TERMS OF SERVICE
Tactical Independence, LLC d/b/a Tactical Outdoors Gear
540 S. Main St.
Building 7, Suite 122
Akron, OH 44311
Welcome to the website of Tactical Independence, LLC d/b/a Tactical Outdoors Gear, located at TacticalOutdoorsGear.com (hereinafter “We”, “Us”, “Our”). We are a leading retailer for outdoor gear and membership programs. We thank You (any visitor to Our website) for visiting Our website and considering Our products and services.
By accessing Our website; You hereby agree to the terms and conditions of this Terms of Service (hereinafter “Agreement”) which, along with the consideration of the mutual promises You and We make to each other, then becomes a binding contract between You and Us. If You do not agree to this Agreement then You must exit the Our website immediately and discontinue any use of the information or products obtainable or accessible through the Our website. If You have any questions about this Agreement, please contact us via email at [email protected] or by phone at tel: 1-855-825-2286.
Our GDPR Compliance Resources are located at tacticaloutdoorsgear.com/gdpr and are hereby incorporated into this Agreement by reference. Please review these resources and utilize them for any GDPR related requests.
Our CCPA Compliance Resources are located at tacticaloutdoorsgear.com/ccpa and are hereby incorporated into this Agreement by reference. Please review these resources and utilize them for any CCPA related requests.
Our Accessibility Statement is located at tacticaloutdoorsgear.com/accessibility-statement and is hereby incorporated into this Agreement by reference. Please review the Accessibility Statement to understand Our policies.
USERNAMES AND PASSWORDS
You hereby agree that You are responsible for all actions taken under Your User Name and Password. Please remember it is Your responsibility to keep this data secure and You hereby agree that We are not liable for any loss or damage arising from Your failure to keep Your password secure. Further, You agree to immediately notify Us of any unauthorized use of Your password or any breach of security.
If You open an account, register, or provide us with any information, You agree to complete the account initiation, registration, or other process by providing us with current, complete, and accurate information as requested by any forms. You agree that You will provide true, current, complete, and accurate information in connection with any inquiry, quote request, or other request for information. We are not responsible for any errors or delays in responding to any inquiry or request caused by any incorrect, outdated, or incorrect information provided by You or any technical problems beyond Our control.
TacticalOutdoorsGear.com offers many products and services on Our website. You may purchase any of these products through the shopping cart or order forms on Our website.
Because the laws can vary greatly from state to state, We do not know them all, nor can We advise You on the laws in Your state regarding the legalities of owning or purchasing any of our items. It is Your responsibility to know and understand the laws in Your state regarding the item you purchase. It is Your sole responsibility, not Ours, to ascertain, and obey, all applicable local, state, and international laws in regard to the possession, shipping, and use of any item on Our website. By purchasing any item, You expressly warrant that You are in compliance with federal, state, and local laws. You expressly agrees to indemnify and hold uU harmless for all claims resulting directly or indirectly from the purchase, ownership or use of the item or items in violation of applicable federal, state, and local regulations or laws. Further, You affirm that in purchasing, You are within the guidelines set forth in Federal Regulations: 18 USC 1716 (g/2/1-4), and 15 USC 1244. We can not and will not advise You on these regulations, it is solely Your responsibility. Know Your state and Federal laws before purchasing.
PRODUCT RETURN POLICY
Our goal is to provide You with a consistently superior customer experience at every interaction which is why We stand behind a strong, 60-day, money-back guarantee on all of Our products. If You are not satisfied with any of the products that You have purchased from us, You can request a refund within the first 60 days and get Your money back. To request a refund, You may contact us 24 hours a day, 7 days a week regarding any product issues, questions or concerns via Our live chat widget on Our website or via email at [email protected] or during regular business hours by phone at tel: 1-855-825-2286. We do ask that You return Your product in good working condition, freight prepaid, and We will refund Your entire purchase price.
TacticalOutdoorsGear.com also offers Subscription Products on Our website. You may purchase any of these Subscription Products through the shopping cart or order forms on Our website on Our site.
If Your Subscription Product purchase includes a 14 day trial subscription to Our product You understand and agree that You can cancel this trial anytime within the first 14 days and You will not be charged. You also understand and agree that if You decide not to cancel the trial, that You will be automatically billed the cost of the subscription until You cancel the subscription.
If You are not satisfied with any of the subscriptions that You have purchased from us, You can request a refund within the first 60 days and get Your money back. To request a refund, You may contact us 24 hours a day, 7 days a week regarding any subscription issues, questions or concerns via Our live chat widget on Our website or via email at [email protected] or during regular business hours by phone at tel: 1-855-825-2286.
HOW TO CANCEL YOUR SUBSCRIPTIONS
To cancel any subscription You may contact us 24 hours a day, 7 days a week regarding cancelation via Our live chat widget on Our website or via email at [email protected] or during regular business hours by phone at tel: 1-855-825-2286. We will immediately cancel Your subscription and cancel any future payments.
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to Tactical Independence, LLC d/b/a Tactical Outdoors Gear, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without Our prior written consent, and You may not remove or otherwise modify in any manner any trademark notices from any content offered or received through Our website.
As indicated by the notice on the bottom of Our website, Tactical Independence, LLC d/b/a Tactical Outdoors Gear, claims a copyright to the contents of this website.
Images of people, places and/or products posted on this Site are either the property of Tactical Independence, LLC d/b/a Tactical Outdoors Gear, or are used by us with express permission and appropriate license if applicable. Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials is the property of Tactical Independence, LLC d/b/a Tactical Outdoors Gear or its members or affiliates and is protected by United States and international copyright laws. The compilation of this Site is exclusively Our property and is protected by United States and international copyright laws. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on Our website only with Our prior written and express authorization. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at [email protected].
DIGITAL MILLENNIUM COPYRIGHT ACT
As provided for in the Digital Millennium Copyright Act; if You feel any content on this website violates Your copyrights please contact Our designated agent:
Dworken and Bernstein Co, LPA
ATTN: Joshua Strickland
60 South Park Place
Painesville, Ohio 44077
by email or regular U.S. mail with the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site is covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact You, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted.
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Once We have received Your complaint We will:
- Remove or disable the identified infringing material (but maintain a copy for later use);
- Promptly notify the subscriber with a copy to the complaining party that We have removed or disabled access to the material; and
- We will inform the subscriber that they may submit a counter-notification regarding the claimed infringing material.
Counter Notification – To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent by email or regular U.S. mail that includes substantially the following:
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the subscriber’s address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the counter notification or an agent of such person.
Upon receipt of a counter notification We will promptly provide the complaining party with a copy of the counter notification, and inform that person that We will replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless Our designated agent first receives notice from the person who submitted the notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.
CONTENT YOU MAY SUBMIT TO US
From time to time We may make available on Our website bulletin boards, chat rooms, comment areas, reviews functionality, billboards, forums, news groups, postings sections or similar communications facilities (“Communications Facilities”). In such instances, We welcome Your comments regarding Our products and services, including Our website. However, any notes, messages, pictures, videos, testimonials, reviews, answers, star ratings, survey answers, billboard postings, ideas, suggestions, or other material which You submit to Us (“User Generated Content”) must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
Any and all User Generated Content which You submit to Us will become, upon Your submission, Our sole and exclusive property and We shall be and is entitled to use any kind and nature of material which You submit for any type of use in perpetuity, and including in any and all media whether now known or hereafter devised. We may make edits to written User Generated Content to correct typographical or grammatical errors. We may crop, edit, colorize, or otherwise manipulate graphical User Generated Content for visual and aesthetic purposes while retaining the original creative intent of the content. We also may curate, organize, and optimize User Generated Content to best serve the needs of customers searching for such information. Such organization and curation, includes but is not limited to, mapping User Generated Content (such as reviews and testimonials) to specific products or collections of products and syndicating User Generated Content to other social media and advertising platforms where We maintain accounts.
By submitting material to this Site, You are agreeing and You do agree that We have the right to publish any such material for any type of use as outlined above including for promotional and advertising purposes, without compensation of any kind to You. As a result, we must ask that You do not send us any original creative materials such as stories, product ideas, catalog ideas, or original artwork. However, if You choose to do so, You are forever assigning all rights in such original creative materials to Us. By submitting any materials of any kind to Us, You represent and warrant that You hold all necessary right, title and license to such materials and that Your submission of such materials to Tactical Independence, LLC d/b/a Tactical Outdoors Gear does not and will not violate or infringe the rights of any third-parties.
You agree to fully indemnify Us, Our shareholders, officers, directors, employees, agents, distributors, vendors, and affiliates from and against any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from Your breach of any of these terms and conditions, including, but not limited to, any allegations, damages or claims relating to any of Your postings or communications in any of Our Communications Facilities, or for infringement or violation of any third-party rights.
LINKS TO OTHER WEBSITES
Please be aware that We are not and cannot make any claim or representation regarding, and we accept no responsibility for, the quality, content, nature or reliability of web sites accessible from this Site, or websites linking to this Site.
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF ANY SERVICE OFFERED BY US IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTY THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ANY SERVICE OFFERED BY US WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY SERVICE OFFERED BY US OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY SERVICE OFFERED BY US. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY SERVICE OFFERED BY US IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE DO NOT MAKE ANY WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH US OR FROM ANY SERVICE OFFERED BY US OR ANY TRANSACTIONS ENTERED INTO BY USE OF OR THROUGH ANY SERVICE OFFERED BY US. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OR THROUGH ANY SERVICE OFFERED BY US, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL WE OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE ANY SERVICE OFFERED BY US, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED, OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH ANY SERVICE OFFERED BY US, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU, OR TO ANYONE, FOR THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR ARISING FROM USE OF ANY SERVICE OFFERED BY US. IF YOU ARE DISSATISFIED WITH ANY SERVICE OFFERED BY US YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE WITHOUT REFUND OF ANY KIND WHATSOEVER.
RISK OF LOSS
All products purchased from the Site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to You upon Our delivery to the carrier.
You hereby warrant that You will not use the information provided by Us in violation of any State or Federal law. Further, You agree to indemnify, defend, and hold Us harmless, as well as holding harmless Our parents, subsidiaries, affiliates, officers, directors, employees, agents, and suppliers, and their respective affiliates, officers, directors, employees, and agents, from any claim, action, demand, or damage, including reasonable attorney’s fees, made by any third party or governmental agency arising out of or related to Your use of any service offered by Us or Your violation of this Agreement, including without limitation, claims or suits for libel, violation of rights of privacy or publicity, interference with property rights, trespass, violations of Federal or State Law, patent infringement or plagiarism. We may, at Our sole discretion, assume the exclusive defense and control of any matter subject to indemnification by You. The assumption of such defense or control by Us, however, shall not excuse any of Your indemnity obligations.
We shall not be liable for delays or nonperformance of this Agreement caused by strike, fire or accidents, nor shall We be liable for delay or nonperformance caused by lack of availability of materials, fuel or utilities or for any other cause beyond Our control.
You may not assign the rights or obligations under this Agreement.
INTENDED FOR USERS OVER 18
Our services are available and may only be used by individuals who are 18 years of age and older who can form legally binding contracts under applicable law. You represent and warrant that You are at least 18 years old and that all registration information You submit is accurate and truthful. You agree to comply with all local laws regarding online conduct and acceptable content.
Except as modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein.
If any provision, or portion thereof, of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, You and We agree that such invalidity shall not affect the validity of the remaining portions of this Agreement and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provisions.
The headings of this Agreement are for convenience only and shall not be used to construe the meaning of this Agreement.
When You visit Our website, or send us e-mails, live chat or text messages, You are communicating with us electronically. In so doing, You consent to receive communications from us electronically. We will communicate with You by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communication be in writing.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including reasonable attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at [email protected]. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Tactical Independence, LLC d/b/a Tactical Outdoors Gear is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use or engage with the Program if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between You and Us, or between You and Tactical Independence, LLC d/b/a Tactical Outdoors Gear’s or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the alleged breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, be determined by binding arbitration by the American Arbitration Association (“AAA”) located in Cuyahoga County, Ohio before one arbitrator in accordance with the AAA Commercial Arbitration Rules then in effect. The parties hereto agree to submit any dispute, claim, or controversy to such binding arbitration. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
You and we agree that our relationship includes transactions involving interstate commerce and that these arbitration provisions are governed by, and enforceable under, the FAA. To the extent state law is applicable, the laws of the State of Ohio shall apply, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear an equal share of the fees paid for the arbitrator and the administration of the arbitration; however, the party filing the arbitration shall pay the initial filing fees. The parties agree that the arbitrator shall only have the authority to award attorneys’ fees to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive or exemplary damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU ACKNOWLEDGE THAT YOU AND WE AGREE THAT NO CLASS ACTION, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY, MAY BE PURSUED IN ANY ARBITRATION OR IN ANY COURT PROCEEDING, REGARDLESS OF WHEN THE CLAIM OR CAUSE OF ACTION AROSE OR ACCRUED, OR WHEN THE ALLEGATIONS OR FACTS UNDERLYING THE CLAIM OR CAUSE OF ACTION OCCURRED. Unless mutually agreed to by You and Us, claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration (unless those persons parties to a single transaction or related transaction), whether or not the claim(s) may have been assigned.
Disputes filed by You or by Us individually in a small claims court are not subject to arbitration, so long as the disputes remain in such court and advance only an individual (non-class, non-representative) claim for relief. However, if a matter in small claims court is removed, transferred, or appealed to a non-small claims court, that claim shall be subject to this Resolution of Disputes by Arbitration provision.
You and We must file in small claims court or arbitration any claim or dispute within one (1) year from when it first could be filed. Otherwise, it’s permanently barred. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts won’t be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of this Arbitration Agreement is found to be illegal or unenforceable, that provision will be severed but the rest of this Arbitration Agreement still applies.
If You agree to be bound by the above Arbitration provisions, then no action is needed on Your part. If You take no action, then effective immediately You will be bound by this Arbitration provision. If You do not agree to be bound by this Arbitration provision, You must send Us written notice that You reject the Arbitration provision within 30 days of receiving this notice, whichever is sooner, including Your name and a statement that You reject the Arbitration provision, to our designated agent:
Dworken and Bernstein Co, L.P.A.
ATTN: Joshua Strickland, Esq.
60 South Park Place
Painesville, Ohio 44077
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.