Materials. You acknowledge and agree that: (i) one or more of the functionalities, services or products available on or via the Services may be made available by third parties (“Third-Party Service Providers” and such functionalities, services or products, “Third-Party Materials”); (ii) certain aspects of the Services rely on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of our control, and that as such we will have no liability for downtime of any Services caused by API integration failures; (iii) Third-Party Service Providers may impose restrictions on purchase and/or use of the particular Third-Party Material, in addition to other terms and conditions, including without limitation, those set forth in any applicable terms and conditions agreed to by, or otherwise made available to, you (collectively, “Third-Party Requirements”); (iv) you are solely responsible for your compliance with all Third-Party Requirements; and (v) we may at any time terminate and/or discontinue any Third-Party Materials, including as a result of termination of our relationship with the applicable Third-Party Service Provider. ALL THIRD-PARTY MATERIALS ARE MADE AVAILABLE VIA THE SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHER.
- Ownership. As between you and us, you will own all right, title, and interest in and to Your Content. We or our licensors will own and retain all right, title and interest in and to the following (collectively, “Our Property”): (i) the Services, including the Website, the Technology, and all improvements, enhancements or modifications to any of the foregoing; (ii) any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with the Services (collectively, “Results”); (iii) the “ShopAEW”, “AEW”, and “All Elite Wrestling” names, brands, marks and other similar intellectual property; (iv) any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the subject matter of these Terms (collectively, “Feedback”); (v) any and all performance data, test or evaluation results, or other metrics derived from the Services, including the Website and Aggregated Data (as defined below); and (vi) all intellectual property rights related to any of the foregoing. We expressly reserve all other rights in and to the foregoing. During and after the term of your use of the Services, each of you and we will cooperate with the other to do any and all things which are reasonably necessary or desirable to establish, maintain, protect, and enforce our or your exclusive ownership of the property identified in this Section.
- Use of Data. Notwithstanding anything to the contrary, and to the extent not prohibited by Law, we will have the right to collect and analyze Your Content and other information relating to the provision, use and performance of various aspects of the Services (including the Website and Technology, and including, without limitation, Your Content and data derived therefrom), and we will be free (during and after the term of your use of the Services) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, including the Website, the Technology and/or our other service or product offerings; and (ii) use and disclose such information and data solely in aggregate or other de- identified form in connection with our business without disclosing your identity (“Aggregated Data”).
- Feedback. Any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by us (whether alone or together with you or any other third-party or parties) arising out of or relating to Feedback are and will remain our sole and exclusive property.
- CONSENT TO ELECTRONIC COMMUNICATION. By using the Services, you agree to allow us to communicate with you electronically (e.g., via an email we have on file for you or by posting of the relevant communication or notice on the Services), and you consent to electronic delivery of notices, documents, and other materials from us or the Services, including via the Website or e-mail. If you are a Registered User, you also agree to check your account for alerts and messages, and the e-mail account reflected on your account on a reasonably regular basis to stay apprised of important notices and information about your account.
- INTERNATIONAL USERS. The Services are controlled, operated, and administered by us from our offices within the United States of America (“U.S.”). We make no representations that the Services or any content are permissible, appropriate, or available for use in other jurisdictions. If you use the Services from a location outside the U.S., then you do so by your own volition and you are solely responsible for compliance with all applicable Laws (including local laws and any applicable U.S. export control laws). You must not access or use the Services in a manner prohibited by any applicable Laws.
- LINKING TO THE SERVICES AND SOCIAL MEDIA FEATURES.
- You may link to certain portions of the Services, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our prior written consent.
- The Services may provide certain social media features that enable you to: link from your own or certain third-party websites to certain content available on the Services; send e-mails or other communications with certain content, or links to certain content available on the Services; or cause limited portions of content to be displayed or appear to be displayed on your own or certain third-party websites. You may use these features solely as they are provided by us, solely with respect to the content with which they are displayed, and otherwise in accordance with these Terms and any additional terms and conditions that we may provide with respect to such features. Subject to the foregoing, you must not: (i) establish a link from any website that is not owned by you; (ii) use the Services or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any website; or (iii) otherwise take any action with respect to the materials available on the Services that is inconsistent with any other provision of these Terms.
- Any website from which you are linking, or to which you make certain content accessible, must comply in all respects with these Terms. You agree to cooperate with us in causing any unauthorized framing or linking to immediately cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
- TEXT MESSAGING (“SMS”).
Signing Up and Opting-In to the SMS Service
Enrollment in the SMS Service requires you to provide your mobile phone number. You may not enroll if you are under 18 years old (except in Alabama and Nebraska, 19 years old). Before the SMS Service starts, you may need to verify the mobile phone number you provided by responding to a text message to your mobile phone that affirms your choice to opt-in to this SMS Service and your agreement to these Terms. We reserve the right to stop offering the SMS Service at any time with or without notice.
By opting into the SMS Service, you:
- Authorize us to use autodialer or non-autodialer technology to send text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).
- Acknowledge that you do not have to agree to receive messages as a condition of purchase.
- Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt in.
- Consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, please call 773-801-3500. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails.
Messages You May Receive
Once you affirm your choice to opt into the SMS Service, your message frequency may vary. You may receive an alert when:
- you are welcomed into the SMS Service
- an order or purchase has been placed
- there are general marketing or promotions
Charges and Carriers
Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone’s pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the SMS Service.
The SMS Service may not be available on all wireless carriers. We may add or remove any wireless carrier from the SMS Service at any time without notice. We, and mobile carriers, are not responsible for any undue delays, failure of delivery, or errors in messages.
To Stop the SMS Service
To stop receiving text messages from us reply STOP to any of the text messages you have received from us. For Services operated through a different number, text STOP to that number to opt out. Your opt-out request may generate either a confirmation text or a texted request to clarify the text message program to which it applies (if you have more than one). To complete your opt-out, please provide the requested clarification. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that we and our service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from us through any other programs you have joined until you separately unsubscribe from those programs. These Terms will still apply if you withdraw the consent mentioned above or opt out of the SMS Service.
Help and Questions
You can text HELP for help at any time. This will provide you a link to these Terms along with a phone number to call for assistance. If at any time you forget what keywords are supported, just text “HELP” to the text message you received. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe. You can also contact us at 773-801-3500 or email@example.com.
Mobile Phone Number Change
In the event that you change or deactivate your mobile phone number, you agree to notify us by emailing firstname.lastname@example.org or calling 773-801-3500.
Data and Message Frequency
As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text or data plan, it is best to contact your wireless provider/carrier. For questions about the Services we provide, contact us at email@example.com.
We will not be liable for any delays in the receipt of any text messages. Delivery is subject to effective transmission from your network operator.
- INDEMNIFICATION. You will indemnify, defend and hold us, and our subsidiaries, affiliates, members, managers, directors, officers, equity holders, contractors, employees and agents, harmless from and against any and all claims, losses, damages, judgments, liabilities costs, and expenses (including attorneys’ fees and the costs of enforcing this provision and of pursuing any insurance providers) arising from or relating to: (i) any of Your Content, including any misleading, false, or inaccurate information, or use, disclosure or storage of Your Content by us or on our behalf in accordance with these Terms; (ii) your failure to comply with any applicable Laws, or your breach of any of your obligations, covenants, or representations and warranties set forth in these Terms; (iii) your access or use of the Services, in whole or in part; (iv) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (v) your gross negligence, fraud, or willful misconduct; (vi) any other party’s access and use of the Services with your unique Access Credentials; (vii) any dispute between you and any other user of the Services; or (viii) non-payment or fraudulent chargeback by you for any of the Services.
- DISCLAIMERS. THE SERVICES (INCLUDING THE TECHNOLOGY AND ALL CONTENT) ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. Without limiting the generality of the foregoing:
- You acknowledge that all or a portion of the Services may be temporarily unavailable for any reason, including scheduled maintenance, unscheduled emergency maintenance, force majeure or for other reasons affecting us, the Registered User (as applicable) or our other applicable Third-Party Service Providers, or because of other causes beyond our control. WE DO NOT WARRANT THAT ACCESS TO THE SERVICES OR ANY CONTENT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY THAT THE SERVICES, ANY CONTENT (IN WHOLE OR IN PART) WILL BE PROVIDED AT ANY PARTICULAR INTERVALS OR AT ALL, OR IF PROVIDED, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULT, INCLUDING YOUR COMPLIANCE WITH ANY APPLICABLE LAWS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR BE AGE APPROPRIATE OR UNOFFENSIVE.
- WE DO NOT: (i) WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS OR APPROPRIATENESS OF ANY CONTENT AVAILABLE ON, THROUGH OR AS A RESULT OF THE SERVICES AND HEREBY EXPRESSLY DISCLAIM ANY LIABILITY FOR THE SAME, INCLUDING ANY ERRORS OR OMISSIONS IN THE SAME; OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY CONTENT AVAILABLE ON THE SERVICES. ALL CONTENT AVAILABLE ON, THROUGH OR AS A RESULT OF THE SERVICES IS PROVIDED FOR YOUR INFORMATIONAL PURPOSES ONLY. THIS CONTENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL WE BE LIABLE IN ANY WAY WITH REGARD TO SUCH CONTENT. YOUR CONSUMPTION OR OTHER USE OF ANY SUCH CONTENT IS AT YOUR SOLE AND EXCLUSIVE RISK.
- NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES, WILL CREATE ANY WARRANTY REGARDING US OR ANY OF THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN THE CONTENT AVAILABLE ON OR THROUGH THE SERVICES, AT YOUR OWN DISCRETION AND SOLE RISK. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES, YOUR DEALINGS WITH ANY THIRD-PARTY, AND YOUR CONSUMPTION OR OTHER USE OF ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, OR THE LOSS THEREOF OR OF ANY DATA THAT MAY RESULT FROM THE USE OF THE SERVICES OR THE USE OF ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES.
- ALL THIRD-PARTY MATERIALS INCLUDED IN OR OTHERWISE MADE AVAILABLE VIA THE SERVICES ARE PROVIDED "AS IS" AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY SERVICE PROVIDER.
- YOUR USE AND ACCESS TO THE SERVICES (INCLUDING ANY CONTENT THEREIN) IS AT YOUR SOLE AND EXCLUSIVE RISK, AND YOU CAN AND SHOULD CONDUCT YOUR OWN DUE DILIGENCE YOU DEEM NECESSARY OR APPROPRIATE BEFORE DOING SO.
- LIMITATIONS ON LIABILITY.
- IN NO EVENT WILL WE OR ANY OF OUR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR THE PROVISION OF THE SERVICES OR ANY CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES OR ANY CONTENT (IN WHOLE OR IN PART); (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF YOUR DATA, OR A BREACH OF DATA OR SYSTEM SECURITY; OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT WILL WE OR ANY OF OUR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, OR OTHERWISE, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE CONSUMPTION OR USE OF THE SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE'S CONSUMPTION OF OR RELIANCE ON CONTENT AVAILABLE BY, OR AS A RESULT OF, THE SERVICES.
- IN NO EVENT WILL OUR, AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THESE TERMS DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF YOU HAVE NOT PAID US FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these state laws apply to you, some or all the above disclaimers, exclusions or limitations may not apply to you. In the event that the foregoing is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including Chapter 95, Florida Statutes, will apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
- EQUITABLE REMEDIES. You acknowledge that we may be irreparably damaged if these Terms are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of these Terms by you, we will be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of these Terms. You agree that (notwithstanding Section 18 below) we may bring any action or proceeding with regard to such injunction restraining such breach or threatened breach in the courts of record of Cook County, Illinois. You consent to personal jurisdiction over you by such court and to the exclusive jurisdiction of such court, and waive any objection to the laying of venue of any such action or proceeding in such court.
- DISPUTES: ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER.
Please read this Section carefully. Except as these Terms otherwise provide, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.
- Agreement to Binding Arbitration and Pre-Arbitration Dispute Resolution
You and we agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
- No Class Action
You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. This means that you and we each agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an Arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
By agreeing to individual arbitration, you understand and agree that you are waiving your right to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes or claims. The rules in arbitration are different. There is no judge or jury. Although review is limited, an Arbitrator can award on an individual basis the same damages and relief as would be available in court, and must enforce the same limitations stated in these Terms as a court would.
- Rules and Governing Law
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (“JAMS Rules”).
Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Florida, without regard to its conflict of laws provisions.
Unless you and we agree otherwise in writing, in the event that any provision of this Section is found not to apply to you or to a particular claim or Dispute as a result of a decision by the Arbitrator or a court order, any claim or Dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Cook County, Illinois. You and we will submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or Disputes.
- Arbitrator’s Decision
The Arbitrator will decide the substance of all claims exclusively in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The Arbitrator will not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
Regardless of the manner in which the arbitration is conducted, the Arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. Judgment on the award may be entered in any court having competent jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. The Arbitrator’s decision shall be final and binding on all parties.
Judgment on any award rendered by the Arbitrator is final, binding and conclusive on you and us and your and our respective administrators, executors, legal representatives, successors and assigns.
With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a Dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.
Payment of all filing, administration and Arbitrator fees will be governed by the JAMS Rules. The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the Arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the Arbitrator.
f. Limitation on Liability
In any arbitration, the Arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and you and we each waive any right to recover any such damages. The Arbitrator also may not award any incidental, indirect or consequential damages, including damages for lost profits.
- MISCELLANEOUS. You may not assign these Terms or your rights to use all or any portion of the Services without our prior written consent. No delay or omission by us to exercise any right or power under these Terms will impair any such right or power or be construed as a waiver thereof. A waiver by us in any one instance of any of the covenants, conditions, or agreements to be performed by you will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. We may update, amend, or change these Terms at any time, provided that, if you are a Registered User then we will alert you of any material changes via a pop-up message prior to or while you are accessing your account or the Services, or by email, in our sole discretion. In all cases, your continued use of any Services after we make changes is deemed to be acceptance of all changes. The headings contained in these Terms are for convenience of reference only, are not to be considered a part of these Terms and will not limit or otherwise affect in any way its meaning or interpretation. These Terms are for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, expressed or implied, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms. If any provision of these Terms is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of these Terms, which will remain in full force and effect. These Terms represent the entire understanding and agreement between us and you with respect to the subject matter hereof, and supersede all other negotiations, understandings, and representations (if any) made by and between such parties, whether orally or in writing. For purposes of these Terms, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”, and the word “or” is not exclusive.
- CONTACT INFORMATION. If you have any questions or need further information as to the Services, please contact us via email at: firstname.lastname@example.org.