Last Modified: October 7, 2020
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, ACCURATE OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
WE DO NOT ENDORSE, WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES WHICH MAY BE ADVERTISED OR MADE AVAILABLE TO YOU THROUGH THE SERVICES, AND WE ARE NOT AN AGENT OR BROKER OF THE PROVIDERS THEREOF.
YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL WE OR ANY OF OUR THIRD PARTY VENDORS AND LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE OR ANY OF OUR THIRD PARTY VENDORS AND LICENSORS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT OUR AGGREGATE LIABILITY (TOGETHER WITH THAT OF OUR THIRD PARTY VENDORS AND LICENSORS) TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $500.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS CONTAINED IN THE TERMS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
These Terms shall be governed by the laws of the State of Kentucky without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and us agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Jefferson County, Kentucky for the purpose of litigating all such disputes.
In the interest of resolving any disputes in the most expedient and cost effective manner, any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is typically less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ADDITION TO OTHER RESTRICTIONS AND LIMITS OF LIABILITY CONTAINED WITHIN THESE TERMS.
Notwithstanding the immediately preceding paragraph, nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to seek injunctive relief in a court of law.
Any arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or reputable overnight carrier (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for Notice is 908 S 8th Street, 3rd Floor, Louisville, KY 40203. Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, either party may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in Jefferson County, Kentucky provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules. The payment of all fees will be governed by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
CLAIMS MAY BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless all parties agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
In the event that we make any future change to this arbitration provision (other than a change to our address for Notice), you may reject any such change by sending us written notice within 30 days of the change to our address for Notice, in which case your account with us shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If this section of these Terms is found to be unenforceable, then it shall be stricken and the remainder of these Terms enforceable unless the stricken section materially changes the intent of the parties. Regardless, if the entirety of this section is found to be unenforceable, then the entirety of this section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 shall govern any action arising out of or related to these Terms.
Our corporate offices are located 908 S 8th Street, 3rd Floor, Louisville, KY 40203. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com.