TERMS AND CONDITIONS
Last Updated: January 17, 2024
These Terms of Service (“Terms”) apply to your access to and use of the website located at ridgeline-roofing.com (or any successor links) and all associated web pages, websites, and social media pages, application, goods or services, or any associated application offered by us or our affiliates (the “Site”) provided by Ridgeline Roofing & Restoration, LLC. Throughout the Site, the terms “Company”, “we”, “us”, and “our” refer to Ridgeline Roofing & Restoration, LLC and its subsidiaries, parent companies, predecessors, and successors in interest. “Services” shall refer to online services (including the Sites) and any other goods or products and services offered by us, our employees, agents, contractors or subcontractors and the like. We offer Services conditioned upon your acceptance of all terms, conditions, and policies stated herein.
By visiting, navigating, or using the Site and/or mobile application, you agree to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. The Terms apply to all users of the Site, including, without limitations, users who are browsers, vendors, customers, merchants, and/or contributors of content.
Please read these Terms carefully before accessing or using the Site. By accessing or using any part of the Site, you agree to be bound by these Terms. If you do not agree to all Terms contained herein, do not use our Services.
Any new features or tools which are connected or related to the Services shall also be subject to these Terms. You can review the most current version of these Terms at any time on this page. We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes without advance or contemporaneous notice to you. It is your responsibility to check this page periodically for changes. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of or access to the Site or apps following any changes constitutes your acceptance of those changes.
BY AGREEING TO THESE TERMS, EXCEPT FOR (A) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION XVII, (B) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION XVII, OR (C) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL.
SECTION I–ELIGIBILITY AND USE RESTRICTIONS
(a) By agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and consent to these Terms on behalf of your minor dependents who may access or use the Site. If you are a parent or guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at [email protected].
(b) You may only use our Services in jurisdictions authorized by Company. Use of our Services is currently authorized only in the United States. You may only use our Services for personal, family or household purposes and expressly excluding any commercial use.
(c) You may not use the Site for any illegal or unauthorized purpose, nor may you, in the use of the Services, violate any laws in your jurisdiction. You must not transmit any worms, viruses, or destructive code via the Site or application. A breach or violation of any of the Terms herein will result in an immediate termination of use of the Services.
SECTION II–YOUR INFORMATION
(a) You may provide certain information to Company in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS or text messages, and other types of communication from Company via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Company in connection with the Services is accurate.
SECTION III–GENERAL CONDITIONS
(a) We reserve the right to refuse Services or access to the Services to anyone for any reason commensurate with governing law at any time.
(b) You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of this Site, its Services, or its content or access the same or any contact through which it is provided without express written permission by us.
(c) The headings used herein are included for convenience only and will not limit or otherwise affect these Terms.
SECTION IV–MODIFICATION OR SUSPENSION TO THE SERVICES
We reserve the right at any time to modify or discontinue any Services or this Site (or any part or content thereof) without notice at any time. We shall not be liable to you or any third-party for modification, suspension, or discontinuance of the Services or the Site.
We may advertise or describe certain Services for sale on this Site or its associated applications. These offers are not intended as specific offers to perform, but rather as an advertisement of Services which may be offered for sale pursuant to specific terms, conditions, and/or contractual agreements. Nothing in the advertisement of Services on this Site shall be intended to create a contract or an irrevocable offer to perform the same.
SECTION VI–USER COMMENTS, CHATS, FEEDBACK, AND OTHER SUBMISSIONS
(a) Our Services may allow you and other users to create, post, store, and share content, including feedback, reviews, messages, text, photos, videos, software, and other materials (collectively, “User Content”). When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your name) may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
(b) Except for the license you grant below, as between you and Company, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant Company and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
(i) Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
(ii) Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
(iii) May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
(iv) Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
(v) Impersonates, or misrepresents your affiliation with, any person or entity;
(vi) Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
(vii) Contains any private or personal information of a third party without such third party’s consent;
(viii) Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
(ix) In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Company or others to any harm or liability of any type.
(d) Enforcement of this Section VI is solely at Company’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section VI does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(e) Certain chat or email-based correspondence may be offered on the Site to assist with the scheduling of in-person meetings, appointments, quotes, or site inspections. In the event that you choose to use these chat applications, you consent to the use of any information provided for the purpose of responding to correspondence, obtaining quotes, arranging future communications, or any other logical use in association with the stated purpose of this Site. Any information you might share on these chat correspondence applications may be shared with third party contractors and there is no reasonable expectation of confidentiality regarding information shared in this manner.
(f) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
(i) Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
(ii) Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
(iii) Take any action with respect to your User Content that is necessary or appropriate, in Company’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Company’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
(iv) As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.1
SECTION VII–PROHIBITED CONDUCT
(a) You will not use our Services if you are not eligible to use our Services in accordance with Section I and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:
(i) Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
(ii) Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
(iii) Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
(iv) Sell or resell our Services;
(v) Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
(vi) Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
(vii) Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
(viii) Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
(ix) Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Company grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Company reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
(x) Develop or use any applications or software that interact with our Services without our prior written consent;
(xi) Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
(xii) Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by Company; or
(xiii) Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section VII is solely at Company’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
SECTION VIII–PRODUCT LISTINGS
The Services may make available listings, descriptions, and images of products, as well as references and links to products and coupons or discounts for products (“Listings”). Such products may be made available by Company or by third parties and may be made available for any purpose, including general information purposes. The availability through the Services of any listing, description, or image of a third-party product does not imply our endorsement of such product or affiliation with the provider of such product. We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
SECTION IX–OWNERSHIP; LIMITED LICENSE
The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by Company or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections VI and VII), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use for internal use and solely with respect to any applications included in the Services, install and use such application on a mobile or personal device that you own or control. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
Ridgeline Roofing & Restoration, LLC, and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Company and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Company or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in Company’s sole discretion. Company will exclusively own all improvements to, or new, Company products, services, or Services based on any Feedback. You understand that Company may treat Feedback as nonconfidential.
SECTION XII–THIRD-PARTY CONTENT
(a) Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (a) the use and availability of the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
(b) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
(c) We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
SECTION XIII–DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITY
(a) We do not guarantee, represent, or warrant that your use of our Site will be uninterrupted, timely, secure or error-free. You agree that from time to time we may remove, disable or suspend the Site for indefinite periods of time or cancel the Site at any time, without notice to you.
(b) Your use of our Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, OUR SERVICES, AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE FOREGOING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OR ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE OR THAT ACCESS TO OUR SERVICES OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) WILL BE UNINTERRUPTED. WHILE COMPANY ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS) OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY CONTENT AND THIRD-PARTY MATERIALS). ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF COMPANY, COMPANY PARTIES, AND COMPANY’S RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
(c) IN NO CASE SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SITE AND ITS CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE OR ITS ASSOCIATED GOODS OR SERVICES AND ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. The limitations set forth in this Section XIII will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Company or the other Company Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. YOU ASSUME ALL RISK OF LOSS OR INJURY RELATED TO THE USE OF THE SERVICES.
(d) TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, OUR OR OUR AFFILIATES’ LIABILITY ASSOCIATED WITH THE USE OF THIS WEBSITE OR ITS APPLICATIONS IS LIMITED TO THE TOTAL AMOUNT YOU HAVE PAID US IN THE THREE HUNDRED SIXTY-FIVE (365) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. IF YOU HAVE NOT PAID US OR ANY AFFILIATE ANY AMOUNT IN THE THREE HUNDRED SIXTY-FIVE (365) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR ANY AFFILIATE IS TO STOP USING OUR SERVICES.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless us and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees (individually and collectively, the “Company Parties”) from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of any losses, liabilities, claims, demands, damages, expenses or costs (collectively, “Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Company Parties of any third-party Claims, cooperate with Company Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). The Company Parties will have control of the defense or settlement, at Company’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company or the other Company Parties.
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, the unenforceable portion shall be deemed to be severed from these Terms, and such determination shall not affect the validity and enforceability of any other remaining provisions.
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes. These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Site and ceasing to use the same. If you choose to use the Site at a later date, you are revoking your previous termination notice. To the extent possible, at any time and for any reason, we may also terminate your use of the Site without advance notice.
SECTION XVII–ENTIRE AGREEMENT
(a) The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
(b) These Terms and any policies or operating rules posted by us on the Site constitutes the entire agreement and understanding between you and us and governs your use of the Site, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
(c) Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
SECTION XVIII–DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND COMPANY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND COMPANY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND COMPANY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW, IN SECTION XVIII(L), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section XVIII apply to all Claims between you and Company. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms or our Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
(b) Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Company or if Company has a Claim against you, you and Company will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and Company will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with these Terms.
You will send any Claimant Notice to Company by certified mail addressed to Company, 14314 US 411, Odenville, AL 35120, (205) 661-8440. Company will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Company. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Company cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Company file a Claim in court or proceed to arbitration without complying with the requirements in Section XVIII, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.
(c) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Company, including any disputes in which you or Company seek injunctive or other equitable relief for the alleged unlawful use of your or Company’s intellectual property or other infringement of your or Company’s intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section XVIII(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(d) Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms.
If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and Company as modified by these Terms. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Company as modified by these Terms.
These Terms affect interstate commerce, and the enforceability of this Section XVIII will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Company to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
(e) Arbitration Procedure and Location. You or Company may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section XVIII(d)).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at (800) 358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at (800) 778-7879. You will send a copy of any demand for arbitration to Company by certified mail addressed to Company at 14314 US 411, Odenville, AL 35120, (205) 661-8440 or by email to [email protected]. Company will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Company. The arbitration will be conducted by a single arbitrator in the English language. You and Company both agree that the arbitrator will be bound by these Terms.
For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Alabama, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Company agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
(f) Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
(h) Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made. The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.
(i) One Year to Assert Claims. To the extent permitted by law, any Claim by you or Company against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or Company will no longer have the right to assert that Claim.
(j) Confidentiality. If you or Company submits a Claim to arbitration, you and Company agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Company agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
(k) Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms. You or Company may advise the other of your or Company’s belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable. COORDINATED CLAIMS MAY ONLY BE FILED IN ARBITRATION AS PERMITTED BY THE PROCESS SET FORTH BELOW. APPLICABLE STATUTES OF LIMITATIONS WILL BE TOLLED FOR CLAIMS ASSERTED IN COORDINATED CLAIMS FROM THE TIME A COMPLIANT CLAIMANT NOTICE HAS BEEN RECEIVED BY A PARTY UNTIL THESE TERMS PERMIT SUCH COORDINATED CLAIM TO BE FILED IN ARBITRATION OR COURT.
(i) Initial Bellwether. The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided. After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section XVIII(k). A single arbitrator will preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
(ii) Mediation. Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator’s fee paid for by Company. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
(iii) Remaining Claims. If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section XVIII apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section XIX.
If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.
If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
(l) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by emailing [email protected]. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section XIX.
(m) Rejection of Future Arbitration Changes. You may reject any change we make to Section XVIII (except address changes) by sending us notice of your rejection within 30 days of the change via email at [email protected] or by certified mail addressed to Company at 14314 US 411, Odenville, AL 35120, (205) 661-8440. Changes to Section XVIII may only be rejected as a whole, and you may not reject only certain changes to Section XVIII. If you reject changes made to Section XVIII, the most recent version of Section XVIII that you have not rejected will continue to apply.
(n) Severability. If any portion of this Section XVIII is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section XVIII or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section XVIII; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section XVIII is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section XVIII will be enforceable.
SECTION XIX–APPLICABLE LAW AND VENUE
Any dispute arising from these Terms or your use of the Services will be governed by and construed and enforced in accordance with the laws of Alabama except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Alabama or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration and cannot be heard in small claims court will be resolved in the Circuit Court of Etowah County, Alabama or the United States District Court for the Northern District of Alabama, Middle Division. You waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
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