Terms and Conditions
These TERMS AND CONDITIONS (this “Agreement”) concern the Venkel.com website (together with its pages and features, the “Site”). This Agreement is made and entered into by and between you and any person helping you visit, access or use the Site (collectively, “you” or “your”), on the one side, and Venkel, Ltd. (“Venkel”), on the other side. You and Venkel are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties.”
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE BECAUSE IT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND VENKEL. THIS INCLUDES THE “DISPUTE RESOLUTION” CLAUSE CONTAINED IN THIS AGREEMENT, WHICH PROVIDES FOR BINDING ARBITRATION AND WAIVERS OF JURY TRIALS AND CLASS ACTIONS.
YOU ARE AUTOMATICALLY ACCEPTING AND AGREEING TO THE MOST RECENT VERSION OF THIS AGREEMENT WHENEVER YOU VISIT, ACCESS, REGISTER OR USE THE SITE; AND YOUR CONTINUING VISIT, ACCESS OR USE OF ANY OF THE FOREGOING REAFFIRMS YOUR ACCEPTANCE AND AGREEMENT IN EACH INSTANCE.
IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT IN ITS ENTIRETY, THEN YOU ARE STRICTLY PROHIBITED FROM VISITING, ACCESSING, REGISTERING WITH OR USING THE SITE.
VENKEL MAY SUPPLEMENT, AMEND OR OTHERWISE MODIFY THIS AGREEMENT AT ANY TIME. SUCH MODIFICATIONS WILL BE POSTED ON THIS OR ANOTHER PAGE OF THE SITE, AS VENKEL DEEMS APPROPRIATE IN ITS SOLE DISCRETION, AND SUCH MODIFICATIONS SHALL BE DEEMED EFFECTIVE AS OF THEIR STATED EFFECTIVE OR MODIFICATION DATES. IT IS YOUR RESPONSIBILITY TO CAREFULLY REVIEW THIS AGREEMENT EACH TIME YOU VISIT, ACCESS, REGISTER WITH OR USE THE SITE.
1. Eligibility. The Site is offered only to users eighteen (18) years of age or older, or otherwise the age of majority in each user’s respective jurisdiction, and who have accepted this Agreement. By visiting, accessing, registering with or using the Site, you represent and warrant to Venkel that you meet these eligibility requirements. You agree to comply with all applicable laws for visiting, accessing, registering with and using the Site.
3. Your Devices. Certain portions of the Site may be configured for, and Venkel may offer the Site through, certain computers, tablets, smart phones or other electronic devices (“Device(s)”), and this Agreement shall apply with equal force and measure to your visit, access and use of the Site through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly visit, access and use the Site. Venkel does not guarantee that the Site or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier or network. If you visit, access or use the Site through a particular Device, then you hereby acknowledge and agree that information about your use of the Site through that Device or its carrier or network (such as, by way of example only, the identity of your Device, or your Device’s carrier or network) may be communicated to Venkel and/or certain third parties (such as, by way of example only, your Device’s carrier or network). ALL OR ANY PART OF THE VOICE, MESSAGE AND DATA FEES, RATES, CHARGES AND TAXES OF YOUR DEVICE’S CARRIER OR NETWORK, OR ANOTHER THIRD PARTY, MAY APPLY TO YOUR VISIT, ACCESS AND/OR USE OF THE SITE. VENKEL IS NOT RESPONSIBLE FOR, AND YOU FURTHER ACCEPT FULL RESPONSIBILITY FOR, ALL DEVICE CARRIER AND NETWORK FEES, RATES, CHARGES AND TAXES WHICH MAY APPLY, IF ANY.
4. Ownership. The Site and all elements and derivatives of the Site (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation and expressions), as well as all copyrights, trademarks, trade secrets and other intellectual properties of the foregoing, are owned, licensed or permissibly used by Venkel. In no event shall you have or retain any rights, titles or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of Venkel’s or its licensors’ respective rights and remedies under applicable law.
5. User Account.
a. Registration. As explained further herein, to secure the right to access and use the registration-only pages or features of the Site, you must register with and create a personal user account with Venkel through the Site (“User Account”), as well as reaffirm your acceptance of and agreement to this Agreement and those additional terms, conditions and policies referenced herein, as Venkel may require from time-to-time. As part of the registration process, you may be required to satisfy certain conditions precedent imposed by Venkel (including, for example, providing additional information to Venkel, and entering into additional agreements with Venkel). Unless otherwise permitted by Venkel in writing, you may only have one (1) non-transferable User Account.
b. User Account Activity and Information. You are responsible for all activity that occurs under your User Account and are prohibited from authorizing or allowing any third party to access or use your User Account. Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password). You should also maintain accurate, complete, and up-to-date information in your User Account (including, without limitation, maintaining a valid and current payment method and email address) because your failure to do so may result in your inability to access, use or receive all or any part of the Site and/or Venkel’s termination of this Agreement. For the sake of security, you must immediately notify Venkel if you suspect that a third party has gained access to or is making any use of your User Account without authorization. For the avoidance of doubt, Venkel has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors and vendors to access and use, the information in your User Account to facilitate the exercise and performance of Venkel’s rights and obligations under this Agreement, the operation of the Site and/or any other rights, obligations, operations and services related to the subject matter of this Agreement (including, without limitation, payments, and communications).
c. Indemnification in Connection with User Account. IF YOU FAIL TO COMPLY WITH ANY TERMS OR CONDITIONS OF SECTION 5(B) ABOVE (WHETHER INTENTIONALLY OR UNINTENTIONALLY), THEN YOU ACCEPT FULL RESPONSIBILITY FOR THE CONSEQUENCES THEREOF (INCLUDING, WITHOUT LIMITATION, ANY UNAUTHORIZED CHARGES AND PAYMENTS, ANY UNAUTHORIZED CHANGES TO YOUR USER ACCOUNT INFORMATION AND SETTINGS AND ANY UNAUTHORIZED ACCESS OR USE OF YOUR USER ACCOUNT); AND YOU AGREE TO INDEMNIFY, RELEASE AND HOLD HARMLESS VENKEL AND VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS AND LICENSEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, SUITS, DEMANDS, ACTIONS, JUDGMENTS, LOSSES, DAMAGES, FINES, PENALTIES AND EXPENSES (INCLUDING COSTS AND REASONABLE OUTSIDE ATTORNEY FEES) INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEES, ARISING OUT OF OR IN CONNECTION WITH YOUR FAILURE TO COMPLY WITH SUCH TERMS OR CONDITIONS.
6. Rights, Permissions, and Consents.
a. License of the Site. Subject to the terms and conditions of this Agreement, Venkel grants you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and view the various publicly displayed pages of the Site, and to view the information and content found thereon. If you have a User Account in good standing, then, subject to any associated payment, registration and subscription obligations imposed by or with the prior consent of Venkel, said license shall extend to the registration-only pages or features of the Site.
b. Your unauthorized use of the Site, or any breach by you of this Agreement, automatically terminates this license.
c. License of User Materials. All names, videos, photographs, information, communications and any other content that you submit to or publish on, through or in relation to the Site, including those which you submit to or publish on any online social media account (e.g., Facebook, Google Plus, Twitter, Instagram) that you own and link or otherwise associate with the Site, if any and as applicable, is hereinafter defined as the “User Materials.” You hereby grant Venkel an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual and universe-wide license for Venkel to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium or form, whether now known or hereinafter devised, as Venkel sees fit in its sole discretion.
d. Reservation of Rights. Nothing in this Agreement restricts or limits Venkel’s rights, titles or interests in or to the Site, the User Materials or any elements or derivatives of the foregoing.
e. Warnings; Disclaimers. PLEASE NOTE THAT THE USER MATERIALS MIGHT BECOME THE SUBJECT OF PUBLIC DISCLOSURE. THUS, VENKEL IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM OR IN CONNECTION WITH, ITS USE OF ANY USER MATERIALS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7. Suspension or Termination of Service; Disclaimer. Venkel has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Site. VENKEL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE THAT IS CAUSED BY OR ARISES FROM OR IN CONNECTION WITH ANY SUCH SUSPENSION OR TERMINATION (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, REFUNDS, LOST PROFITS, LOST OPPORTUNITIES, MONETARY DAMAGES, DISRUPTION IN OR LOSS OF SERVICE OR LOSS OF CONTENT).
8. Products and Services. Venkel might offer, sell, license or otherwise make available various products or services on, through or in relation to the Site, some of which might only be made available to you upon completion and submission of an online form or other instructions provided to you by Venkel. Venkel has the right to refuse its products and services to you if it suspects that you are in any way involved in fraudulent or illegal activity (including, without limitation, the use of stolen credit cards); and may contact your payment method issuer, law enforcement or others and share information relating to your payments if Venkel believes doing so will prevent a violation of the law or financial loss.
9. Sales; Delivery.
a. Prices and Terms. The Prices, terms and availability of merchandise offered by Venkel are subject to change without notice (including, without limitation, changes caused by fluctuations in market price or availability of the quality of the merchandise described herein). Unless otherwise provided in this Agreement, payment hereunder shall be due net thirty (30) days from the date of shipment. All amounts past due shall bear interest at the rate of one and a half percent (1.5%) per month or at the maximum rate allowable by Texas law. Venkel’s obligation to produce or deliver hereunder is conditioned upon continued good credit of you and upon your payment when due of any sum owing by you to Venkel under any agreement between the parties. Based on Venkel’s reasonable judgment, if your financial condition at the time the merchandise is ready for shipment does not justify the terms specified, then Venkel reserves the right to change these terms, to require full or partial payment in advance, or to ship the goods C.O.D.
b. Taxes. Any taxes which Venkel may be required to pay or collect, under an existing or future law, with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the merchandise covered hereby (including, without limitation, taxes upon or measured by the receipts from the sale thereof), shall be for your account; and you shall promptly pay the amount thereof to Venkel upon demand.
c. Shipments; Delays. Any times quoted by Venkel for the delivery of any products or services that you order or purchase from Venkel are estimates only. Venkel is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery date. Shipment dates are based upon Venkel’s best judgment; are subject to factory schedules and production limitations; and are not guaranteed. For the avoidance of doubt, Venkel is not required to ship any products to you overnight or on any other expedited basis, or at Venkel’s own cost, in order to meet a delivery date because, again, delivery dates are estimates only. Subject to your rights as explicitly stated under this Agreement, no delay in the shipment or delivery of any products or services that you order or purchase from Venkel relieves you of any of your obligations under this Agreement (including, without limitation, your obligation to accept delivery of any remaining installment or other orders of products or services, or your obligation to pay for the same).
d. Delivery in Installments. Venkel reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve you of your obligation to accept remaining deliveries.
e. Inspection. Prior to shipment, you shall have the right and shall be given the opportunity to inspect the goods at Venkel’s place of manufacture. Such inspection shall be so conducted as not to interfere unreasonably with Venkel’s operations, and consequent approval or rejection shall be made before shipment of the material. Notwithstanding the foregoing, if, upon receipt of such material by you, the same shall appear not to conform to the contract between you and Venkel, you shall notify Venkel of such condition, in writing, within thirty-five (35) days from the date of shipment of the goods. Failure to give notice within the time specified shall constitute an irrevocable acceptance of the goods. No claims of any kind by you shall be valid without notice, as specified, and you shall afford Venkel a reasonable opportunity to inspect the material and repair or replace any materials determined by Venkel to be non-conforming. No material shall be returned without Venkel’s consent.
f. Non-Conforming Goods; Limited Remedy. If the goods furnished to you does not conform to this Agreement (including any terms stated herein, and any express or implied warranties) (“non-conforming goods”), then Venkel shall, at Venkel’s discretion and within thirty (30) days of notice of said non-conformity, issue you a credit for or replace such non-conforming goods at the original point of delivery, and furnish you with instructions for the disposition of the non-conforming material. Any transportation charges involved in such disposition shall be for Venkel’s account. UNLESS VENKEL AGREES OTHERWISE, YOUR EXCLUSIVE AND SOLE REMEDY IN RELATION TO ANY SUCH NON-CONFORMING GOODS SHALL BE TO SECURE A CREDIT FOR OR REPLACEMENT OF SUCH NON-CONFORMING GOODS. IN NO EVENT SHALL VENKEL BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE COST OF ANY LABOR EXPENDED ON ANY SUCH NON-CONFORMING GOODS, FOR THE COST TO SHIP OR RETURN SUCH NON-CONFORMING GOODS (OR ANY REPLACEMENT GOODS), OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES RELATED TO SUCH NON-CONFORMING GOODS (INCLUDING, WITHOUT LIMITATION, ANY PRODUCT OR MANUFACTURING LOSSES, ANY LOSS OF BUSINESS, OR ANY LOST PROFITS); AND NO CLAIM OF ANY KIND OR NATURE WILL BE CONSIDERED ON ANY SUCH NON-CONFORMING GOODS THAT HAVE BEEN CONVERTED, CHANGED, PROCESSED, OR USED IN MANUFACTURE.
g. Permissible Variations, Standards, and Tolerances. Except in the particulars specified by you and expressly agreed to in writing by Venkel, products ordered shall be produced in accordance with Venkel’s standard practices. All products, however, shall be produced subject to Venkel’s tolerances and variation in respect to dimension, weight, surface conditions, composition, mechanical properties, internal conditions and quality to deviations from tolerances and variations consistent with practical testing and inspection methods, and to regular practice on over and under shipments. All representations and certifications on the part of Venkel with reference to such products shall be limited by the foregoing.
h. Specification Changes. Specification changes are subject to acceptance by Venkel, including price revisions and any adjustments necessary to cover material procured and processed and labor expended prior to receipt by Venkel of the revised specifications.
i. Non-Waiver. Waiver by Venkel of the breach of the terms and conditions of this Agreement shall not be construed as a waiver of any other breach.
j. Risk of Loss. Identification of the goods sold herein occurs at such time as Venkel places such goods in the hands of the carrier for the delivery as is provided for herein. Upon identification, the risk of loss passes to you. Title for the goods shall remain with Venkel until Venkel receives payment for such goods.
k. Cancellation of Orders. You may cancel or reschedule any order, provided that you provide written notice to Venkel thirty (30) days prior to the originally scheduled ship date or shipment of the goods. On scheduled orders, the terms of the blanket purchase agreement entered into by and between you and Venkel shall control all cancellations. In all cases, you shall be liable for the payment of reasonable cancellation charges, which shall not exceed the cost to Venkel for the products cancelled and shall include, but not be limited to, expenses already incurred by Venkel and proper allowable indirect charges. You cannot cancel and/or return any Cut Tape order after the order has been received by Venkel.
l. Collection Fees. You agree to pay any and all costs and expenses incurred by Venkel to collect any unpaid balance due by you to Venkel, including interest on the unpaid balance as provided in this section 9, but not to exceed the maximum rate allowed by Texas law, together with any reasonable attorney’s fees and expenses incurred by Venkel. You shall not cancel any order for delay in delivery until five (5) days after written notice of such intention has been received by Venkel. You shall accept any conforming goods shipped by Venkel during such five (5) day period.
a. Shopping Cart. Certain sales transactions on or through the Site might take place through an online shopping cart feature (“Shopping Cart”). Once you proceed to “check out” or the like, you will be able to review your order, update quantities, remove items and enter promotional codes, if any, as applicable. Venkel will then ship or arrange for the shipment of the purchased product items to your designated shipping address, if any such shipment is applicable.
b. Third-Party Vendors. The Shopping Cart is provided by a third-party vendor and resides on that third-party vendor’s website via a dedicated page or portal. All credit card, debit card and other monetary transactions on or through the Site and/or the Shopping Cart occur through an online payment processing application that is provided by a third-party vendor(s). VENKEL’S RELATIONSHIP WITH ITS THIRD-PARTY VENDORS, IF ANY, IS MERELY CONTRACTUAL IN NATURE, AS THEY ARE NOTHING MORE THAN THIRD-PARTY VENDORS AND ARE IN NO WAY SUBJECT TO VENKEL’S DIRECTION OR CONTROL; THUS, THEIR RELATIONSHIP IS NOT, AND SHOULD NOT BE CONSTRUED AS, ONE OF FIDUCIARIES, FRANCHISORS-FRANCHISEES, AGENTS-PRINCIPALS, EMPLOYERS-EMPLOYEES, PARTNERS, JOINT VENTURERS, CONTRACTORS OR THE LIKE.
c. Payment Authorization. IF YOU PROVIDE VENKEL WITH YOUR PAYMENT INFORMATION, THEN YOU AUTHORIZE VENKEL TO DO THE FOLLOWING AS VENKEL DEEMS NECESSARY, ALTHOUGH VENKEL HAS NO OBLIGATION TO DO SO: (A) SHARE YOUR PAYMENT INFORMATION WITH ITS THIRD-PARTY PAYMENT PROCESSING VENDOR(S); (B) OBTAIN YOUR UPDATED PAYMENT INFORMATION FROM YOUR PAYMENT ISSUER, VENKEL’S THIRD-PARTY PAYMENT PROCESSING VENDOR(S) AND/OR APPLICABLE THIRD-PARTY PROVIDERS; AND (C) USE YOUR PAYMENT INFORMATION TO CHARGE PAYMENTS THAT ACCRUE UNDER YOUR ACCOUNT(S) WITH VENKEL IN ACCORDANCE WITH THIS AGREEMENT.
d. Payment Obligations. You agree that you are responsible for the payment of all amounts that accrue under your account(s) with Venkel, Venkel’s third-party payment processing vendor(s), and/or any other third-party providers on, through or in relation to the Site (including, without limitation, all shipping and handling charges associated with the delivery of any products that you may purchase from Venkel). You also agree to be responsible for all payments, fines, penalties and other liabilities incurred by any such person or entity that arises out of or relates to payments that you authorize or accept on, through or in relation to the Site (including, without limitation, all fees, penalties, taxes and duties); and to be responsible for all expenses (including costs and reasonable outside attorney fees) and interest incurred by any such person or entity to collect any overdue amounts.
e. Waiver of Claims in Connection with Unauthorized Payments. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO WAIVE ALL CLAIMS AGAINST VENKEL RELATED TO ANY UNAUTHORIZED PAYMENTS MADE ON, THROUGH OR IN RELATION TO YOUR ACCOUNT(S) WITH VENKEL, VENKEL’S THIRD-PARTY PAYMENT PROCESSING VENDOR(S), ANY OTHER THIRD-PARTY PROVIDERS AND/OR ANY OTHER PERSON OR ENTITY, REGARDLESS OF WHETHER THEY ARE AUTHORIZED OR UNAUTHORIZED.
f. Accurate Payment Information. You represent and warrant to Venkel that any payment information you provide on, through, or in relation to the Site is current, complete, and accurate; and that you will promptly notify Venkel if your payment information has changed (such as a change in address or expiration date), if your payment method has been cancelled, or if you become aware of a breach of security.
g. No Refunds. All sales and payments made on, through or regarding the Site or any products or services offered, marketed, sold or provided on, through or in relation to the Site (including, without limitation, the Services) are final, irrevocable and not subject to or eligible for refund or return, in whole or in part, unless otherwise expressly stated in this Agreement.
h. Refusal of Products and Services. Venkel has the right, but not the obligation, to refuse any and all of its products and services to you (including, without limitation, the Services) if it suspects that you are in any way involved in fraudulent or illegal activity (including, without limitation, the use of stolen credit cards). Venkel may contact your payment method issuer, law enforcement or others and share information relating to your payments if Venkel believes doing so will prevent a violation of the law or financial loss.
11. Electronic Communications.
a. Express Consent. YOU HEREBY EXPRESSLY CONSENT TO VENKEL AND ITS AFFILIATED COMPANIES SENDING YOU ANY TYPE OF ELECTRONIC MESSAGE (INCLUDING, WITHOUT LIMITATION, ADVERTISEMENTS AND OTHER COMMERCIAL E-MAILS, INFORMATIONAL E-MAILS, AND ELECTRONIC NOTICES, UPDATES, AND NEWSLETTERS), WHETHER THROUGH THE SITE OR BY E-MAIL, ONLINE SOCIAL MEDIA OR ANY OTHER ELECTRONIC MEDIA MEANS OR FORMS. BY GIVING SUCH CONSENT, YOU AGREE THAT NO SUCH COMMUNICATION SHALL VIOLATE THE CAN-SPAM ACT OR ANY OTHER APPLICABLE LAWS, RULES OR REGULATIONS. VOICE, MESSAGE, AND DATA FEES, RATES, CHARGES AND/OR TAXES MAY APPLY TO YOU, AND YOU ARE RESPONSIBLE FOR PAYMENT OF THE SAME.
b. Opt-Out. You may opt-out of receiving any electronic messages from Venkel as described in section 11(a) above at any time by any reasonable means, including, without limitation and by way of example, by sending an e-mail to firstname.lastname@example.org, with a subject line of “Opt-Out of Electronic Communications.” You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site and/or your ability to receive certain messages and/or notifications from Venkel.
12. Submissions. Venkel does not accept unsolicited materials or ideas for content. You acknowledge and agree that neither Venkel nor any of Venkel’s agents, employees, vendors, parents, subsidiaries, affiliates, successors, assigns or transferees are responsible or liable to you for the similarity of any information or content submitted, published, provided or made available by you on, through or in relation to the Site.
13. Prohibited Activities. You shall not engage in any of the following activities at any time with respect to the Site: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Venkel or its licensors with respect to the Site); (c) the reproduction of the Site or any communications, information or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by Venkel herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer or randomly generated content; (g) supplying or publishing any information or statements on, through or in relation to the Site that is false, misleading, deceptive or incorrect; (h) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers or applications; (i) the systematic retrieval or copying of any information or content found on, through or in relation to the Site or its servers to directly or indirectly create or compile, in whole or in part, a collection, compilation, database or directory; (j) the use of any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Site or its servers; (k) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through or in relation to the Site or its servers; (l) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Site or its servers; (m) any act that gains or attempts to gain unauthorized access to computer systems, networks, information or materials on, through or in relation to the Site or its servers; or (n) any other act that Venkel becomes aware of and believes in good faith is improper, illegal or harmful to the Site, its servers or any person, entity or property.
14. Links to Other Sites, Apps, Networks, Platforms and Servers.
a. Linked Technologies. The Site and/or any communications sent on, through or as a function of the Site may contain links to third-party websites, networks, platforms, servers and/or applications, and, similarly, third-party websites, networks, platforms, servers, applications and/or communications may contain links to the Site (collectively, “Linked Technologies”). The Linked Technologies are not under the control of Venkel. The Site and any such communications contain the outgoing links as a convenience to you, if for any purpose.
15. Take Down. Venkel reserves the right, but not the obligation, to take down or otherwise exclude from the Site, without notice or recourse, any communications, names, photographs, information and/or content made or submitted by you or others on or through the Site that Venkel believes at any time and in its sole discretion to be infringing or otherwise in violation of the proprietary, privacy or publicity rights of any person or entity; defamatory, disparaging or embarrassing of or towards any person or entity; profane, indecent or obscene; derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; false, misleading or deceptive; or otherwise illegal or something that Venkel considers unsuitable for the Site or its users.
16. User Representations, Warranties, and Covenants. You represent, warrant and covenant to Venkel that: (a) you are a natural person and of eighteen (18) years of age or older, or otherwise the age of majority in your jurisdiction; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that by accepting this Agreement you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state or local laws which may concern the Site, the Site’s servers or any information, communications or content found on or through them; (g) you are the exclusive owner of all rights, titles and interests in and to the User Materials (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials to allow for your performance and grant of rights hereunder; (h) the User Materials are wholly original to you; (i) the User Materials do not and will not infringe upon or otherwise violate the proprietary, publicity or privacy rights of any person or entity; (j) the User Materials do not and will not defame, disparage, embarrass or disclose confidential, private or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials is or will be, or contains or will contain, links to material that is profane, indecent, obscene, threatening, abusive, illegal, false, misleading or any form of spam, malware, virus, bug, bot, spyware or other malicious or tracking technology; (l) Venkel is not required to seek the permission of or compensate any third party to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to Venkel in connection with your visit, access or use of the Site is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties.
17. Disclaimers and Limitations.
a. General Disclaimer. YOUR VISIT, ACCESS, REGISTRATION WITH OR USE OF THE SITE AND/OR ANY PRODUCTS OR SERVICES MADE AVAILABLE TO YOU ON, THROUGH OR IN RELATION TO THE SITE IN ANY WAY IS DONE AT YOUR OWN RISK. THE SITE, THOSE PRODUCTS AND SERVICES, THE SUCCESS OR PERFORMANCE OF THE SITE OR THOSE PRODUCTS AND SERVICES AND ALL INFORMATION, COMMUNICATIONS, CONTENT AND FEATURES OFFERED, MARKETED, SOLD, PROVIDED, LICENSED OR MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE OR THOSE PRODUCTS AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. VENKEL DOES NOT MAKE, NOR HAS VENKEL MADE, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE (WHETHER DIRECT OR INDIRECT, ORAL OR WRITTEN, OR EXPRESS OR IMPLIED) TO YOU WITH RESPECT TO THE SITE, ANY OF THOSE PRODUCTS AND SERVICES, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT AND FEATURES OR THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY. VENKEL EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS WARRANTIES, IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD FAITH AND FAIR DEALING, TITLE, NON-INFRINGEMENT, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY AND SAFETY) AND WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM AND USAGE IN TRADE WITH RESPECT TO THE SITE, THOSE PRODUCTS AND SERVICES, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT OR FEATURES AND THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY AND SAFETY. VENKEL DOES NOT MAKE, NOR HAS VENKEL MADE, ANY AFFIRMATION OF FACT, PROMISE OR WARRANTY (EXPRESS, IMPLIED OR OTHERWISE) RELATING TO THE SITE OR ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT OR FEATURES OR ITS SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY THAT EXTENDS BEYOND THE FACE OF THIS AGREEMENT OR THAT HAS BECOME ANY BASIS OF ANY BARGAIN.
b. Disclaimer About System Delays. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THIRD-PARTY COMMUNICATION NETWORKS AND FACILITIES THAT ARE OUTSIDE OF VENKEL’S CONTROL. ACCORDINGLY, VENKEL SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS, ANY DELAYS, FAILURES, LOSSES, INJURIES, LIABILITIES OR DAMAGES ASSOCIATED WITH THE SITE WHICH RESULT FROM ANY SYSTEM DELAYS, DOWNTIMES, INTERRUPTIONS OR OTHER FAILURES OF OR PROBLEMS WITH THE SITE WHICH ARE OUTSIDE OF VENKEL’S CONTROL (INCLUDING, WITHOUT LIMITATION, SCHEDULED MAINTENANCE OR NETWORK FAILURE).
c. Disclaimer About Certain Information, Communications and Content. ANY OPINIONS, ADVICE, REVIEWS, STATEMENTS, OFFERS OR OTHER INFORMATION, COMMUNICATIONS OR CONTENT FOUND ON, THROUGH OR IN RELATION TO VENKEL, THE SITE OR ANY THIRD-PARTY PROVIDERS (INCLUDING, WITHOUT LIMITATION, ONLINE FORUMS, OTHER WEBSITES, ADVERTISEMENTS, AND SOCIAL MEDIA PAGES) ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND NOT NECESSARILY THOSE OF VENKEL; THUS, THEY SHOULD NOT NECESSARILY BE RELIED UPON. SUCH AUTHORS ARE SOLELY RESPONSIBLE FOR THE ACCURACY OF SUCH INFORMATION, COMMUNICATIONS OR CONTENT. VENKEL DOES NOT GUARANTEE, ADOPT OR ENDORSE THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT, EVEN IF VENKEL IS THE AUTHOR. VENKEL IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT. UNDER NO CIRCUMSTANCES SHALL VENKEL BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY LOSS OR DAMAGE CAUSED BY OR ARISING FROM OR IN CONNECTION WITH YOUR RELIANCE ON ANY SUCH INFORMATION, COMMUNICATIONS OR CONTENT.
d. Disclaimer About Shipment Delays. AS STATED FURTHER IN SECTION 9(C) ABOVE, ANY TIME QUOTED BY VENKEL FOR DELIVERIES ARE ESTIMATES ONLY; AND SHIPMENT DATES ARE NOT GUARANTEED. ACCORDINGLY, VENKEL EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM OR IN CONNECTION WITH, AND YOU HEREBY RELEASE AND HOLD HARMLESS VENKEL AND VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS AND LICENSEES FROM AND AGAINST ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH, YOUR BUSINESS OPERATIONS BEING SUSPENDED OR HALTED DUE TO ANY DELAY IN RECEIPT OF ANY OF THE PRODUCTS OR SERVICES THAT YOU ORDER OR PURCHASE FROM VENKEL.
e. Limited Warranty of Merchandise. VENKEL MAKES NO WARRANTY AS TO THE DESIGN, CAPABILITIES, CAPACITY, OR SUITABILITY OF ANY MERCHANDISE OFFERED, MARKETED, SOLD OR PROVIDED ON OR THROUGH THE SITE, EXCEPT THAT FOR A PERIOD OF NINETY (90) CALENDAR DAYS FROM THE DATE OF THE SHIPMENT OF MERCHANDISE TO YOU, VENKEL WARRANTS TO YOU THAT ALL OF VENKEL’S MERCHANDISE SHALL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP DURING NORMAL USE AND SERVICE.
EXCEPT AS PROVIDED FOR HEREIN, VENKEL EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE MERCHANDISE, WHETHER DIRECT OR INDIRECT, OR WRITTEN, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD FAITH AND FAIR DEALING, TITLE, NON-INFRINGEMENT, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY AND RELIABILITY.
f. Limitation of Liability. IN NO EVENT SHALL VENKEL OR ANY OF VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS OR LICENSEES BE HELD LIABLE TO (OR BE OBLIGATED TO INDEMNIFY) YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LEGAL COSTS, ATTORNEY FEES, LOST PROFITS, REPLACEMENT COSTS OR REPAIR COSTS) CAUSED BY OR ARISING FROM OR IN CONNECTION WITH: (I) YOUR VISIT, ACCESS OR USE OF THE SITE, OR YOUR INABILITY TO VISIT, ACCESS OR USE THE SITE; (II) ANY PRODUCTS OR SERVICES MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE; (III) ANY STATEMENTS, CONTENT OR CONDUCT OF ANY THIRD PARTY ON, THROUGH OR IN RELATION TO THE SITE OR ANY SUCH PRODUCTS OR SERVICES; (IV) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR PERSONAL INFORMATION; (V) ANY HACKING, DENIAL OF SERVICE ATTACKS, DATA SECURITY BREACHES OR OTHER THIRD-PARTY CONDUCT THAT MAY LEAD TO A COMPROMISE OF YOUR PERSONAL INFORMATION OR DAMAGE TO YOUR DEVICE(S), SOFTWARE, OPERATING SYSTEM(S), FILE(S), CARRIER(S) OR NETWORK(S); (VI) ANY TRANSMISSION, DOWNLOAD OR INFECTION OF ANY SOFTWARE, SYSTEM, PROGRAM, FILE, PROCESS, DEVICE, APPLICATION OR ROUTINE (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, ROBOTS, SCRAPERS, SPIDERS, VIRUSES, SPYWARE AND MALWARE) THAT MAY LEAD TO A COMPROMISE OF YOUR PERSONAL INFORMATION OR DAMAGE TO YOUR DEVICE(S), SOFTWARE, OPERATING SYSTEM(S), FILE(S), CARRIER(S) OR NETWORK(S); (VII) THE FACT THAT YOU HAVE RELIED ON ANY INFORMATION, CONTENT OR COMMUNICATIONS PUBLISHED ON, THROUGH OR IN RELATION TO THE SITE OR ANY SUCH PRODUCTS OR SERVICES; OR (VIII) ANY ACTS, ERRORS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY PRODUCTS OR SERVICES OFFERED, SOLD, LICENSED OR MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR ACCESS AND USE OF THE SITE AND SUCH PRODUCTS AND SERVICES.
g. No Injunctive Relief. IF VENKEL BREACHES OR OTHERWISE VIOLATES THIS AGREEMENT, THEN YOU SHALL NOT BE ENTITLED TO SEEK OR OBTAIN, AND YOU DO HEREBY WAIVE, ANY TYPE OF INJUNCTIVE RELIEF AGAINST THE SITE AND/OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE AS A RESULT OF SUCH BREACH OR OTHER VIOLATION. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION ON INJUNCTIVE RELIEF DOES NOT LIMIT YOUR ABILITY TO SEEK OR RECOVER ANY MONETARY REMEDIES AUTHORIZED BY LAW IN THE EVENT OF ANY SUCH BREACH OR OTHER VIOLATION (EXCEPT FOR THOSE WHICH ARE OTHERWISE EXPRESSLY PRECLUDED BY THIS AGREEMENT).
h. Limitation of Remedies. IF VENKEL BREACHES OR OTHERWISE VIOLATES THIS AGREEMENT, THEN IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECULATIVE OR PUNITIVE DAMAGES ARISING OUT OF OR IN RELATION TO SUCH BREACH OR OTHER VIOLATION, EVEN IF VENKEL HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
i. Consumer Protections. The disclaimers and limitations set forth in this section 17 are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.
18. General Release of Claims. YOU HEREBY RELEASE AND HOLD HARMLESS VENKEL AND VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS AND LICENSEES FROM AND AGAINST ALL CLAIMS THAT YOU HAVE OR MAY HAVE AGAINST THEM FOR INFRINGEMENT, VIOLATION OF THE RIGHTS OF PRIVACY OR PUBLICITY, DEFAMATION, DISPARAGEMENT, UNPAID BENEFITS, UNPAID WAGES, OVERTIME, DISCRIMINATION, PERSONAL INJURY, PROPERTY DAMAGE, NEGLIGENCE AND/OR ANY OTHER LEGAL THEORY ARISING FROM OR IN CONNECTION WITH THE SITE, THE PRODUCTS OR SERVICES MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE AND/OR THE RIGHTS AND PRIVILEGES GRANTED OR CONVEYED BY YOU UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THOSE RIGHTS AND PRIVILEGES RELATING TO THE USER MATERIALS AND/OR ANY ELEMENTS, DERIVATIVES OR MARKETING OF THE FOREGOING). FURTHER, YOU WAIVE YOUR RIGHT TO, AND IN NO EVENT SHALL YOU SEEK TO, (A) ENJOIN VENKEL, ANY OF VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS OR LICENSEES OR (B) EXERCISE ANY OF THE RIGHTS OR PRIVILEGES GRANTED OR CONVEYED BY YOU UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE USER MATERIALS).
YOU ALSO HEREBY WAIVE ANY RIGHTS YOU HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE AND ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
19. Indemnification. YOU HEREBY AGREE TO INDEMNIFY, RELEASE AND HOLD HARMLESS VENKEL AND VENKEL’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS AND LICENSEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, SUITS, DEMANDS, ACTIONS, JUDGMENTS, LOSSES, DAMAGES, FINES, PENALTIES AND EXPENSES (INCLUDING COSTS AND REASONABLE OUTSIDE ATTORNEY FEES) INCURRED BY SUCH INDEMNITEES, OR ASSERTED AGAINST SUCH INDEMNITEES BY THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH (A) YOUR ACTS, ERRORS OR OMISSIONS, (B) YOUR USE OF THE SITE OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE IN ANY MANNER CONTRARY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (C) YOUR VIOLATION OF THE RIGHTS OF OR OTHER INJURY TO ANY THIRD PARTY, AND/OR (D) YOUR BREACH OF ALL OR ANY PART OF THIS AGREEMENT.
20. Force Majeure. Venkel shall not be liable for delays in performance caused by any act of God, fire or other casualty, accident, strike, shortage of labor or materials, governmental action, industrial disturbances, or any other cause beyond Venkel’s reasonable control, and the time for Venkel’s performance shall be extended by the period of any such delay. Venkel reserves the right to apportion its production among its customers as it may determine.
21. Specially-Manufactured Goods. On any order of specially-manufactured goods, an over-run or under-run of five percent (5%) of the quantities shall be considered fulfillment of such order. You shall pay in accordance with the units shipped.
22. Fair Labor Standards Act. Venkel represents that all items shall be manufactured or furnished in accordance with the applicable requirements of the Fair Labor Standards Act of 1938, as amended.
23. Term; Termination; Survival. If this Agreement is terminated for any or no reason, then all rights granted to you under this Agreement shall automatically revert back to Venkel, and the following shall survive in perpetuity: (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to and/or accrued in favor of Venkel and/or any of Venkel’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees as of the date of this Agreement’s termination; (c) all payments which accrued as of the date of termination; (d) all disclaimers, limitations of liability and limitations of remedies; and (e) all representations, warranties, covenants, certifications, releases, indemnifications and promises made by you under this Agreement.
25. Dispute Resolution.
b. Arbitration Rules. The arbitration shall be conducted before a single arbitrator under the then-current JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as supplemented by the Federal Rules of Civil Procedure and the Federal Rules of Evidence if and where applicable as a gap-filler. If there is any conflict between a provision of the JAMS Rules, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or this Agreement, then the conflicting provision of this Agreement shall control and govern over the JAMS Rules, the Federal Rules of Civil Procedure and the Federal Rules of Evidence, and the JAMS Rules shall control and govern over the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The construction, interpretation, and enforcement of this section 25 is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
c. Arbitration Process, Location, and Procedures. The Party initiating the arbitration proceeding shall serve a written notice of arbitration on the other Party in accordance with the JAMS Rules. The arbitration shall be held in Dallas, Texas, United States of America. The arbitration shall be conducted in the English language. The arbitrator shall be selected in accordance with the JAMS Rules, unless otherwise agreed to by the parties to the arbitration. All issues or questions concerning either the scope of this arbitration clause or the arbitrability of any of the Disputes shall be referred to and finally decided by the arbitrator. The arbitrator may construe or interpret, but shall not vary or ignore, the terms and conditions of this Agreement and shall be bound by applicable law.
d. Arbitration Decisions and Awards. The arbitrator shall render a written final decision on the subject Dispute as soon as practicable and, in any event, not more than forty-five (45) calendar days after the close of evidence and briefing. The arbitrator’s decision shall be written, shall be in accordance with applicable law, and shall be supported by written findings of fact and conclusions of law setting forth the basis for his/her decision. The arbitrator shall have no authority to award punitive, exemplary or consequential damages, unless such an award is authorized by applicable law. The arbitrator shall have the authority to award attorney fees and expenses if such an award is permitted under this Agreement or applicable law. Subject to any applicable rights of appeal, the final decision of the arbitrator shall be binding and conclusive upon all of the Parties who have been served with proper written notice of the arbitration proceeding as required by this section 25. Judgment on any award rendered by the arbitrator may be confirmed in any state or federal court having jurisdiction thereof that is located in the State of Texas, United States of America, and may be entered in and enforced by any domestic, foreign, or international court having appropriate subject matter jurisdiction. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder shall be kept confidential by the Parties, and any court order to enforce the decision, judgment, ruling, finding, award or other determination of the arbitrator shall be filed under seal.
e. Arbitration Fees and Expenses. JAMS’s administrative and filing fees, the arbitrator’s fees and expenses and all other fees and expenses charged by JAMS and/or the arbitrator to administer or conduct the arbitration shall be shared equally among all parties to the arbitration; provided, however, that the prevailing party of the arbitration may recover an award of its share of such fees and expenses if such an award is permitted under this Agreement or applicable law.
f. Litigation; Waiver. In the event a particular Dispute is not subject to arbitration (whether by decision of an arbitrator with binding authority, or otherwise according to this Agreement or applicable law), each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts of Travis County, Texas, United States of America and the United States federal courts in the Western District of Texas, Austin Division, for the litigation of said Dispute, and covenant and agree that neither of the foregoing is an inconvenient venue or forum.
g. Waiver of Jury Trial and Class Action. REGARDLESS OF WHETHER A PARTICULAR DISPUTE IS SUBJECT TO ARBITRATION OR LITIGATION, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY DOES HEREBY WAIVE HIS/HER/ITS RIGHT TO A TRIAL BY JURY, TO PARTICIPATE AS THE MEMBER OF A CLASS IN ANY PURPORTED CLASS ACTION OR OTHER PROCEEDING OR TO NAME UNNAMED MEMBERS IN ANY PURPORTED CLASS ACTION OR OTHER PROCEEDINGS.
26. Notice. Unless otherwise expressly stated in this Agreement, Venkel may give or deliver all other notices to you by means of a general notice posted on this or another page of the Site, as applicable, or by email to your email address as you may provide to Venkel on or through the Site, and such notices shall be deemed effective as of their stated effective dates.
27. Relationship. In no event shall this Agreement, the performance of a Party’s rights or obligations under this Agreement, the Site or a Party’s visit to, access of or use of the Site create any type of fiduciary, franchise, agency, employment, independent contractor, partnership or joint venture relationship between you and Venkel.
a. Electronic Signatures. IF YOUR ACCEPTANCE OF THIS AGREEMENT IS FURTHER EVIDENCED BY YOUR AFFIRMATIVE ASSENT TO THE SAME (E.G., BY A “CHECK THE BOX” ACKNOWLEDGMENT PROCEDURE), THEN THAT AFFIRMATIVE ASSENT IS THE EQUIVALENT OF YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT. HOWEVER, FOR THE AVOIDANCE OF DOUBT, YOUR ELECTRONIC SIGNATURE IS NOT REQUIRED TO EVIDENCE OR FACILITATE YOUR ACCEPTANCE AND AGREEMENT TO THIS AGREEMENT, AS YOU AGREE THAT THE CONDUCT DESCRIBED IN THIS AGREEMENT AS RELATING TO YOUR ACCEPTANCE AND AGREEMENT TO THIS AGREEMENT ALONE SUFFICES.
b. Excused Performance. Venkel is hereby excused for any failure to perform under this Agreement to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.
c. Assignment and Delegation. You shall not assign, delegate, or otherwise transfer any of your rights or obligations under this Agreement without Venkel’s prior written consent in each instance.
d. Construction and Interpretation. This Agreement shall be construed to have been drafted by all of the Parties, so that any rule of construction or interpretation that construes or interprets ambiguities against the drafter shall have no force or effect.
e. Headings. Section headings are inserted in this Agreement for reference and convenience only and shall not interpret, define, limit or describe the scope, intent, terms or conditions of this Agreement.
f. Severability. If any term or condition of this Agreement is deemed invalid or unenforceable by the arbitrator or (if applicable) a court of law with binding authority, then the remaining terms and conditions shall not be affected, and said arbitrator or court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the intent of this Agreement.
29. Contact Us. Please direct any questions you may have about the Site or this Agreement to email@example.com, with a subject line of “Website Question.” The foregoing contact information may change from time to time by supplementation, amendment, or modification of this Agreement.
30. Modification Date. This Agreement is dated effective as of August 31, 2018.