- User’s Acceptance of Terms
Arbitration Notice. Except for individual claims that may be filed and maintained in small claims court as provided in section 22 below, this Agreement requires all disputes between you and ABClark (including its officers, directors, employees, agents, contractors, parents, affiliates, successors, and other companies under common control with us) to be resolved by binding arbitration on an individual basis, rather than by jury trials and class action proceedings. This Agreement also limits the remedies and damages available to you in the event of a dispute.
- Use of the Site
- Licenses for Use of the Site and Information
- Changes to these Terms
- Changes to the Site
We reserve the right to terminate, change, suspend, or discontinue any aspect of the Site, including information, data, text, sound, photographs, graphics, video, messages, or other materials, as well as features and hours of availability. These and any other changes to the Site may be made in our sole discretion, and without prior notice to you. ABClark will not be liable to you or any other party for making such changes. We may also impose rules for and limits on use of the Site, or restrict your access to all or any part of the Site, without notice or penalty.
All trademarks, servicemarks, logos, and trade names on the Site-whether registered or unregistered-are proprietary to ABClark, or to other companies where indicated. You may not reproduce, download, or otherwise use any such trademarks, servicemarks, logos, or trade names without the prior written permission of ABClark, or other appropriate owner.
- Prohibited Activities
When using the Site, you must not:
- send or otherwise transmit to or through the Site any unlawful, infringing, harmful, harassing, defamatory, threatening, vulgar, or otherwise objectionable material of any kind;
- misrepresent your identity or affiliation in any way;
- access data, servers, or accounts that you have not been authorized to access;
- post material that is not your own, or that you do not have permission to use, such as copyrighted materials, trade secrets, or other material that infringes on another’s intellectual property, privacy, or publicity rights;
- interfere in any way with the security of the Site or our networks, or attempt to use the Site to gain access to any other computer system;
- attempt to, or actually probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization;
- attempt to, or actually interfere with service to any user, host, or network, including by submitting a virus to the Site, overloading, “flooding,” “mailbombing,” or “crashing”; or sending unsolicited email, including promotions or advertising of products or services;
- violate any applicable laws or regulations, or encourage conduct that may do so; or
- assist or permit any person engaging in any of the activities described above.
- Site Security
You are prohibited from violating, or attempting to violate, the security of the Site. Any such violation may result in criminal and civil penalties against you. ABClark will investigate any alleged or suspected violations, and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.
- Unsolicited Ideas
ABClark.com does not accept or consider unsolicited ideas, including ideas for new products or services. You should not transmit any material to this Site that you consider to be confidential or proprietary. Any material that you transmit to this Site will be considered non-confidential and non-proprietary. You give ABClark an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit, and distribute any such information. You also agree that ABClark has the right to use any concepts, know-how, or ideas that you or someone acting on your behalf transmit to the Site, without any payment or accounting to you or others.
- International Use
We control and operate the Site from our offices in the United States of America, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in other locations. Those who choose to access the Site from outside the United States do so voluntarily, and are responsible for compliance with their local laws. Any offer for any product, service, information, or promotion on the Site is void where prohibited.
- Links to Other Websites
The Site may contain links to other websites for your convenience. If you follow these links, you will leave the Site. Some of these third-party websites may use ABClark’s trademarks, servicemarks, or logos under license from ABClark. We are not responsible for the availability or content of these other websites, or for any experience you may have with such third-party websites, whether ABClark is affiliated with the owners of such websites or not. Our decision to provide links to these websites should not be interpreted as endorsement or approval by ABClark of the organizations sponsoring such third-party websites, or of their products or services.
- Copyright Claims
The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe their rights under the United States Copyright Act have been infringed on the internet. If you are a copyright owner, or the agent of a copyright owner, and you believe that any content on the Site infringes your copyrights, you may submit a notification under the DMCA. ABClark’s designated copyright agent to receive notifications and counter-notifications of claimed infringement can be reached by mail addressed to Andrew B. Clark, 5400 SE 30th Street, Des Moines, IA 50320.
- Jurisdictional Issues
The Site is controlled and operated by ABClark from its offices within the state of Iowa, in the United States of America. Persons who choose to access the Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if applicable. Access to the Site from jurisdictions where the contents of the Site are illegal or penalized is prohibited. No information from the Site may be downloaded or otherwise re-exported (i) into a country or to a national or resident of a country to which the United States embargoes or sanctions goods, services, or technology; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals, or the United States Commerce Department’s Table of Denial Orders. By using information from the Site, you represent and warrant that you are not on any such list; are not located in any such country; and are not a national or resident of any such country.
- Termination of Use of Site
- No Guarantees
You acknowledge that ABClark does not represent or guarantee the accuracy, reliability, availability, timeliness, performance, completeness, or suitability of any of the materials or any other content available on the Site. You acknowledge that such content may contain inaccuracies or errors, and we expressly exclude liability for any such inaccuracies or errors.
- Disclaimer of Warranties
ALL OF THE CONTENT AVAILABLE ON THE SITE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ABClark DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ABClark DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ABClark DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Applicable law may not allow the exclusion of implied warranties, so some or all of these disclaimers may not apply to you.
- Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ABClark BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES RESULTING FROM THE USE OF THE SITE; THE INABILITY TO USE THE SITE; LOSS OF PRIVACY; LOSS OF CREDIT; STOLEN IDENTITY; BREACH OF CONFIDENTIALITY OF PERSONAL OR OTHER INFORMATION YOU PROVIDE TO US; LOSS OF DATA; LOSS OF PROFITS; OR YOUR USE OF ANY WEBSITE REFERENCED OR LINKED-TO FROM THE SITE-EVEN IF ABClark OR AN ABClark AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Applicable law may not allow this limitation of liability, so it may not apply to you.
IF, DESPITE THE LIMITATIONS ABOVE, ABClark IS FOUND LIABLE FOR ANY LOSS OR DAMAGE THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH ANY SUCH OCCURRENCES, THE LIABILITY OF ABClark WILL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100).
You agree to indemnify and hold harmless (including from costs and attorney fees) ABClark, our officers, directors, employees, agents, contractors, affiliates, parents, successors, and any other companies under common control with us, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or our products; (ii) any content you provide to the site; or (iii) your violation of this Agreement. ABClark reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify us (at your expense), and you agree to cooperate with our defense of such claims. You agree not to settle any such matter without the prior written consent of ABClark. ABClark will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- Governing Law and Jurisdiction
This Site (excluding any linked sites) is controlled by ABClark from our offices in the state of Iowa, in the United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Iowa, by accessing or attempting to access the Site, you and ABClark agree that any claim, cause of action, or dispute between you and ABClark will be governed by and construed under the statutes and laws of the state of Iowa, without regard to conflict-of-laws rules and the United Nations Convention on the International Sales of Goods. This includes, without limitation, any claim, cause of action, or dispute relating to your use or attempted use of the Site; your interactions and communications with ABClark; ABClark’s collection, use, sale, disclosure, or deletion of your personal or other information; and your privacy, whether such claims are based in contract, tort, statute, equity, or other legal basis. You and ABClark agree and submit to the exclusive personal jurisdiction of the state and federal courts in Iowa with respect to any claim, cause of action, or dispute.
- Jury Trial and Class Action Waiver: Binding Arbitration
Any and all claims, causes of actions, and disputes between you and ABClark — including, without limitation, any claim, cause of action, or dispute relating in any way to your use or attempted use of the Site; any communication with ABClark; information you provide to ABClark; information that is collected, used, sold, disclosed, or deleted by ABClark; and products or services sold or distributed by ABClark-will be resolved by binding arbitration, rather than in court, except that you may assert an individual action in small claims court if your claims qualify, and so long as the matter remains in small claims court and advances only on an individual basis. Unless you proceed with a small claims action, the Federal Arbitration Act and federal arbitration law will apply to this Agreement. This Jury Trial and Class Action Waiver: Binding Arbitration section will include any claims, causes of action, and disputes between you and the officers, directors, employees, agents, contractors, suppliers, successors, and assignees of ABClark.
You and ABClark agree that any dispute resolution proceedings will be conducted only on an individual basis, and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and ABClark waive any right to a jury trial.
The AAA Consumer Arbitration Rules are available online at ADR.org, or by calling the AAA at 1-800-778-7879. AAA and the parties must comply with the following rules: (a) for any claim where the total amount in controversy is less than $10,000 (ten thousand US dollars), the arbitration will be conducted by telephone, online, or be based solely on written submissions, and the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will be conducted by an arbitrator in Des Moines, Iowa who is approved or otherwise affiliated with the AAA; (c) the arbitrator may award monetary damages, injunctive, or declaratory relief only in favor of the individual party seeking relief, and only to the extent necessary to provide relief warranted by that party’s individual claim; (d) unless otherwise mutually agreed by the parties in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding; and (e) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If subparagraph (d) above is found to be unenforceable, this mandatory arbitration provision will be null and void, but the jury trial and class action waiver provisions will remain in effect.
If a dispute arises, we strongly encourage you to first contact our Customer Service Department before starting an arbitration or filing a claim in small claims court. We value our relationships with our customers and will try to resolve your claims informally and quickly. All claims you bring against us must be resolved in accordance with this “Jury Trial and Class Action Waiver: Binding Arbitration” section. All claims filed or brought contrary to this “Jury Trial and Class Action Waiver: Binding Arbitration” section will be considered improperly filed and void.
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