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Ben Buckwalter International
Website Terms and Conditions
Last Update: July 2, 2019.
IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS OF USE AND TERMS & CONDITIONS BEFORE ACCESSING, USING, OR SUBSCRIBING TO: BENBUCKWALTER.COM
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (see Sections 5 and 6). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
This Terms of Service sets forth the policies and practices with respect to information or data that is received or gathered regarding members, visitors and users (collectively “you” and “your”). www.benbuckwalter.com www.salesprospectingchecklist.com and all related sites of Ben Buckwalter may be referred to collectively as “www.benbuckwalter.com”, “Ben Buckwalter International”, “Ben Buckwalter”, “us”, “we”, “Site”, “Website” or “the Company”
Please read them carefully. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here. By accessing, using, subscribing, or placing an order over the Website, you agree to the terms set forth herein. If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Website in any manner or form whatsoever.
THIS IS A BINDING AGREEMENT. THESE TERMS OF USE AND TERMS & CONDITIONS OF SALE (“TERMS”) TOGETHER WITH OUR PRIVACY POLICY AND RETURN/EXCHANGE POLICY FORM A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “CUSTOMER”) AND BEN BUCKWALTER INTERNATIONAL AND SHOULD BE READ CAREFULLY.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 18 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 18 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
Ben Buckwalter International reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference by posting updates and/or changes to our Website. It is your responsibility to check this page periodically for changes.
You can find the most recent version of these Terms at: https://benbuckwalter.com/terms-of-use/
Use of the Website after such changes constitutes acceptance of such changes. Any new features or tools which are added to the current Website shall also be subject to the Terms.
Table of Contents:
Website Use
Website User Conduct and Restrictions
Our Privacy Policy and Your Personal Information
Information You Provide; Registration; and Passwords
LIMITATIONS OF LIABILITIES
DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
Ben Buckwalter International Additional Remedies
Indemnification
Notice and Takedown Procedures; Copyright Agent
Third-Party Links
Termination
No Waiver
Governing Law and Venue
Force Majeure
Assignment
Electronic Signature
Changes to the Agreement
Your Additional Representations and Warranties
Severability
Entire Agreement
Contacting Us
SECTION 1 – WEBSITE USE
The Website is intended for adults only. In order to use the Website, you must be 18 years of age or the legal age of majority in your state or province of primary residence, whichever is greater, and also have the legal capacity to enter into a contract with us. The Website is not intended for children and no person under the age of 18 may use the Website. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS
All aspects of our Website are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all design elements, text material, logos, taglines, metatags, hashtags, photographic images, personal stories, BenBuckwalter.com icons, video and audio clips, personal training sessions, and downloads. No material on or provided through the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The trademark and logo are proprietary marks of Ben Buckwalter International, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by Ben Buckwalter International. Notwithstanding the foregoing, you may print off information about your purchases for your personal use only. Commercial use of such information is strictly prohibited.
Subject to your continued strict compliance with all Terms, Ben Buckwalter International provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicensable, non-transferable license to use the Website. Notwithstanding the foregoing license grant, you hereby acknowledge and agree that: (1) the Website contains copyrighted material, trademarks, and other proprietary information including text, software, photos, video, graphics, music and sound, and that the entire contents of the Website are copyrighted as a collective work under the United States copyright laws; (2) Ben Buckwalter International is the exclusive owner of the copyright and all other intellectual property rights in the entire Website; (3) Ben Buckwalter International owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it; (4) Each third party content provider owns the copyright in content original to it; (5) You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Website or any portion of it; (6) Except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the Website without the express written permission of Ben Buckwalter International and, if applicable, the copyright owner; and (7) In the event of any permitted copying, redistribution or publication of material from the Website, no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made. You further acknowledge and agree that you do not acquire any ownership rights by downloading or copying copyrighted material or any other material protected by intellectual property laws. All trademarks appearing on the Website are the exclusive property of their respective owners, including, in some instances, Ben Buckwalter International, and/or affiliated companies.
You agree not to use or attempt to use the Website in any unlawful manner. You further agree not to commit any unlawful act or attempt to commit any unlawful act on or through the Website including, but not limited to: (1) hacking and other digital or physical attacks on the Website; (2) publishing vulgar, obscene, or defamatory material; or (3) any other unlawful act.
SECTION 3 – OUR PRIVACY POLICY AND YOUR PERSONAL INFORMATION
We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website and online store is governed by our Privacy Policy. Our privacy policy may be viewed at https://benbuckwalter.com/privacypolicy. Ben Buckwalter International reserves the right to modify its Privacy Policy in its reasonable discretion from time-to-time. Our privacy policy is incorporated into this Agreement by reference.
SECTION 4 – INFORMATION YOU PROVIDE; REGISTRATION; USERNAMES AND PASSWORDS
As a Ben Buckwalter International user, you warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. You are fully responsible for all transactions with, and information conveyed to, Ben Buckwalter International under your user account. You agree that Ben Buckwalter International is not liable, and you will hold Ben Buckwalter International harmless, for any loss or damage arising from your using materials on site or failure to comply with any of the foregoing obligations.
SECTION 5 – LIMITATIONS OF LIABILITIES
YOU UNDERSTAND THAT THERE ARE INHERENT RISKS IN EDUCATION. EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IF YOU SUSTAIN OR CLAIM TO SUSTAIN ANY INJURY WHILE PARTICIPATING IN TRAINING, YOU ACKNOWLEDGE THAT BEN BUCKWALTER INTERNATIONAL (INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS) IS NOT RESPONSIBLE. YOU AGREE THAT IN NO EVENT SHALL BEN BUCKWALTER INTERNATIONAL LIABILITY TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO BEN BUCKWALTER INTERNATIONAL FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST BEN BUCKWALTER INTERNATIONAL OCCURRED. YOU EXPRESSLY WAIVE ANY RIGHT TO INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS, OR CLAIMS OF ANY KIND OR DESCRIPTION. THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS AND ALL THEORIES OF LIABILITY ADVANCED, REGARDLESS OF WHETHER Ben Buckwalter International WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CONSUMERS IN NEW JERSEY.
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL Ben Buckwalter International OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY PRODUCT, REGARDLESS OF WHETHER Ben Buckwalter International HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
SECTION 6- DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.
General
Arbitration is a manner of resolving a “Claim” without filing a lawsuit. “Claim” means any dispute between you, Ben Buckwalter International, or any involved third party relating to your account, your use of the Website, your relationship with Ben Buckwalter International, these Terms, the Privacy Policy, and the Return/Exchange Policy. This includes any and all claims that relate in any way to your use or attempted use of the services or products, and any act or omission by Ben Buckwalter International or any third party (including, but not limited to, trainers), related to your use or attempted use of the services or products. You, Ben Buckwalter International, or any involved third party may pursue a Claim. Ben Buckwalter International agrees to final and binding confidential arbitration should it have any Claims against you. Likewise, you agree to final and binding confidential arbitration should you have any Claims against Ben Buckwalter International. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to final and binding confidential arbitration. This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Ben Buckwalter International both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. Ben Buckwalter International will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in St. Louis, Missouri: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents, or the intellectual property rights of a third-party; or (ii) an action by Ben Buckwalter International for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in St. Louis, Missouri, and forever waive any challenge to said courts’ jurisdiction and venue.
Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by E-MAIL to Ben Buckwalter International, Attn: Legal Department, legalteam@benbuckwalter.com. Ben Buckwalter International will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Ben Buckwalter International or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in St. Louis, Missouri to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “b” above. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions.
Commencing Arbitration
You and Ben Buckwalter International agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
Arbitration Location
If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in St. Louis, Missouri unless Ben Buckwalter International otherwise agrees to arbitrate in another forum requested by you.
Organization, Rules, and the Arbitrator
We each agree that any and all Claims other than those exempted under subsection “b” above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “d” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, the Return/Exchange Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Ben Buckwalter International.
Fees
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. We will reimburse the fees charged by the arbitrator for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Governing Law and Award
The arbitrator shall follow the substantive law of the State of Missouri without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Enforceability
This provision survives termination of your account or relationship with Ben Buckwalter International, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Miscellaneous
Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Ben Buckwalter International and shall not be modified except in writing by Ben Buckwalter International.
Amendments
Ben Buckwalter International reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of any services or product on or through the Website, or use or attempted use of a Ben Buckwalter International service or product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Ben Buckwalter International will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase or use of any services or products on or through the Website, or use or attempted use of a Ben Buckwalter International service or product, is affirmation of your consent to such material changes.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A SERVICE OR PRODUCT PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US AT Ben Buckwalter International, ATTN: LEGAL DEPARTMENT, TO LEGALTEAM@BENBUCKWALTER.COM. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY SERVICE OR PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED, OR ATTEMPTED TO USE THE SERVICE OR PRODUCT. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
SECTION 7 – BEN BUCKWALTER INTERNATIONAL’S ADDITIONAL REMEDIES
In order to prevent or limit irreparable injury to Ben Buckwalter International, in the event of any breach or threatened breach by you of the provisions of the parties’ Agreement or any infringement or threatened infringement by you of the intellectual property of Ben Buckwalter International or a third-party, Ben Buckwalter International shall be entitled to seek an injunction or other equitable relief restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Ben Buckwalter International from pursuing any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you.
SECTION 20 – INDEMNIFICATION
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Ben Buckwalter International and its affiliates, and their respective directors, officers, employees, licensors, independent contractors, subcontractors, suppliers, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs of any litigation or other dispute resolution, arising out of, resulting from, or in any way connected with or related to (1) your use, misuse, or inability to use the Website, (2) information you submit or transmit through the Website, or (3) your breach of these Terms, the documents they incorporate by reference, or the Agreement, or your violation of any law or the rights of a third-party.
SECTION 8 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT AGENT
If you believe that materials or content available on any Ben Buckwalter International Website infringes any copyright you own, you or your agent may send Ben Buckwalter International a notice requesting that Ben Buckwalter International remove the materials or content from the Ben Buckwalter International Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send Ben Buckwalter International a counter-notice. Notices and counter-notices should be sent to Ben Buckwalter International, to legalteam@benbuckwalter.comI
SECTION 10 – THIRD-PARTY LINKS
The Website may contain links to other websites. Ben Buckwalter International assumes no responsibility for the content or functionality of any non- Ben Buckwalter International website to which we provide a link. Please see our Privacy Policy for more details.
SECTION 11 – TERMINATION
Ben Buckwalter International reserves the right to terminate any Member’s Membership and/or service for any reason (including paid-for subscriptions and/or guest subscriptions) after providing e-mail notice to the Member.
This Agreement will take effect (or shall re-take effect) at the time you click “SUBMIT ORDER,” “PAY NOW,” “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, complete a purchase, select a method of payment, enter in payment method information, and/or begin installing, accessing, or using the Website, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement, we may terminate the Agreement or suspend your access to the Website at any time without notice to you and you will remain liable for all amounts due up to and including the date of termination or suspension. You further agree that Ben Buckwalter Internationals shall not be liable to you or to any third party for the consequences of such termination or suspension. Your rights under this Agreement will terminate automatically if you fail to comply with this Agreement, subject to the survival of rights of certain provisions identified below. Termination will be effective without notice. Upon termination, you must promptly destroy all copies of any aspect of the Website in your possession. Sections 12, 14 through 20, 22, 24 through 28, and 30 through 32 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Ben Buckwalter International.
SECTION 12 – NO WAIVER
No failure or delay on the part of Ben Buckwalter International in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by Ben Buckwalter International.
SECTION 13 – GOVERNING LAW AND VENUE
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or with your access or use of the Website, our Privacy Policy, or Return/Exchange Policy, or any matter concerning Ben Buckwalter International, including your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of State of Missouri excluding its conflict of law provisions. To the extent that any Claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded by the arbitration agreement in Section 17 above, the parties agree any such Claim or dispute shall be exclusively brought in and decided by the state or federal courts located in St. Louis, Missouri, and you hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.
SECTION 14 – FORCE MAJEURE
Ben Buckwalter International will not be responsible to you for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of Ben Buckwalter International. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Ben Buckwalter International shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
SECTION 15 – ASSIGNMENT
Ben Buckwalter International may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without Ben Buckwalter International’ express written consent.
SECTION 16 – ELECTRONIC SIGNATURE
All information communicated on the Website is considered an electronic communication. When you communicate with any Ben Buckwalter International company through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. You further acknowledge and agree that by clicking on a button labeled “SUBMIT MY ORDER”, “PAY NOW”, “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE”, or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
SECTION 17 – CHANGES TO THE AGREEMENT
You can review the most current version of the Terms at any time at https://benbuckwalter.com/terms-of-use/ . We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Policy, or Return/Exchange Policy, by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes. Unless accepted by Ben Buckwalter International in writing, these terms and conditions may not be amended by you.
SECTION 18 – YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you have read this Agreement and thoroughly understand the terms contained in this Agreement; and (3) that any products and services you purchase from the Website will be used for your personal, non-commercial use, and that you will not re-sell, re-distribute, or export any product that you order from the Website. You further represent that Ben Buckwalter International has the right to rely upon all information provided to Ben Buckwalter International by you, and Ben Buckwalter International may contact you by email, telephone or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) customer satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.
SECTION 19 – SEVERABILITY
If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement.
SECTION 20 – ENTIRE AGREEMENT
These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and Ben Buckwalter International and governs your access and use of the Website and your ordering, purchasing and use and/or attempted use of any service or product, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and Ben Buckwalter International. We may also, in the future, offer new services and/or features through the Website. Such new features and/or services shall also be subject to these Terms, the Agreement, and any policies or operating rules posted by us on the Website. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.
SECTION 21 – CONTACTING US
We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by sending an email to support@benbuckwalter.com.
If you have any questions or inquiries concerning any of the Terms, you may contact Ben Buckwalter International by email at legalteam@benbuckwalter.com