The FORSEMARK,LLC website located at
www. FORSEMARK.net is a copyrighted work belonging to ForseMark,llc.
Certain features of the Site may be subject to additional guidelines,
terms, or rules, which will be posted on the Site in connection with
such features.
All such additional terms, guidelines,
and rules are incorporated by reference into these Terms.
These Terms of Use described the legally
binding terms and conditions that oversee your use of the Site. BY
LOGGING INTO THE SITE, YOU ARE BEING COMPLIANT THAT THESE TERMS and
you represent that you have the authority and capacity to enter into
these Terms. IF YOU DISAGREE WITH ALL OF THE PROVISION OF THESE TERMS,
DO NOT LOG INTO AND/OR USE THE SITE. These terms require the use of
arbitration Section 10.2 on an individual basis to resolve disputes
and also limit the remedies available to you in the event of a dispute.
Access to the Site.
Subject
to these Terms. Company grants you a non-transferable, non-exclusive,
revocable, limited license to access the Site solely for your own personal,
noncommercial use.
Certain Restrictions.
The
rights approved to you in these Terms are subject to the following
restrictions: (a) you shall not sell, rent, lease, transfer, assign,
distribute, host, or otherwise commercially exploit the Site; (b) you
shall not change, make derivative works of, disassemble, reverse compile
or reverse engineer any part of the Site; (c) you shall not access
the Site in order to build a similar or competitive website; and (d)
except as expressly stated herein, no part of the Site may be copied,
reproduced, distributed, republished, downloaded, displayed, posted
or transmitted in any form or by any means unless otherwise indicated,
any future release, update, or other addition to functionality of the
Site shall be subject to these Terms. All copyright and other proprietary
notices on the Site must be retained on all copies thereof.
Company reserves the right to change,
suspend, or cease the Site with or without notice to you. You approved
that Company will not be held liable to you or any third-party for
any change, interruption, or termination of the Site or any part.
No Support or Maintenance.
You
agree that Company will have no obligation to provide you with any
support in connection with the Site.
Excluding any User Content that you
may provide, you are aware that all the intellectual property rights,
including copyrights, patents, trademarks, and trade secrets, in the
Site and its content are owned by Company or Company’s suppliers.
Note that these Terms and access to the Site do not give you any rights,
title or interest in or to any intellectual property rights, except
for the limited access rights expressed in Section 2.1. Company and
its suppliers reserve all rights not granted in these Terms.
Third-Party Links & Ads; Other Users
Third-Party
Links & Ads.
The
Site may contain links to third-party websites and services, and/or
display advertisements for third-parties. Such Third-Party Links & Ads
are not under the control of Company, and Company is not responsible
for any Third-Party Links & Ads. Company provides access to these
Third-Party Links & Ads only as a convenience to you, and does
not review, approve, monitor, endorse, warrant, or make any representations
with respect to Third-Party Links & Ads. You use all Third-Party
Links & Ads at your own risk, and should apply a suitable level
of caution and discretion in doing so. When you click on any of the
Third-Party Links & Ads, the applicable third party’s terms
and policies apply, including the third party’s privacy and data
gathering practices.
Other Users.
Each Site
user is solely responsible for any and all of its own User Content.
Because we do not control User Content, you acknowledge and agree that
we are not responsible for any User Content, whether provided by you
or by others. You agree that Company will not be responsible for any
loss or damage incurred as the result of any such interactions. If
there is a dispute between you and any Site user, we are under no obligation
to become involved.
You hereby release and forever discharge
the Company and our officers, employees, agents, successors, and assigns
from, and hereby waive and relinquish, each and every past, present
and future dispute, claim, controversy, demand, right, obligation,
liability, action and cause of action of every kind and nature, that
has arisen or arises directly or indirectly out of, or that relates
directly or indirectly to, the Site. If you are a California resident,
you hereby waive California civil code section 1542 in connection with
the foregoing, which states: "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."
Disclaimers.
The site
is provided on an "as-is" and "as available" basis,
and company and our suppliers expressly disclaim any and all warranties
and conditions of any kind, whether express, implied, or statutory,
including all warranties or conditions of merchantability, fitness
for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement.
We and our suppliers make not guarantee that the site will meet your
requirements, will be available on an uninterrupted, timely, secure,
or error-free basis, or will be accurate, reliable, free of viruses
or other harmful code, complete, legal, or safe. If applicable law
requires any warranties with respect to the site, all such warranties
are limited in duration to ninety (90) days from the date of first
use.
Some jurisdictions do not allow the
exclusion of implied warranties, so the above exclusion may not apply
to you. Some jurisdictions do not allow limitations on how long an
implied warranty lasts, so the above limitation may not apply to you.
Limitation on Liability
To the maximum extent permitted by law,
in no event shall company or our suppliers be liable to you or any
third-party for any lost profits, lost data, costs of procurement of
substitute products, or any indirect, consequential, exemplary, incidental,
special or punitive damages arising from or relating to these terms
or your use of, or incapability to use the site even if company has
been advised of the possibility of such damages. Access to and use
of the site is at your own discretion and risk, and you will be solely
responsible for any damage to your device or computer system, or loss
of data resulting therefrom.
To the maximum extent permitted by law,
notwithstanding anything to the contrary contained herein, our liability
to you for any damages arising from or related to this agreement, will
at all times be limited to a maximum of fifty U.S. dollars (u.s. $50).
The existence of more than one claim will not enlarge this limit. You
agree that our suppliers will have no liability of any kind arising
from or relating to this agreement.
Some jurisdictions do not allow the
limitation or exclusion of liability for incidental or consequential
damages, so the above limitation or exclusion may not apply to you.
Term and Termination.
Subject
to this Section, these Terms will remain in full force and effect while
you use the Site. We may suspend or terminate your rights to use the
Site at any time for any reason at our sole discretion, including for
any use of the Site in violation of these Terms. Upon termination of
your rights under these Terms, your Account and right to access and
use the Site will terminate immediately. You understand that any termination
of your Account may involve deletion of your User Content associated
with your Account from our live databases. Company will not have any
liability whatsoever to you for any termination of your rights under
these Terms. Even after your rights under these Terms are terminated,
the following provisions of these Terms will remain in effect: Sections
2 through 2.5, Section 3 and Sections 4 through 10.
Copyright Policy.
Company respects the intellectual property
of others and asks that users of our Site do the same. In connection
with our Site, we have adopted and implemented a policy respecting
copyright law that provides for the removal of any infringing materials
and for the termination of users of our online Site who are repeated
infringers of intellectual property rights, including copyrights. If
you believe that one of our users is, through the use of our Site,
unlawfully infringing the copyright(s) in a work, and wish to have
the allegedly infringing material removed, the following information
in the form of a written notification (pursuant to 17 U.S.C. § 512(c))
must be provided to our designated Copyright Agent:
* your physical or electronic signature;
* identification of the copyrighted work(s) that you claim to have
been infringed;
* identification of the material on our services that you claim is
infringing and that you request us to remove;
* sufficient information to permit us to locate such material;
* your address, telephone number, and e-mail address;
* a statement that you have a good faith belief that use of the objectionable
material is not authorized by the copyright owner, its agent, or
under the law; and
*a statement that the information in the notification is accurate,
and under penalty of perjury, that you are either the owner of the
copyright that has allegedly been infringed or that you are authorized
to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f),
any misrepresentation of material fact in a written notification automatically
subjects the complaining party to liability for any damages, costs
and attorney’s fees incurred by us in connection with the written
notification and allegation of copyright infringement.
General.
These Terms
are subject to occasional revision, and if we make any substantial
changes, we may notify you by sending you an e-mail to the last e-mail
address you provided to us and/or by prominently posting notice of
the changes on our Site. You are responsible for providing us with
your most current e-mail address. In the event that the last e-mail
address that you have provided us is not valid our dispatch of the
e-mail containing such notice will nonetheless constitute effective
notice of the changes described in the notice. Any changes to these
Terms will be effective upon the earliest of thirty (30) calendar days
following our dispatch of an e-mail notice to you or thirty (30) calendar
days following our posting of notice of the changes on our Site. These
changes will be effective immediately for new users of our Site. Continued
use of our Site following notice of such changes shall indicate your
acknowledgement of such changes and agreement to be bound by the terms
and conditions of such changes. Dispute Resolution. Please read this
Arbitration Agreement carefully. It is part of your contract with Company
and affects your rights. It contains procedures for MANDATORY BINDING
ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration
Agreement.
All claims and disputes in connection with the
Terms or the use of any product or service provided by the Company
that cannot be resolved informally or in small claims court shall
be resolved by binding arbitration on an individual basis under the
terms of this Arbitration Agreement. Unless otherwise agreed to,
all arbitration proceedings shall be held in English. This Arbitration
Agreement applies to you and the Company, and to any subsidiaries,
affiliates, agents, employees, predecessors in interest, successors,
and assigns, as well as all authorized or unauthorized users or beneficiaries
of services or goods provided under the Terms.
Notice Requirement and Informal
Dispute Resolution.
Before either party may seek arbitration,
the party must first send to the other party a written Notice of
Dispute describing the nature and basis of the claim or dispute,
and the requested relief. A Notice to the Company should be sent
to: 2002 Highland Drive, Norfolk, NE 68701. After the Notice is received,
you and the Company may attempt to resolve the claim or dispute informally.
If you and the Company do not resolve the claim or dispute within
thirty (30) days after the Notice is received, either party may begin
an arbitration proceeding. The amount of any settlement offer made
by any party may not be disclosed to the arbitrator until after the
arbitrator has determined the amount of the award to which either
party is entitled.
Arbitration Rules.
Arbitration
shall be initiated through the American Arbitration Association, an
established alternative dispute resolution provider that offers arbitration
as set forth in this section. If AAA is not available to arbitrate,
the parties shall agree to select an alternative ADR Provider. The
rules of the ADR Provider shall govern all aspects of the arbitration
except to the extent such rules are in conflict with the Terms. The
AAA Consumer Arbitration Rules governing the arbitration are available
online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration
shall be conducted by a single, neutral arbitrator. Any claims or disputes
where the total amount of the award sought is less than Ten Thousand
U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based
arbitration, at the option of the party seeking relief. For claims
or disputes where the total amount of the award sought is Ten Thousand
U.S. Dollars (US $10,000.00) or more, the right to a hearing will be
determined by the Arbitration Rules. Any hearing will be held in a
location within 100 miles of your residence, unless you reside outside
of the United States, and unless the parties agree otherwise. If you
reside outside of the U.S., the arbitrator shall give the parties reasonable
notice of the date, time and place of any oral hearings. Any judgment
on the award rendered by the arbitrator may be entered in any court
of competent jurisdiction. If the arbitrator grants you an award that
is greater than the last settlement offer that the Company made to
you prior to the initiation of arbitration, the Company will pay you
the greater of the award or $2,500.00. Each party shall bear its own
costs and disbursements arising out of the arbitration and shall pay
an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance
Based Arbitration.
If non-appearance based arbitration is
elected, the arbitration shall be conducted by telephone, online
and/or based solely on written submissions; the specific manner shall
be chosen by the party initiating the arbitration. The arbitration
shall not involve any personal appearance by the parties or witnesses
unless otherwise agreed by the parties.
Time Limits.
If you
or the Company pursues arbitration, the arbitration action must be
initiated and/or demanded within the statute of limitations and within
any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator.
If
arbitration is initiated, the arbitrator will decide the rights and
liabilities of you and the Company, and the dispute will not be consolidated
with any other matters or joined with any other cases or parties. The
arbitrator shall have the authority to grant motions dispositive of
all or part of any claim. The arbitrator shall have the authority to
award monetary damages, and to grant any non-monetary remedy or relief
available to an individual under applicable law, the AAA Rules, and
the Terms. The arbitrator shall issue a written award and statement
of decision describing the essential findings and conclusions on which
the award is based. The arbitrator has the same authority to award
relief on an individual basis that a judge in a court of law would
have. The award of the arbitrator is final and binding upon you and
the Company.
Waiver of Jury
Trial.
THE
PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO
TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing
that all claims and disputes shall be resolved by arbitration under
this Arbitration Agreement. Arbitration procedures are typically more
limited, more efficient and less expensive than rules applicable in
a court and are subject to very limited review by a court. In the event
any litigation should arise between you and the Company in any state
or federal court in a suit to vacate or enforce an arbitration award
or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL,
instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated
Actions.
All claims and disputes within the scope of this
arbitration agreement must be arbitrated or litigated on an individual
basis and not on a class basis, and claims of more than one customer
or user cannot be arbitrated or litigated jointly or consolidated
with those of any other customer or user.
Confidentiality.
All
aspects of the arbitration proceeding shall be strictly confidential.
The parties agree to maintain confidentiality unless otherwise required
by law. This paragraph shall not prevent a party from submitting toa
court of law any information necessary to enforce this Agreement, to
enforce an arbitration award, or to seek injunctive or equitable relief.
Severability.
If any
part or parts of this Arbitration Agreement are found under the law
to be invalid or unenforceable by a court of competent jurisdiction,
then such specific part or parts shall be of no force and effect and
shall be severed and the remainder of the Agreement shall continue
in full force and effect.
Right to Waive.
Any
or all of the rights and limitations set forth in this Arbitration
Agreement may be waived by the party against whom the claim is asserted.
Such waiver shall not waive or affect any other portion of this Arbitration
Agreement.
Survival of Agreement.
This
Arbitration Agreement will survive the termination of your relationship
with Company.
Small Claims Court.
Nonetheless
the foregoing, either you or the Company may bring an individual action
in small claims court.
Emergency Equitable Relief.
Anyhow
the foregoing, either party may seek emergency equitable relief before
a state or federal court in order to maintain the status quo pending
arbitration. A request for interim measures shall not be deemed a waiver
of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration.
Notwithstanding
the foregoing, claims of defamation, violation of the Computer Fraud
and Abuse Act, and infringement or misappropriation of the other party’s
patent, copyright, trademark or trade secrets shall not be subject
to this Arbitration Agreement.
In any circumstances where the foregoing
Arbitration Agreement permits the parties to litigate in court, the
parties hereby agree to submit to the personal jurisdiction of the
courts located within Netherlands County, California, for such purposes.
The Site may be subject to U.S. export
control laws and may be subject to export or import regulations in
other countries. You agree not to export, re-export, or transfer, directly
or indirectly, any U.S. technical data acquired from Company, or any
products utilizing such data, in violation of the United States export
laws or regulations.
Company is located at the address in
Section 10.8. If you are a California resident, you may report complaints
to the Complaint Assistance Unit of the Division of Consumer Product
of the California Department of Consumer Affairs by contacting them
in writing at 400 R Street, Sacramento, CA 95814, or by telephone at
(800) 952-5210.
Electronic Communications.
The
communications between you and Company use electronic means, whether
you use the Site or send us emails, or whether Company posts notices
on the Site or communicates with you via email. For contractual purposes,
you (a) consent to receive communications from Company in an electronic
form; and (b) agree that all terms and conditions, agreements, notices,
disclosures, and other communications that Company provides to you
electronically satisfy any legal obligation that such communications
would satisfy if it were be in a hard copy writing.
Entire Terms.
These
Terms constitute the entire agreement between you and us regarding
the use of the Site. Our failure to exercise or enforce any right or
provision of these Terms shall not operate as a waiver of such right
or provision. The section titles in these Terms are for convenience
only and have no legal or contractual effect. The word "including" means "including
without limitation". If any provision of these Terms is held to
be invalid or unenforceable, the other provisions of these Terms will
be unimpaired and the invalid or unenforceable provision will be deemed
modified so that it is valid and enforceable to the maximum extent
permitted by law. Your relationship to Company is that of an independent
contractor, and neither party is an agent or partner of the other.
These Terms, and your rights and obligations herein, may not be assigned,
subcontracted, delegated, or otherwise transferred by you without Company’s
prior written consent, and any attempted assignment, subcontract, delegation,
or transfer in violation of the foregoing will be null and void. Company
may freely assign these Terms. The terms and conditions set forth in
these Terms shall be binding upon assignees.