Last Updated: 8/26/2013
Terms of Service
Welcome to this website (Site), as operated by Vertical Brands Media, Inc. (Company). Company operates the Site and other associated services and offerings, including, without limitation, mobile and tablet applications, that allow users to list and/or locate cars, trucks or other automobiles (collectively, Vehicles) for sale (collectively, the "Service"), and makes it available to you subject to the following terms and conditions of service (the "Terms"). The Terms are a legal contract between you, an individual user or single entity (individually User or collectively, "Users"), and Company regarding your use of the Service. You will also be subject to any additional posted guidelines or rules applicable to specific premium services, products, and features offered through the Service, which are hereby incorporated into these Terms.
You are granted permission to use the Service, provided that you comply with the Terms. BY ACCESSING AND USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO THESE TERMS AT ANY TIME, PLEASE DO NOT USE THE SERVICE.
1. Applicable Terms and Policies.
a. Guidelines . When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features, including, without limitation, end user license agreements for downloadable applications, which may be posted from time to time (collectively, the "Guidelines"). All such Guidelines are hereby incorporated by reference into the Terms.
2. Our Proprietary Rights.
a. General . The content, interactive and visual features, software, information, listings, and all other elements of the Service provided by Company (Company Materials) are owned and/or licensed by Company and protected by all relevant intellectual property, proprietary, and other applicable laws and regulations. Company Materials do not include User Submissions (as defined below). Except as expressly authorized by Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, or otherwise make unauthorized use of the Service and Company Materials. Company reserves all rights not expressly granted herein.
b. License . Company grants you a limited non-exclusive license to access and use the Service for your personal, non-commercial purposes.
c. Further Restrictions . You further agree not to (i) intentionally interfere with, damage, impair, or disable the Service's operation, by any means (whether through automated means or otherwise), including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code; (ii) make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users; (iii) use the Service or Company Materials for any unlawful purpose or as prohibited by these Terms; (iv) defame, harass, abuse, threaten, stalk, impersonate, or defraud other Users, or collect personal information about them or third parties without their consent; (v) use any robot, spider, scraper, site search/retrieval application, or other automated means to access the Service for any purpose (including, without limitation, to retrieve information from or data mine the Service) without Company's express consent or bypass Company's robot exclusion headers or similar measures; (vi) remove, circumvent, disable, damage or otherwise interfere with the Service's security-related features, features that prevent or restrict the use or copying of any part of the Service, or features that enforce Service limitations; (vii) attempt to gain unauthorized access to the Service, other User accounts, computer systems or networks connected to the Service through hacking, password mining, or any other means; (viii) deep-link to the Service, and you agree you will promptly remove any links that Company finds objectionable in its sole discretion; (ix) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (x) harm or exploit minors; or (xi) modify, adapt, reproduce, translate, or create derivative works based upon the Service, except to the extent expressly permitted by applicable law notwithstanding this limitation.
d. Service Access . The Service is controlled and offered by Company from its facilities in the United States of America and elsewhere, including all or a portion of the Service that may be operated from the "cloud", or other similar distributed hosting environment. Company makes no representations that the Service is appropriate or available for use in other locations. If you are accessing or using the Service from other jurisdictions, you do so at your own risk and you are responsible for compliance with local law.
3. User Submissions.
a. General . The Service may now or in the future permit the submission and posting of or linking to data, files, text, photos, commentary or any other content submitted by you and other Users, including without limitation, listings for Vehicles (collectively, "User Submissions"), and the hosting and/or publishing of such User Submissions. Company may or may not use or publish your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, Company does not guarantee confidentiality with respect thereto. Furthermore, the Service may now or in the future restrict the amount and/or number of User Submissions you may host on the Service, and you agree that Company may impose such limits in its sole discretion.
c. User Submissions Representations and Warranties . You and each User shall be solely responsible for your User Submissions and the consequences of uploading, posting, or publishing them through the Service. In connection with User Submissions, you represent and warrant that: (i) you own, or have the necessary rights to use and authorize Company to use, all intellectual property or other proprietary rights to User Submissions to enable inclusion and use of User Submissions in the manner contemplated by these Terms, and to grant the rights and license set forth above (without any additional compensation); and (ii) your User Submissions, Companys and other Users use of such User Submissions in connection with the Service, and Companys and other Users exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any intellectual property and proprietary rights; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation (including, without limitation, any laws applicable to the advertising or sale of Vehicles).
d. User Submissions Prohibited Uses . In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Company or any third party; (ii) submit material that is inaccurate, misleading, defamatory, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages (or provides instruction regarding) conduct that would be considered a criminal offense, give rise to civil liability, or is otherwise inappropriate; (iii) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or (iv) upload User Submissions that would be harmful to minors in any manner.
4. Non- Company Content Disclaimer. You understand that when using the Service, you will be exposed to User Submissions and other content from a variety of sources, including listings information that Company aggregates from third parties (collectively, Non-Company Content). COMPANY IS NEITHER RESPONSIBLE NOR LIABLE IN ANY WAY FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OR INFRINGEMENT RELATING TO SUCH NON-COMPANY CONTENT, NOR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY NON-COMPANY CONTENT DISPLAYED OR TRANSMITTED VIA THE SERVICE, OR ANY CONTACT YOU HAVE WITH ANY THIRD PARTY PROVIDER/CONTRIBUTOR OF NON-COMPANY CONTENT, OR ANY TRANSACTION YOU CONSUMMATE IN CONNECTION WITH YOUR USE OF OR ACCESS TO ANY NON-COMPANY CONTENT (INCLUDING, WITHOUT LIMITATION, ANY SALE OR PURCHASE OF A VEHICLE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY IS NOT RESPONSIBLE OR LIABLE (UNDER ANY THEORY OF LIABILITY) FOR ANY USERS OR THIRD PARTYS VIOLATION OF LAWS OR REGULATIONS RELATING TO THE PURCHASE AND/OR SALE OF VEHICLES. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO NON-COMPANY CONTENT THAT IS OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO. COMPANY DOES NOT ENDORSE ANY USER SUBMISSION OR OTHER NON-COMPANY CONTENT OR ANY OPINION EXPRESSED THEREIN.
5. Non-Monitoring of Non-Company Content and Users. Company does not control the Non-Company Content posted by Users and does not have any obligation to pre-screen or monitor such Non-Company Content. If at any time, Company chooses, in its sole discretion, to pre-screen or monitor the Non-Company Content, Company nonetheless assumes no responsibility for the Non-Company Content, no obligation to modify or remove any inappropriate Non-Company Content, and no responsibility for the conduct of the User submitting any such Non-Company Content. Without limiting the foregoing, Company and its designees may, at any time and without prior notice, remove any Non-Company Content, in whole or in part, for any reason. Furthermore, you alone are responsible for your involvement with other Users. Company reserves the right, but has no obligation, to monitor disagreements between you and other Users. Company disclaims all liability related to any User disagreement.
If you are opening an account or using the Service on behalf of yourself, you represent that you are the age of majority in your jurisdiction and fully able and competent to enter into these Terms. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13.
If you are opening an account or using the Service on behalf of a company, entity, or organization (collectively Registering Organization), then you represent and warrant that you are an authorized representative of that Registering Organization with the authority to bind such organization to the Terms, and agree to be bound by the Terms on behalf of such Registering Organization.
7. Password. When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you should immediately notify Company. You may be liable for the losses incurred by Company or others due to any unauthorized use of your account.
8. Third Party Services and Third Party Materials. Company may provide tools through the Service that enable you to export information, including exporting User Submissions to third party services (such as Facebook) or to your devices. By using these tools, you agree that we may transfer such information accordingly and that you will not use such exported information other than for your personal, non-commercial use. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links, information, and references to third party products, services, and websites, which Company does not control or maintain (Reference Sites). Access to and use of any Reference Sites is at the User's own risk and Company is not responsible for the legality, accuracy or reliability of information or statements on Reference Sites. Company provides these links merely as a convenience, and the inclusion of such links does not imply an endorsement. You should review any applicable terms and policies of such Reference Sites, as Companys Terms do not apply to them.
9. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers or other third parties found on or through the Service are solely between you and such advertiser or third party. You agree that Company will not be responsible or liable for any loss or damage incurred as a result of any such dealings or as the result of the presence of such advertisers/third parties on the Service.
10. Disputes with Third Parties If you have a dispute with: (i) another User of the Service; (ii) the provider of any Reference Site or Non-Company Content; (iii) any provider of any listing posted on or made available in connection with the Service; (iv) any third party that contacts you as a result of your use of the Service; or (v) any other third party arising in connection with your use of the Service, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
11. Availability of the Service. Company may make changes to or discontinue any part of the Service at any time without notice. The Service may be out of date, and Company makes no commitment to update materials on the Service.
12. Termination. These Terms become effective on the date you first use the Service and continue in effect until terminated in accordance with the provisions herein. You agree that Company may suspend, disable, delete or terminate your account or use of the Service at any time in its sole discretion, and you agree that Company shall not be liable to you or any third-party for any such termination. You may terminate these Terms at any time by closing your account, if any, and discontinuing use of the Service. In the event that these Terms are terminated, you will not register a new account under a different name. Upon termination, all licenses granted by Company herein will terminate. In the event that your account is removed or deleted for any reason, User Submissions that you submitted or saved may no longer be available. Company shall not be responsible for the loss of such content.
13. Indemnification; Hold Harmless. You agree to indemnify, defend, and hold harmless Company, and its parent, subsidiaries, affiliates or any related companies, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorneys fees) arising out of: (i) your use or misuse of the Service; (ii) your User Submissions, including Companys or other Users use, display or other exercise of their license rights granted herein with respect to your User Submissions; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; and (v) your breach of the foregoing representations, warranties, and covenants. Company reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim or proceeding upon becoming aware of it.
a. DISCLAIMER AS TO LISTINGS. COMPANY IS ONLY A LISTING SERVICE FOR VEHICLES THAT BRINGS TOGETHER BUYERS AND SELLERS AND IS NOT A PARTY TO ANY TRANSACTION BETWEEN BUYERS AND SELLERS THAT ORIGINATES ON THE SERVICE. YOU UNDERSTAND AND AGREE THAT THE LISTINGS ON THIS WEBSITE DO NOT CONSTITUTE OFFERS FOR THE SALE OF VEHICLES, AND ARE THEREFORE NOT SUBJECT TO APPLICABLE LAWS RELATING THERETO. COMPANY, ITS AFFILIATES, PARTNERS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF USE OF THE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY OF THE LISTINGS (INCLUDING, WITHOUT LIMITATION, APPEARANCE, ACCESSORIES, PRICE, OR AVAILABILITY OF ANY GIVEN VEHICLE) OR OTHERWISE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT WARRANT THAT ANY OF THE LISTINGS ON THIS SITE ARE AFFORDABLE OR A GOOD DEAL FOR YOU. INFORMATION ABOUT A PARTICULAR VEHICLE IS SUPPLIED BY THE SELLER, AND THE PRICE AND OTHER TERMS OF ANY SALE REMAIN SUBJECT TO NEGOTIATIONS BETWEEN THE BUYER AND THE SELLER. THE PRICES LISTED BY SELLERS ON THE SITE OFTEN EXCLUDE TAXES, FINANCE CHARGES, TITLE, LICENSE, AND OTHER FEES ANY OR ALL OF WHICH MAY BE ADDED TO THE LISTED PRICE TO ARRIVE AT THE FINAL PRICE YOU PAY FOR A GIVEN VEHICLE. COMPANY, ITS AFFILIATES, PARTNERS AND SUPPLIERS ARE NOT RESPONSIBLE FOR, AND DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING, ANY VEHICLE OR OTHER PRODUCTS OR SERVICES LISTED ON THE SITE OR ANY REFERENCE SITE OR THAT YOU MAY TRANSACT WITH THIRD PARTIES FOR AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE.
b. GENERAL DISCLAIMER. THE SERVICE, COMPANY MATERIALS, AND ANY NON-COMPANY CONTENT MADE AVAILABLE ON THE SERVICE ARE PROVIDED ON AN AS IS BASIS, AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY, ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIALS OR DATA, OR ANY LOSSES OR HARMS OF ANY KIND YOU MAY SUFFER AS A RESULT OF FOLLOWING UP ON, TRANSACTING AS A RESULT OF, OR OTHERWISE RELYING ON ANY SUCH INFORMATION. COMPANY, ITS AFFILIATES, PARTNERS AND SUPPLIERS DO NOT WARRANT THAT THE COMPANY MATERIALS, NON-COMPANY CONTENT, THE SERVICE, OR ANY OTHER INFORMATION OFFERED THROUGH THE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
15. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL COMPANY, ITS AFFILIATES, PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING UNDER THESE TERMS OR THAT RESULT FROM YOUR USE OR INABILITY TO USE THE COMPANY MATERIALS, NON-COMPANY CONTENT, USER SUBMISSIONS OR THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, PARTNERS OR SUPPLIERS TOTAL AGGREGATE LIABILITY TO YOU UNDER THESE TERMS OR IN CONNECTION WITH THE SERVICE EXCEED THE GREATER OF ONE HUNDRED DOLLARS OR FEES PAID IN THE PRECEDING TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, COMPANYS LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
16. Digital Millennium Copyright Act .
c. Notification of Infringement . It is Companys policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (DMCA). In addition, we will promptly terminate without notice accounts of those determined to be "repeat infringers". If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-Company Content infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Copyright Agent designated below with the following information in writing (see 17 U.S.C § 512(c)(3) or consult your own legal counsel to confirm these requirements): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material; (iv) Information reasonably sufficient to permit Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon removing any allegedly infringing material, Company will notify the alleged infringer of such takedown.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
d. Counter Notification . If you elect to send our Copyright Agent a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements): (i) A physical or electronic signature of the subscriber; (ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which Company may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Upon receiving a DMCA-compliant counter notice, Company will provide the notifying party a copy of the counter notice and inform that party that Company will restore the material in 10 business days. Company will then reinstate the removed material not less than 10, but no more than 14, business days unless it first receives notice from the party that filed the initial notice that such party has filed a court action against the alleged infringer.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
e. Designated Copyright Agent . Companys Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:
485 Bryant Street, Suite A
San Francisco, CA 94107
17. Trademarks. Trademarks of Company may be included within the Service. All trademarks, logos and service marks found on the Service (Company Marks) are the property of Company or other third parties. Users are not permitted to use any Company Marks without the prior written consent of Company or the third party that owns the respective Company Mark. Company bears no responsibility or liability for, and disclaims sponsorship of or affiliation with, any third party marks uploaded to or displayed through the Service. Company is generally unable to evaluate the merits of disputes regarding third party marks and encourages Users to resolve any such disputes directly.
18. Contact Information. The Service is offered by Company, located at 500 Third Street, Suite 555 , San Francisco, CA 94107 and email: email@example.com. If you are a resident of certain jurisdictions, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
19. Survival. Sections 2 (other than 2b), 3, 4, 6, 7, 8, 9, 10, and 13-21 will survive any termination of these Terms or your account.
20. Dispute Resolution and Arbitration
a. Generally . In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions . Notwithstanding Section 20(a), we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
c. Arbitrator . Any arbitration between you and Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company.
d. Notice; Process . A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Company's address for Notice is: Vertical Brands Media, Inc., 500 Third Street, Suite 555, San Francisco, CA 94107 and email: firstname.lastname@example.org . The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Company shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Company in settlement of the dispute prior to the arbitrators award; or (iii) $1,000.00, whichever is greater.
e. Fees . In the event that you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
f. No Class Actions . YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING .
g. Enforceability . If Subsection 20(f) is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 21 shall govern any action arising out of or related to these Terms.