Terms and Conditions
Last Updated: August 1, 2014
The terms and conditions stated herein (collectively, the "Agreement") constitute a legal agreement between you and two companies, Newman & Ullman ("NEULL’S") and EMPEROR BRANDS, LLC (collectively, the "Seller"). In order to use Seller’s websites, Service (defined below) and/or the associated Application (defined below) you must agree to the terms and conditions that are set out below. By using or receiving any services supplied to you by the Seller (collectively, the "Service"), including using Seller’s website for any purpose or/and downloading, installing or using any associated application supplied by the Seller which purpose is to enable you to use the Service (collectively, the "Application"), you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and any future amendments and additions to this Agreement as published from time to time through the Service or Application.
The Seller reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service or Application at any time, effective upon posting of an updated version of this Agreement on the Service or Application. You are responsible for regularly reviewing this Agreement. Continued use of the Service or Application after any such changes shall constitute your consent to such changes.
Key Content-related Terms
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Seller Content" means Content that Seller makes available through the Service or Application, including any Content licensed from a third party, but excluding User Content.
"User" means a person who accesses or uses the Service or Application.
"User Content" means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service or Application.
"Collective Content" means, collectively, Seller Content and User Content.
"Service" means the services provided to the customer via Seller’s website or related Application.
"Application" a specialized software program provided to the User by Seller or one of Seller’s third party vendors, affiliates, or business partners which can be downloaded by the user on a mobile or non mobile device such as a phone, tablet, or computer.
Representations and Warranties
By using Seller’s website, Application and/or Service, you expressly represent and warrant that you are legally entitled to enter this Agreement. If you reside in a jurisdiction that restricts the use of Seller’s website, Service or Application because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use Seller’s website, Application and Service. Without limiting the foregoing, the website, Service and Application is not available to children (persons under the age of 18). By using Seller’s website, Application or Service, you represent and warrant that you are at least 18 years old. By using Seller’s website, Application or the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. Your participation in using the website, Service and/or Application is for your sole, personal use. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Application or Service you agree to comply with all applicable laws from your home nation, the country, state and city in which you are present while using the website, Application or Service.
You may only access the website, Application and Service using authorized means. It is your responsibility to check to ensure you download the correct software for proper use of the Application, Service and website for your computer, phone or any other device you choose to use to access Seller’s website, Application or Service. Seller is not liable if you do not have a compatible device or if you have downloaded the wrong version of the website, or Application for your computer or device. Seller reserves the right to terminate, nullify or otherwise cancel this Agreement without bearing any liability should you be using the Service or Application with an incompatible or unauthorized computer or device and you agree to release Seller from any all such alleged liability and waive any such claims.
You agree that by using Seller’s website, Application and/or Service:
- Your use of Seller’s website, Application and Service will only be for lawful purposes; you will not use the Services in furtherance of violating any law, committing any tort, for sending or storing any unlawful material or for fraudulent purposes.
- You will not use the website, Service or Application to cause nuisance, annoyance or inconvenience to any person or entity.
- You will take no action to impair the proper operation Seller’s website, Application or Services.
- You will not try to harm Seller’s business operations, website, Service or Application in any way whatsoever.
- You will not copy, distribute or otherwise use Seller’s website, Service, Application, intellectual property or other content without pre-approved, written permission from the Seller.
- You will only use Seller’s website, Application and Service for your own use unless you are a pre-approved reseller.
- You will keep secure and confidential your account password or any identification we provide you which allows access to Seller’s website, Application or Service.
- You will provide Seller with whatever proof of identity Seller may request to verify your identity.
- You will only use an access point or data account (AP) which you are authorized to use.
Copyright Policy, License Grant, and Restrictions
Licenses Granted by Seller to Seller Content and User Content
Subject to your compliance with the terms and conditions of this Agreement, Seller grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Seller Content solely for your personal and non-commercial purposes; and (ii) to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the website, Service, Application or Collective Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Seller or its licensors, except for the licenses and rights expressly granted in this Agreement.
License Granted by User
Seller may, in its sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the website, Service or Application, you hereby grant to Seller a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Service or Application. Seller does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the website, Service or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the website, Service or Application or you have all rights, licenses, consents and releases that are necessary to grant to Seller and to the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Seller’s use of the User Content (or any portion thereof) on, through or by means of the Service or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Subject to your compliance with this Agreement, Seller grants you a limited and revocable, non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Seller reserves all rights in and to the Application not expressly granted to you under this Agreement.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the website, Service or the Application in any way; (ii) modify or make derivative works based upon the Service or the Application; (iii) create Internet "links" to the Service or "frame" or "mirror" any Application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or Application, or (c) copy any ideas, features, functions or graphics of the Service or Application, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or Application.
You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Application or Service or the data contained therein; or (v) attempt to gain unauthorized access to the Application or Service or its related systems or networks.
Seller will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Seller may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that Seller has no obligation to monitor your access to or use of the Service, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Service and Application, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Seller reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Seller, at its sole discretion, considers to be in violation of this Agreement or otherwise harmful to the Service or Application.
Seller respects copyright law and expects its users to do the same. It is Seller’s policy to terminate in appropriate circumstances Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Seller’s Copyright Policy for further information.
Any fees that the Seller may charge you for the Application or Service, are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Application or Service either planned, accidental or intentional, or any reason whatsoever. The Seller reserves the right to determine final prevailing pricing - Please note the pricing information published on the website may not reflect the prevailing pricing.
The Seller, at its sole discretion, make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Seller may change the fees for our Service or Application, as we deem necessary for our business. We encourage you to check back at our website periodically if you are interested about how we charge for the Service of Application.
Intellectual Property Ownership
The Seller alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the website, Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application or the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Application or the Service, or any intellectual property rights owned by the Seller. The Seller name, the Seller logo, and the product names associated with the Application and Service are trademarks of the Seller or third parties, and no right or license is granted to use them. Seller is the exclusive owner of all information, and all rights, including ownership of all rights to all metadata, customer information, and user information submitted to Seller’s website.
Third Party Interactions
During use of the Application and Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Application or Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Seller and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Seller does not endorse any sites on the Internet that are linked through the website, Service or Application, and in no event shall the Seller or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. The Seller provides the Application and Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Seller disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.
The Seller may rely on third party advertising and marketing supplied through the website, Application or Service and other mechanisms to subsidize the website, Application or Service. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising you should notify us in writing. The Seller reserves the right to charge you a higher fee for the website, Service or Application should you choose not to receive these advertising services. The Seller may compile and release information regarding you and your use of the website, Application or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
By entering into this Agreement and using the website, Application or Service, you agree that you shall defend, indemnify and hold the Seller, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including services, goods or applications arranged Seller’s website, the Service or Application, or (c) your use or misuse of the website, Application or Service.
Disclaimer of Warranties
This Site and all information, content, materials, products, software and services included on or otherwise made available to you through this Site are provided by the Seller or its affiliates, on an "as is" basis, unless otherwise specified in writing. Seller and its affiliates make no representations or warranties of any kind, express or implied, as to the operation of this website or the information, content, materials, products, software or services included on or otherwise made available to you through this website, unless otherwise specified in writing. You expressly agree that your use of this website is at your sole risk.
To the full extent permissible by applicable law, Seller and its affiliates disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Seller and its affiliates do not warrant that this Site; information, content, materials, products, software, or services included on or otherwise made available to you through this Site; their services; or email sent from Seller are free of viruses or other harmful components. YOU EXPRESSLY AGREE THAT SELLER AND ITS AFFILIATES ARE NOT AND WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THIS SITE or for any information, content, materials, products, software or services included on or otherwise made available to you through this website, including but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in writing.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
Seller reserves the right to change any and all content contained on this website, the Application or Services at any time without notice.
THE SELLER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE WEBSITE, SERVICE, OR APPLICATION. THE SELLER DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEBSITE, SERVICE OR APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE WEBSITE, SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR APPLICATION WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE SELLER. THE SELLER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION AND SERVICE, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE SELLER'S WEBSITE, SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE SELLER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL THE SELLER AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE SELLER AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR APPLICATION, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR APPLICATION, EVEN IF THE SELLER AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE SELLER MAY INTRODUCE YOU TO THIRD PARTY PROVIDERS FOR THE PURPOSES OF PROVIDING INFORMATION, PRODUCT AND SERVICE OFFERINGS OR OTHER REASONS. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE THE SELLER FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO ANY SUCH THIRD PARTY PROVIDER. SELLER WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND ANY THIRD PARTY PROVIDERS. SELLER CANNOT AND WILL NOT PLAY ANY ROLE IN MANAGING PAYMENTS BETWEEN YOU AND THE THIRD PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE WEBSITE, APPLICATION OR SERVICE (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE SELLER FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE APPLICATION OR SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE WEBSITE,APPLICATION OR SERVICE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
TO THE EXTENT THIS WEBSITE, THE SERVICES OR APPLICATION PROVIDE YOU WITH GOODS OR SERVICES FROM A THIRD PARTY, YOU HEREBY AGREE THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH GOODS AND SERVICES TO YOU, NOT SELLER, IS SOLELY RESPONSIBLE FOR ANY DAMAGES YOU MAY INCUR. YOU UNDERSTAND, THEREFORE, THAT BY USING THE WEBSITE, SELLER’S GOODS AND SERVICES, THE APPLICATION AND THE SERVICE, YOU MAY BE EXPOSED TO MATERIALS, CONTENT, PRODUCTS, OR SUBSTANCES THAT ARE POTENTIALLY, BUT NOT NECESSARILY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE WEBSITE, PRODUCTS, APPLICATION AND THE SERVICE AT YOUR OWN RISK AND THAT YOU KNOWINGLY ASSUME ALL SUCH RISK.
The Seller may give notice by means of a general notice on the website, Service, Application or electronic mail to your email address on record in the Seller's account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Seller's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to the Seller (such notice shall be deemed given when received by the Seller) at any time by the following: email@example.com addressed to the attention of: Chief Executive Officer.
This Agreement may not be assigned by you without the prior written approval of the Seller but may be assigned without your consent by the Seller to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the website, Services or Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You and Seller agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the website, Service or Application (collectively, "Disputes") will be settled by binding arbitration, pursuant to the rules of the American Arbitration Association, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Seller are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless both you and Seller otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Seller otherwise agree, the arbitration will be conducted in Los Angeles County California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Seller submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Seller will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. Even if your claim for damages does not exceed $75,000, you will be responsible for paying half of all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)) in which case you will be responsible for paying all such fees and all fees incurred by Seller including Seller’s attorney fees and costs.
Changes. Notwithstanding the provisions of the modification-related provisions above, if Seller changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Seller’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Seller in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
No joint venture, partnership, employment, or agency relationship exists between you, the Seller or any third party provider as a result of this Agreement or use of the Service or Application. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Seller to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Seller in writing. This Agreement comprises the entire agreement between you and the Seller and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Copyright © Emperor Brands, LLC, and Newman & Ullman Inc.