The FORSEMARK,LLC website located at www. FORSEMARK.net and the site
155.foremark.net are copyrighted work belonging to ForseMark,llc. Certain
features of the Site may be subject to additional guidelines, terms, or
rules, which will be posted on the Site in connection with such features.
All such additional terms, guidelines, and rules are incorporated by
reference into these Terms.
These Terms of Use described the legally binding terms and conditions
that oversee your use of the Site. BY LOGGING INTO THE SITE, YOU ARE BEING
COMPLIANT THAT THESE TERMS and you represent that you have the authority
and capacity to enter into these Terms. IF YOU DISAGREE WITH ALL OF THE
PROVISION OF THESE TERMS, DO NOT LOG INTO AND/OR USE THE SITE. These terms
require the use of arbitration Section 10.2 on an individual basis to
resolve disputes and also limit the remedies available to you in the event
of a dispute.
Access to the Site.
Subject to these Terms. Company grants you a non-transferable, non-exclusive,
revocable, limited license to access the Site solely for your own personal,
noncommercial use.
Certain Restrictions.
The rights approved to you in these Terms are subject to the following
restrictions: (a) you shall not sell, rent, lease, transfer, assign, distribute,
host, or otherwise commercially exploit the Site; (b) you shall not change,
make derivative works of, disassemble, reverse compile or reverse engineer
any part of the Site; (c) you shall not access the Site in order to build
a similar or competitive website; and (d) except as expressly stated herein,
no part of the Site may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any means
unless otherwise indicated, any future release, update, or other addition
to functionality of the Site shall be subject to these Terms. All copyright
and other proprietary notices on the Site must be retained on all copies
thereof.
Company reserves the right to change, suspend, or cease the Site with
or without notice to you. You approved that Company will not be held liable
to you or any third-party for any change, interruption, or termination
of the Site or any part.
No Support or Maintenance.
You agree that Company will have no obligation to provide you with any
support in connection with the Site.
Excluding any User Content that you may provide, you are aware that all
the intellectual property rights, including copyrights, patents, trademarks,
and trade secrets, in the Site and its content are owned by Company or
Company’s suppliers. Note that these Terms and access to the Site
do not give you any rights, title or interest in or to any intellectual
property rights, except for the limited access rights expressed in Section
2.1. Company and its suppliers reserve all rights not granted in these
Terms.
Third-Party Links & Ads.
The Site may contain links to third-party websites and services, and/or
display advertisements for third-parties. Such Third-Party Links &
Ads are not under the control of Company, and Company is not responsible
for any Third-Party Links & Ads. Company provides access to these
Third-Party Links & Ads only as a convenience to you, and does not
review, approve, monitor, endorse, warrant, or make any representations
with respect to Third-Party Links & Ads. You use all Third-Party Links
& Ads at your own risk, and should apply a suitable level of caution
and discretion in doing so. When you click on any of the Third-Party Links
& Ads, the applicable third party’s terms and policies apply,
including the third party’s privacy and data gathering practices.
Other Users.
Each Site user is solely responsible for any and all of its own User Content.
Because we do not control User Content, you acknowledge and agree that
we are not responsible for any User Content, whether provided by you or
by others. You agree that Company will not be responsible for any loss
or damage incurred as the result of any such interactions. If there is
a dispute between you and any Site user, we are under no obligation to
become involved.
You hereby release and forever discharge the Company and our officers,
employees, agents, successors, and assigns from, and hereby waive and
relinquish, each and every past, present and future dispute, claim, controversy,
demand, right, obligation, liability, action and cause of action of every
kind and nature, that has arisen or arises directly or indirectly out
of, or that relates directly or indirectly to, the Site. If you are a
California resident, you hereby waive California civil code section 1542
in connection with the foregoing, which states: "a general release
does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement
with the debtor."
Disclaimers.
The site is provided on an "as-is" and "as available"
basis, and company and our suppliers expressly disclaim any and all warranties
and conditions of any kind, whether express, implied, or statutory, including
all warranties or conditions of merchantability, fitness for a particular
purpose, title, quiet enjoyment, accuracy, or non-infringement. We and
our suppliers make not guarantee that the site will meet your requirements,
will be available on an uninterrupted, timely, secure, or error-free basis,
or will be accurate, reliable, free of viruses or other harmful code,
complete, legal, or safe. If applicable law requires any warranties with
respect to the site, all such warranties are limited in duration to ninety
(90) days from the date of first use.
Some jurisdictions do not allow the exclusion of implied warranties,
so the above exclusion may not apply to you. Some jurisdictions do not
allow limitations on how long an implied warranty lasts, so the above
limitation may not apply to you.
Limitation on Liability
To the maximum extent permitted by law, in no event shall company or
our suppliers be liable to you or any third-party for any lost profits,
lost data, costs of procurement of substitute products, or any indirect,
consequential, exemplary, incidental, special or punitive damages arising
from or relating to these terms or your use of, or incapability to use
the site even if company has been advised of the possibility of such damages.
Access to and use of the site is at your own discretion and risk, and
you will be solely responsible for any damage to your device or computer
system, or loss of data resulting therefrom.
To the maximum extent permitted by law, notwithstanding anything to the
contrary contained herein, our liability to you for any damages arising
from or related to this agreement, will at all times be limited to a maximum
of fifty U.S. dollars (u.s. $50). The existence of more than one claim
will not enlarge this limit. You agree that our suppliers will have no
liability of any kind arising from or relating to this agreement.
Some jurisdictions do not allow the limitation or exclusion of liability
for incidental or consequential damages, so the above limitation or exclusion
may not apply to you.
Term and Termination.
Subject to this Section, these Terms will remain in full force and effect
while you use the Site. We may suspend or terminate your rights to use
the Site at any time for any reason at our sole discretion, including
for any use of the Site in violation of these Terms. Upon termination
of your rights under these Terms, your Account and right to access and
use the Site will terminate immediately. You understand that any termination
of your Account may involve deletion of your User Content associated with
your Account from our live databases. Company will not have any liability
whatsoever to you for any termination of your rights under these Terms.
Even after your rights under these Terms are terminated, the following
provisions of these Terms will remain in effect: Sections 2 through 2.5,
Section 3 and Sections 4 through 10.
Copyright Policy. Company respects the intellectual property of others and asks that
users of our Site do the same. In connection with our Site, we have adopted
and implemented a policy respecting copyright law that provides for the
removal of any infringing materials and for the termination of users of
our online Site who are repeated infringers of intellectual property rights,
including copyrights. If you believe that one of our users is, through
the use of our Site, unlawfully infringing the copyright(s) in a work,
and wish to have the allegedly infringing material removed, the following
information in the form of a written notification (pursuant to 17 U.S.C.
§ 512(c)) must be provided to our designated Copyright Agent:
* your physical or electronic signature;
* identification of the copyrighted work(s) that you claim to have been
infringed;
* identification of the material on our services that you claim is infringing
and that you request us to remove;
* sufficient information to permit us to locate such material;
* your address, telephone number, and e-mail address;
* a statement that you have a good faith belief that use of the objectionable
material is not authorized by the copyright owner, its agent, or under
the law; and
*a statement that the information in the notification is accurate, and
under penalty of perjury, that you are either the owner of the copyright
that has allegedly been infringed or that you are authorized to act on
behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation
of material fact in a written notification automatically subjects the
complaining party to liability for any damages, costs and attorney’s
fees incurred by us in connection with the written notification and allegation
of copyright infringement.
General.
These Terms are subject to occasional revision, and if we make any substantial
changes, we may notify you by sending you an e-mail to the last e-mail
address you provided to us and/or by prominently posting notice of the
changes on our Site. You are responsible for providing us with your most
current e-mail address. In the event that the last e-mail address that
you have provided us is not valid our dispatch of the e-mail containing
such notice will nonetheless constitute effective notice of the changes
described in the notice. Any changes to these Terms will be effective
upon the earliest of thirty (30) calendar days following our dispatch
of an e-mail notice to you or thirty (30) calendar days following our
posting of notice of the changes on our Site. These changes will be effective
immediately for new users of our Site. Continued use of our Site following
notice of such changes shall indicate your acknowledgement of such changes
and agreement to be bound by the terms and conditions of such changes.
Dispute Resolution. Please read this Arbitration Agreement carefully.
It is part of your contract with Company and affects your rights. It contains
procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement.
All claims and disputes in connection with the Terms or the use of any
product or service provided by the Company that cannot be resolved informally
or in small claims court shall be resolved by binding arbitration on an
individual basis under the terms of this Arbitration Agreement. Unless
otherwise agreed to, all arbitration proceedings shall be held in English.
This Arbitration Agreement applies to you and the Company, and to any
subsidiaries, affiliates, agents, employees, predecessors in interest,
successors, and assigns, as well as all authorized or unauthorized users
or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution.
Before either party may seek arbitration, the party must first send to
the other party a written Notice of Dispute describing the nature and
basis of the claim or dispute, and the requested relief. A Notice to the
Company should be sent to: 2002 Highland Drive, Norfolk, NE 68701. After
the Notice is received, you and the Company may attempt to resolve the
claim or dispute informally. If you and the Company do not resolve the
claim or dispute within thirty (30) days after the Notice is received,
either party may begin an arbitration proceeding. The amount of any settlement
offer made by any party may not be disclosed to the arbitrator until after
the arbitrator has determined the amount of the award to which either
party is entitled.
Arbitration Rules.
Arbitration shall be initiated through the American Arbitration Association,
an established alternative dispute resolution provider that offers arbitration
as set forth in this section. If AAA is not available to arbitrate, the
parties shall agree to select an alternative ADR Provider. The rules of
the ADR Provider shall govern all aspects of the arbitration except to
the extent such rules are in conflict with the Terms. The AAA Consumer
Arbitration Rules governing the arbitration are available online at adr.org
or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted
by a single, neutral arbitrator. Any claims or disputes where the total
amount of the award sought is less than Ten Thousand U.S. Dollars (US
$10,000.00) may be resolved through binding non-appearance-based arbitration,
at the option of the party seeking relief. For claims or disputes where
the total amount of the award sought is Ten Thousand U.S. Dollars (US
$10,000.00) or more, the right to a hearing will be determined by the
Arbitration Rules. Any hearing will be held in a location within 100 miles
of your residence, unless you reside outside of the United States, and
unless the parties agree otherwise. If you reside outside of the U.S.,
the arbitrator shall give the parties reasonable notice of the date, time
and place of any oral hearings. Any judgment on the award rendered by
the arbitrator may be entered in any court of competent jurisdiction.
If the arbitrator grants you an award that is greater than the last settlement
offer that the Company made to you prior to the initiation of arbitration,
the Company will pay you the greater of the award or $2,500.00. Each party
shall bear its own costs and disbursements arising out of the arbitration
and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration.
If non-appearance based arbitration is elected, the arbitration shall
be conducted by telephone, online and/or based solely on written submissions;
the specific manner shall be chosen by the party initiating the arbitration.
The arbitration shall not involve any personal appearance by the parties
or witnesses unless otherwise agreed by the parties.
Time Limits.
If you or the Company pursues arbitration, the arbitration action must
be initiated and/or demanded within the statute of limitations and within
any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator.
If arbitration is initiated, the arbitrator will decide the rights and
liabilities of you and the Company, and the dispute will not be consolidated
with any other matters or joined with any other cases or parties. The
arbitrator shall have the authority to grant motions dispositive of all
or part of any claim. The arbitrator shall have the authority to award
monetary damages, and to grant any non-monetary remedy or relief available
to an individual under applicable law, the AAA Rules, and the Terms. The
arbitrator shall issue a written award and statement of decision describing
the essential findings and conclusions on which the award is based. The
arbitrator has the same authority to award relief on an individual basis
that a judge in a court of law would have. The award of the arbitrator
is final and binding upon you and the Company.
Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO
GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing
that all claims and disputes shall be resolved by arbitration under this
Arbitration Agreement. Arbitration procedures are typically more limited,
more efficient and less expensive than rules applicable in a court and
are subject to very limited review by a court. In the event any litigation
should arise between you and the Company in any state or federal court
in a suit to vacate or enforce an arbitration award or otherwise, YOU
AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that
the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions.
All claims and disputes within the scope of this arbitration agreement
must be arbitrated or litigated on an individual basis and not on a class
basis, and claims of more than one customer or user cannot be arbitrated
or litigated jointly or consolidated with those of any other customer
or user.
Confidentiality.
All aspects of the arbitration proceeding shall be strictly confidential.
The parties agree to maintain confidentiality unless otherwise required
by law. This paragraph shall not prevent a party from submitting toa court
of law any information necessary to enforce this Agreement, to enforce
an arbitration award, or to seek injunctive or equitable relief.
Severability.
If any part or parts of this Arbitration Agreement are found under the
law to be invalid or unenforceable by a court of competent jurisdiction,
then such specific part or parts shall be of no force and effect and shall
be severed and the remainder of the Agreement shall continue in full force
and effect.
Right to Waive.
Any or all of the rights and limitations set forth in this Arbitration
Agreement may be waived by the party against whom the claim is asserted.
Such waiver shall not waive or affect any other portion of this Arbitration
Agreement.
Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship
with Company.
Small Claims Court.
Nonetheless the foregoing, either you or the Company may bring an individual
action in small claims court.
Emergency Equitable Relief.
Anyhow the foregoing, either party may seek emergency equitable relief
before a state or federal court in order to maintain the status quo pending
arbitration. A request for interim measures shall not be deemed a waiver
of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration.
Notwithstanding the foregoing, claims of defamation, violation of the
Computer Fraud and Abuse Act, and infringement or misappropriation of
the other party’s patent, copyright, trademark or trade secrets shall
not be subject to this Arbitration Agreement.
In any circumstances where the foregoing Arbitration Agreement permits
the parties to litigate in court, the parties hereby agree to submit to
the personal jurisdiction of the courts located within Netherlands County,
California, for such purposes.
The Site may be subject to U.S. export control laws and may be subject
to export or import regulations in other countries. You agree not to export,
re-export, or transfer, directly or indirectly, any U.S. technical data
acquired from Company, or any products utilizing such data, in violation
of the United States export laws or regulations.
Company is located at the address in Section 10.8. If you are a California
resident, you may report complaints to the Complaint Assistance Unit of
the Division of Consumer Product of the California Department of Consumer
Affairs by contacting them in writing at 400 R Street, Sacramento, CA
95814, or by telephone at (800) 952-5210.
Electronic Communications.
The communications between you and Company use electronic means, whether
you use the Site or send us emails, or whether Company posts notices on
the Site or communicates with you via email. For contractual purposes,
you (a) consent to receive communications from Company in an electronic
form; and (b) agree that all terms and conditions, agreements, notices,
disclosures, and other communications that Company provides to you electronically
satisfy any legal obligation that such communications would satisfy if
it were be in a hard copy writing.
Entire Terms.
These Terms constitute the entire agreement between you and us regarding
the use of the Site. Our failure to exercise or enforce any right or provision
of these Terms shall not operate as a waiver of such right or provision.
The section titles in these Terms are for convenience only and have no
legal or contractual effect. The word "including" means "including
without limitation". If any provision of these Terms is held to be
invalid or unenforceable, the other provisions of these Terms will be
unimpaired and the invalid or unenforceable provision will be deemed modified
so that it is valid and enforceable to the maximum extent permitted by
law. Your relationship to Company is that of an independent contractor,
and neither party is an agent or partner of the other. These Terms, and
your rights and obligations herein, may not be assigned, subcontracted,
delegated, or otherwise transferred by you without Company’s prior
written consent, and any attempted assignment, subcontract, delegation,
or transfer in violation of the foregoing will be null and void. Company
may freely assign these Terms. The terms and conditions set forth in these
Terms shall be binding upon assignees.
Contact Information.
Address:
ForseMark,LLC
2002 Highland Drive
Norfolk, NE 68701
Email:
carl@Forsemark.net
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