Terms of service
HistoreeTees
Terms of Service
Last Updated: 6/6/2023
These Terms of Service (these “Terms”) govern your use of (i) the website located at https://historeetees.com
(the “Site”) owned by HistoreeTees (“Company”, “us”, “we”, or “our”) and operated by Miami Labs, Inc. (dba OpenStore) ("OpenStore"), (ii) any online services made available via the Site ("Online Services")
and (iii) products made available via the Site ("Products"). The Site, Online Services and Products are collectively called the
“Services”.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE
TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY
DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION
RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 14 "DISPUTE
RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms. Your access to and use of
the Services is conditioned on your acceptance of and compliance with these
Terms. These Terms apply to all visitors, users and others who access or use
the Services. By accessing and using our Services, you agree to be bound by
these Terms. If you don't agree to be bound by these Terms, do not access or
use the Services.
2. Privacy Policy. Please review the
Privacy Policy ("Privacy Notice")
for information on how Company and OpenStore collect, use and share
personal information.
3. Changes to these Terms.
We may update these Terms from time to time at our sole discretion. If we
do, we’ll let you know by posting the updated Terms on the Site and/or may
also send other communications. It’s important that you review these Terms
whenever we update them, you use the Services or make a purchase on the
Site. If you continue to use the Services after we have posted updated
Terms it means that you accept and agree to the changes. If you don’t
agree to be bound by the changes, you may not use the Services
anymore.
4. General.
(a) Eligibility; Your Account.
You may use the Services only if you are 18 years or older and capable of
forming a binding contract with Company, and not otherwise barred from using
the Services under applicable law. If you are under 18 or not legally
considered an adult in your jurisdiction, you must ask a parent (or legal
guardian) to read this Agreement and accept it on your behalf. Parents and
guardians are responsible for their children’s activity in connection with
their use of the Services, whether or not the parent or guardian has
authorized such uses. For access to certain features of the Services, you
may need to register and create an account. It’s important that you provide
us with accurate, complete and current account information and keep this
information up to date. If you don’t, we might have to suspend or terminate
your account. To protect your account, keep the account details and any
passwords confidential, and notify us right away of any unauthorized use.
You’re responsible for all activities that occur under your account.
(b) License to Use the Services.
Subject to your compliance with these Terms, we grant you a limited,
non-exclusive, non-sublicensable, non-transferable, and revocable right to
access and use the Services for your personal, non-commercial use. We
reserve the right to monitor your usage of the Services for the purpose of
determining that your usage complies with these Terms.
(c) Prohibited Conduct.
You may not use the Services other than as expressly permitted by Section
4(b) above. Without limitation, you will not, directly or indirectly: (i)
copy, reproduce, modify, distribute, display, create derivative works of or
transmit any content on the Services; (ii) use the Services commercially or
for the benefit of any third party or in any manner not permitted by these
Terms; (iii) reverse engineer, decompile, tamper with or disassemble the
technology used to provide the Services (except as and only to the extent
any foregoing restriction is prohibited by a non-waivable provision of
applicable law); (iv) interfere with or damage the Services, or any
underlying technology; (v) impersonate or misrepresent your identity or
affiliation; (vi) attempt to obtain unauthorized access to the Services or
download content from the Services using any engine, software, tool, agent,
device or mechanism (including spiders, robots, crawlers, data mining tools
or the like) other than any software provided by Company or other generally
available third-party web browsers; (vii) collect information about other
users of the Services; (viii) violate, misappropriate or infringe a third
party’s intellectual property or other right, or any social media platform
terms; (ix) violate any law, rule, or regulation; or (x) interfere with any
third party’s ability to use or enjoy, or our ability to provide, the
Services.
5. Terms of Sale.
(a) Product Descriptions.
We try to make the Site thorough, accurate, and helpful to our customers.
Nonetheless, there may be times when certain information contained on the
Site may be incorrect, incomplete, or inaccurate, including, without
limitation, information related to Products. We reserve the right to correct
errors, inaccuracies or omissions whether by changing information on the
Site or by informing you of the error and giving you an opportunity to
cancel your order.
(b) Ordering.
By placing an order on the Site you are offering to purchase the relevant
Product(s) on and subject to these Terms. No such order will be binding on
us unless and until we accept your order and send you a confirmation by
email (“Order Confirmation”), which will confirm the
Products purchased and price, and will specify a shipment date (“Order Confirmation Shipment Date”).
(c) Shipping and Delivery.
(i) We will ship the Product(s) to the address as indicated by you during the
checkout process. Unless otherwise agreed in writing, we will pack the
Product(s) in accordance with Company’s standard practices. Unless you provide
us with specific instructions, we will select the carrier. Title to the
Product(s) and risk of loss of the Product(s) will pass to you upon our
delivery of the Product(s) to the carrier.
(ii) You acknowledge that all scheduled shipment dates, including the Order
Confirmation Shipment Date, are estimates only. We will make commercially
reasonable efforts to meet the scheduled shipment dates, but in no event will
we be liable for any loss, damage, or penalty resulting from any delay in
shipment or delivery, nor will the carrier be deemed an agent of Company. We
will have the right to ship the Product(s) in separate packages to you,
depending on the availability of the Product(s). If you receive a damaged or
incomplete shipment of Product(s), please contact us at hello@open.store. We
will have the right to delay or suspend shipment of the Product(s) if you fail
to make any payment as provided in these Terms.
(d) Sales.
All Products are sold on behalf of Company by OpenStore. OpenStore will
be the merchant of record for all Products sold, including for purposes of
processing Transactions (as defined below).
(e) Returns.
All sales are subject to our shipping and return policies, which will be
made available to you or otherwise delivered to you with your purchased
goods. We monitor return activity for abuse and reserve the right to limit
returns or exchanges in all instances. All refunds are at our sole
discretion.
(f) Pricing and Payment Terms.
We reserve the right to change the prices and available Products at any
time. Quantities of some Products may be limited and stock cannot always
be guaranteed. The prices for Products will be as specified on the Site on
the date you place your order and in an Order Confirmation. Prices are
stated in U.S. dollars and are exclusive of all applicable sales, use,
excise, withholding, value-added and other taxes, duties and charges
(collectively, “Taxes”) and shipping costs. You will be responsible for all such Taxes and
shipping costs. All payments will be made in U.S. dollars, free of any
currency controls or other restrictions. When you place your order (each,
a “Transaction”), you expressly authorize OpenStore (or its third-party payment
processor) to charge you for such Transaction. Your payment will be
processed once the order has been accepted. You may be asked to supply
certain information relevant to your Transaction, including your credit
card number, the expiration date of your credit card and your email and
postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all
payment method(s) represented by any such Payment Information and that such
Payment Information is current, complete and accurate. When you initiate a
Transaction, you authorize us to provide your Payment Information to third
parties so we can complete your Transaction and to charge your payment method
(plus any Taxes and other charges). You may need to provide additional
information to verify your identity before completing your Transaction (such
information is included within the definition of Payment Information). By
initiating a Transaction, you agree to the pricing, payment and billing
policies applicable to such fees and charges, as posted or otherwise
communicated to you. All payments for Transactions are non-refundable and
non-transferable except as expressly provided in these Terms and in accordance
with the return policy. We reserve the right to cancel an order placed by you
at any time and for any lawful reason prior to delivery of the Product(s),
provided that in the event of a cancellation, you will receive a refund any
fees already paid by you for such order.
6. Reviews, Comments, Communications and Other Content.
(a) User Content.
You may post reviews, comments, communications with others, graphics,
images, audio and video on the Site, provided, that, you do not post any
content that: (i) infringes, misappropriates or violates a third party’s
patent, copyright, trademark, trade secret, moral rights or other
intellectual property rights, or rights of publicity or privacy; (ii)
violates, or encourages conduct that would violate, any applicable law or
regulation or would give rise to civil liability; (iii) is fraudulent,
false, misleading or deceptive; (iv) is defamatory, obscene, pornographic,
vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred,
harassment or harm against any individual or group; (vi) is violent or
threatening or promotes violence or actions that are threatening to any
person or entity; or (vii) promotes illegal or harmful activities or
substances. Anything that you share, post, or otherwise make available to us
or share publicly through the Services is referred to as “User Content”. We do not claim any ownership rights in any User Content and nothing in
these Terms will be deemed to restrict any rights that you may have to your
User Content.
(b) Permissions to Your User Content. By making any User Content available through
the Services you hereby grant to Company a non-exclusive, transferable,
worldwide, royalty-free license, with the right to sublicense, to use, copy,
modify, create derivative works based upon, distribute, publicly display and
publicly perform your User Content in connection with operating and
providing the Services, to the extent User Content is personal information,
to process such information as contemplated by our Privacy Policy.
(c) Your Responsibility for User Content.
You are solely responsible for all your User Content. You represent and
warrant that you have (and will have) all rights that are necessary to grant
us the license rights in your User Content under these Terms. Further, you
represent and warrant that, to your knowledge, neither your User Content,
nor your use and provision of your User Content to be made available through
the Services, nor any use of your User Content by Company on or through the
Services will infringe, misappropriate or violate a third party’s
intellectual property rights, or rights of publicity or privacy, or result
in the violation of any applicable law or regulation.
(d) Removal of User Content.
Company is not obligated to monitor access to or use of the Services or to
review or edit any content. However, we have the right to do so for the
purpose of operating the Services, to ensure compliance with these Terms and
to comply with applicable law or other legal requirements. We reserve the
right, but are not obligated, to remove or disable access to any content,
including User Content, at any time and without notice, including, but not
limited to, if we, at our sole discretion, consider it objectionable or in
violation of these Terms.
7. Intellectual Property
(a) Intellectual Property Rights. All content on the Site, or otherwise made available via the Services,
including the text, notes, graphics, photos, sounds, music, videos,
interactivities and the like, the trademarks, service marks and logos
contained therein, the design of the Site and/or Services, and all software
and other technology (collectively, “Company IP”), are
owned by or licensed to us and/or our affiliates. Content is provided to you
“as is” for your information and personal use only and may not be used,
reproduced, altered, distributed, transmitted, broadcast, displayed, sold,
licensed, removed, obscured, or otherwise exploited for any other purposes
whatsoever.
(b) Reservation of Rights. We reserve all right, title and interest not
expressly granted in and to the Site, Services, and Company IP, including
all associated proprietary intellectual property rights. Using the Site
and/or Services does not give you any ownership of or right in or to any
Company IP. You acknowledge that the Site, Services and Company IP are
protected by copyright, trademark, and other laws of the United
States.
8. Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
9. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at hello@open.store. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 4(c), 5(f) (only for payments due and owing to Company prior to the termination), 6(b), 6(c), 7, 8, 9, 10, 11, 12, 13, 14 and 15.
10. Warranty Disclaimers. THE SERVICES (INCLUDING THE SITE AND PRODUCTS) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, COMPANY AND OPENSTORE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NEITHER COMPANY NOR OPENSTORE MAKES ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR THAT THE PRODUCTS WILL BE IN STOCK, SAFE, DEFECT-FREE, CONFORM WITH WRITTEN OR ORAL SPECIFICATIONS, GUARANTEES, REPRESENTATIONS, WARRANTIES OR PROMISES, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED IN SHIPMENT. NEITHER COMPANY NOR OPENSTORE MAKES ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OR CONSUMPTION OF THE PRODUCTS IS DONE AT YOUR SOLE RISK, YOU ASSUME ALL LIABILITY IN CONNECTION WITH SUCH USE OR CONSUMPTION OF THE PRODUCTS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR OPENSTORE WILL HAVE ANY LIABILITY TO YOU BASED ON YOUR USE OR CONSUMPTION OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE THAT MAY RESULT FROM YOUR USE OR CONSUMPTION OF THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. Indemnity. You will indemnify and hold Company and its officers, directors, employees, agents and service providers (including, without limitation, OpenStore), harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
12. Limitation of Liability.
(a)
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR ITS SERVICE
PROVIDERS INVOLVED IN THE PROVISION OF THE SERVICES (INCLUDING, WITHOUT
LIMITATION, OPENSTORE) WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST
REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR
GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE
COST OF PROCURING SUBSTITUTE SERVICES OR PRODUCTS OF ANY KIND ARISING OUT
OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE
THE SERVICES, OR THE PURCHASE, SALE, USE OR PERFORMANCE OF THE PRODUCTS,
WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY OR ITS
SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE,
EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, IN NO EVENT WILL THE TOTAL
LIABILITY OF COMPANY OR ANY OF ITS SERVICE PROVIDERS INVOLVED IN THE
PROVISION OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, OPENSTORE) ARISING
OUT OF OR IN CONNECTION WITH THESE TERMS, THE PRODUCTS OR FROM THE USE OF OR
INABILITY TO USE THE SERVICES OR PRODUCTS EXCEED THE ACTUAL AMOUNT PAID TO
COMPANY BY YOU FOR THE PRODUCT(S) THAT GIVES RISE TO THE CLAIM OR, IF THE
CLAIM DOES NOT RELATE TO A PRODUCT, FIFTY U.S. DOLLARS ($50).
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND
YOU.
13. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the laws of the State of New York, without regard to its conflict of laws provisions, except to the extent preempted by U.S. federal law. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) will be the state and federal courts located in the Miami-Dade County, FL and you and Company each waive any objection to jurisdiction and venue in such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
14. Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND COMPANY TO
ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE
CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND COMPANY
FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND COMPANY AGREE THAT
ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS
ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING.
COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a)
Informal Dispute Resolution Prior to Arbitration.
For any dispute or claim that you have against Company, that Company has
against you, or that you have or Company has arising from or relating to
these Terms, the Services, or any aspect of the relationship between you and
Company as it relates to these Terms or the Services, including any privacy
or data security claims (collectively, "Disputes" and each a "Dispute"), you
and Company agree to attempt to first resolve the Dispute informally via the
following process:
(i) If you assert a Dispute against Company, you will first contact Company
by sending a written notice of your Dispute (“Dispute Notice”) to Company by certified mail addressed to 2916 N. Miami Ave., Suite
1005, Miami, FL 33127 or by email to hello@open.store. The Dispute Notice
must (A) include your name, residence address, email address, and
telephone number, (B) describe the nature and basis of the Dispute, and
(C) set forth the specific relief sought.
(ii) If Company asserts a Dispute against you, Company will first contact you
by sending a written notice of Company’s Dispute (“Company Notice”), and each of a Dispute Notice and Company Notice, a “Notice”) to you via email to the primary email address associated with your
account. The Company Notice must (A) include the name of a Company contact
and the contact’s email address and telephone number, (B) describe the
nature and basis of the Dispute, and (C) set forth the specific relief
sought.
(iii) If you and Company cannot reach an agreement to resolve the
Dispute within thirty (30) days after you or Company receives such a
Notice, then either party may submit the Dispute to binding arbitration as
set forth below. The statute of limitations and any filing fee deadlines
will be tolled for thirty (30) days from the date that either you or
Company first send the applicable Notice so that the parties can engage in
this informal dispute-resolution process.
(b) Disputes Subject to Binding Arbitration;
Exceptions.
Except for individual disputes that qualify for small claims court and
any disputes exclusively related to the intellectual property or
intellectual property rights of you or Company, including any disputes in
which you or Company seek injunctive or other equitable relief for the
alleged unlawful use of your or Company’s intellectual property or other
infringement of your or Company’s intellectual property rights (“IP Disputes”), all Disputes, whether based in contract, tort, statute, fraud,
misrepresentation, or any other legal theory, including Disputes that are
not related to intellectual property or intellectual property rights but
are jointly filed with IP Disputes, that are not resolved in accordance
with Section 14(a) will be resolved by a neutral arbitrator through final
and binding arbitration instead of in a court by a judge or jury. Such
Disputes include, without limitation, disputes arising out of or relating
to interpretation or application of this arbitration provision, including
the enforceability, revocability, or validity of the arbitration provision
or any portion of the arbitration provision. The arbitrator will have the
authority to grant any remedy or relief that would otherwise be available
in court.
(c)
Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of
this Section 14 will be substantively and procedurally governed by the
Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the extent permitted by law. As limited by the FAA, these Terms,
and the AAA Rules (as defined below), the arbitrator will have exclusive
authority to make all procedural and substantive decisions regarding any
dispute and to grant any remedy that would otherwise be available in
court, including the power to determine the question of
arbitrability.
(d) Arbitration Procedure.
All Disputes must be submitted to the American Arbitration Association (the
“AAA”) and will be resolved through binding arbitration before one
arbitrator. The AAA administers arbitration pursuant to the due process
standards set forth by the AAA and rules set forth by the AAA. The
then-current version of the AAA’s Consumer Arbitration Rules, which are
available on the AAA’s website (adr.org) (the "AAA Rules"), as amended by
these Terms as follows, will apply to any arbitration between you and
Company:
(i) YOU AND COMPANY AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE
PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE
NOT PERMITTED, AND YOU AND COMPANY ARE AGREEING TO GIVE UP THE ABILITY
TO PARTICIPATE IN A CLASS ACTION.
The arbitrator may conduct only an individual arbitration and, except
as described below for the additional procedures to govern if
twenty-five (25) or more similar or coordinated claims are asserted
against Company or you by the same or coordinated counsel, may not
consolidate more than one individual’s claims, preside over any type of
class or representative proceeding, or preside over any proceeding
involving more than one individual.
(ii)
For any arbitration you initiate, you will pay the consumer filing fee,
and Company will pay the remaining AAA fees and costs. For any
arbitration initiated by Company, Company will pay all AAA fees and
costs.
(iii) For all arbitrations where the Disputes asserted are $25,000 or
less, the arbitration shall be resolved according to the AAA’s
Procedures for the Resolution of Disputes through Document Submission,
and for all other arbitrations the following procedure will apply: (A)
the arbitrator will conduct hearings, if any, by teleconference or
videoconference, rather than by personal appearances, unless the
arbitrator determines upon request by you or by us that an in-person
hearing is appropriate; (B) any in-person appearances will be held at a
location that is reasonably convenient to both parties with due
consideration of their ability to travel and other pertinent
circumstances, and (C) if the parties are unable to agree on a location,
such determination will be made by the AAA or by the arbitrator.
(iv) If you or Company submits a dispute to arbitration and the
arbitrator orders any exchange of information, you and Company agree to
cooperate to seek from the arbitrator protection for any confidential,
proprietary, trade secret, or otherwise sensitive information,
documents, testimony, and/or other materials that might be exchanged or
the subject of discovery in the arbitration. You and Company agree to
seek such protection before any such information, documents, testimony,
and/or materials are exchanged or otherwise become the subject of
discovery in the arbitration.
(v) The arbitrator’s decision will follow these Terms and will be
final and binding. The arbitrator will have authority to award
temporary, interim or permanent injunctive relief or relief providing
for specific performance of these Terms, but only to the extent
necessary to provide relief warranted by the individual claim before the
arbitrator. The award rendered by the arbitrator may be confirmed and
enforced in any court having jurisdiction thereof. Notwithstanding any
of the foregoing, nothing in these Terms will preclude you from bringing
issues to the attention of federal, state or local agencies and, if the
law allows, they can seek relief against us for you.
(vi) The AAA Supplementary Rules for Multiple Case Filings and the
AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five
(25) or more similar claims are asserted against Company or against you
by the same or coordinated counsel or are otherwise coordinated.
- In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Company understand and agree that when twenty-five (25) or more similar claims are asserted against Company or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Company’s Dispute might be delayed.
- For such coordinated actions, you and Company also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Company will each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases will be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side will select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
- A single arbitrator will preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
- This bellwether process will continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
- The statute of limitations and any filing fee deadlines will be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Company’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
- A court will have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Company or you.
(e)
One Year to Assert Disputes.
To the extent permitted by law, any Dispute by you or Company
relating in any way to these Terms, the Services, or any aspect of the
relationship between you and Company as it relates to these Terms or the
Services,
must be filed within one year after such Dispute arises; otherwise, the
Dispute is permanently barred, which means that you and Company will not
have the right to assert the Dispute.
(f)
Opting Out of Arbitration.
You have the right to opt out of binding arbitration within 30 days of the
date you first accepted these Terms by providing us with notice of your
decision to opt-out via email at hello@open.store or by certified mail
addressed to 2916 N. Miami Ave., 11th Floor, Miami, FL 33127. In order to be
effective, the opt-out notice must include your full name, mailing address,
and email address. The notice must also clearly indicate your intent to opt
out of binding arbitration. By opting out of binding arbitration, you are
agreeing to resolve disputes in accordance with Section 13.
(g)
Rejection of Future Arbitration Changes.
You may reject any change we make to Section 14 (except address changes) by
personally signing and sending us notice within 30 days of the change via
email at hello@open.store or by certified mail addressed to 2916 N. Miami
Ave., 11th Floor, Miami, FL 33127, Attention: OpenStore Legal. If you do,
the most recent version of Section 16 before the change you rejected will
apply.
(h) Severability.
If any portion of this Section 14 is found to be unenforceable or unlawful
for any reason, including but not limited to because it is found to be
unconscionable, (i) the unenforceable or unlawful provision will be
severed from these Terms, (ii) severance of the unenforceable or unlawful
provision will have no impact whatsoever on the remainder of this Section
14 or the parties’ ability to compel arbitration of any remaining claims
on an individual basis pursuant to this Section 14, and (iii) to the
extent that any claims must therefore proceed on a class, collective,
consolidated, or representative basis, such claims must be litigated in a
civil court of competent jurisdiction and not in arbitration. The
litigation of those claims will be stayed pending the outcome of any
individual claims in arbitration. Further, if any part of this Section 14
is found to prohibit an individual claim seeking public injunctive relief,
that provision will have no effect to the extent such relief is allowed to
be sought out of arbitration, and the remainder of this Section 14 will be
enforceable.
(i) Residents Outside the United States.
Notwithstanding anything to the contrary in these Terms, if you reside in any
country outside of the United States, you may bring legal proceedings
regarding these Terms either by following the arbitration procedure detailed
above in this Section 14 or, if given the right by applicable law, by
submitting the Dispute to an arbitration administrator in the jurisdiction in
which you reside. To the extent any proceeding is not subject to arbitration
under applicable law, you may submit the Dispute to the courts of the
jurisdiction in which you reside.
15. General Terms.
(a) Entire Agreement.
These Terms constitute the entire and exclusive understanding and agreement
between Company and you regarding the Services, and these Terms supersede
and replace all prior oral or written understandings or agreements between
Company and you regarding the Services. If any provision of these Terms is
held invalid or unenforceable by an arbitrator or a court of competent
jurisdiction, that provision will be enforced to the maximum extent
permissible and the other provisions of these Terms will remain in full
force and effect. You may not assign or transfer these Terms, by operation
of law or otherwise, without Company’s prior written consent. Any attempt by
you to assign or transfer these Terms, without such consent, will be null.
Company may freely assign or transfer these Terms without restriction.
Subject to the foregoing, these Terms will bind and inure to the benefit of
the parties, their successors and permitted assigns.
(b) Notices.
Any notices or other communications provided by Company under these Terms
will be given: (i) via email; or (ii) by posting to the Site. For notices
made by email, the date of receipt will be deemed the date on which such
notice is transmitted.
(c) Waiver of Rights. Company’s failure to enforce any right or provision of these Terms will
not be considered a waiver of such right or provision. The waiver of any
such right or provision will be effective only if in writing and signed by a
duly authorized representative of Company. Except as expressly set forth in
these Terms, the exercise by either party of any of its remedies under these
Terms will be without prejudice to its other remedies under these Terms or
otherwise.(d) Force Majeure. Company will not be responsible for any failure or delay in the
performance of its obligations under these Terms due to causes beyond its
reasonable control, which may include, without limitation, labor disputes,
strikes, lockouts, shortages of or inability to obtain energy, raw materials
or supplies, denial of service or other malicious attacks,
telecommunications failure or degradation, pandemics, epidemics, public
health emergencies, governmental orders and acts (including
government-imposed travel restrictions and quarantines), material changes in
law, war, terrorism, riot, or acts of God.
(e) Export. You will comply with all applicable federal laws, regulations and rules
that prohibit or restrict the export or re-export of the products outside
the United States (“Export Rules”), and will complete all
undertakings required by Export Rules, including obtaining any necessary
export license or other governmental approval.
(f) Third-Party Beneficiary. OpenStore and its
affiliated entities are third-party beneficiaries of these Terms and will
have the right to enforce these Terms against you as a third-party
beneficiary.
16. Contact Information. If you have any questions about these Terms or the Services, please contact us at hello@open.store.