Effective: June 09, 2019
These terms of service (“Terms of Service”) constitute a legal agreement between you and Rocky Road Inc (“Company”), a U.S. corporation. As used in these Terms of Service, the words “you” and “your” refer to you, the user of the Company’s website, device, or applications, as the party agreeing to these Terms of Service. The words “we”, “us”, “our” and any other variation thereof refer to the Company. Any reference to “Company” in this document includes our directors, officers, employees, contractors, owners, agents, licensors, or licensees. As used in these Terms of Service, the term “Site” includes all websites and all devices or applications that we operate, pages within each such website, device, or application, any equivalent, mirror, replacement, substitute or backup website, device, or application, and pages that are associated with each such website, device, or application. The use of the word “including” in these Terms of Service to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered.
1. Acceptance of Terms
We reserve the right, at our discretion, to make changes to the Terms of Service from time to time without notice, so please review it frequently. You may review updates to our Terms of Service at any time via links on www.rockysells.com. You agree to accept electronic communications and/or postings of revised versions of the Terms of Service on www.rockysells.com and agree that such electronic communications or postings constitute notice to you of the revised version of the Terms of Service. Changes take effect immediately upon posting. Your continued use of the Services after any changes or revisions to the Terms of Service shall indicate your agreement with the terms of such revised Terms of Service.
In addition to these Terms of Service, you may enter into other agreements with us or others that will govern your use of the Service or related services offered by us or others (including, without limitation, the Business Cash Advance Agreement or Revenue Share Agreement as applicable, if executed (“Business Agreement”)). If there is any contradiction between these Terms of Service and another executed agreement you enter into applicable to specific aspects of the Service, the other agreement shall take precedence in relation to the specific aspects of the Service to which it applies. Please note that your funding, if any, will be subject to a separate business agreement.
2. Privacy and your Personal Information
3. Registration Information
You agree and understand that you are responsible for maintaining the confidentiality of the combination of your Login ID and password, which together allow you to access the Service. If you believe that such Login ID and password, together with any account information you provide or a device that you use to access any Site has been lost or stolen, that someone is using your account without your permission, or that an unauthorized transaction has occurred, you must notify us IMMEDIATELY
at firstname.lastname@example.org .
4. Accuracy of and Changes to your Information
You agree to provide true, accurate and complete profile, banking and business information, including such other information as may be prompted by any registration forms on the Site or otherwise requested by the Company, including with respect to accounts maintained at third-party sites and you further agree to provide such materials as the Company may request to establish and/or verify your or any other person’s identity or authority to enter into binding agreements on behalf of the business or entity, or to establish and/or verify the business or entity’s legal existence, good standing in any jurisdiction and eligibility to use the Site or Service, or to establish and/or verify your eligibility (collectively, “Account Information and Supporting Materials”). You further agree to promptly update all your Account Information and Supporting Materials whenever the information provided to us is no longer accurate. If you do not do this, the accuracy and effectiveness of the Services provided to you will be affected. If you need help in changing your information, please email us at email@example.com . We are not responsible for any payment processing errors or fees or other Services-related issues arising from your failure to keep your Account Information and Supporting Materials current. You represent that you are a legal owner of, and that you are authorized to provide us with, all Account Information and Supporting Materials and other information necessary to facilitate your use of the Services and the Site.
In addition, in consideration of your use of the Site and the Service on behalf of a business or other entity member, you, individually and on behalf of such business or entity, agree to promptly notify the Company regarding any material changes to information or circumstances impacting the business or entity’s legal existence, good standing in any jurisdiction in which the business or entity is authorized to conduct business, or eligibility for continued use of the Site or any Service.
5. Disclosure and Consent to Electronic Communications
You understand and agree that you are entering into these Terms of Service electronically and that certain categories of information (“Communications”) may be provided by the Company to you by electronic means (i.e., via email, through the Service by displaying links to notices generally on the Site, or to your mobile device), unless and until you withdraw your consent as described below. The categories of Communications that may be provided by electronic means include:
• These Terms of Service and any amendments, modifications, or supplements;
• Records of any payment and other transactions you handle through the Sites or Services, including payment
histories and transaction confirmations;
• Disclosures or notices provided in connection with the Services, including any required by federal or state law (including initial disclosures, periodic statements, periodic and annual error resolution notices, initial and annual privacy notices, opt-out notices, and change-in-terms notices);
• Any customer service communications, including communications with respect to claims of error or unauthorized use of the Sites or Services; and
• Any other communication related to the Sites or Services.
Although we reserve the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of these Terms of Service and any Communication that is important to you and retain the copy for your records. By agreeing to the Terms of Service, you agree to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating to your use of the Site and Service. If you do not wish to receive these Terms of Service or the Communications electronically, you may not use the Sites or Services.
If you have opened an account with us and you wish to withdraw your consent to have Communications provided electronically, you must close your account by contacting firstname.lastname@example.org and stop using the Sites and Services. Any withdrawal of your consent to receive electronic Communications will be effective only after we have a reasonable period of time to process your withdrawal and only after all amounts owing (including Specified Amounts (as defined in a Business Agreement)), if any, have been satisfied by you. We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications.
The Company offers various tools and functions through the Sites including when you register, apply for advances and/or payment warranties, receive advances and/or payment warranties access or use our website, mobile applications, products, network and services, or when you otherwise interact with us (collectively, the “Services”)
There is no cost to maintain the Company account. The Services offered may require the payment of fees and other amounts. These Services are subject to separate agreements into which you must enter prior to participating in such Service and will be determined on the case-by-case basis.
8. Your Use of the Services
Your right to access and use the Sites and use the Services is personal to you and is not transferable by you to any other person or entity, and you may only access and use the Sites and Services for lawful purposes.
In order to allow you to use certain Services, we may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include asking you for further information, requiring you to provide a taxpayer identification number, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying information you provide against third-party databases or through other sources. If you do not provide this information (including Account Information and Supporting Materials) or any other information requested, if we cannot verify your identity or if we are not satisfied with the results (in our sole and absolute discretion), we can refuse to allow you to use the Services.
Your access and use of the Sites or Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Service, events beyond our control, or other actions that the Company, in its sole discretion, may elect to take. In no event will the Company be liable to any party for any loss, cost, or damage that results from any period of downtime of the Sites or Services. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service.
9. Modification to Site or Services
The Company further reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sites or Services with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Sites or Services. The provisions of this paragraph are in addition to, and not intended to limit or modify, any limitation of liability language otherwise contained in these Terms of Service.
10. Rights you Grant to Us
By submitting information, materials and other content to the Company through the Service, you are licensing that content to the Company solely for the purpose of providing the Service. The Company may use and store the content for the purpose of providing the Service to you. By submitting this content to the Company, you represent that you are entitled to submit it to the Company for use for this purpose, without any obligation by the Company to pay any fees or other limitations.
By using the Service, you expressly authorize the Company to access your Account Information and Supporting Materials maintained by identified third parties, on your behalf as your agent. You hereby authorize and permit the Company to use and store information submitted by you to the Service to accomplish the foregoing and to configure the Service so that it is compatible with the third-party sites for which you submit your information. For purposes of these Terms of Service, and in connection with the Account Information and Supporting Materials, as part of the Service, you grant the Company a limited power of attorney, and appoint the Company as your attorney-in-fact and agent, to access third-party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN THE COMPANY IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION AND SUPPORTING MATERIALS FROM THIRD-PARTY SITES, THE COMPANY IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Service is not sponsored or endorsed by any third parties accessible through the Service. You expressly relieve us from any and all liability arising from your use of any third-party website or service. You agree that third party account providers shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. You understand and agree that the Services are not endorsed or sponsored by any third-party account providers accessible through the Services.
By accepting these Terms of Service, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or via text. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). The Company reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, you hereby do and shall grant the Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. The Company has the right, but not the obligation, to monitor the Service or Your Content.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c)
transmission to the Company’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. The Company will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
The Company reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the Company’s website and in other communication with existing or potential Company customers. To decline the Company this right you need to email email@example.com stating that you do not wish to be used as a reference.
11. No Unlawful or Prohibited Use
As a condition of your use of the Sites and Services, you represent and warrant to the Company that you will not use the Sites or Services for any purpose that is unlawful or prohibited by these Terms of Service.
You agree that you will not:
• Sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party;
• Use the Sites or Services in any manner that could damage, disable, overburden, or impair the Sites or Services;
• Obtain or attempt to obtain any materials or information through any means not intentionally made available or
provided for through the Sites or Services;
• Use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components;
• Modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;
• Access the Sites by any means other than through the interface that is provided by the Company for use in accessing the Sites;
• Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site or Services or attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Site or the Service;
• Frame the Site, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over the Site’s pages, or otherwise affect the display of the Site’s pages;
• Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
• Register for multiple accounts on behalf of the same business or entity; or
• Use data provided by the Company in any manner whatsoever for any competing uses or purposes.
All rights, title and interest in and to the Service and its components will remain with and belong exclusively to the Company. You shall comply with any codes of conduct, policies or other notices the Company provides you or publishes in connection with the Service, and you shall promptly notify the Company if you learn of a security breach related to the Service.
If the Company, in its sole discretion, believes that you may have engaged in any activities restricted by these Terms of Service or by law, we may (in our sole and absolute discretion) take various actions to protect the Company, other users, and other third parties from fees, fines, penalties, and any other liability (with or without notice), including:
• We may close, suspend, or limit your access to your account or ability to use the Sites or Services;
• We may update inaccurate information you provided us;
• We may refuse to allow you to use the Sites or Services in the future;
• We may take legal action against you; and
• We may hold you liable to the Company for the amount of the Company’s damages caused by your violation of these Terms of Service.
The Company, in its sole discretion, reserves the right to terminate these Terms of Service, access to its Sites, or access to the Services for any reason and at any time with or without notice to you.
12. Company’s Intellectual Property Rights
All content included or available in connection with the Sites, including any and all materials, information, text, data, software, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever (collectively, the “Content”) and the selection and
arrangement thereof is owned exclusively by the Company or the licensors or suppliers of the Company and is protected by U.S. and international copyright and other intellectual property laws. All rights are hereby reserved. Without limiting the foregoing, no Content on the Sites may be copied, reproduced, duplicated, published, or distributed in any form or by any means whatsoever without the express prior written permission of the Company or the appropriate licensor or supplier.
Any feedback, questions, comments, suggestions, ideas, or the like that you send to the Company will be treated as being non-confidential and nonproprietary, and the Company will be free to use such information for any purpose whatsoever including developing, manufacturing, and marketing products and services incorporating the information.
13. Disclaimer of Representations and Warranties
THE SITES, THE SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT IS OFFERED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SITES OR THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES AND THE SERVICES IS AT YOUR SOLE RISK.
THE COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OR CONTINUED AVAILABILITY OF THE CONTENT ON THE SITES OR THE SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SITES OR THE SERVICES IS FREE OF BUGS, DEFECTS, OR ERRORS, OR INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA, OR PERSONAL INFORMATION.
THE SERVICE IS NOT INTENDED TO PROVIDE LEGAL, TAX, OR FINANCIAL ADVICE. THE COMPANY IS NOT A FINANCIAL PLANNER, BROKER, OR TAX ADVISOR. Before making any final decisions or implementing any financial strategy, you should consider obtaining additional information and advice from your accountant or other financial or legal advisers who are fully aware of your individual circumstances. The Company does not assume any responsibility for the timeliness, accuracy, deletion, non-delivery, or failure to store Account Information and Supporting Materials. Any information made available through the Services will only reflect the information that we most recently accessed, and as such, may not reflect activity that occurred after we last accessed the applicable third-party site or any pending transactions.
You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. The Company makes commercially reasonable efforts to provide alerts in a timely manner with accurate information, but we cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. The Company shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
14. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, LIQUIDATED, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, TEMPORARY INTERUPTIONS IN SERVICES (INCLUDING IF WE ARE UNABLE TO COMPLETE A TRANSACTION), LOSS OF BUSINESS REPUTATION, LATE PENALTIES, LATE PAYMENTS TO THIRD PARTIES, CANCELLATION OF THIRD PARTY CONTRACTS OR LOSS OF GOODWILL), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE SITES, THE SERVICES, YOUR USE THEREOF, OR ANY OF THE USER SUBMISSIONS, INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED THROUGH OR RESIDING ON THE SITES, OR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING THEREFROM WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO US$500.00 (FIVE HUNDRED UNITED STATES DOLLARS). YOU ACKNOWLEDGE THAT IF NO FEES HAVE BEEN PAID TO US IN CONNECTION WITH THESE TERMS OF SERVICE, YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND WILL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. WE DO NOT REPRESENT OR WARRANT THAT ANY OF OUR SITE OR SERVICES WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE.
We do not have any fiduciary or other special relationship to you or any of your stockholders or affiliates. We have not assumed an advisory or fiduciary responsibility in your favor or any of your stockholders or affiliates. You acknowledge and agree that you have consulted your own legal, tax and financial advisors to the extent you deem appropriate and that you are responsible for making your own independent judgment with respect to this transaction and the process leading thereto. You
agree that you will not claim that we have rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to you.
15. Indemnification of Company
You will defend, indemnify and hold us harmless, including our officers, directors, shareholders, affiliates and employees, from and against all claims, actions, damages, obligations, costs, demands and expenses, including but not limited to attorney’s fees, in whole or in part arising out of or attributable to any breach of these Terms of Service by you, any of Your Content, your violation of any third party right, or your other access, contribution to, use or misuse of the Service. We will provide notice to you of any such claim, suit or demand. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
16. Governing Law; Jury Trial Waiver; Class Action Waiver
These Terms of Service, and your relationship with the Company under these Terms of Service, is be governed by, and will be construed in accordance with, the internal laws of the State of Wyoming without regard to principles of conflict of laws. You agree to submit to the jurisdiction of any state or federal court sitting in Cheyenne County, Wyoming for any and all disputes asserting a breach of this Agreement. You understand that, in return for agreement to these provisions, the Company is able to offer the Service at the terms designated, and that your assent to these provisions is an indispensable consideration to these Terms of Service. The forum selection provision does not apply to any arbitration proceeding.
YOU WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO, THESE TERMS OF SERVICE , THE TRANSACTIONS CONTEMPLATED BY THESE TERMS OF SERVICE , OR THE ENFORCEMENT OF THESE TERMS OF SERVICE , EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW. YOU ACKNOWLEDGE THAT YOU MAKE THIS WAIVER KNOWINGLY, WILLINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER BEING PROVIDED WITH THE OPPORTUNITY TO CONSIDER THE RAMIFICATIONS OF THIS WAIVER WITH YOUR ATTORNEYS.
YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE COMPANY, ITS PARENT COMPANIES, AFFILIATES, SUBSIDIARIES, PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES, AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OR IN ANY OTHER REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW. TO THE EXTENT THIS PROVISION ALLOWS YOU TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE COMPANY, YOU AGREE THAT THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER ATTORNEY’S FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SERVICE ).
YOU AND THE COMPANY AGREE THAT, ABSENT A WRITTEN AGREEMENT BETWEEN THE PARTIES ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST BE FILED WITHIN ONE MONTH AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
If either party requests to arbitrate any Claim (defined below) before an answer or dispositive motion is filed in a lawsuit that arises out of or relates to these Terms of Service, the other party agrees to arbitrate such Claim. The party making the request must commence an arbitration proceeding within thirty (30) days of its request with either the Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”). The arbitration proceeding will be governed by the rules and procedures for commercial disputes of the arbitration organization to which the Claim is referred. Streamlined arbitration rules and procedures will be used if available. If for any reason the selected arbitration organization cannot, will not, or ceases to, serve as an arbitration administrator, you or we may substitute the other organization identified in this paragraph or another widely recognized arbitration organization that uses similar rules or procedures and is mutually acceptable to both parties. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization.
For purposes of this arbitration provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future. The term “Claim” is to be given the broadest possible meaning and includes (by way of example and without limitation) any Claim arising from or relating to (a) your offer for sale and our acceptance for purchase of future receivables; (b) any transactions effected pursuant to these Terms of Service; (c) provisions of, or change of, or addition of, provisions to these Terms of Service; (d) collection of your obligations arising from these Terms of Service; (e) advertisements, promotions or oral or written statements relating to these Terms of Service or any transactions between you and us pursuant to these Terms of Service, including any Claim regarding information obtained by us from, or reported by us to, credit reporting agencies or others; (f) disputes between you and us or our parent companies, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors or representatives arising from any transaction between you and us pursuant to these Terms of Service; (g) disputes regarding the validity, enforceability or scope of this arbitration provision or these Terms of Service; or (h) these Terms of Service.
YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE BY SENDING NOTICE OF YOUR DECISION TO OPT-OUT, ALONG WITH YOUR NAME, PHONE NUMBER, EMAIL ADDRESS AND MAILING ADDRESS, TO SUPPORT@ROCKYSELLS.COM OR ROCKY ROAD INC, 10250 N VANCOUVER WAY, PORTLAND, OR, 97217.
IF ARBITRATION IS COMMENCED, YOU ACKNOWLEDGE THAT NEITHER YOU NOR WE WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT YOU OR WE COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN YOUR OWN OR OUR OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) in the preceding paragraph. If a court finally holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire arbitration provision will be null and void. You or we can appeal any such holding. If a court holds that any other part of this arbitration provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this arbitration provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this arbitration provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide a Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to the Claim between the parties is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding a Claim. Unless both you and we otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and we each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
For a copy of relevant rules and procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (A) for JAMS, 1920 Main Street, Suite 300, Irvine, CA
92614, firstname.lastname@example.org , http://www.jamsadr.com , or 1-800-352-5267; or (B) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019, email@example.com , http://www.adr.org , or 1-800-778-7879.
If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing and the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the rules of the selected arbitration organization.
If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorney’s fees, incurred by the party compelling arbitration. Any physical arbitration hearing that you attend will be held in the federal judicial district for the district in which you reside. The party initiating the arbitration will pay the filing fee. You may seek a waiver of the initial filing fee or any other fees incurred in arbitration. IF YOU BELIEVE YOU CANNOT PAY OR YOU WILL NOT BE ABLE TO PAY THE FILING FEE OR OTHER FEES REQUIRED TO INITIATE ARBITRATION, NOW OR IN THE FUTURE, WE RECOMMEND YOU OPT-OUT OF THIS ARBITRATION PROVISION IN THE MANNER DESCRIBED ABOVE.
Except in the situation in which either party fails to submit to arbitration following a proper demand to do so, each party will pay for its respective attorney’s, experts’ and witness fees, regardless of which party prevails in the arbitration. A party may recover any or all expenses from the other party if the arbitrator, applying applicable law, so determines. Allocation of fees and costs relating to appeals in arbitration will be handled in the same manner. For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is incorporated by reference into this arbitration provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding face-to-face hearings can increase the cost of arbitration. Again, neither you nor we will be permitted to arbitrate claims other than an individual basis. An arbitration proceeding can decide only your or our Claims. You cannot join other parties (or consolidate Claims).
This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in these Terms of Service. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced, including by garnishment, attachment, foreclosure or other post-judgment remedies, in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo (that is, without deference to the ruling of the original arbitration) any aspect of the initial award requested by the appealing party.
This arbitration provision will continue to govern any Claim that may arise without regard to any termination or cancellation of these Terms of Service. If any portion of this arbitration provision (other than the provisions prohibiting class-wide arbitration, joinder or consolidation) is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this
arbitration provision. If a conflict or inconsistency arises between the rules and procedures of the selected arbitration administrator and this arbitration provision, this arbitration provision will control.
18. Error Resolution
If you believe that there has been an error made on your account, contact us by emailing firstname.lastname@example.org
• If you believe a transaction receipt or a statement is wrong.
• If you need more information about a transaction on the receipt or statement.
We must hear from you within one (1) business day of us sending you a receipt. Your inquiry must include:
• Your name, email associated with your account, and your account number (if available);
• A description of the error or the transaction you are unsure about;
• A clear explanation of why you believe there is an error or why you need more information;
• The dollar amount of the suspected error.
If you tell us orally, we may require that you send us your inquiry via email within ten (10) business days. 19. Miscellaneous
If any portion of these Terms of Service is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, these Terms of Service as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of these Terms of Service that is unlawful, void or unenforceable shall be stricken from these Terms of Service.
You agree that if the Company does not exercise or enforce any legal right or remedy which is contained in these Terms of Service (or which the Company has the benefit of under any applicable law), this will not be taken to be a formal waiver of the Company’s rights and that those rights or remedies will still be available to the Company.
All covenants, agreements, indemnifications, limitations on liability, representations and warranties made in these Terms of Service shall survive your acceptance of these Terms of Service and the termination of these Terms of Service.
You may not assign this Terms of Service without the prior written consent of the Company, but the Company may assign or transfer this Terms of Service, in whole or in part, without restriction.