Last updated: July 18, 2022
PLEASE BE ADVISED THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS, AND DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE TERMS ALSO ALLOW YOU TO PURSUE CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS, AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. AS A RESULT, YOU MAY SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
WE MAY IMMEDIATELY TERMINATE YOUR ACCESS TO OUR WEBSITE IF YOU FAIL TO COMPLY WITH ANY PROVISION OF THESE TERMS.
DISCLAIMER: As further described in Section 9 below, information and materials posted on our Website are provided for informational purposes only and are provided on an “AS IS” basis without warranties of any kind, express or implied. The content of our Website may be modified periodically without notice. Information and materials on our Website may not be accurate or complete and, due to changing circumstances or other causes, may change or ultimately prove to be inaccurate or incomplete.
These Terms may change from time to time. Your continued use of our Website after we make changes is deemed to be acceptance of those changes, so please check this policy periodically for updates.
1. Your Compliance with These Terms
You acknowledge that these Terms are supported by reasonable and valuable consideration, which you have received, and which is adequate. Such consideration includes your ability to access, use or interact with our Website.
We may, at our sole discretion and at any time monitor your compliance with these Terms. Without limiting the foregoing, we have the right to:
- Take appropriate legal action, including referral to law enforcement for any illegal or unauthorized use of our Website.
- Terminate or suspend your access to all or part of our Website for any or no reason, including any violation of these Terms.
- Fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose your identity or other information.
YOU WAIVE AND HOLD US (AND OUR LICENSEES AND SERVICE PROVIDERS) HARMLESS FROM ANY CLAIMS RESULTING FROM ANY OF THE FOREGOING ACTIONS TAKEN BY US DURING OR AS A RESULT OF OUR INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY US OR BY LAW ENFORCEMENT AUTHORITIES.
2. Our Website Is Not Intended for Minors
3. Your Access and Use of Our Website
Your Access of Our Website. We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You Must Maintain the Confidentiality and Security of Access Credentials. We may provide you with access credentials or other information necessary for you to access the Website or portions thereof (“Access Credentials”). You must treat any Access Credentials as strictly confidential, and it is your sole responsibility to maintain the security of any Access Credentials. You acknowledge that any Access Credentials that we provide you are personal to you and agree not to provide any other person or entity with access to the Website or portions of it using such Access Credentials. You also agree to ensure that you exit from the Website at the end of each session. You should use particular caution when accessing the Website from a public or shared computer so that others are not able to view or record your Access Credentials or other information. We will not be liable for any loss that you may suffer as a result of the authorized or unauthorized use of your Access Credentials by a third party.
We have the right to disable any Access Credentials at any time in our sole discretion for any or no reason, including if, in our sole opinion, you have violated any provision of these Terms.
Franchise Prospects. If you are a franchisee or potential franchisee, you may use our Website for the purpose of learning about the PIRTEK USA brand franchise system or operating your franchise. If you choose to, you may also submit an electronic application seeking consideration as a prospective franchisee via https://pirtekusafranchise.com/. Certain materials on our Website describe the PIRTEK USA brand franchise system. They do not constitute an offering for the sale of a franchise. Such offering is only commenced by our delivery of the Franchise Disclosure Document to you in compliance with the Federal Trade Commission Rule on Franchising and various state laws regulating the sale of franchise opportunities.
Permitted Use. You may use our Website only as permitted by us, only for lawful purposes and only in accordance with these Terms. You may use our Website only in good faith for yourself or others on whose behalf you are authorized to act. You may not access or use our Website for any other purposes. Without limiting the generality of the foregoing, you may not and may not assist, encourage, support or enable others to:
- Use our Website in any way that violates any applicable federal, state, local or international law or regulation, or the rights of a third party;
- Through the use of our Website, unlawfully defame, abuse, harass, offend or threaten anyone or any entity;
- Engage in any conduct that restricts or inhibits, or prevents access, use or enjoyment of our Website (or any part thereof), or which, as determined by us, may harm us or users of our Website or expose them to liability;
- Use our Website to impersonate or attempt to impersonate us, our employees or other representatives, another user of our Website or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing);
- Use our Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of our Website, including their ability to engage in real time activities through our Website;
- Use any robot, spider or other automatic device, process or means to access our Website for any purpose, including monitoring or copying any of the material or content on our Website;
- Manually or otherwise reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit our Website or any of the material on our Website, except that you may print one copy of a reasonable number of pages of the Website for your own, personal use and not for further reproduction, publication or distribution or modification;
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials or content from our Website;
- Use any illustrations, photographs, video or audio sequences or any graphics available on our Website separately from the accompanying text;
- Use any device, software or routine that interferes with the proper working of our Website (or any part thereof);
- Introduce any viruses, trojan horses, worms, logic bombs or other malicious or technologically harmful material to, on or through our Website (or any part thereof);
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of our Website, or any servers, computers or databases on which our Website is stored;
- Attack our Website via a denial-of-service attack or a distributed denial-of-service attack;
- Use our Website (in whole or in part) in order to build a competitive product or service;
- Otherwise attempt to interfere with the proper working of our Website (or any part thereof); or
Your right to access and use our Website is personal to you and is not transferable by you to any other person or entity. You are solely responsible for making all arrangements necessary for you to access our Website. Additionally, you are solely responsible for ensuring that all persons who access our Website through your internet connection are aware of these Terms and comply with them.
We may, in our sole discretion, cancel your access to our Website for any reason, including as a result of any breach or suspected breach of these Terms.
You Must Notify Us of a Breach. You must immediately notify us of any unauthorized use of your Access Credentials, any unauthorized use of our Website, any violation of these Terms, or any other breach of security known to you in connection with our Website by sending an e-mail to us at: [email protected].
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of our Website in breach of these Terms, your right to use our Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
4. Third-Party Services and Materials
Certain features of our Website are served by our third-party service providers. For example, if you are a franchisee and desire to login in your franchisee member account, then our Website will link you to our third-party platform provider for this purpose, currently FranConnect. Additionally, if you desire to apply for an employment position advertised on our Website, our Website will direct you to our third-party platform provider for this purpose, currently Career Plug. When engaging with any of the third-party service providers, you acknowledge and agree that: (a) we do not endorse, and make no representations or warranties regarding, any third-party provider, including, without limitation, with respect to the quality of performance; and (b) your use of a third-party provider is, as between us and you, at your sole and exclusive risk, and you should conduct due diligence as you deem necessary or appropriate before utilizing the third-party provider’s services.
We may also provide on or through our Website links or access to other websites, mediums, content or materials belonging to advertisers, our business partners, affiliates or other third parties, including our franchisees. All third-party materials and links are provided solely as a convenience to you, and such links and access do not constitute our endorsement of those third parties, nor the products or services of those third parties or the content on their website(s) or other materials. We are not responsible for the activities or policies of those third parties. We accept no responsibility for such third parties or for any loss or damage that may arise from your use of the third-party links or the products or services of those third parties. We do not guarantee that the terms, prices or other content offered by any particular advertiser, business partner, affiliate or other third party on or through our Website are accurate or the best terms or lowest prices available in the market.
You acknowledge and agree that we are not responsible for any third-party materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. If you decide to access any of the third-party websites or mediums, you do so entirely at your own risk and subject to the terms and conditions of use of such third-party websites and mediums.
5. Linking to Our Website and Social Media Features
You may link to our Website, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our prior written consent.
Additionally, our Website may provide certain social media features that enable you to: link from your own or certain third-party websites to certain content available on our Website; send e-mails or other communications with certain content, or links to certain content available on our Website; or cause limited portions of content available on our Website to be displayed or appear to be displayed on your own or certain third-party websites. You may use these features solely as they are provided by us, solely with respect to the content with which they are displayed, and otherwise in accordance with these Terms and any additional terms and conditions that we may provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause our Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any website.
- Otherwise take any action with respect to the materials on available on our Website that is inconsistent with any other provision of these Terms.
Any website from which you are linking, or on which you make certain content accessible, must comply in all respects with these Terms. You agree to cooperate with us in causing any unauthorized framing or linking to immediately cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
6. Our Intellectual Property Rights
Our Website and its entire contents, features and functionality (including all information, text, software, displays, images, video, audio names, graphics, logos, page headers, button icons, scripts and service names, and the design, selection and arrangement of the foregoing) are owned by us, our licensors or other providers of such material and are protected by United States or international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You may not use our or any third-party proprietary marks available on our Website (“Proprietary Marks”) without our prior express written permission, which permission may be withheld in our sole discretion. We make no proprietary claim to any third-party names, trademarks or service marks appearing on or within our Website. Any third-party names, trademarks and service marks are property of their respective owners.
The information, advice, data, software and content viewable on, contained in or downloadable from our Website including all text, graphics, charts, pictures, photographs, videos, images, line art, icons and renditions (collectively, “Our Content”), are copyrighted or trademarked by, or otherwise licensed to, us or Our Content suppliers. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (“Collective Work”). All software used on or within our Website is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content (including any software) or the Collective Work.
You are solely responsible for any damages resulting from your infringement of our or any third-party’s intellectual property rights regarding Proprietary Marks, Our Content (including any software), the Collective Work or any other harm incurred by us as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using Proprietary Marks, Our Content (including any software) or the Collective Work for purposes that are contrary to the terms and conditions of these Terms.
We or our licensors will own and retain all right, title and interest in and to (i) any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the subject matter of these Terms (collectively, “Feedback”); (ii) any and all performance data, test or evaluation results, or other metrics derived from our Website; and (iii) all intellectual property rights related to any of the foregoing. We expressly reserve all other rights in and to the foregoing.
Any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by us (whether alone or together with you or any other third party or parties) arising out of or relating to Feedback are and will remain our sole and exclusive property.
7. Your Content
In the course of using our Website, you may submit or transmit certain content on, to, through or in connection with our Website, including Your Information, reviews, ratings and information that will be publicly displayed on or through our Website (collectively, “Your Content”).
You acknowledge that Your Content may expose you to liability. For example, but not by way of limitation, you may be exposed to liability if Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Use of Your Content. We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, and creating derivative works from it. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content. Accordingly, once you submit Your Content on or through our Website, you thereby irrevocably grant us a world-wide, perpetual, non-exclusive, royalty-free, assignable, sub-licensable, transferable license and right to use Your Content for any purpose, including for any commercial purpose.
8. International Users
Our Website is controlled, operated and administered by us from the United States of America. We make no representations or warranties that our Website (or the products and services described on our Website) are permissible, appropriate or available for use in other jurisdictions. If you access our Website from a location outside the United States, then you do so by your own volition and you are solely responsible for compliance with all laws, regulations and rules (including local laws and any applicable United States export control laws). You must not use our Website or Our Content in a manner prohibited by any applicable state, federal, international or local laws, rules, restrictions or regulations.
9. We Make No Representations or Warranties Regarding the Website
You agree that your use of our Website, Our Content and all information, content, materials, products and services described on or made available through our Website is at your sole risk. It is your sole responsibility to independently evaluate the accuracy, correctness or completeness of our Website, Our Content and all information, content, materials, products and services. Our Website, Our Content and all information, content, materials, products and services included on or associated with our Website are provided to you on an “as-is” and “as available” basis.
We make no representations or warranties of any kind, express or implied, as to the operation of our Website, Our Content or the information, content, materials, products or services included on or associated with our Website, including their accuracy, correctness, completeness, safety, reliability, title, timeliness, non-infringement, merchantability, conformity or fitness for a particular purpose. Without limiting the foregoing, you acknowledge that we cannot guarantee the continuous operation of or access to our Website. You further acknowledge that operation of and access to our Website may be interfered with as a result of technical issues or numerous factors outside of our control. We make no representation, warranty, or guarantee that our Website or Our Content is free of infection from any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer, device, data, programs or other equipment or material due to your use of our Website or items obtained through our Website or to your downloading of any material posted on our Website or any links to our Website.
The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.
10. Limitations on Our Liability
IN NO EVENT WILL WE BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT INCLUDE DAMAGES FOR ANY PERSONAL OR BODILY INJURY, EMOTIONAL DISTRESS, INJURIES TO PROPERTY AND LOSS OF PROFIT, REVENUE OR BUSINESS, WHETHER AS A RESULT, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, OF A BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF ANY TERM OR CONDITION OF THESE TERMS; (II) YOUR ACCESS AND USE OF OUR WEBSITE OR OUR CONTENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR WEBSITE FOR ANY REASON; (IV) YOUR DOWNLOADING OR USE OF ANY OF OUR CONTENT, THE COLLECTIVE WORK OR CONTENT; (V) YOUR RELIANCE ON OR USE OF OUR WEBSITE, OUR CONTENT, OR THE COLLECTIVE WORK; (VI) ANY THIRD PARTY’S USE OF OUR WEBSITE ON YOUR BEHALF; (VII) THE BREACH OF OUR SECURITY AND UNAUTHORIZED DISCLOSURE OF YOUR INFORMATION; OR (VIII) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED ON OR THROUGH OUR WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF OUR WEBSITE, IN EACH CASE, EVEN IF WE OR OUR AGENTS, REPRESENTATIVES, LICENSORS, VENDORS, SUPPLIERS OR ANY OTHER APPLICABLE THIRD PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL AGGREGATE LIABILITY AND THE LIABILITY OF OUR DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES AND AGENTS ARISING OUT OF OR OTHERWISE RELATING TO THESE TERMS WILL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE WILL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE THAT WE WILL NOT BE LIABLE FOR ANY CONSEQUENCES OF ACTIONS YOU TAKE OR FAIL TO TAKE BASED ON OUR CONTENT, INCLUDING DEATH, PERSONAL INJURY, PROPERTY DAMAGE OR EMOTIONAL DISTRESS, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH ACTIONS OR INACTIONS RESTS ENTIRELY WITH YOU.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR WEBSITE MUST COMMENCE WITHIN 1 YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these state laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.
In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, found in this “Limitations on Our Liability” section, is determined or held to be inapplicable or unenforceable by any court, Arbitrator, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including Chapter 95, Florida Statutes, will apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
11. Your Indemnification of Us
You covenant and agree to defend, indemnify and hold us and our officers, directors, members, managers, shareholders, employees, independent contractors, franchisees, agents and representatives harmless from and against all claims and expenses, including attorneys’ fees, arising out of or attributable to: (i) any breach or violation of these Terms by you or your representatives; (ii) your failure to provide accurate, complete and current information requested or required by us; (iii) your access or use of our Website or our Content; (iv) access or use of our Website under any Access Credentials provided to you; (v) your transmissions, submissions or postings to, through or on our Website, including Your Content; or (vi) any personal injury, property damage or emotional distress caused by you.
12. Our Remedies
You acknowledge that we may be irreparably damaged if these Terms are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of these Terms by you, we will be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of these Terms. You agree that we may bring any action or proceeding with regard to such injunction restraining such breach or threatened breach in the courts of record of Brevard County, Florida, or the United States District Court, Middle District of Florida. You consent to the exclusive jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. We may effect service of any court paper on you by mail or in such other manner as may be provided under applicable laws, regulations, rules of procedure or local rules.
13. Disputes: Arbitration Agreement, and Class Waiver
Please read this section carefully. Except as these Terms otherwise provide, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.
13.1 Agreement to Binding Arbitration
Before initiating arbitration, you acknowledge and agree that you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us including, but not limited to, information or representations related to our Website and upon which you rely. You may seek to resolve any customer concerns through our support services at [email protected] or send the written description by U.S. Mail to 300 Gus Hipp Boulevard, Rockledge, Florida 32955. You agree to negotiate with us in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 30 days after our receipt of your written dispute, you agree to the dispute resolution provisions below.
By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against us on an individual basis in arbitration, as set forth in this Section 13. You and we agree that any disputes between us (including any disputes between you and a third-party agent of us) will be resolved through binding and final arbitration and not in a court. This includes, but is not limited to, (a) any dispute, claims, or controversy arising out of or relating to any part of these Terms, or the existence, breach, termination, enforcement, interpretation or validity thereof; or (b) your access to or use of our Website at any time. Such dispute shall be submitted to the American Arbitration Association (“AAA”) for individual arbitration in Brevard County, Florida (or such other location as you and we mutually agree) and shall be before one arbitrator. The arbitration shall be administered by the AAA pursuant to its Consumer Arbitration Rules and Procedures, only as modified by this Arbitration Agreement.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
By agreeing to individual arbitration, you understand and agree that you are waiving your right to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes or claims. The rules in arbitration are different. There is no judge or jury. Although review is limited, an Arbitrator can award on an individual basis the same damages and relief as would be available in court, and must enforce the same limitations stated in these Terms as a court would.
Notwithstanding the foregoing, either party may bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyright rights, trademarks, trade secrets, patents or other intellectual property rights.
13.2 No Class Action
You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. This means that you and we each agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an Arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
13.3 Rules and Governing Law
The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The rules of the arbitral forum will govern all aspects of the arbitration, except to the extent those rules conflict with these Terms.
Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Florida, without regard to its conflict of laws provisions.
13.4 Arbitration Process
You can begin the arbitration by submitting a Demand for Arbitration, which is a statement containing basic information about the dispute: (a) the names, addresses and phone numbers of the parties involved (you and us, in most cases); (b) a description of the dispute; and (c) a short statement of the relief you are seeking. The AAA provides a Demand for Arbitration form on its website. Or you may contact the AAA at 800-778-7879.
Complete the Demand for Arbitration and make at least four (4) copies. Keep one copy for your records. Send one copy to us by certified mail at Notice of Dispute, Address: 300 Gus Hipp Boulevard, Rockledge, Florida 32955.
Send the final two copies of the Demand for Arbitration to the AAA. Please be sure to include (1) a copy of this arbitration provision (you may obtain a copy from these Terms); and (2) the appropriate AAA filing fee. The filing fee is currently $200, but the AAA may change the amount of the fee. You may obtain the amount of the fee by consulting the AAA’s rules. Those rules may be obtained by visiting the Consumer section on the AAA’s website, or by calling the AAA at 800.778.7879.
Unless you and we agree otherwise in writing, in the event that any provision of this Section 13 is found not to apply to you or to a particular claim or dispute as a result of a decision by the Arbitrator or a court order, any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Brevard County, Florida. You and we will submit to the personal jurisdiction of the courts located within Brevard County, Florida for the purpose of litigating all such claims or disputes.
13.5 Arbitrator’s Decision
The Arbitrator will decide the substance of all claims exclusively in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The Arbitrator will not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
Regardless of the manner in which the arbitration is conducted, the Arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. Judgment on the award may be entered in any court having competent jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. The Arbitrator’s decision shall be final and binding on all parties.
Judgment on any award rendered by the Arbitrator is final, binding and conclusive on you and us and your and our respective administrators, executors, legal representatives, successors and assigns.
With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.
Payment of all filing, administration and Arbitrator fees will be governed by the AAA’s applicable consumer rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law or the Arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the Arbitrator.
If any provision of these Terms is contrary to, prohibited by or deemed invalid under applicable law, such provision will be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of these Terms will not be invalidated thereby and will be given full force and effect so far as possible. If any provision of these Terms may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision will have the meaning that renders it valid and enforceable.
For purposes of these Terms, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and the word “or” is not exclusive. The headings contained in these Terms are for convenience of reference only, are not to be considered a part of these Terms, and will not limit or otherwise affect in any way the meaning or interpretation of these Terms.
All covenants, agreements, representations and warranties made in these Terms, as may be amended by us, from time to time, will survive your acceptance of these Terms and the termination of these Terms.
No failure to exercise, and no delay in exercising, any right or any power set forth in these Terms by us will operate as a waiver of such right or power, nor will any single or partial exercise of any right or power under these Terms by us preclude further exercise of that or any other right or power under these Terms.
We may update, amend or change these Terms at any time, in our sole discretion and without notice. Amendments will take effect immediately upon us posting such updates on our Website. We encourage you to periodically check these Terms for changes, as your continued access and use of our Website following the posting of any changes will automatically be deemed your acceptance of all changes. If you do not agree to any change to these Terms, you must discontinue using our Website.
We may give, assign or transfer our rights or obligations under these Terms to any person or entity at any time with or without your consent. You may not give, assign or transfer your rights or obligations under these Terms to any person or entity without our prior written consent, which may be withheld in our sole discretion. Any attempt to assign your rights or obligations under these Terms without our consent will be void and of no force and effect.
We will not be liable for any changes, delays, failures or problems out of our control, including, without limitation, any changes, delays, failures or problems caused by natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, shortage of transportation facilities, fuel, energy, labor or materials and other similar events.
You and we are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
15. Contact Us
If you have questions, comments, concerns or feedback regarding these Terms or our Website, please contact us via email at: [email protected]