TERMS AND CONDITIONS FOR THE ONLINE SALE OF GOODS AND SERVICES
THESE TERMS CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THESE TERMS CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR GOODS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.
YOU MAY NOT ORDER OR OBTAIN GOODS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH THE READING GLASS BOOKS LLC, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
(a) These terms and conditions (these “Terms“) apply to you (referred to as “Customer”) when you purchase goods (“Goods”) and/or services (“Services”) through readingglassbooks.com (the “Site“), from The Reading Glass Books LLC, a New Jersey limited liability company (“Provider“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms on the Site.
(b) The accompanying confirmation of sale (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(c) Provider may change these Terms in Provider’s sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. Customer should review these Terms prior to purchasing any Goods or Services that are available through this Site.
(d) Notwithstanding anything to the contrary contained in this Agreement, Provider may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
(e) Customer acknowledges and agrees that Provider may use subcontractors and consultants to perform the Services. Provider may represent, perform services for, and contract with other additional clients, persons, or companies as Provider, in its discretion, deems fit.
2. Delivery of Goods and Performance of Services.
(a) The Goods will be delivered within a reasonable time after the receipt of Customer’s Sales Confirmation. Provider shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Provider shall deliver the Goods to the address provided by Customer (the “Delivery Point“) using Provider’s standard methods for packaging and shipping such Goods.
(c) Provider may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
(d) If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Provider’s notice that the Goods have been delivered at the Delivery Point, or if Provider is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) Provider, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) Provider shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
(f) With respect to the Services, Customer shall (i) cooperate with Provider in all matters relating to the Services and provide such access to Customer’s materials, as may reasonably be requested by Provider, for the purposes of performing the Services; (ii) respond promptly to any Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Provider to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
(a) The quantity of any installment of Goods as recorded by Provider on dispatch from Provider’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
(b) Provider shall not be liable for any non-delivery of Goods (even if caused by Provider’s negligence) unless Customer gives written notice to Provider of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Provider for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN SECTION 3 ARE CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY NON-DELIVERY OF GOODS.
4. Quantity. If Provider delivers at least 50% of the Goods set forth in the Sales Confirmation, Customer shall not be entitled to object to or reject the Goods or any portion of them by reason of the shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
5. Shipping Terms. Delivery of the Goods shall be made FOB Delivery Point.
6. Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Provider a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code.
7. Customer’s Acts or Omissions. If Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
8. Inspection and Rejection of Nonconforming Goods.
(a) Customer shall inspect the Goods within five (5) days of receipt (“Inspection Period“). Customer will be deemed to have accepted the Goods unless it notifies Provider in writing of any Nonconforming Goods (as hereinafter defined) during the Inspection Period and furnishes such written evidence or other documentation as required by Provider. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies Provider of any Nonconforming Goods, Provider shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Provider’s facility located at 7 Wrightstown Cookstown Road, Unit 8, Cookstown, NJ 08511. If Provider exercises its option to replace Nonconforming Goods, Provider shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN SECTION 8(B) ARE CUSTOMER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS. EXCEPT AS PROVIDED UNDER SECTION 8(B), ALL SALES OF GOODS TO CUSTOMER ARE MADE ON A ONE-WAY BASIS AND CUSTOMER HAS NO RIGHT TO RETURN GOODS PURCHASED UNDER THIS AGREEMENT TO PROVIDER.
(a) Customer shall purchase the Goods and Services from Provider at the prices (the “Prices“) set forth on Provider’s Site as of the date of Customer’s Sale Confirmation. If the Prices should be increased by Provider before delivery of the Goods to a carrier for shipment to Customer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by Provider on the basis of such increased prices.
(b) Customer agrees to pre-pay for all reasonable travel and out-of-pocket expenses incurred by Provider in connection with the performance of the Services. SUCH EXPENSES ARE NOT REFUNDABLE.
(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Provider’s income, revenues, gross receipts, personal or real property, or other assets.
10. Payment Terms.
(a) Customer shall pay all invoiced amounts due to Provider on receipt of Provider’s invoice. Customer shall make all payments hereunder by wire transfer, check, PayPal, or credit card (Visa, Mastercard, Amex, and Discover) and in US dollars.
(b) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. CUSTOMER SHALL REIMBURSE PROVIDER FOR ALL COSTS INCURRED IN COLLECTING ANY LATE PAYMENTS, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES. In addition to all other remedies available under these Terms or at law (which Provider does not waive by the exercise of any rights hereunder), Provider shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Customer fails to pay any amounts when due hereunder.
(c) CUSTOMER SHALL NOT CHARGE BACK, DISPUTE, OR WITHHOLD PAYMENT OF ANY AMOUNTS DUE AND PAYABLE BY REASON OF ANY SET-OFF OF ANY CLAIM OR DISPUTE WITH PROVIDER, WHETHER RELATING TO PROVIDER’S BREACH, BANKRUPTCY OR OTHERWISE.
11. Limited Warranty.
(a) Provider warrants that the Goods sold hereunder will be free from “material defects” upon receipt, under normal and proper use. As used herein, “material defects” means print color variance, incorrect interior/cover, grammatical errors, and exterior/interior damage because of shipping.
(b) Provider warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11(A) AND SECTION 11(B), PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(d) Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(e) The Provider shall not be liable for a breach of the warranties set forth in Section 11(a) and Section 11(b) unless: (i) Customer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Provider within five (5) days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, Provider is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Goods and Customer (if requested to do so by Provider) returns such Goods to Provider’s place of business at Provider’s cost for the examination to take place there; and (iii) Provider reasonably verifies Customer’s claim that the Goods or Services are defective.
(f) The Provider shall not be liable for a breach of the warranty set forth in Section 11(a) or Section 11(b) if: (i) Customer makes any further use of such Goods after giving such notice; (ii) the defect arises because Customer failed to follow Provider’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Customer alters or repairs such Goods without the prior written consent of Provider.
(g) Subject to Section 11(e) and Section 11(f) above, with respect to any such Goods during the Warranty Period, Provider shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Provider so requests, Customer shall, at Provider’s expense, return such Goods to Provider.
(h) Subject to Section 11(e) and Section 11(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 11(b), Provider shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate; provided that any out-of-pocket expenses shall not be refundable[AB1] .
(i)THE REMEDIES SET FORTH IN SECTION 11(G) AND SECTION 11(H) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 11(A) AND SECTION 11(B), RESPECTIVELY.
12. Limitation of Liability.
(a) IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PROVIDER FOR THE GOODS AND/OR SERVICES SOLD HEREUNDER.
13. Waiver of Claims; Indemnification.
(a) To the fullest extent permitted by applicable law, Customer hereby releases, waives, discharges and covenants not to sue Provider, its contractors, and any of their officers, directors, employees, agents, insurers, contractors, successors, and permitted assigns (the “Provider Parties”), for any liability to Customer, Customer’s personal representatives, assigns, heirs, or successors in interest, or for any loss, damage or expenses, or any claims, demands or Actions (as defined below) arising from or related to, directly or indirectly, to the Provider Parties’ use of the rights and licenses granted in this Agreement to sell the Goods and/or fulfill the Services and other obligations under this Agreement, including, but not limited to, claims for intellectual property infringement, infringement of moral rights, defamation, invasion of rights of privacy, rights of publicity, intrusion, false light, public disclosure of private facts, physical or emotional injury or distress or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world. For purposes of this Agreement, “Actions” include any litigation, lawsuit or administrative, governmental, or other proceeding including, but not limited to, government investigations, inquiries, hearings, and other requests, or any appeal thereof. Customer acknowledges that Customer is solely and fully responsible for the Customer Content and that Provider will not be liable to Customer, or to any third party or other person or entity for the Customer Content or Customer’s use of any third party’s content and/or materials, regardless of whether Provider had any knowledge or could have reasonably known of any violation by Customer of the above representations or that the Customer Content otherwise violates law.
(b) Customer will fully indemnify and hold harmless, the Provider Parties from and against any claim, cause of action, demand, Action, proceeding, losses, liability, cost, expense (including reasonable attorneys’ fees) or damages arising out of or resulting from: (i) Customer’s gross negligence or willful misconduct; (ii) Customer’s breach of any terms of this Agreement; and/or (iii) any claims that the Customer Content (or Third Party Property used therein) infringe or misappropriate any intellectual property rights. Until any claim for indemnity hereunder has been fully satisfied, Provider may retain all payments due Customer, including royalties, if any, and/or Provider may cease providing any further Services; and Customer will have no right to receive a refund of any amounts paid by Customer to Provider.
(c) As used herein, the “Customer Content” may include, but is not limited to, (a) the text and/or manuscript of a book (or similar writing) in its original form as submitted by Customer and as edited by Provider during the fulfillment of editorial services purchased by Customer, (b) graphics, pictures, videos, or other Customer intellectual property, and/or (c) other third-party materials, which are owned or authorized in writing by the owners of such materials which are submitted by Customer to be incorporated into the final deliverable.
14. License to Provider. During the term of this Agreement, with respect to the Customer Content (including any third party content or materials used by Customer or incorporated in Customer Content), Customer authorizes, consents to, and grants to Provider (including any third-party contractors hired by Provider) the following: (i) a worldwide right and license to display, exhibit, reproduce, digitize, modify, license, and otherwise use the information that Customer provides to Provider about Customer (such as Customer’s name or chosen pen name, image, likeness, appearance, voice, video footage, biographical and personal information, etc.) and information about a deliverable (such as the title, description of the deliverable, excerpts and images from the deliverable, etc.), in all materials created by Provider or on Provider’s behalf, which incorporates any of the information above, in any format and in all media; (ii) a worldwide right and license to send free review copies of a deliverable to members of media and other potential reviewers or sellers, in Provider’s sole discretion; (iii) a worldwide right and license to make excerpts or previews of the deliverable available for preview on websites or via other media, including the websites of certain retailers (including but not limited to, Amazon, Google, and Apple) in Provider’s sole discretion; (iv) an exclusive, transferable, worldwide license to manufacture, store, use, display, execute, reproduce (in whole or in part), transmit, modify (for example, for formatting purposes or to create authorized derivative works), import, make, have made, offer to sell, print, publish, market, sublicense, distribute, and sell (individually or as part of compilations of collective works), and license in and to a deliverable for use via any subscription model or lending model, through all distribution channels available now or at a later time, in any language, in any format, and via any medium, now known or hereafter devised, selected in Provider’s sole discretion and consistent with the Services; (v) a right and license to compile and use statistical information regarding sales of the deliverable (if any); and (vi) during the transition period of ninety (90) days after termination of this Agreement, the non-exclusive, worldwide license to engage in the activities set forth above.
15. Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Provider may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
16. Term and Termination.
(a) This Agreement shall commence upon full execution of a Sales Confirmation by the parties and thereafter shall remain in effect: (a) until terminated by either party as more fully set forth herein; or (b) six (6) months after the delivery of Goods or Services; provided that, each new Sales Confirmation or purchase order signed by Customer within such 6-month period, shall extend the term of this Agreement for an additional six (6) months, or longer, if provided in the applicable Sales Confirmation.
(b) In addition to any remedies that may be provided under these Terms, Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
(c) The Services may be terminated by either party, for any reason with or without cause, upon thirty (30) days prior written notice to the other party.
17. Waiver. No waiver by Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Provider. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of Provider, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Provider in writing. Upon Provider’s request, Customer shall promptly return all documents and other materials received from Provider. Provider shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
19. Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within five (5) business days of its occurrence, which notice shall include a description of the force majeure event and an estimate of the length of time such event will delay or prevent performance hereunder.
20. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
23. Governing Law. This Site is operated from the US. All matters arising out of or relating to this Agreement and the Site are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
24. Dispute Resolution and Binding Arbitration.
(a) CUSTOMER AND PROVIDER HEREBY AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF CUSTOMER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND PROVIDER ARISING FROM OR RELATING IN ANY WAY TO CUSTOMER’S PURCHASE OF GOODS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Section 24. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
If Customer prevails on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to Customer under the standards for fee shifting provided by law.
(c) Customer may elect to pursue Customer’s claim in small-claims court rather than arbitration if Customer provides Provider with written notice of Customer’s intention do so within 30 days of Customer’s Sale Confirmation. The arbitration or small-claims court proceeding will be limited solely to Customer’s individual dispute or controversy.
(d) Customer agrees to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR PROVIDER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST THE OTHER PARTY OR PARTIES IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
(a) To Customer. Provider may provide any notice to Customer under these Terms by: (i) sending an email to the email address Customer provides or (ii) by posting to the Site. Notices sent by email will be effective when Provider sends the email, and notices Provider provides by posting on the Site will be effective upon posting. It is Customer’s responsibility to keep Customer’s email address current.
(b) To Provider. To give Provider notice under this Agreement, Customer must contact Provider as follows: (i) by email to email@example.com; or (ii) by personal delivery, overnight courier, or registered or certified mail to 7 Wrightstown Cookstown Road, Unit 8, Cookstown, NJ 08511. Provider may update the email address or mailing address for notices by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
26. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
27. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.