These Additional Terms and Conditions were last updated on May 14, 2021.
THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 2.
By agreeing to the agreement, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions. Section 1 of these terms also contain a release of certain claims against USA Strong and certain third parties.
B. Indemnification related to Terms of Sale. In addition to the indemnification obligations set forth in Section 1 A above, you agree to release, defend, indemnify, and hold harmless USA STRONG Parties from and against any and all claims, losses, expenses, liabilities, settlements, litigation, damages, and costs (including, but not limited to, attorneys’ fees, costs and other expenses) arising out of or related to your misuse of any Product. In addition, you release USA Strong from any claims related to Third Party Products sold through our Services, including for defective items, misrepresentations by sellers, or items that caused physical injury (like product liability claims).
C. Indemnification related to Seller Terms. In addition to the indemnification obligations set forth in Section 1 A above, you agree to release, defend, indemnify, and hold harmless USA STRONG Parties from and against any and all claims, losses, expenses, liabilities, settlements, litigation, damages, and costs (including, but not limited to, attorneys’ fees, costs and other expenses) arising out of or related to: (a) any actual or alleged infringement of any intellectual property rights or other proprietary rights by Your Products, including the offer, sale, fulfillment, refund, cancellation, return, or adjustments thereof, and any other content or materials provided by you; (b) any personal injury, death, or property damage related to Your Products and any other content or materials provided by you; (c) your breach of or failure to perform under this Agreement, including without limitation your breach of any of its representations, warranties or covenants set forth in this Agreement; or (d) your taxes and duties or the collection, payment, or failure to collect or pay your taxes or duties, or the failure to meet tax registration obligations or duties.
D. Indemnity Procedures. You will have the right to exercise reasonable control over any litigation within the scope of this indemnity; provided, however, that you may only participate in any such litigation insofar as it concerns claims against you. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You shall not in any event settle or otherwise dispose of any matter without our prior written consent.
E. Release. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
The Agreement is governed by and shall be construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws principles. All activity occurring in connection with the Services (including, but not limited to, accessing pages, downloading materials, etc.) is presumed to occur in the State of New York.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
(a) You hereby agree that any claim or dispute between you and USA Strong, whether brought by you or by USA Strong, arising out of or relating in any way to the Agreement, your use of our Sites or any of our content, or other aspect of the Sites, must be resolved through final, binding arbitration, except that either you or we may assert claims in small claims court if those claims qualify under applicable law. In addition, either you or we have the option to bring claims in court to enjoin infringement or other violation of intellectual property rights without seeking damages. This arbitration obligation applies regardless of whether the claim or dispute involves a warranty, tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. Unless you opt-out of arbitration as set forth below, the arbitrator, and not any federal, state or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability or formation of this arbitration provision, including any claim that all or any part of this arbitration provision is void or voidable. There is no judge or jury in arbitration, the arbitration will be subject to different rules than the rules that would apply in court, and court review of arbitration awards is very limited. However, an arbitrator can award on an individual basis the same damages and other relief as a court (including injunctive and declaratory relief and statutory damages), and must follow the Agreement, as a court would.
(b) All arbitrations under the Agreement shall be conducted on an individual, and not on a class-wide, basis, and an arbitrator shall have no authority to certify a class or award class-wide relief. The arbitrator is authorized only to award relief on behalf of the individual parties and only to their extent of their individual claims. You acknowledge and agree that unless otherwise agreed in writing by you and USA Strong, with regard to any claims hereunder, you may not seek to, and an arbitrator or court may not, join or consolidate your claims with any other similar claims. You agree you will not proceed in any court or arbitration proceedings as a representative of others (including in the capacity of a private attorney general), join in any court or arbitration proceedings brought by any other person, and understand that you may not be included as a member of any class that may be certified by a court or arbitrator. Your waivers of your rights to bring or participate in court proceedings and as a representative or member of a class applies specifically, but is not limited to, claims brought under California’s Unfair Competition Law, False Advertising Act and its Consumer Legal Remedies Act, Ohio’s Unfair and Deceptive Trade Practices Act and any other state consumer protection laws.
(c) Before commencing any arbitration proceedings under the Agreement, a party must first send to the other a written notice of dispute (“Notice”). Your Notice to USA Strong must be sent to: USA Strong c/o Arnold & Porter LLP, 3 Embarcadero Center, Fl. 10, San Francisco, CA 94111. If a party’s claim is not resolved within sixty (60) days of delivery of the applicable Notice, you or we may commence arbitration proceedings in accordance with the Agreement. The arbitration of any claim or dispute hereunder (including whether a valid arbitration agreement exists and whether it covers the dispute) shall be conducted by a single, neutral arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association or its successor (“AAA”) or, if you are an individual, the AAA's Consumer Arbitration Rules, which are available by calling the AAA, at 1-800-778-7879, or by visiting its website at www.adr.org. If those rules conflict with any portion of the Agreement, the Agreement shall control. The arbitration of any claims or disputes hereunder shall be conducted in New York City, New York, except that if you are an individual the arbitration may be conducted in the county or parish of the billing address you provide to us (if applicable) or else in the county or parish of your primary residence. You or we also may choose to have the arbitration conducted by telephone, based on written submissions, or in person at another mutually agreed location. Payment of all filing, administration, and arbitrator fees will be governed by AAA’s rules. If you are an individual, we may reimburse you for those fees for claims totaling less than $10,000, unless the arbitrator determines your claims are frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(d) YOU AND WE SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF US EXPRESSLY WAIVES THE RIGHT TO BRING A LAWSUIT IN COURT BASED ON ANY CLAIMS OR DISPUTES DESCRIBED IN SECTION 2(a) ABOVE, AND THAT YOU AND WE EXPRESSLY WAIVE THE RIGHT TO HAVE SUCH LAWSUIT RESOLVED BY A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION. AS SUCH, YOU AND WE HEREBY AGREE TO RESOLVE ANY AND ALL CLAIMS DESCRIBED IN SECTION ABOVE VIA INDIVIDUAL BINDING ARBITRATION PER THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 2(b) AND 2(c) ABOVE.
(e) Each party shall pay its own fees and costs of its own attorneys, experts and witnesses incurred in connection with any arbitration or court proceeding between the parties, notwithstanding any provision awarding attorneys’ fees to a prevailing party that may be a part of any statute under which you or we may bring a claim.
(f) The Agreement and all claims related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions, and the United States Federal Arbitration Act. This Section 2 shall survive any expiration or termination of the Agreement.
(g) You may opt-out of Sections 2(a)-(d) by sending a notice (“Rejection Notice”) to USA Strong no later than sixty (60) days after your first consent to the Agreement or to any subsequent revisions to this Section 2. If you opt out of a subsequent revision, you will remain bound by the prior version of this Section unless you previously opted out of that version. You must mail the Rejection Notice by certified mail return receipt requested or messenger service (e.g. Federal Express) to USA Strong c/o Arnold & Porter LLP, 3 Embarcadero Center, Fl. 10, San Francisco, CA 94111. In the event of any dispute concerning whether you provided a Rejection Notice within sixty (60) days, you must provide a signed receipt confirming USA Strong received the Rejection Notice within sixty (60) days. You may opt out of the Agreement in its entirety by not using the Sites.
(h) To the extent that a dispute is not subject to arbitration under this Section 2, such dispute may be resolved through an action brought in the appropriate state or federal court located in New York City, New York; and both parties irrevocably consent to the jurisdiction and venue of such courts for the adjudication of any non-arbitrable claims and waive any objection to such courts on any basis, including without limitation inconvenience of the forum.
USA Strong’s Site is controlled and operated by us from offices in the United States of America. We make no representation that any of the content, products or services to which you have been given access are available or appropriate for use in other locations. Moreover, if you access this Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws, rules, and regulations.
The Agreement, including all of the terms and policies that make up the Agreement, constitute the entire agreement between you and USA Strong and supersede any other agreement between you and USA Strong regarding the Services. If any part of the Agreement is found to be unenforceable, that part will be limited to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect. Our failure to enforce any part of the Agreement is not a waiver of our right to later enforce that or any other part of the Agreement. Neither the course of conduct between the parties nor trade practice shall act to modify any of the Agreement.
We reserve the right, in our sole discretion, to change, add or remove portions of the Agreement, at any time, consistent with applicable law; provided that we are under no obligation to update this Site. It is your responsibility to check the Agreement and the terms and policies incorporated by reference periodically for changes. We will post a notification on this Site or otherwise provide notice to you if the Agreement materially changes. Such changes, whether in the form of modifications, additions, or deletions, shall become effective when specified in the relevant notification. If you do not agree to the changes, do not continue to use this Site after the date they become effective. Your continued use of this Site following notification of such changes means that you accept and agree to the changes.
We may assign any of our rights and obligations under the Agreement. You shall not assign any of your rights or delegate any of your obligations under the Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under the Agreement.
Nothing in the Agreement is intended or shall be construed as creating a partnership, joint venture, agency, or employer-employee relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
When you use the Site or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically. We may communicate with you by email or posting notices on the Site. You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, you must have a computer or other Internet-enabled device. In order to retain copies of any such communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. If you wish to withdraw your consent for us to communicate with you electronically, you may not use the Site.
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about the Site must be addressed to our agent for notice and sent via mail or courier to: USA Strong c/o Arnold & Porter LLP, 3 Embarcadero Center, Fl. 10, San Francisco, CA 94111. Regardless of which method is used, you must ensure that where available, a tracking service is used.
Under California Civil Code Section 1789.3, users of this Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
The address for USA Strong for notice purposes is: USA Strong c/o Arnold & Porter LLP, 3 Embarcadero Center, Fl. 10, San Francisco, CA 94111 or Holland & Knight 800 17th street NW, Washington, DC.
If you have any questions about the Agreement, please email us at email@example.com.