The following Terms of Use (“Terms”) apply to the use of any website (including paulacecilia.com), application or device (including any online services associated with the device) or operated or sold by Delta Tap Inc. (paulacecilia.com) that displays or links to, or otherwise binds you to these Terms, together with any Content (as defined below), Software (as defined below), materials and services on or related to the use of any such website, application or device, and any new, enhanced or updated versions or subsequent versions thereof, (collectively, the “Services”). Use of any website, application or device includes accessing, browsing or registering with any website, application or device. Please read these Terms carefully! By using any Service, you agree to be bound by these Terms. If you do not agree to these Terms, you may not use any Service.
Unless the context otherwise requires, as used in these Terms, (i) “paulacecilia.com”, “we”, “us”, “our” means paulacecilia.com, Inc.; (ii) “Content” means any and all text, files, photos, images, graphics, logos, marks, designs, layouts, trademarks, trade names, service marks, copyrighted materials, audio and video presentations, and other information and materials made available by us on, through, or in connection with any of the Services, including user interfaces and the selection, coordination and arrangement of such information and/or materials; and “Software” means any software made available to you for download through or in connection with any of the Services.
By using any of the Services, you acknowledge that you accept these Terms of Use and agree to abide by them. If you do not agree to these Terms of Use, you may not use any of the Services.
You acknowledge that you are of legal age to enter into these Terms.
These Terms contain a class action waiver and a mandatory arbitration provision, as described in the “Governing Law; Arbitration” section below, which requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or any form of class action. Arbitration on an individual basis means that you do not have, and you give up, the right to have a judge or jury decide your claims, and you cannot sue in any court on a class, consolidated or representative basis, as described in more detail below. You have the right to opt out of arbitration and/or the class action waiver as described below.
Terms of Service
You may be required to accept additional or additional terms related to your use of any Service (including any content or software) (“Service-Specific Additional Terms”). In such case, such Additional Service-Specific Terms shall be replaced by are deemed to be incorporated into and made a part of these Terms solely for the purposes of such Services. If any provision of these Terms is inconsistent with any provision of any Additional Service-Specific Terms, the provision in the Additional Service-Specific Terms shall apply solely to such Services.
Changes to Services or These Terms
We may change or terminate any Service at any time without prior notice or obligation to you, or charge, modify or waive any fees for use of any Service. In addition, to the extent permitted by applicable law, we may change these Terms at any time by notifying you in any reasonable manner. If you do not want to be bound by the changed terms, we will make reasonable efforts to notify you before the change becomes effective so that you can stop using any Service. (The method of providing such notice may vary depending on the type of Service you use. For example, if you The service used is the paulacecilia.com website (the “Website”), notice may be given by posting it on the Website, and your continued use of the Website may be deemed acceptance of any proposed changes. To the extent permitted by applicable law, the most recent Terms will apply to any disputes or issues arising after the Terms are updated.
Information Submitted Through the Services
Information you submit through any Service is subject to our Privacy Policy. You represent and warrant that any information you provide in connection with any Service is accurate and complete and that you will maintain and update such information as necessary. You acknowledge and agree that certain Services, such as connected devices, may transmit information about or relating to you or your use of such Services to the Company or the Company’s applicable service providers. Information, and the Company may use and disclose such information for the purpose of providing any Service to you and for any other purpose consistent with and subject to this Privacy Policy and any applicable additional Service-Specific Terms.
Intellectual Property
The Services are jointly owned and operated by paulacecilia.com and others under contractual arrangements, and the Services, including any Content and Software (and any intellectual property and other rights therein or associated therewith) are and will remain the property of paulacecilia.com and its licensors and suppliers. The Services, including any Content and Software, and the selection, compilation, collection, arrangement and assembly thereof, are protected by U.S. and international copyright, trademark and other intellectual property laws, and you acknowledge that these rights are valid and enforceable. Except as expressly provided in these Terms or authorized in advance in writing by paulacecilia.com, you agree not to copy, modify, rent, lease, loan, sell, distribute or create derivative works based on (whether in whole or in part) the Services or any Content, software or other materials available through the Services.
License
Contracting Company grants you a limited, revocable, nonexclusive right and license to (i) use the Service for personal and household purposes in accordance with this Agreement and (ii) make one backup copy of any Software solely as necessary or useful in connection with the permitted use of the Service, provided that you keep intact all copyright and other proprietary notices. You acknowledge that Company retains title to all copies of any Content and Software and that any such copies are licensed to you, not sold. Company reserves all rights not expressly granted in this Agreement. Without limiting the foregoing, you are not granted any right or license to use any Service for any commercial purpose or in any other manner that violates these Terms.
Registration
Some Services may require you to register. When you register for any Service, you agree to (a) provide accurate, current and complete personal information as prompted by our registration form (including your email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that we reserve the right to suspend or terminate your use of the applicable Service (or any portion thereof) if any information you provide is untrue, inaccurate, not current, or incomplete.
As part of the registration process, you will be asked to select a username and password. We may refuse or require you to change any username, password, or other information you provide to us during registration, including if such information impersonates another person, is or may be unlawful, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, in our sole discretion. You are responsible for maintaining the confidentiality of your username and password, which are for your personal use only. You agree not to transfer or resell your use of or access to any Service to any third party. If you have reason to believe that your account with us is no longer secure, you must immediately change your password and immediately notify us of the problem by sending us an email or calling us using the contact information provided herein. You are solely responsible for any and all activities (including Purchases (defined below), as applicable) that occur through your account, whether or not authorized by you.
Prohibited Uses
You agree that you will not do any of the following in connection with any Service or use of the Services:
Copy, upload, post, transmit, display, modify, adapt, translate, create derivative works from, sell, resell, rent, lease, loan, timeshare, distribute, redistribute or otherwise use or exploit any material or design element of any Service, or use or access any Service, without our prior written consent, except as expressly authorized in this Agreement, provided, however, that if you purchase a device manufactured by us for your personal, non-commercial use, this provision does not prohibit you from selling or otherwise disposing of that device;
Use or access any Service, including any Content or Software, for any commercial purpose;
Reverse engineer, decompile or disassemble any software, or otherwise attempt to determine the source code or trade secrets of any software;
Violate or attempt to violate the security of any Service;
Restrict or prohibit any other use any Service for any other purpose, including, without limitation, by “hacking” or defacing any portion of any Service;
use any Service (including any Content or software) for any tortious or fraudulent purpose, or in any way that violates any applicable law or regulation;
impersonate any person or entity, including, without limitation, any representative of paulacecilia.com; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with any Service; or express or imply that any statement you make or any goods or services you offer or any goods or services offered by anyone else are endorsed by us without our prior written consent;
transmit, post or otherwise make available through any Service (a) any content or information that is unlawful, fraudulent, threatening, harassing, degrading, hateful, menacing, abusive, libelous, defamatory, obscene, indecent, pornographic, or otherwise objectionable; in a manner that fails to respect the rights and dignity of others; (b) disclose any material, non-public information of the Company without authorization; (c) any information or material protected by trade secret, copyright, trademark, right of publicity or privacy, or any other intellectual property or proprietary right of any third party without the express prior written consent of the relevant owner; (d) any material that could give rise to criminal or civil liability; encourages conduct that would constitute a criminal offense; or encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking,” or “phbreaking”; or (e) any advertising, solicitation, junk mail, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communications (unless we expressly permit otherwise);
send spam or flood;
transmit, post, or otherwise make available through any Service any material that contains any virus, worm, Trojan horse, Easter egg, defect, date bomb, time bomb, or other malicious program or program. any software or other material that contains bombs, spyware or other destructive computer code, files, programs or items that are or may be harmful, invasive, or designed to damage, impair or hijack the operation of or monitor the use of any hardware, software or equipment (each, a “Virus”);
Remove any copyright, trademark or other proprietary rights notices contained in or associated with any Service (including any Content or Software);
“Frame” or “Mirror” any part of any Site, or otherwise incorporate any part of the Site into any product or service without our prior written authorization;
Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, scrape, “data mine” or otherwise gather content or information related to the Services, or in any way reproduce or circumvent the navigational structure or presentation of any Service or its contents. Notwithstanding the foregoing, subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Site, paulacecilia.com grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly searchable indices of the materials, but not caches or archives of such materials. paulacecilia.com reserves the right to revoke these exceptions at any time, either generally or in specific cases, without notice.
Use any Service to advertise or offer to sell or buy any goods or services without our express prior written consent;
Create a database by systematically downloading and storing content;
Use any Service to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation their privacy or publicity rights, or harvest or collect information about others without their express consent;
Otherwise disrupt or interfere with the operation of any Service or the servers or networks used to provide the Service; or disobey any requirements, procedures, policies or regulations of such networks; or
Otherwise use any Service for any purpose other than its reasonably intended purpose.
Your use of the Services is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with those rules may result in termination or suspension of your access to or use of the Services.
Forums; Submissions; and Public Communications
The Services may enable users to make certain materials or content (collectively, “Submissions”) available through or in connection with the Services, including any interactive services such as chat areas, message boards or other forums, or through chat, comment or email functionality or other messaging features (collectively, “Forums”). Any Forum is designed to enable you to share reviews about Products (defined below). If you participate in a Forum, any information you disclose in your Submission may become public, and you should carefully decide whether to disclose any personal, financial or other sensitive information in a Forum. If you choose to make any of your personally identifiable or other information public through any of the Services, including through a Forum, you do so at your own risk. Please note that the views expressed in the Submissions are those of those users and do not represent the views, opinions, beliefs or values of paulacecilia.com or any of its affiliates.
For clarity, you retain ownership of your Submissions. For each Submission, you hereby grant us and our designees a worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable (through multiple tiers), assignable, perpetual, irrevocable right and license to create derivative works based upon or improvements upon such Submission and to reproduce, display and perform (publicly or otherwise), distribute, transmit, make, have made, sell, offer for sale, import and otherwise use, analyze, commercialize and exploit in any manner such Submission, derivative works or improvements, or incorporate such Submission, derivative works or improvements into any format or media for any purpose, including commercial or promotional purposes, without additional compensation to you or any third party. With respect to all such Submissions, you represent and warrant that you have all rights, licenses, consents, permissions, powers and/or authorizations that are necessary to grant the license granted in this section and that such Submissions and your provision through or in connection with any Service are complete and accurate and are not fraudulent, infringing or otherwise in violation of any applicable laws, rules, regulations or the rights of any third party. You further irrevocably waive any “moral rights” or other rights you may have under any applicable law and under any legal theory with respect to attribution of authorship or integrity of material in all Submissions.
paulacecilia.com cannot prevent others who visit any Service from using the Submissions and personal information they find there, even if their use of that information violates the law or your personal
Privacy or Security. We assume no confidentiality, attribution or other obligations and are not responsible for the use or disclosure of any Submissions.
When participating in the Forums, you should not assume that people are who they say they are, know what they say they know, or are affiliated with who they say they are affiliated with. Information obtained on the Forums may be unreliable, and it is not a good idea to trade or make any investment decisions based entirely or in large part on information that you cannot confirm. We are not responsible for the content or accuracy of any information, nor for any trading or investment decisions made based on such information.
We may and expressly reserve the right, but have no obligation, to monitor, scan, intercept, review, analyze, store, modify or delete any Submission or any other message, information, content or other material sent to you, or received by you, in connection with any Service or Forum or its or its features or functionality, at any time, including at the time of transmission, and both before and after storage on or through any Service, and to monitor, review or analyze your access to or use of any such Submission or other message, information, content or other material, in each case by manual, automatic or other means, and in each case for any purpose, including those that may be described in the Privacy Policy. You acknowledge and agree that we have the right to disclose such information, the circumstances surrounding its transmission, and the identity of the poster to any third party for any reason or purpose.
Testimonial board posts or other submissions are not a valid way to tell us that you need help with an order or a feature of the Service. If you would like to tell us about a specific problem, please email or call us using the contact information provided here. paulacecilia.com is not responsible for its failure to provide assistance with a specific problem disclosed in any forum.
Sweepstakes, Contests, and Game Rules
Any sweepstakes, contests, surveys, games, or similar promotions (collectively, “Promotions”) offered through the Service may be governed by specific rules that are separate from these Terms. By participating in any Promotion, you will be subject to any such rules. We urge you to read any applicable rules associated with a particular activity and to review our Privacy Policy, which, in addition to these Terms, governs any information you submit in connection with such Promotions. To the extent the terms and conditions of such rules conflict with these Terms, the terms and conditions of such rules shall control with respect to the applicable Promotion.
Shopping
The Service may offer, describe, provide information about, or otherwise refer to goods or services (collectively, “Products”) and may provide links to quotes, descriptions, or other information related to Products. Such Products may be provided by us or by third parties and may be used for any purpose, including general informational purposes. We may offer the ability to purchase or otherwise obtain certain Products through the Service (“Purchase”). If you wish to make a Purchase, paulacecilia.com or the third-party provider of the Products will require you to provide certain information applicable to your Purchase, such as your credit card number, expiration date, your billing address, your shipping information, and other relevant information. You represent and warrant that you have the legal right to use any credit card in connection with any Purchase. By submitting such information, you grant paulacecilia.com and any such third-party provider the right to use, store, and disclose such information in accordance with our Privacy Policy, including, without limitation, providing such information to third parties to facilitate the completion of purchases initiated by you or on your behalf. You agree that all information you provide to paulacecilia.com or such third-party provider will be accurate, current, and complete. You agree to pay all charges incurred by you or any user of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred, including all shipping and handling charges. You are also responsible for payment of any applicable taxes associated with your purchases. Descriptions, images or references to products on the Service do not imply an endorsement by paulacecilia.com of such products; however, paulacecilia.com may choose to expressly endorse a product. We reserve the right, including without prior notice, to change such descriptions, images or references, to limit the order quantity on any product and/or to refuse service to you. Verification of information applicable to a purchase may be required before paulacecilia.com accepts any order. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of any product listings, descriptions or images, including any features, specifications and prices contained therein. Such information and the prices and availability of any product (including the validity of any coupons or discounts) are subject to change at any time without notice. If you have any questions or complaints regarding your order, or if you would like more information, please contact Customer Service at the contact information below.
The inclusion of a description of any product, an offer for sale or otherwise to make any product available on any Site or otherwise in connection with any Service at any particular time does not imply or guarantee that such products will be available at any time. Without limiting the generality of the foregoing, we may make offers on the Site or otherwise for products that are not available at that time and that we may never make available for purchase for market research or other purposes.
We have made reasonable efforts to accurately display product attributes, including applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display those colors. Weights, measures, and descriptions are approximate and are provided for convenience only. You are responsible for knowing and obeying all applicable local, state, federal, and international laws (including minimum age requirements) regarding the possession, use, and sale of any items purchased from the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner. paulacecilia.com reserves the right, with or without prior notice, to limit the available quantity of or discontinue production of any product; to honor or impose conditions on the honoring of any coupon, coupon code, promotional code, discount or other similar promotion; to prohibit any user from making any or all purchases; and/or to refuse to provide any product to any user. Refunds and exchanges will be made in accordance with paulacecilia.com’s then-applicable refund and exchange policy. When an order is placed, the order will be shipped to the address specified by the buyer, provided that the shipping address is complete and complies with any applicable shipping restrictions and is located in a jurisdiction where paulacecilia.com, in its sole discretion, permits the shipment of the ordered product.
Disclaimer
The Services, Products and Product Information are provided for general information purposes only. They are not advice on which you should rely. You should seek professional or expert advice before taking or refraining from any action based on the contents of the Services, Products and Product Information.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (WITHOUT LIMITING THE EXPRESS LIMITED WARRANTY APPLICABLE TO ANY PURCHASED PRODUCTS, IF ANY), THE SERVICE (INCLUDING ANY CONTENT, SOFTWARE OR FORUMS) AND ANY PRODUCTS AND THIRD PARTY MATERIALS (DEFINED BELOW) ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL PHONE, MODEMS, ROUTERS, COMPUTER HARDWARE AND OTHER EQUIPMENT NECESSARY TO ACCESS AND USE THE SERVICE, AND ALL CHARGES ASSOCIATED THEREWITH. YOU ASSUME FULL RESPONSIBILITY AND RISK FOR YOUR USE OF AND RELIANCE ON THE SERVICE. All disclaimers of any kind, including in this section and elsewhere in these Terms, are for the benefit of paulacecilia.com and its affiliates and their respective licensors, suppliers, advertisers, sponsors, employees, officers, directors, owners, shareholders, representatives, service providers, consultants, legal counsel, representatives and agents (whether past, present or future), and the successors and assigns of any of the foregoing (collectively, the “Affiliates”).
Applicable law in some areas (such as New Jersey) does not allow the disclaimer of implied warranties above, so this provision may not apply to you.
No advice or information, whether oral or written, obtained from us or through any service will create any warranty or representation not expressly made herein. We are not responsible for the actions or information of third parties, and you release us from any claims and damages, known and unknown, arising out of or in any way related to any claim you have against any such third party. If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor or releasing party 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, would have materially affected his or her settlement with the debtor or released party.
Any Service, including any Content, Software or Forums, may contain inaccuracies or errors, or information or materials that violate or conflict with these Terms. In addition, third parties may make unauthorized changes to any Service (including any Content, Software or Forums). Although we attempt to maintain the integrity, timeliness, and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, or that access to the Service will be uninterrupted.
Third-Party Materials; and Links to Any Service
Certain Service features may allow access to information, products, services, and other materials, including Submissions, provided by third parties (“Third-Party Materials”), or allow the routing or transmission of such Third-Party Materials, including via hyperlinks. By using such features, you direct us to access, send and transmit to you the applicable Third-Party Materials. However, by providing such links or offering such access, we do not endorse such third parties or Third Party Materials and are not responsible for the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or security of such third parties or Third Party Materials or any intellectual property rights therein. We assume no responsibility or liability and make no representations or warranties regarding any Third Party Materials or any further links to other websites contained therein. Among other things, some Third Party Materials may be inaccurate, misleading or deceptive. If you use a website hyperlinked to this Website or any other Service or access any Third Party Materials, you do so at your own risk; we have no obligation to monitor Third Party Materials and are not responsible for ensuring that Third Party Materials are free of any viruses. We may stop, block or disable access to Third Party Materials (in whole or in part) at any time without notice or obligation to you. In addition, the availability of any Third Party Materials through or in connection with the Services does not imply that we endorse or are affiliated with any provider of such Third Party Materials, nor does it create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and privacy policies applicable to such Third Party Materials (such as the terms of service or privacy policy of the provider of such Third Party Materials). Links to the Website
If you wish to provide a hyperlink from your website to the Website, you may do so only under the following conditions: (i) any link to the Website must be a text-only link and clearly marked as the “Delta Faucet Company Website”; (ii) the link must “point” to the home page of the Website and not to other pages of the Website; (iii) when a user selects the link, the link must display the Website in full screen and not within a “frame” on the linked website; (iv) the appearance, position and other attributes of the link may not imply that you or any related organization or entity is endorsed or sponsored by, affiliated with or associated with us; (v) the appearance, position and other aspects of the link may not damage or dilute the goodwill associated with our name and trademarks; (vi) the linked website may not contain content that could be construed as objectionable, offensive or controversial, or inappropriate for all age, race, religion and other groups protected by law; and (vii) we reserve the right to revoke our consent to such link at any time in our sole discretion, and you shall immediately remove the link upon our request. By linking your website to our Website, you agree to be bound by these Terms.
Limitation of Liability
To the maximum extent permitted by applicable law, under any theory of liability or responsibility, neither paulacecilia.com nor any other affiliated party shall be liable or responsible to you or any third party for any indirect, incidental, consequential, special, exemplary or punitive damages (including, without limitation, damages for loss of business, data, use or profits, loss of other intangibles), or for the multiplication or increase of any damages resulting from any costs or expenses (including attorneys’ fees) arising out of or related to these Terms or any Service (including any content, software or forums), or for any loss of security of Submissions (including unauthorized interception of any Submissions by a third party), whether in contract, tort (including negligence or otherwise), strict liability, common law, statute, equity or other theory, even if advised of the possibility of such damages or losses in advance. The aggregate liability of paulacecilia.com and the other affiliated entities for all claims arising out of or related to these Terms or any service (including any software, content or forums), whether in contract, tort (including but not limited to negligence) or otherwise, shall not exceed the greater of: (i) the total amount paid by you, if any, for the service or product giving rise to such claim in the one hundred and eighty (180) days prior to the time such liability first arose, and (ii) one hundred dollars ($100.00). You specifically acknowledge that paulacecilia.com and the other affiliated entities are not liable for the defamatory, offensive or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.
Such liability, if any, shall be complete and exclusive. The foregoing limitations will apply even if the above remedy fails of its essential purpose.
Any limitations of liability of any kind (including in this section and other provisions of these Terms) are intended to inure to the benefit of paulacecilia.com and the other affiliated entities. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE EXCLUSION OR LIMITATION OF THE USE OF ANY MULTIPLIER OR INCREASED DAMAGES, OR THE LIMITATION OF LIABILITY TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU FOR ANY SERVICE OR PRODUCT, SO SOME OR ALL OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE A NEW JERSEY RESIDENT, PLEASE SEE THE “IMPORTANT NOTE FOR NEW JERSEY CONSUMERS” SECTION BELOW. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Governing Law; AND ARBITRATION
Governing Law. These Terms, including the Agreement to Arbitrate below, shall be governed by and construed in accordance with the Federal Arbitration Act, 9 U.S.C., and, to the extent consistent therewith, shall apply.
The laws of the State of New York and the United States of America apply to contracts entered into and performed in the State of New York between New York State residents.
Scope of Arbitration Agreement. Except as provided in the “Exceptions” section below, all disputes arising out of or relating to these Terms or any aspect of the relationship between you and us, including any disputes arising out of or relating to any service, product, content or software, whether in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved by final and binding arbitration before a neutral arbitrator, rather than by a judge or jury in court. paulacecilia.com and you each waive the right to a jury trial. “Dispute” will be given the broadest meaning permitted by law. Providers (including Software Providers) and all other Indemnified Parties (defined below) and Affiliates are intended beneficiaries of this Binding Arbitration Agreement and Class Action Waiver.
This Arbitration Agreement covers and includes the Threshold Issues of Arbitrability. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute or disputes concerning the formation, existence, scope, validity, interpretation, applicability, arbitration or enforcement of this Agreement, or any part thereof, or these Terms, including, but not limited to, any claim that all or any part of this Agreement to Arbitrate or the Terms of Use is void or voidable. If either party disagrees whether the foregoing provision (or any part of this Agreement to Arbitrate, including but not limited to the provisions relating to arbitration) is enforceable or applicable to a dispute, then the parties agree that the arbitrator shall decide that dispute. However, notwithstanding the foregoing, the parties agree that any question regarding the validity of the class action waiver and bulk arbitration provisions set forth below must be decided by a court and that the arbitrator shall not have authority to consider the validity of the class action waiver or bulk arbitration provisions.
As set forth below, you agree that any arbitration under these Terms will be conducted on an individual basis; class arbitrations and class actions are not permitted, and you agree to waive your ability to participate in a class action or other proceeding if someone is bringing a claim as a representative of any other person or persons.
Exceptions. Notwithstanding your and our agreement to arbitrate disputes, you and we agree that the following disputes will be resolved in court, unless you and we agree to submit a dispute to arbitration pursuant to a binding arbitration agreement:
A dispute or claim within the jurisdiction of small claims court, so long as it is brought and maintained as an individual dispute and not as a class, representative or consolidated action or proceeding;
A dispute or claim for which the only form of relief is an injunction or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright, trademark, trade secret, patent or other intellectual property right;
A dispute or claim arising in any court with jurisdiction to confirm or enforce an arbitration award; or
A dispute or claim for which the only form of relief is injunctive relief, including seeking public injunctive relief in an individual capacity to the extent permitted by law.
Any action brought in court with respect to the types of disputes listed above (other than a small claims action) may be brought only in the federal or state courts located in Marion County, Indiana, and you and paulacecilia.com consent to the jurisdiction of such courts for such purposes. Regardless of whether a dispute of the type described above in this paragraph is resolved in court or through arbitration, you and paulacecilia.com agree that the dispute is subject to the Class Action Waiver set forth below.
You and paulacecilia.com also agree that for disputes or claims seeking both injunctive relief (including publicity injunctive relief) and non-injunctive relief, you and paulacecilia.com shall first submit the dispute or claim for non-injunctive relief to arbitration in accordance with this applicable law; and the Arbitration Division. The arbitrator may not grant injunctive relief (unless the parties agree otherwise). Once the arbitration of a dispute or claim for non-injunctive relief is concluded, you and/or paulacecilia.com may seek injunctive relief (including publicity injunctive relief) in court to the extent permitted by law.
Informal Dispute Resolution. We want to resolve your issues without the need for a formal legal dispute. Likewise, we will make reasonable efforts to contact you to notify you of any actual or potential dispute before taking any formal action to resolve any informal claims we may have. The party providing notice of an actual or potential Dispute (the “Notifying Party”) will include in such notice (the “Dispute Notice”) your name (to the extent known), the Notifying Party’s contact information for any communications relating to such Dispute (including the contact information of the Notifying Party’s legal counsel, if such legal counsel is acting on behalf of such Notifying Party in connection with such Dispute), and sufficient detail regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis for and evaluate the issues raised. If the Notified Party responds within ten (10) business days of receipt of the Dispute Notice that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then the parties shall promptly engage in such discussions in good faith.
If, despite the Notifying Party’s compliance with all of the obligations set forth in the preceding paragraph, the Dispute is not resolved within thirty (30) days of the date the Notifying Party sent the Dispute Notice (or if the Notifying Party fails to respond to the Dispute Notice within ten (10) business days), then the Notifying Party may commence arbitration proceedings as described below. If either party claims to initiate arbitration without first providing notice of dispute and otherwise complying with all obligations set forth in the preceding paragraph, then, notwithstanding any other provision of these Terms, the arbitrator shall immediately dismiss the claim and will reimburse the other party for all costs and expenses (including reasonable attorneys’ fees) incurred in connection with the dispute.
How the Arbitration Works. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as modified by these Terms. The Consumer Arbitration Rules are available here and you may also visit the AAA website (www.adr.org) for the most current terms. If there is a hearing, the arbitrator will conduct it by telephone conference or video conference rather than in person, unless the arbitrator determines, at the request of you or us, that an in-person hearing is appropriate. Any interview will be held in a location that is reasonably convenient for both parties, with due regard to their ability to travel and other relevant circumstances. If the parties cannot agree on a location, it shall be determined by the AAA or the arbitrator. The decision of the arbitrator will be subject to the terms of these Terms and will be final and binding. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding the foregoing, this clause does not prevent you from bringing issues before federal, state, or local agencies, which can seek relief against us on your behalf, if permitted by law.
Payment of all filing, administration, and arbitrator fees and expenses shall be governed by the AAA Rules and, if violated by the AAA Rules, by anti-subsidy laws, unless you demonstrate that any such fees and expenses owed under those rules would be substantially more expensive than a court action. paulacecilia.com will pay any such fees and expenses the arbitrator deems necessary to prevent the arbitration from being prohibitively expensive than a court action (subject to possible reimbursement as described below). However, each party shall be solely responsible for its or its own attorneys’ fees and expenses, and paulacecilia.com will not pay your attorneys’ fees or expenses unless ordered to do so by the arbitrator. However, if you prevail in the arbitration, you will be entitled to reasonable attorneys’ fees and expenses ordered by the arbitrator to the extent permitted by applicable law. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you agree to reimburse paulacecilia.com for all fees paid by Company in connection with the arbitration that you would otherwise be obligated to pay under the AAA Rules. In determining whether an action is frivolous, the arbitrator may consider whether paulacecilia.com provided you with a full refund for items purchased from paulacecilia.com or provided you with full relief with respect to your individual claim. If, after final disposition of the case, the arbitrator finds that your dispute is not frivolous, paulacecilia.com will reimburse you for any filing fees you paid and not otherwise reimbursed. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Class Action Waiver. To the maximum extent permitted by applicable law, you and we each agree that any litigation to resolve any dispute, claim or controversy will be brought and conducted only in our respective individual capacities and not as part of any class or purported class, consolidated, multi-plaintiff, private attorney general or representative action or proceeding (a “class action”), and hereby expressly and unconditionally waive any and all such rights. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by a court of competent jurisdiction. However, for the avoidance of doubt, you may seek public injunctive relief to the extent authorized by law and consistent with the above exceptions.
If this class action waiver is limited, void or held to be unenforceable, then, unless the parties agree otherwise, the parties’ agreement to arbitrate with respect to such action shall be null and void insofar as such action is permitted to proceed as a class action. If a court holds that the limitations in this paragraph are invalid or unenforceable, then any putative class action, private attorney general, consolidated or representative action must be brought in a court of competent jurisdiction rather than in arbitration.
Batch Arbitration. Notwithstanding anything to the contrary set forth above or in the applicable AAA Rules, and to the maximum extent permitted by applicable law, the parties agree that if, within a ninety (90) day period, claimants represented by the same counsel or coordinated counsel file twenty-five (25) or more separate arbitration claims on the same or similar facts and asserting the same or similar claims for relief, the following rules shall apply:
The AAA shall administer the arbitration in batches of 25 claims (or as close to 25 claims as possible if there are fewer than 25 claims per batch).
For each such batch, the AAA shall appoint one arbitrator and resolve the batch as a single consolidated arbitration, with each batch to pay one set of filing, administration and arbitrator fees (the same fee schedule applicable to the entire batch as would normally apply to a single arbitration).
Multiple batches may be arbitrated concurrently. An arbitration award in one batch shall not be precedential with respect to subsequent batches.
In order to minimize the costs of arbitration, the parties shall cooperate with each other and with the AAA in good faith in conducting this batch arbitration process.
Any challenge by a party to the applicability, validity or enforceability of this batch arbitration provision shall be determined solely by a court of competent jurisdiction and not by the arbitrator. If this batch arbitration clause is held invalid or unenforceable, or the AAA refuses to enforce this batch arbitration clause for any reason, then the entire arbitration agreement will be void when twenty-five (25) or more separate arbitration claims asserting the same or similar relief are filed within a ninety (90) day period by plaintiffs represented by the same counsel or coordinated counsel. However, the class action waiver will still apply to the extent permitted by law.
Opt-out clause. Your written notice must include your name and address, and an unequivocal statement that you do not wish to resolve disputes with paulacecilia.com or other affiliated parties through arbitration and/or that you do not agree to the class action waiver. If you do not opt-out, you will be obligated to arbitrate disputes on an individual basis in accordance with the provisions of this section. If you only opt-out of the arbitration clause and not the class action waiver clause, the class action waiver clause will still apply. You can only opt-out of the class action waiver and not the other arbitration clauses. If you opt-out of arbitration and/or the class action waiver, paulacecilia.com will not be bound by them.
As described in the “Changes to the Services or These Terms” section, we will provide notice of any material changes to this binding arbitration agreement and/or class action waiver (which may be satisfied by updating these Terms, unless otherwise required by law), in which case you will have the right to opt out of the arbitration provision and/or class action waiver as described above within 30 days of such change.
Other Terms. This arbitration agreement shall survive any termination or expiration of these Terms. With the exception of the class action waiver and bulk arbitration provisions (described above), if a court rules that any part of this agreement to arbitrate is invalid or unenforceable, the remainder of this agreement to arbitrate will remain in effect and in force.
Termination
These Terms are effective until terminated by paulacecilia.com. paulacecilia.com may, in its sole discretion, terminate or suspend your access to or use of any Service at any time and for any reason, including if paulacecilia.com believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon any such termination or suspension, your right to use the Services will immediately terminate and you will promptly destroy all copies of any Content or Software (including any backup copies thereof) in your possession or control. You agree that any termination or suspension of your access to or use of any Service may be effected without prior notice and that upon such termination or suspension, paulacecilia.com may immediately deactivate or delete your password and username and all related information and files associated therewith, and/or bar any further access to such information or files. You agree that paulacecilia.com and other affiliated entities shall not be liable to you or any third party for any termination or suspension of your use of or access to the Service or any such information or files, and shall not require you to provide such information or files upon any such termination or suspension. The “Specific Service Terms”, “Information Submitted Through the Service”, “Intellectual Property”, “Registration”, “Prohibited Uses”; “Forums”; “Submissions and Public Dissemination”, “Purchase”, “Warranty Disclaimer”, “Third Party Materials”; and “Links from Any Service”, “Links to the Website”, “Limitation of Liability”, “Applicable Law”, “Termination”, “Breach, Waiver and Indemnity”, “Copyright Infringement Claims”, “Jurisdiction Issues”, “Feedback”, “Questions”, “Important Notice to New Jersey Consumers” and “Miscellaneous” sections shall survive any termination of these Terms.
Breach, Waiver, and Indemnification
We reserve the right to seek all remedies available at law and in equity for any violation of these Terms, including terminating, suspending, or blocking your access to the Services. Our failure to enforce any provision of these Terms will not constitute a waiver of such provision or of our legal or equitable rights. In addition, no waiver of any right under this Agreement will be effective unless in writing, and any such waiver will be effective only in the specific instance and for the specific purpose for which it is stated in writing. To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless us, the Affiliated Entities and their third-party information providers, licensors, contractors, and any other person or entity that delivers products, services, or information through the Site, App, or Device from and against any and all damages, claims, liabilities, judgments, losses, awards, costs, expenses, and fees (including attorneys’ fees) whether past, present, or future (collectively, “any”) arising out of or related to: (i) your breach or alleged breach of these Terms; or (ii) any claim that you have committed an offence against us or through any of the Services
You will not indemnify or hold harmless the Indemnified Entities from any third party claims arising out of your use of information accessed through any of the Services.
Filtering
Pursuant to 47 U.S.C. § 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may help you limit access to material that is harmful to minors. Information identifying current providers of such protections is available at https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that paulacecilia.com does not endorse any product or service listed on the Site.
Jurisdiction Issues
The Services are controlled or operated (or both) from the United States, and paulacecilia.com is not subject to any non-U.S. laws. Jurisdiction or Law The Services are directed only to individuals residing in the United States. We make no representation that the Services (including any Content or Software) are appropriate or available for use in locations outside the U.S. Those who choose to access the Services from non-U.S. locations do so at their own initiative and risk and are responsible for compliance with all applicable local laws, rules and regulations. The goods and services provided through the Services are also subject to U.S. export control and economic sanctions requirements. By acquiring any such items through the Services, you represent and warrant that your acquisition is in compliance with such requirements and your use of such items will also comply with such requirements. Without limiting the foregoing, you may not acquire goods or services through the Services (a) if you are located in, under the control of, or a national or resident of any country to which the United States has imposed a goods embargo or any other export restriction; or (b) if you are on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders or any other U.S. government restricted end-user list; or (c) if you intend to provide the acquired goods or services to anyone subject to the foregoing restrictions. By downloading or using any such goods or services (including any software), you represent and warrant that you are not located in any such country or region and/or that you intend to provide such goods or services to anyone subject to such restrictions. We reserve the right to limit the provision of the Service and/or the availability of the Service, programs, software or other products to any person, geographic area or jurisdiction at any time and in our sole discretion, and to limit the quantities of any such Service, program, software or other product that we provide.
Feedback and Questions
We welcome questions, comments and other feedback, including ideas, proposals, suggestions or other materials (“Feedback”) regarding these Terms, the Services and our products. However, please note that regardless of whether such feedback is related to the “Service”, such feedback will be deemed a “Submission” under this Agreement, and you hereby acknowledge and agree that we will treat all such feedback as non-confidential and we may reproduce, use, commercialize, disclose and distribute such feedback, and authorize others to do so, without notifying you or incurring any obligation to you. You further acknowledge and agree that such feedback provided by you is gratuitous, unsolicited, unrestricted, and does not place us under any fiduciary or other obligations. If you have any questions or comments, please contact us using the contact information provided here.
IMPORTANT NOTE TO NEW JERSEY CONSUMERS
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights you may have) under New Jersey law because they are unenforceable: (a) the exclusion of liability for indirect, incidental, consequential, special, exemplary, or punitive damages of any kind (e.g., damages that are unenforceable under the New Jersey Punitive Damages Act, the New Jersey Product Liability Act, the New Jersey Uniform Commercial Code, and the New Jersey Consumer Fraud Act); (b) the limitation of liability for any lost profits or loss or misuse of data (e.g., damages that are unenforceable under the New Jersey (e) the applicable New Jersey law provisions (e.g., your rights as a consumer residing in New Jersey are governed by New Jersey law).
Miscellaneous
These Terms, including any additional Service-specific Terms, constitute the entire agreement between us and you with respect to your use of the Services and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and paulacecilia.com with respect to such subject matter. Any heading, caption, or section title contained in these Terms is inserted for convenience only and shall not in any way define, limit, or explain any section or provision of these Terms. Unless otherwise specified, all terms defined in the singular shall have the same meaning when used in the plural form where appropriate. Any use of the word “including” or variations thereof in these Terms shall be construed as if immediately followed by the word “without limitation.” Except as provided above with respect to the Class Action Waiver and Bulk Arbitration Provisions, the invalidity or unenforceability of any provision of these Terms in any jurisdiction shall not affect the validity and enforceability of such provision in any other jurisdiction or any other provision. If any provision of these Terms is held invalid, void, or unenforceable by an arbitrator or court of competent jurisdiction, you agree that the invalidity, voidness, or unenforceability of such provision shall not affect the validity of such provision or the validity of the remaining provisions of these Terms (except as provided above with respect to the Class Action Waiver and Bulk Arbitration Provisions) unless such invalidity, voidness, or unenforceability materially affects the full intent and purpose of these Terms. Such provision shall be deemed replaced by a valid and enforceable provision that most closely reflects the intent and purpose of the original provision. Our failure to enforce any provision of these Terms shall not constitute a waiver of such provision or any other provision. These Terms do not and shall not be construed to create any partnership, joint venture, employer-employee, agent or franchisee relationship between you and paulacecilia.com. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under these Terms without restriction. paulacecilia.com reserves any rights not expressly granted herein. Notices to you may be given by posting on the Site (to the extent related to your use of the Site), by email, by regular mail, or by any other reasonable means in paulacecilia.com’s sole discretion. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. paulacecilia.com will not be responsible for any failure to perform due to causes beyond its control.