Terms Of Service
Eligibility and Assent to Terms
Welcome to Bretford! The following Terms of Service for the Bretford.com website, software applications made available by Bretford from the website or via a third party (“Software”), and any application programming interface (“API”) or other technology or services made available by Bretford Manufacturing, Inc. (“Bretford” or “us”) via the website or Software (collectively, the “Bretford Connect Service”) is a legal contract between you, either an individual of at least 18 years of age or a single legal entity (“you”), and Bretford regarding your use of the Bretford Connect Service (“Terms”). The Bretford Connect Service is not available to persons under the age of 18 or to any users of the Bretford Connect Service (collectively, “Users”) previously removed from the Bretford Connect Service by Bretford.
These Terms provide that if you live in (or your principal place of business is in) the United States all disputes between you and Bretford will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the “Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Bretford.
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE BRETFORD CONNECT SERVICE. IF YOU ARE USING OR OPENING AN ACCOUNT WITH BRETFORD ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS AND AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
BY CHECKING THE “I ACCEPT THE TERMS OF SERVICE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY PORTION OF THE BRETFORD CONNECT SERVICE, YOU ASSENT TO AND AGREE TO BE BOUND BY THESE TERMS AND REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY REMOVED FROM THE BRETFORD CONNECT SERVICE.
Important Note: These Terms contain a class action waiver, which affects your rights under these Terms and with respect to any dispute you may have with Bretford. If you are a “Consumer”, as defined below, you may opt out of the class action waiver as provided below.
We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms on a going-forward basis at any time by posting the amended Terms on our website. Please check these Terms periodically for changes. We may provide additional notice, such as an email message or a message within the Bretford Connect Service, of any material changes, but such changes will be effective as provided herein whether or not such message is sent or received. Unless we state otherwise, changes are effective seven (7) days following the date posted on our website. If you continue to use the Bretford Connect Service after the effective date, you agree to the changes. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms as in effect at the time the dispute arises.
We may also change or discontinue the Bretford Connect Service in whole or in part at any time, in our sole discretion. Such changes may include, but not be limited to, changes to the number of administrative Users you have on the Bretford Connect Service at any time. Your continued use of the Bretford Connect Service indicates your agreement to the changes. If Bretford discontinues a Paid Service (as defined in Section 3(a) below), Bretford may either (a) provide a pro-rata refund of fees you pre-paid for such Paid Service or (b) continue to provide such Paid Service to you until the end of your then-current subscription for such Paid Service.
2. Additional Terms
Your use of the Bretford Connect Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Bretford Connect Service or certain features of the Bretford Connect Service that we may post on or link to on the Bretford Connect Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Bretford Connect Service, subject to Section 1. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
3. Fees and Payment
- Paid Services. Some portions of the Bretford Connect Service may have fees associated with them (each, a “Paid Service”). You will have the opportunity to review and accept the fees that you will be charged before using a Paid Service. We may change fees for any portion of the Bretford Connect Service at any time. Unless otherwise stated, all fees are quoted in U.S. Dollars.
- Free Trial. Bretford may make available a 30-day trial for a Paid Service without charge to you (“Free Trial”). You may be required to enter a Payment Method (defined below) in order to register for a Free Trial. The applicable Paid Service will automatically commence, and your Payment Method will be charged in accordance with Section 3(d), at the end of the Free Trial unless you log into your Bretford Connect Service account and cancel the Paid Service before the end of the Free Trial.
- Payment Information. You are solely responsible for paying all fees and applicable taxes associated with your Bretford Connect Service account in a timely manner with a valid payment method. By electing to license or otherwise use a Paid Service, you authorize Bretford or its third party payment processors to charge the credit card or other payment method identified by you (“Payment Method”), which you represent and warrant that you are authorized to use, for all applicable fees for that Paid Service, including all applicable taxes. For purchases of one-time Paid Services (i.e., not subscriptions), your Payment Method will be billed for that Paid Service on the date that you make the purchase. We will bill any periodic license fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). You acknowledge and agree that any credit card and related billing and payment information that you provide to Bretford may be shared by Bretford with companies who work on Bretford’s behalf, such as payment processors or credit agencies, solely for the purpose of checking credit, effecting payment to Bretford and servicing your account.
- Licenses. For purchases of licenses to Paid Services directly from Bretford:
- Your “License Billing Date” is the date when you first license a Paid Service. For example, if you first license a Paid Service on January 10th: (1) your License Billing Date for your first monthly license fee and all other monthly licenses you may enter into is the 10th of each month, (2) your License Billing Date for your annual license fee is January 10th of each year, and (3) your License Billing Date for all subsequent annual licenses will be the next soonest 10th monthly calendar day after your date of license. Your Payment Method will be charged automatically on the License Billing Date all applicable fees for the next month or year, as applicable.
- For any license to a Paid Service that you enter into after your License Billing Date is established, your Payment Method will first be charged a pro-rata amount of the license fee for the number of days between the commencement date and the applicable License Billing Date. Your Payment Method will then be charged the full periodic license fee for the next month or year, as applicable, on each License Billing Date thereafter (or on the last day of the calendar month, if the last day of the calendar month occurs before the License Billing Date for that month).
- Termination of License. For any license to a Paid Service, that license will continue unless and until you cancel your license or we terminate it. You must cancel your license before it renews in order to avoid billing of the next period’s (i.e., month’s or year’s) licensing fees to your Payment Method.
- Third Parties and Fee Collection. The terms of your payment(s) will be based on your chosen Payment Method and will be determined by agreements between you and the financial institution providing such Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or related or similar charges. Check with your bank and credit card issuers for details. If your Payment Method for any Paid Service fails or your account is past due, (i) you agree to pay all amounts due on your Bretford Connect Service account upon demand, (ii) Bretford may collect fees owed using other collection mechanisms (this includes charging other Payment Methods on file with us) and (iii) Bretford reserves the right to either suspend or terminate your access to one or more Bretford Connect Services or your account with Bretford. Upon any such termination, you will remain obligated to pay all outstanding fees and charges relating to your account and your use of the Bretford Connect Service before termination.
- Refunds. Any fees charged to your account are non-refundable except as expressly stated in these Terms. You agree to submit any dispute regarding any charge to your account in writing to Bretford within thirty (30) days of the charge, otherwise that dispute will be waived and the charge will be final and not subject to challenge. Refunds (if any) made pursuant to a dispute, are at the discretion of Bretford.
- Taxes. You are responsible for paying any governmental taxes imposed on your use of the Bretford Connect Services, including sales, use, or value added taxes. If requested, you will promptly furnish to Bretford the applicable receipts or certificates regarding such remittances as soon as reasonably practicable. To the extent that Bretford is obligated to collect such taxes, Bretford will charge your Payment Method or otherwise add the applicable tax to your billing account.
4. User Accounts
You may browse the Bretford.com website without creating an account, subject to these Terms. When you use the Bretford Connect Service to upload, download, or purchase content or any products, services, or information from Bretford, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Bretford on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify Bretford. You are solely liable for the losses incurred by Bretford or others due to any unauthorized use of your Bretford Connect Service account.
5. Limited License to Use Bretford Connect Services
- Definitions. As used in these Terms: (i) “User Submissions” means Uploaded Content and [Imported Assets], collectively; (ii) “Firmware” means software downloaded or installed to a TechGuard Connect™ charging locker (iii) “Locker Bay” means a single storage bay of a TechGuard Connect™ charging locker; (iv) “Locker Stack” means a single TechGuard Connect™ charging locker compromising a collection of Locker Bays; (v) “Locker User” means an individual assigned to a Locker Bay via the Bretford Connect Service.
- License. Subject to your compliance with the terms and conditions set out in these Terms, Bretford hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to: (i) use the Bretford Connect Service to manage Locker Users assigned to Locker Stacks and Locker Bays; (ii) use the Bretford Connect Service to view, use and access User Submissions and other content made available via the Bretford Connect Service; (iii) participate in any other programs, services, or features of the Bretford Connect Service now or hereafter made available by Bretford, including uploading of your User Submissions; (iv) download and install Firmware on the hardware for which the Firmware was created solely to exercise the rights granted in these Terms; and (v) implement any API made available by Bretford solely in accordance with that API’s documentation. For the avoidance of doubt, you are not entitled to any compensation from Bretford for any reason, including but not limited to for User Submissions, unless otherwise specifically agreed in writing by Bretford.
- Restrictions. You agree not to use or launch any automated system, including without limitation “robots,” “spiders,” and “offline readers,” that accesses the Bretford Connect Service in a manner that sends more request messages to the Bretford Connect Service in a given period of time than a human can reasonably produce in the same period by using a conventional web browser or otherwise use the Bretford Connect Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the Bretford Connect Service Site.
- API. You also agree that for any API made available by Bretford: (i) Bretford makes no representations or warranties whatsoever regarding any API or any quality of service available via any API; (ii) Bretford may restrict usage limits; (iii) you will not modify any content accessed via that API; (iv) Bretford may terminate or [disable] any service or functionality available via an API at any time without notice or liability; and (v) use of some APIs may require obtaining an API key from Bretford, and Bretford may disable any key at any time without notice or liability.
- Reservation of Rights. Bretford reserves all rights not expressly granted in these Terms. You acknowledge that Bretford may automatically issue upgraded versions of the software and systems comprising the Bretford Connect Service and, accordingly, may upgrade the version of the Bretford Connect Service that you are using. Bretford reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Bretford Connect Service, including technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
6. User Submissions
- Uploaded Content and [Imported Assets]. By uploading and importing [Assets] to the Bretford Connect Service, you hereby grant to Bretford license to host, store and distribute your [Assets] on the Bretford Connect Service solely in order to enable you, and other Users specified by you, to work with those [Assets] in the manner selected by you.
- Representations. You are solely responsible for all of your User Submissions and you hereby recognize and affirm that the Bretford Connect Service is merely providing you the means to make available, manage and assign Locker Bays based upon your User Submissions. Accordingly, you shall be solely responsible for each of your User Submissions and the consequences of uploading them. By uploading your User Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Bretford and other Bretford Connect Users to use and distribute your User Submissions as necessary to exercise the licenses granted by you in this section and in the manner contemplated by Bretford and these Terms; (2) your User Submissions do not and will not: (i) infringe, violate, or misappropriate 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; and (ii) contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Bretford Connect Service. Violators of these third-party rights may be subject to criminal and civil liability. Bretford reserves all rights and remedies against any you and other Users who violate these Terms.
- Removal of User Submissions. Bretford reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Submission at any time and for any reason without notice.
7. Prohibited Conduct
You agree not to commit any act of the following prohibited conduct:
- use the Bretford Connect Service in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights and data protection and privacy, or post, upload, or distribute any defamatory, libelous, or inaccurate User Submissions or other content;
- defame, harass, abuse, threaten or defraud Users of the Bretford Connect Service, or post, upload, or distribute any content that is unlawful or otherwise inappropriate, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted in these Terms or any Materials (as defined below);
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Bretford Connect Service accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the Bretford Connect Service, or perform any other similar fraudulent activity;
- hack, remove, circumvent, disable, damage or otherwise interfere with security-related features of the Bretford Connect Service or User Submissions, features that prevent or restrict use or copying of any content accessible through the Bretford Connect Service, or features that enforce limitations on the use of the Bretford Connect Service or User Submissions, or intentionally interfere with or damage operation of the Bretford Connect Service or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Bretford Connect Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Bretford Connect Service or any part thereof, except and only to the extent that such activity is expressly permitted by these Terms or applicable law notwithstanding this limitation; or
- remove, obscure, block, hide or otherwise alter the display of any advertising (or any parts or aspects thereof), Bretford brand elements, including logos, trademarks, service marks or other Materials displayed by Bretford in connection with the Bretford Connect Service in any manner whatsoever.
8. Third Party Software; Integrated Services and Linked Sites
- In order to use the full features of the Bretford Connect Service, you must register for an account or log into the Bretford Connect Service using a third party platform that we support (“Integrated Service”). Your use of any account with an Integrated Service is subject to any terms, conditions, and policies, including privacy policies, of that Integrated Service. Other third party software may also be required to use some portions of the Bretford Connect Service (e.g., Microsoft Excel, Apple Numbers). You are solely responsible for obtaining licenses to any third party software that may be required to use the Bretford Connect Service, and your installation and use of any third party software is solely at your own risk. In addition, you are solely responsible for all fees charged by any third party in connection with your use of the Bretford Connect Service (e.g., charges by mobile carriers).
- Bretford may, through the Bretford Connect Service, include links or references to other web sites or services solely as a convenience to Users (“Linked Sites”). Bretford does not endorse any Integrated Services or Linked Sites or the information, materials, products, or services contained on or accessible through any of them. Such third party sites and services are not under Bretford’s control, and Bretford is not responsible for their use of exported information. Access and use of Integrated Services and Linked Sites, including the information, materials, products, and services on or available through them, is solely at your own risk.
9. Termination; Violations
- Except as expressly provided otherwise in these Terms, you agree that Bretford, in its sole discretion, and without penalty, may terminate or suspend any account hosted by, or your use of, the Bretford Connect Service and remove and discard all or any part of your account, User profile, and any User Submission, for any reason at any time. Bretford may also in its sole discretion and at any time discontinue providing access to the Bretford Connect Service, or any part thereof, with or without notice. You agree that any termination of your access to the Bretford Connect Service or any account you may have or portion thereof may be effected without prior notice except as otherwise expressly provided in these Terms, and you agree that Bretford will not be liable to you or any third party for any such termination, including any loss of your User Submissions. If Bretford terminates your account for your breach of these Terms, Bretford reserves the right to charge you fees through the end of your subscription term for any Paid Service you purchased prior to termination. If Bretford terminates your use of any part or all of the Bretford Connect Service prior to the completion of your subscription period (except if such termination is a result of your breach of these Terms) your sole remedy is a pro-rata refund of the purchase price paid for any terminated Paid Service.
- You may cancel any Paid Service at any time by navigating to your account settings within the Bretford Connect Service and selecting the option to cancel that Paid Service. Unused fees are non-refundable and Bretford reserves the right to charge you subscription fees through the end of the subscription term that you elected. If Bretford charges you fees for the full subscription term, you will (subject to your continued compliance with these Terms) continue to have access to the cancelled Paid Service through the end of your subscription term.
- Your only remedy with respect to any dissatisfaction with: (i) the Bretford Connect Service; (ii) any term of these Terms; (iii) any policy or practice of Bretford in operating the Bretford Connect Service; or (iv) any content or information transmitted through the Bretford Connect Service, is to terminate these Terms and your account. You may terminate your Bretford Connect Service account and these Terms at any time by navigating to your account settings within the Bretford Connect Service and selecting the option to terminate your account.
- Any suspected fraudulent, abusive or illegal activity by you may be referred to appropriate law enforcement authorities. These remedies are in addition to Bretford’s termination rights and any other remedies Bretford may have at law or in equity.
- Upon termination of these Terms or your account for any reason, you agree to immediately stop using the Bretford Connect Service, any accompanying documentation, and all other associated Materials.
10. Privacy; Consent to Electronic Communications
11. Ownership; Proprietary Rights
The Bretford Connect Service is owned and operated by Bretford. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Bretford Connect Service provided by Bretford (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Submissions that are provided and owned by the applicable User(s), all Materials contained on the Bretford Connect Service are the property of Bretford or its subsidiaries or affiliated companies or third-party licensors. All trademarks, service marks, and trade names are proprietary to Bretford or its affiliates or third-party licensors. Except as expressly authorized by Bretford, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Bretford reserves all rights not expressly granted in these Terms.
You agree to indemnify Bretford, its affiliated companies, contractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and business partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Bretford Connect Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you in these Terms. Bretford reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Bretford, and you agree to cooperate with Bretford’s defense of these claims. Upon its notice of any impending claim, action or proceeding, Bretford will use reasonable efforts to notify you of any indemnification obligation.
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BRETFORD, AND ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRETFORD OR THROUGH THE BRETFORD CONNECT SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. YOU EXPRESSLY ACKNOWLEGE THAT THIS DISCLAIMER INCLUDES BRETFORD’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS. YOU EXPRESSLY AGREE THAT THE USE OF THE BRETFORD CONNECT SERVICE IS AT YOUR SOLE RISK. THE BRETFORD CONNECT SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER SUBMISSIONS, LINKED SITES, PRODUCTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE BRETFORD CONNECT SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. BRETFORD, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND BUSINESS PARTNERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, OR ANY OTHER PRODUCTS, SERVICES OR APPLICATIONS OFFERED ON OR THROUGH THE BRETFORD CONNECT SERVICE OR ANY LINKED SITES WILL BE SECURE, UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. BRETFORD, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND BUSINESS PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE BRETFORD CONNECT SERVICE OR ANY LINKED SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE BRETFORD CONNECT SERVICE OR ANY LINKED SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
14. Limitation of Liability and Damages
- UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL BRETFORD OR ITS AFFILIATES, CONTRACTORS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR THIRD-PARTY BUSINESS PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE BRETFORD CONNECT SERVICE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH BRETFORD OR OTHER BRETFORD CONNECT SERVICE USERS, EVEN IF BRETFORD OR A BRETFORD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW IN CERTAIN JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CASES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, BRETFORD’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL BRETFORD OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY BUSINESS PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE BRETFORD CONNECT SERVICE OR YOUR INTERACTIONS WITH BRETFORD OR OTHER BRETFORD CONNECT SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE BRETFORD CONNECT SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN BRETFORD AND RECEIVED THROUGH OR ADVERTISED ON THE BRETFORD CONNECT SERVICE OR RECEIVED THROUGH ANY LINKED SITES.
- YOU ACKNOWLEDGE AND AGREE THAT BRETFORD HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BRETFORD, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BRETFORD. BRETFORD WOULD NOT BE ABLE TO PROVIDE THE BRETFORD CONNECT SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
15. United States Export Controls
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
16. Arbitration Agreement; Class Action Waiver; Governing Law
- Agreement to Arbitrate. In the interest of resolving disputes between you and Bretford in the most expedient and cost effective manner, you and Bretford agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Bretford Connect Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Bretford are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. You and Bretford agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (ii) seek injunctive relief in a court of law; or (iii) to file suit in a court of law to address intellectual property infringement claims.
- Arbitration Procedures. Any arbitration between you and Bretford will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Bretford. If you file the arbitration it will be held in Cook County, Illinois and if we file it, it will be held at the AAA office nearest you.
- Arbitration Notice; Process. If you elect to seek arbitration, you must first send to Bretford, by certified mail or FedEx (signature required), a written notice of your claim addressed to: Legal Dept., Bretford, 11000 Seymour Ave, Franklin Park, IL 60131, USA. If Bretford elects to seek arbitration, it will send a written notice to the email address you provided to Bretford for your account. An arbitration notice, whether sent by you or by Bretford, must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. You and Bretford each agree to use good faith efforts to directly resolve any claim, but if we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or Bretford may commence an arbitration proceeding or (if you are a Consumer, as defined below) file a claim in small claims court. During any arbitration, the amount of any settlement offer made by Bretford or you must not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration at www.adr.org.
- Fees. Except as set forth in Section 18, each party will pay its own fees for Arbitration. The Arbitration shall take place in the AAA office nearest the respondent to such action, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Bretford for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- Modifications. If Bretford makes any future change to this arbitration provision (other than a change to Bretford’s address for notice), you may reject the change by sending us written notice within 30 days of Bretford’s notice to you of the change, in which case your account with Bretford will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability.If any or all of the arbitration provision is found to be unenforceable, then the entirety of the above arbitration provisions will be void and, in that case, you and Bretford both agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
- No Class Actions. YOU AND BRETFORD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Bretford agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Governing Law; Venue. These Terms and any action arising out of these Terms or your use of the Service, whether interpreted in a court of law or in arbitration, will be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and Bretford agree to the personal and exclusive jurisdiction in the state and federal courts in Chicago, Illinois.
17. Government Terms
If you use the Bretford Connect Service in an official capacity for a federal, state or local government or government agency in the United States, the following modifications of these Terms apply solely to that official use:
- Indemnification. The terms of Section 12 will apply to you only to the extent expressly permitted by your jurisdiction’s laws.
- Arbitration. The terms of Section 16(a) – (h) do not apply to your official use of the Service.
- Governing Law. The terms of Section 16(i) will apply only to the extent expressly permitted by your jurisdiction’s laws.
18. Consumer Terms
If you are an individual that uses the Bretford Connect Service for personal, family or household purposes (a “Consumer”) the following modifications of the Terms apply to such use:
- Warranties (New Jersey only): if you are a resident of New Jersey, the Disclaimer of Warranties in Section 13 may be limited by New Jersey’s truth and consumer contract warranty and notice act.
- Arbitration. The arbitration clause in Section 16 shall not prevent your filing of a small claims suit. If you commence arbitration in accordance with these Terms, Bretford will reimburse you for your payment of the filing fee and pay the arbitrator’s fee unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in the county of your billing address provided to Bretford as part of your account registration, or, if no county was provided, in the AAA office nearest to you. If our dispute is finally resolved through arbitration in your favor, Bretford will pay you: (A) the amount awarded by the arbitrator, if any; or (B) $1000, whichever is higher.
- Class Action Waiver. YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER SET FORTH IN SECTION 16 (h) ABOVE WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt- Out Deadline”). You may opt out of the waiver by mailing written notification to Bretford at the address stated at the end of these Terms. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not agree to the class action waiver. Your decision to opt-out will have no adverse effect on your relationship with Bretford. Any opt-out request received after the Opt-Out Deadline will not be valid. Neither you, nor any other User(s) of the Bretford Connect Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
- Governing Law. The terms of Section 16(i) will apply only to the extent expressly permitted by your jurisdiction’s laws.
- YOU AND BRETFORD AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE BRETFORD CONNECT SERVICE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.