The Gratafy Platform is an experiential marketing platform owned and operated by Carolina Manufacturer’s Services, Inc., an Inmar company (“Inmar”, “us”, “we” or “our”), that is accessible at www.gratafy.com and through mobile applications and widgets integrated into third party websites (together, the “Gratafy Platform”). The Gratafy Platform connects consumers (“users”, “you” or “your”) with retail merchants (“Merchants”) and third-party brand owners (“Brand Companies”) to enable the gifting and receipt of products and services offered by Merchants, Brand Companies, Gratafy, or other consumers (“Gifts”).
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THE AGREEMENT BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT SUCH DISPUTES BETWEEN YOU AND INMAR WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
By accessing the Gratafy Platform, you confirm that you are either (a) at least 18 years of age; or (b) between 13 and 17 years of age and using the Gratafy Platform with the permission and consent of your parents or legal guardian. You are not allowed to access or use the Gratafy Platform if you do not meet either of these criteria.
Please note that alcoholic beverages and related services may be sold and delivered only to persons who are at least 21 years of age. By placing an order for any Gift that is an alcoholic beverage, you represent to Inmar and to the Merchant and Brand Company: (a) that you are purchasing the Gift for personal use and not for resale; (b) that you are at least 21 years old; (c) that any person to whom the Gift will be delivered or served is at least 21 years old; and (d) that the person receiving the Gift will provide valid identification proving that he or she is at least twenty-one 21 years of age.
If you are under the age of 21 and misrepresent your age or the age of the person to whom a Gift comprising an alcoholic beverage and associated services are to be provided, you may be subject to prosecution for violating various laws.
Notwithstanding anything herein to the contrary, we reserve the right, at our sole discretion, to refuse to permit access to the Gratafy Platform for any reason whatsoever, in particular, but without limitation, if the criteria above are not met.
You agree to pay for all applicable fees, purchases and other obligations arising from your use of the Gratafy Platform. You must provide current, complete and accurate information. We may require you to provide additional information as a condition of using the Gratafy Platform or to purchase Gifts. We facilitate processing the payment for purchased Gifts, but we reserve the right to delay or cancel processing of transactions for any reason.
References to “content” herein refer to all aspects of the Gratafy Platform, including but not limited to all products and services (including Gifts) offered via the Gratafy Platform, as well as all text, images, photos, video, audio, source code, articles, design, and all other forms of data or communication created, posted, displayed, or transmitted by or onto the Gratafy Platform.
You acknowledge that, although we strive to provide a secure environment, there may be interruptions in service or other events that are beyond our control. Inmar shall not be responsible for any data lost while transmitting information over the internet. While we strive to make the Gratafy Platform accessible 24 hours per day, 7 days per week, the Gratafy Platform may be unavailable from time to time for any reason, including without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside our control, access to the Gratafy Platform may be interrupted, suspended or terminated from time to time.
Inmar shall have the right at any time to change or discontinue any aspect or feature of the Gratafy Platform, including, but not limited to, content, hours of availability, equipment needed for access or use, and Gifts available. Further, Inmar may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
The Merchant or Brand Company, not Inmar, is the seller of the Gifts and related products and services and is solely responsible for providing the Gifts you purchased. However, we encourage you to notify us of any failure of a Merchant or Brand Company to redeem a Gift, to give us the opportunity to address such case as we deem appropriate and at our sole discretion. Your only recourse with respect to a Merchant or Brand Company’s failure to redeem a Gift shall be against the Merchant or Brand Company from which you purchased such Gift. Unless otherwise prohibited by applicable law, you agree to make any claims with respect to a Gift purchased on the Gratafy Platform within 45 days after purchase of such Gift. You are responsible for your own actions or omissions in utilizing the Gifts or other services or products provided by Merchants or Brand Companies. Inmar makes no representations or warranties, express or implied, as to the quality, safety, usability, or other aspect of the Gifts or other services or products provided by Merchants or Brand Companies. Inmar is not liable for any costs, harm or damages that occur as a result of, either directly or indirectly, the Gifts or other services or products provided by Merchants or Brand Companies.
Gifts offered on the Gratafy Platform may be subject to additional terms and conditions of the Merchant or Brand Company. Any such terms and conditions will be set forth on the Gratafy Platform. By making a purchase, you acknowledge and agree to such additional terms and conditions. All conditions associated with the lawful sale and service of Gifts by the Merchant or Brand Company are the responsibility of the Merchant or Brand Company, and may be subject to additional regulatory conditions and restrictions including but not limited to age verification requirements and other restrictions associated with the delivery of alcoholic beverage products. From time to time, Inmar may offer special promotions, contests and/or sweepstakes to provide users with incentives to purchase Gifts using the Gratafy Platform. We may also tailor particular promotions for you based on the Gifts that you have purchased previously, Gifts you have received from others or related to the Merchants or Brand Companies from whom you have purchased or received Gifts. The applicable rules for such special promotional activities will be posted on the Gratafy Platform.
When you purchase a Gift, only you or the named recipient has the right to receive the Gift. You cannot transfer the right to receive the Gift to anyone else. The right to receive a Gift comprising an alcoholic beverage is subject to the Merchant or Brand Company’s obligation to comply with all applicable laws and regulations associated with the sale and service of alcoholic beverages.
Gifts are purchasable and billed on a one-time basis. You hereby authorize us to charge, on behalf of the Merchant or Brand Company, the credit card or other payment method you have provided to us in connection with purchases of the Gift.
Once your purchase of a Gift is completed, the Gift cannot be returned or refunded by Inmar, the Merchant or the Brand Company. Inmar advises that prior to placing an order for a Gift you carefully review your selection. Once you have purchased a Gift, you agree to not dispute the purchase or otherwise seek a “chargeback” from the credit card or other payment method you used. If you have a question about a charge, please contact us at firstname.lastname@example.org. If you deliberately or inadvertently issue a chargeback, you agree to pay a $50 processing and collection fee to cover our costs for processing each chargeback. Failure to pay amounts owed may result in the information pertaining to your outstanding debt being turned over to a collection agency. Past-due balances may be subject to a finance charge of 2% per month or the highest amount permitted by applicable law, whichever is lower. If any fees or charges owed by you are past due, you agree to pay all related collection costs including, but not limited to, court costs, attorneys’ fees, collection agency fees and other administrative costs.
You shall be responsible for obtaining and maintaining all Devices needed for your access to and use of the Gratafy Platform and all charges related thereto. Inmar shall not be liable for any damage to your Devices or other equipment resulting from the use of the Gratafy Platform. Some features of the Gratafy Platform are accessible through a mobile Device. You are responsible for any fees that your phone service provider may charge for connection, subscription, roaming, SMS, data, etc. Inmar is not affiliated with any phone service providers.
Subject to the Agreement, Inmar hereby grants you a limited, revocable, non-exclusive, non-assignable license to access and use the Gratafy Platform solely for your personal use in compliance with the Agreement and as intended through the normal functionality of the Gratafy Platform. Except for the limited license to use the Gratafy Platform set forth in the preceding sentences, when you use the Gratafy Platform you are not receiving a license or any other rights, including but not limited to any intellectual property or other proprietary rights of Inmar or any of our users. YOU UNDERSTAND THAT YOU HAVE NO RIGHTS TO THE SERVICES OR ANY INMAR PROPERTY EXCEPT AS WE INDICATE IN THE AGREEMENT. We reserve all rights not expressly granted, in and to the Gratafy Platform, its content, and service. Although we welcome and encourage user interaction on the Gratafy Platform, we require that all users restrict any and all activity on the Gratafy Platform to that which involves lawful purposes. You agree not to post or transmit through the Gratafy Platform any material which violates or infringes in any way upon the rights of others, or any material which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Inmar’s express prior, written approval, contains advertising or any solicitation with respect to products or services. In addition, in your use of the Gratafy Platform and its service you agree that you will not:
(1) Exploit the Gratafy Platform or its service to access unauthorized information;
(2) Advertise or perform any commercial, religious, political or non-commercial solicitation, including, but not limited to, the solicitation of users of the Gratafy Platform to become users of other on- or off-line services directly or indirectly competitive or potentially competitive with the Gratafy Platform.
(3) Copy (including by taking screenshots), publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the content of the Gratafy Platform, in whole or in part, without Inmar’s prior written consent;
(4) Transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, surveys, or any other form of solicitation or mass messaging, whether commercial in nature or not;
(5) Knowingly transmit any material that contains adware, malware, spyware, software viruses, Trojan Horse, worm or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(6) Encourage excess or irresponsible consumption of alcohol, the consumption of alcohol by minors;
(7) Stalk, bully or otherwise harass any other person or otherwise engage in or contribute to any other illegality or wrongdoing under applicable law;
(8) Use the Gratafy Platform in a manner, or post to the Gratafy Platform any material, that infringes or violates any third party rights including breach of confidence, copyright, trademark, patent, trade secret, moral rights, privacy rights, right of publicity, or any other intellectual property or proprietary right;
(9) Impersonate any individual or entity, or otherwise misrepresent your affiliation with any individual or entity;
(10) Interfere with or disrupt or attempt to disrupt the Gratafy Platform or servers or networks connected to the Gratafy Platform, or cause excessive traffic demands on the Gratafy Platform’s technology infrastructure, or disobey any requirements, procedures, policies, or regulations of networks connected to the Gratafy Platform or our services;
(11) Circumvent, disable, or otherwise interfere with security-related features of the Gratafy Platform or features that prevent or restrict use or copying of any content or enforce limitations on use of the Gratafy Platform or the content therein;
(12) Reverse engineer any portion of the Gratafy Platform; or
(13) Without Inmar’s written permission, process, collect, or record user information or Gratafy Platform content, or otherwise access the Gratafy Platform using automated means, such as but not limited to robots/bots, spiders, scrapers, or site search/retrieval applications; or contribute content that contains restricted access mechanisms, hidden content of any kinds, or utilize SQL injection or cross site scripting methods.
Each user agrees that it shall use the content of the Gratafy Platform, including without limitation (a) the identity of Merchants or Brand Companies, (b) information regarding Gifts (including without limitation, prices and discounts) and (c) the identity of Inmar employees, contractors or other agents, solely in connection with making its decision to purchase Gifts. Inmar is not obligated to post any material that you submit via the Gratafy Platform. Inmar has the right to remove any material for any reason (or no reason) including, without limitation, material that Inmar believes to be in violation of the provisions hereof or otherwise objectionable.
Everything located on or in the Gratafy Platform is the exclusive property of Inmar or is used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING THE GRATAFY PLATFORM WITHOUT THE EXPRESS WRITTEN PERMISSION OF INMAR IS STRICTLY PROHIBITED. Any violation hereof may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal liabilities.
The Gratafy Platform contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics and sounds. The Gratafy Platform is protected by copyright under the United States and international copyright laws. Inmar owns copyright in the selection, coordination, arrangement and enhancement of content, as well as in the content created by Inmar. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. You may download, print, or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material is permitted without the express written permission of Inmar or the copyright owner. If copying, redistribution or publication of copyrighted material is permitted, you shall make no changes in or deletion of author attribution, trademark legend or copyright notice.
You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Material that is located within or on the Gratafy Platform or otherwise owned or operated in conjunction with Inmar shall not be deemed to be in the public domain but rather the exclusive property of Inmar, unless such site is under license from the applicable licensor, in which case such license is for the exclusive benefit and use of Inmar unless otherwise stated.
You shall not upload, post or otherwise make available (or submit to Inmar for uploading, posting or to be made available) on the Gratafy Platform any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By posting content to the Gratafy Platform, you hereby represent and warrant that you have the right to post that content and to grant the foregoing rights to Inmar (and its affiliates and sublicensees).
By submitting any material or content to the Gratafy Platform, you hereby grant Inmar a royalty-free, worldwide, perpetual, irrevocable, non-exclusive and transferable right and license to use, reproduce, modify, edit, publicly display or perform, adapt, sublicense, publish, translate, distribute and create derivative works from (in whole or in part) worldwide and/or to incorporate it in other works in any form, for any commercial or non-commercial purpose, including for marketing and promotional purposes, in any media or technology now known or hereafter developed for the full term of any copyright that may exist in such material without limits in time or place, to sublicense those rights and to use the content without your prior approval or the payment of any compensation. You also permit any other user to access, view, store, reproduce, or in any other way use as necessary for the use of the Gratafy Platform, the material for that user’s personal use through the functionality of the Gratafy Platform and under the Agreement.
You take full and sole responsibility for all content that you post on the Gratafy Platform and the consequences of posting that content. You are responsible for obtaining all necessary rights to upload, post and distribute all content, including obtaining permission from any person shown in a photo that you upload or that is identified in any writing that you post.
YOU EXPRESSLY AGREE THAT USE OF THE GRATAFY PLATFORM IS AT YOUR SOLE RISK. NEITHER INMAR, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT USE OF THE GRATAFY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE GRATAFY PLATFORM, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCT (INCLUDING PRODUCTS) PROVIDED THROUGH THE GRATAFY PLATFORM. THE GRATAFY PLATFORM IS MADE ACCESSIBLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE FOLLOWING DISCLAIMERS AND LIMITATION OF LIABILITY APPLY TO ANY DAMAGES OR INJURY CAUSED BY USE OF THE GRATAFY PLATFORM AND THE SERVICES THEREON AND ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD CAUSED BY THE GRATAFY PLATFORM OR THE SERVICES THEREON, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT INMAR IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER. THE FOLLOWING DISCLAIMERS AND LIMITATIONS OF LIABILITY APPLY IN THE EVENT A REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
THE MERCHANTS AND BRAND COMPANIES OFFERING PRODUCTS THROUGH THE GRATAFY PLATFORM ARE INDEPENDENT CONTRACTORS AND NOT AFFILIATES, AGENTS OR EMPLOYEES OF INMAR. INMAR, ITS AFFILIATES AND EMPLOYEES DISCLAIM LIABILITY FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY MERCHANTS OR BRAND COMPANIES OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. INMAR HAS NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY MERCHANT OR BRAND COMPANY CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND INMAR’S DIRECT CONTROL.
IN NO EVENT SHALL INMAR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE GRATAFY PLATFORM. INMAR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY USER DURING THE TWO MONTHS PRECEDING THE BRINGING OF ANY CLAIM.
IN ADDITION TO THE TERMS SET FORTH ABOVE, NEITHER INMAR, NOR ITS AFFILIATES, LICENSORS OR CONTENT PROVIDERS (OTHER THAN MERCHANTS OR BRAND COMPANIES) SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR INAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE GRATAFY PLATFORM OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO YOU, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
You understand that you are personally responsible for your behavior while on the Gratafy Platform, the content you post and your use of Gifts and the services we provide. You agree to indemnify and hold harmless Inmar and its affiliates, and its respective officers, directors, employees, contractors and agents (collectively, “Inmar Indemnified Parties”) from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from: your use of the Inmar services or access to the Gratafy Platform; your use of Gifts or other services or products provided by the Merchants or Brand Companies; any fraud or manipulation by you; your violation of any of the Agreement; your violation of any applicable law or the rights of any third party, including without limitation any copyright, property, or privacy right; or any claim that one of your submissions or any of your content caused damage to a third party. This defense and indemnification obligation will survive the termination of the Agreement and your use of the Gratafy Platform.
The Merchants and Brand Companies are the sellers of the Gifts which you are purchasing. Inmar does not control any Merchant or Brand Company, and is not responsible for any costs, harm or damages that occur as a result of, either directly or indirectly, Gifts offered by the Merchants or Brand Companies.
You release each of the Inmar Indemnified Parties from any claim or liability arising from or related to (a) any Gifts or other services or products provided by the Merchants or Brand Companies and (b) any acts or omissions by users, including users’ failure to comply with applicable law and/or Merchants’ or Brand Companies’ failure to provide Gifts as described in good faith by Inmar (collectively, (a) and (b) are referred to as the “Released Products Claims”). You also agree to defend, indemnify and hold harmless each of the Inmar Indemnified Parties from and against all claims and liability, including attorneys’ fees, arising out of or related to the Released Products Claims.
Notwithstanding anything herein to the contrary, Inmar shall have the right, exercisable in its absolute and sole discretion, immediately to terminate the Agreement and block your access to the Gratafy Platform at any time and for any reason. You may immediately terminate the Agreement at any time by discontinuing use of the Gratafy Platform.
The Gratafy Platform may contain content that is submitted by third parties or other users. You acknowledge that by using the Gratafy Platform, you may be exposed to content that you find objectionable, or which is inaccurate, misleading or incomplete. We are not responsible for the accuracy, completeness or usefulness of any third-party content, nor do we make any endorsement claims for the Gratafy Platform’s third party content. Inmar has no editorial control over such content, and any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including content providers, or any other users are those of the respective author(s) or distributor(s) and not of Inmar. You therefore use the Gratafy Platform and the content at your own risk.
The Gratafy Platform, or third party users and members, may provide links to other Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials contained in or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on or through any third party site or resource. Inmar reserves the right to disable any link or remove any third party content at any time in its sole discretion.
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Inmar in any respect whatsoever.
Except as otherwise provided herein, the Agreement, and any rights and obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent. The right to use the Gratafy Platform is personal to you and is not transferable to any other individual or entity. Inmar has the right to assign the Agreement to one or more affiliates or to one or more successors or affiliates in connection with a restructuring, reorganization, merger, acquisition, asset sale or other change of control of Inmar, as well as in the unlikely event of Inmar’s insolvency, bankruptcy or receivership. Any assignment attempted to be made in violation of the Agreement shall be void. Nothing in the Agreement shall be deemed to confer any third party rights or benefits.
The Agreement is governed by, and will be interpreted in accordance with, the laws of the State of North Carolina, without giving effect to the conflict of law principles thereof.
You and Inmar agree that any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Gratafy Platform, or the purchase or sale of any products or services (including Gifts) (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Inmar with written notice of your desire to do so by email at email@example.com or regular mail at 635 Vine Street, Winston Salem, NC 27101 within thirty (30) days following the date you first agree to the Agreement (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Inmar with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Inmar with an Arbitration Opt-out Notice, will be the state and federal courts located in Forsyth County in the State of North Carolina and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Inmar with an Arbitration Opt-out Notice, you acknowledge and agree that you and Inmar are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Inmar otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of theAgreement.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (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.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you and Inmar otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Inmar submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Inmar will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Inmar will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).