TERMS AND CONDITIONS OF USE

 

Welcome! You have arrived at an online service location (e.g., web site or mobile application) that is owned and operated by Canal Service Corporation (“we,” “our” or “us”). These Terms and Conditions of Use (“Terms”) govern your use of any online service location (e.g., website or mobile app) that posts a link to these Terms and also applies to all features, widgets, plug-ins, applications, content, downloads and other services (collectively, the “Site”) that are owned and controlled by us and that are available through or interact with a Site, and/or that post or link to these Terms, regardless of how you access or use the Site, whether via computer, mobile device or otherwise. By using the Site, you acknowledge, accept and agree to the Site’s Privacy Policy and Acceptable Use Policy and consent to the collection and use of your data in accordance with the Privacy Policy. 

 

It’s important that you read these entire Terms; but to help facilitate your review, here are some of the more significant terms we want to bring to your initial attention that are further detailed below. Capitalized terms have the meanings given to them where defined in these Terms. 

 

• Each time you use the Site, these Terms and any applicable Additional Terms (defined below) then posted apply so you should check back each time you return for any updates. 

 

• You may only use the Content (defined below) on the Site in connection with your permitted activities on the Site and not in an offline environment or in connection with another site or service. You grant us a broad license to content you submit or post.

 

• Except as set forth in the Privacy Policy that applies to the Site, you and we do not have a confidential, fiduciary, or any other special relationship by virtue of your use of the Site or your communications to us through or related to the Service.

 

• We are providing the Service to you on an “as-is” basis, without any warranty of any kind, and our liability to you in connection with your use of the Service is very limited. Many other limitations and disclaimers relate to your use of the Site. 

 

• Many types of disputes that may arise in connection with your access to and use of the Site are subject to mandatory arbitration – which includes your waiver of a right to a jury trial.

 

If You Want to Use The Site, then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. 

 

Each time you access and/or use the Site (other than to simply read these Terms), you agree to be bound by and comply with the Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Site if you do not agree. 

The business realities associated with operating the Site are such that, without the limitations that are set forth in these Terms – such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – we would not make the Site available to you. 

 

By accessing and/or using any part of the Site, you agree to be bound by these Terms. In some instances, both these Terms and separate guidelines, rules, or terms of Site or sale setting forth additional or different terms and/or conditions will apply to your use of the Site or to a Site or product offered via the Site (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. 

 

It is important that you read and understand the full Terms before using the Site. To ease review, each section below contains a brief introductory summary and a link to the full explanation. You can click on the headings and the “More” links to be taken to the full explanation. Any capitalized terms that appear in but are not otherwise defined in the introduction are intended to have the meanings given to them elsewhere in the Terms. 

 

Changes to Terms of Use

 

Canal Service Corporation may at any time revise these Terms of Use. You are bound by any such revisions and should therefore periodically visit this page to determine the then current terms of use and conditions to which you are bound. Your use of the Web Sites after changes are made means you agree to be bound by the Terms of Use, the Acceptable Use Policy and the Privacy Policy of the Web Site you visit as such Terms of Use, Acceptable Use Policy, and Privacy Policy exist at that time.

 

Limitations of Use

 

A. Site Use Restrictions. You agree that you will not: (i) transmit or otherwise make available any content that is false, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, disparaging (including disparaging of Company or its affiliates), vulgar, obscene, pornographic, invasive of another’s privacy, or that promotes violence, racial hatred, terrorism or illegal acts or is otherwise objectionable (as determined by Company in its sole discretion); (ii) transmit or otherwise make available any content that is unlawful or infringes, violates or misappropriates any patent, trademark, trade identity right, trade secret, publicity right, privacy right, copyright or any other intellectual property or any other rights of any third party; (iii) upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or code or post material that interferes with any third party's uninterrupted use and enjoyment of the Site; (iv) impersonate any person or entity, or otherwise disguise the origin of any content transmitted through the Site or to Company, including forging any TCP/IP packet header or any part of the header information in any transmission to the Site for any reason; (v) transmit or otherwise make available through the Site any personal advertising, junk mail, spam, chain letters, pyramid schemes or offer for sale of any products or services, except in areas specifically designated for such purposes; (vi) violate any applicable local, state, federal or international law, rule or regulation; (vii) harass, stalk or otherwise abuse another user; (viii) aside from your purchase of goods or services offered for sale by Company or its subsidiaries or affiliates, use the Site for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ix) use any meta tags or any other “hidden text” utilizing any Trademarks; (x) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Company; (xi) reverse engineer, decompile, disassemble, reverse assemble, or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (xii) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Content, or the User-Generated Content (defined below); (xiii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, including email addresses, without the express consent of such users); (xiv) attempt to gain unauthorized access to the Site, other computer systems or networks connected to the Site, through password mining or any other means; or (xv) otherwise violate these Terms or any Additional Terms. 

 

B. Content Use Restrictions. You also agree that, in using the Site: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way. 

 

C. Availability of Site and Content. Company may immediately suspend or terminate the availability of the Site and Content (and any elements and features of them), in whole or in part, for any reason, in Company’s sole discretion, and without advance notice or liability. 

 

D. Reservation of All Rights. Not Granted as to Content and Site. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Site. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Company and its licensors and other third parties. Any unauthorized use of any Content or the Site for any purpose is prohibited. 

 

Monitoring and Management of Content of Web Sites

 

 Canal Service Corporation shall have the right, but not the obligation, to monitor the content of the Web Sites to determine compliance with these Terms of Use and any other operating rules established by it, as well as to determine compliance with applicable laws, including but not limited to, copyright laws.

 

Links

 

Some of the hyperlinks on the Web Sites may lead to third-party Web sites. These Web sites are not controlled by, or affiliated with, Canal Service Corporation. In addition, other Web sites may link to our Web Sites. Canal Service Corporation is not responsible for the content or privacy policies of these third-party Web sites.

 

Intellectual Property

 

The elements of the Canal Service Corporation website, including, but not limited to, text, graphics, logos, depictions, designs, photographs, images, digital downloads, data compilations, sound, video, and software are protected by United States and international copyright, trademark, and trade dress. The compilation of the content on the Web Sites is the exclusive property of Canal Service Corporation. Copyright owners may give us notice of infringement by following specific instructions mandated by federal law.

 

A. DMCA Notice. Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following: 

 

(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”; 

 

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; 

 

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears); 

 

(iv) your full name, address, telephone number, and email address; 

 

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; 

 

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and 

 

(vii) your electronic or physical signature. 

 

Company will only respond to DMCA Notices that it receives by mail, email, or facsimile at the addresses below: 

 

By Mail: Canal Service Corporation, Attn.: General Counsel, 2055 Corvair Avenue, Columbus, OH 43207

 

By Email: PrivacyPolicy@_____________

 

It is often difficult to determine if your copyright has been infringed. Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA. 

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. 

 

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. 

 

We have a policy of terminating the ability of users who (in our reasonable discretion) are repeat infringers to post submissions on the Site. Without limiting Company’s other rights, Company may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website owned or operated by Company. 

 

B. Counter-Notification. If access on the Site to a work that you submitted to Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information: 

 

(i) a legend or subject line that says: “DMCA Counter-Notification”; 

 

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Site from which the material was removed or access to it disabled); 

 

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; 

(iv) your full name, address, telephone number, email address, and the username of your account (if you have an account); 

 

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of Ohio), and that you will accept Site of process from the person who provided DMCA notification to us or an agent of such person; and 

 

(vi) your electronic or physical signature. 

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed of disabled by mistake or misidentification may be subject to liability. 

 

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice. 

 

C. Procedure for Alleging Infringement of Other Intellectual Property 

 

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice to the address set forth above that includes all of the following: 

 

(a) a legend or subject line that says: “Intellectual Property Infringement Notice”; 

 

(b) a description of the intellectual property that you claim has been infringed; 

 

(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears); 

 

(d) your full name, address, telephone number, and email address; 

 

(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law; 

 

(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and 

 

(g) your electronic or physical signature. 

 

We will act on such notices in our sole discretion. Any user of the Site that fails to respond satisfactorily to Company with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material. 

 

Wireless Features. 

 

A. Wireless Features. The Site may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Site’s features and upload content to the Site, receive messages from the Site, and download applications to your wireless Device (collectively, “Wireless Features”). Our text communications programs that you may subscribe to are considered Site Wireless Features and governed by these Terms, even if you do not use the website to sign up for them. Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues. 

 

B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties, including using autodialer technology. Your consent to receive texts is not a condition of purchase, and no purchase is necessary. From time-to-time we may offer informational (e.g., appointment updates) and promotional text alert programs, and each program will be administered separately unless otherwise stated as part of the subscription process. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Site for Wireless Features, then you agree to notify Company of any changes to your wireless contact information (including phone number). 

 

Disclaimer

 

THIS SITE AND ALL INFORMATION, CONTENT, MATERIALS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY CANAL SERVICE CORPORATION IS ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. CANAL SERVICE CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, CANAL SERVICE CORPORATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CANAL SERVICE CORPORATION DOES NOT WARRANT THAT THIS SITE; INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE; THE SERVERS USED; OR ELECTRONIC COMMUNICATIONS SENT FROM CANAL SERVICE CORPORATION ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

CANAL SERVICE CORPORATION WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.

 

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

Indemnification. 

 

By using the Site, you agree to, and you hereby, defend, indemnify, and hold Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use or misuse of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Company Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Company Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to retain counsel of their choosing, settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of the Chief Executive Officer of the Company Party. 

 

Dispute Resolution 

 

Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Company agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act. This section can only be amended by mutual agreement.

 

A. First – Try To Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Content, your User-Generated Content, Wireless Features, these Terms, or any Additional Terms, whether heretofore or hereafter arising, including as relates to our service providers (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth below, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to: Canal Service Corporation, 2055 Corvair Avenue, Columbus, OH 43207. For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Company to resolve the Dispute or Excluded Dispute on terms with respect to which you and Company, in each of our sole discretion, are not comfortable.

 

B. Forums for Alternative Dispute Resolution

 

1. Arbitration. If we cannot resolve a Dispute as set forth in Section 16.A within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this section. If we cannot resolve an Excluded Dispute as set forth above within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Company consent, in a writing signed by you and an Officer or legal representative of Company, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this section. 

 

Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”); provided, however, our service providers will have the option to elect to apply this Section 16 to them in connection with your including them as a direct party in a Dispute arising out of their services for us. If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this section, then this paragraph and the remainder of this Section 16.B will not apply to the Excluded Dispute. 

 

If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration Site that you and an officer or legal representative of Company consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration Site.

 

You can obtain AAA and JAMS procedures, rules, and fee information as follows: 

 

AAA: 800.778.7879 JAMS: 949.224.1810 

https://www.adr.org 
https://www.jamsadr.com
  

1. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.

 

C. Limited Time To File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH ABOVE WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED. 

 

D. Injunctive Relief. The foregoing provisions of this Section 16 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User-Generated Content, Wireless Features and/or Company’s intellectual property rights (including such Company may claim that may be in dispute), Company’s operations, and/or Company’s products or services. 

 

E. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, as set forth in Subsection G below. 

 

F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitration or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to the procedure set forth herein holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate will not apply and the Dispute must be brought exclusively in court as set forth below. 

 

G. Federal and State Courts in Franklin County, Ohio. Except to the extent that arbitration is required herein, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Franklin County, Ohio. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters. 

 

General Provisions 

 

A. Company’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Company a right of consent or approval, or permits Company to exercise a right in its “sole discretion,” Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company. 

 

B. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Ohio, without regard to its conflicts of law provisions. 

 

C. Operation of Site; Availability of Products and Services; International Issues. Company controls and operates the Site from the U.S.A., and Company makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, Site, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, Site, or other feature that we provide. You and we disclaim any application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods. 

 

D. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. In the event there is a discrepancy or inconsistency between the English language version and any translated version of these Terms, unless otherwise provided by law, the English version shall prevail and govern. 

 

E. Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. 

 

F. Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under these Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Company, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration. 

 

G. Assignment. Company may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company. 

 

H. No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. 

 

I. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service providers, mobile services, and any other services needed for your access to and use of the Site and you will be responsible for all charges related to them.